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Foley v. Fletcher9/19/2005
This is an appeal from a jury's general verdict in a medical malpractice action in favor of plaintiffs, Daniel and Kathryn Foley (Mr. and Mrs. Foley) and their seven-year-old daughter Hannah, and against defendants, Peggy Fletcher, M.D. (Dr. Fletcher), and Primary Healthcare Associates, S.C. The jury's verdict in favor of defendant Ingalls Health Ventures is not at issue.
Defendants allege that the trial court erred in: (1) allowing plaintiffs to present undisclosed expert testimony in violation of Supreme Court Rule 213 (Official Reports Advance Sheet No. 8 (April 17, 2002), R. 213, eff. July 1, 2002)); (2) failing to inform the jury that Dr. Fletcher had multiple sclerosis (MS) and related cognitive deficits; (3) barring a videotape from being shown during voir dire, depicting a "day-in-the-life" of Hannah, who has cerebral palsy; and (4) enabling the jury to reach a $1 million verdict for an "increased risk of future injury." We affirm the general verdict but vacate the award of $1 million for Hannah's increased risk of future injury.
Hannah was born on March 17, 1998. Plaintiffs filed their complaint in 1999, alleging defendants were negligent in attempting a vaginal birth after caesarian section (VBAC). Plaintiffs claimed defendants knew that Mrs. Foley had two earlier caesarian deliveries, had been advised against future VBAC attempts, and that a VBAC attempt would create substantially increased and avoidable risks to Mrs. Foley and her fetus. Plaintiffs alleged defendants were negligent in allowing induced labor to continue without significant progression despite Mrs. Foley's medical history. Plaintiffs alleged Dr. Fletcher, who was Mrs. Foley's physician, knew or should have known that extended labor was likely to injure Mrs. Foley or her fetus or both.
At a pretrial hearing, defense counsel asked the trial court to find Dr. Fletcher incompetent to testify due to physical and cognitive complications from MS. At an evidentiary hearing, Dr. Fletcher's physician said Dr. Fletcher was diagnosed with a progressive form of MS in February 2001. Other physicians and Dr. Fletcher's sister also testified to Dr. Fletcher's condition. The trial court declined to find Dr. Fletcher incompetent to testify, citing Clark v. Otis Elevator Co., 274 Ill. App. 3d 253, 257, 653 N.E.2d 771 (1995) (a person is presumed competent to testify unless the party opposing her testimony proves her incompetent). Defense counsel objected, but the parties later agreed that Dr. Fletcher's testimony would be read to the jury from a written evidence deposition. Defendants moved to show during voir dire a videotape of Hannah to ascertain whether prospective jurors had bias, prejudice or partiality in favor of a child with cerebral palsy. The trial court denied the motion.
Plaintiffs filed pretrial disclosures on their lay and expert witnesses in compliance with Supreme Court Rule 213 (Official Reports Advance Sheet No. 8 (April 17, 2002), R. 213, eff. July 1, 2002). Plaintiffs named Jeffrey L. Wener, M.D., as a "controlled expert witness." See Rule 213(f)(3) (Official Reports Advance Sheet No. 8 (April 17, 2002), R. 213(f)(3), eff. July 1, 2002) (the party presenting the controlled expert witness must identify, among other things, the conclusions and opinions to which the expert will testify). The disclosures listed nine specific opinions of Dr. Wener, the second of which was:
"2. It was a deviation from accepted standards of care for Dr. * Fletcher to fail to document in prenatal records warnings she allegedly gave of the risk of VBAC delivery to Kathryn Foley. The absence of warnings in the prenatal office records or pre-birth hospital records require the conclusion that
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