Florez v. Northshore Univ. Healthsystem

2020 IL App (1st) 190465

166 N.E.3d 208

445 Ill.Dec. 179

Julien FLOREZ, a Minor, by His Parents and Next of Friends, Aimee Florez and David Florez, Plaintiff-Appellee,

v.NORTHSHORE UNIVERSITY HEALTHSYSTEM, d/b/a Evanston Hospital; Armin Michael Drachler, M.D.; Northshore Physicians Group, LLC, d/b/a Northshore Medical Group; Eliza Meade, M.D.; Jennifer Lesko, M.D.; and Lisa Wegrzyn, R.N., Defendants-Appellants.

No. 1-19-0465

Appellate Court of Illinois, First District, Sixth Division.

August 21, 2020

J. Timothy Eaton and Jonathan B. Amarilio, of Taft Stettinius & Hollister LLP, of Chicago, for appellants.

Patrick A. Salvi, II, Matthew L. Williams, Brian L. Salvi and Heidi L. Wickstrom, of Salvi, Schostok & Pritchard P.C., of Chicago, for appellee. Robert G. Black, of Law Office of Robert G. Black, P.C., of Naperville, IL, for appellee.

JUSTICE HARRIS delivered the judgment of the court, with opinion.

¶ 1 Defendants Northshore University Healthsystem, d/b/a Evanston Hospital; Armin Michael Drachler, M.D.; Northshore Physicians Group, LLC, d/b/a Northshore Medical Group; Eliza Meade, M.D.; Jennifer Lesko, M.D.; and Lisa Wegrzyn, R.N. (collectively "defendants") appeal the judgment of $50.3 million entered in favor of plaintiff after a jury trial. On appeal, defendants contend (1) the trial court erred in striking defendants' supplemental disclosures of their previously disclosed expert witnesses, where the disclosures were made in response to plaintiff's supplemental filing, (2) the trial court abused its discretion in excluding all evidence of Julien Florez's autism diagnosis, and (3) opposing counsel's remarks during closing argument for the jury to "make a statement" concerning the preciousness of children's lives constituted reversible error. For the following reasons, we reverse and remand for a new trial.

¶ 2 I. JURISDICTION

¶ 3 On October 9, 2018, after a jury trial, the trial court entered judgment on the verdict in favor of plaintiff. Defendants filed a motion for a new trial, which the trial court denied on February 7, 2019. Defendants filed their notice of appeal on March 6, 2019. Accordingly, this court has jurisdiction pursuant to Illinois Supreme Court Rule 301 (eff. Feb. 1, 1994) and Rule 303 (eff. July 1, 2017), governing appeals from final judgments entered below.

¶ 4 II. BACKGROUND

¶ 5 A. Pretrial

¶ 6 Plaintiff filed a complaint against defendants, alleging medical negligence regarding the birth of Julien on March 22, 2009. Defendants responded, and discovery commenced with an original trial date of May 15, 2018. On March 16, 2018, 59 days before trial, plaintiff sought to disclose a new witness, Dr. Allecia Wilson, and to supplement disclosures provided by various expert witnesses. The trial court granted plaintiff's request over defendants' objection.

¶ 7 On May 10, 2018, defendants received Julien's medical records from treatment in Michigan spanning a period of six months. Defendants moved to continue the trial date, but the court denied the motion. The case was assigned to another judge for trial, but that judge had a scheduling conflict. She informed the parties that she could either continue the trial or return it for reassignment to another judge. She indicated that if she retained the case, she would allow defendants to take limited discovery of the newly disclosed medical records. Defendants chose to have the case reassigned, and the trial date was moved to September 18, 2018.

¶ 8 On July 25, 2018, 56 days before trial, plaintiff supplemented his answers to written discovery with "a copy of the June 25, 2018 Psychological Evaluation for Julien Florez from the Center for Neuropsychology and Behavioral Health." The evaluation was conducted by Dr. Crystal Young, one of Julien's treaters in Michigan. Dr. Young's report stated that Julien was referred to her for a cognitive assessment and "evaluation of possible Autism Spectrum Disorder (ASD)." Dr. Young performed five tests: Wechsler Intelligence Scale for Children, Peabody Picture Vocabulary Test, Autism Diagnostic Observation Schedule, Developmental Disability—Children's Global Assessment Scale, and Vineland Adaptive Behavior Scales. She also conducted a clinical interview and reviewed records.

¶ 9 Dr. Young concluded that the "[t]est results are suggestive of Moderate Intellectual Disability" and most individuals in this category "will not exceed an early elementary level of acquired academic skill development." She noted that "Mrs. Florez'[s] description of Julien's current ability to recognize some printed words, add, and count to 100, also appears broadly consistent with these expectations." She further concluded that "[f]rom a social and emotional perspective, Julien meets full diagnostic criteria for Autism Spectrum Disorder." She stated in her report that ASD "is a childhood developmental disorder characterized by severe and pervasive impairment in reciprocal social interaction skills and communication as well as the presence of restricted repetitive and/or stereotyped patterns of behavior, interests, and activities."

¶ 10 Defendants forwarded the report to their experts and filed their supplemental disclosures on August 9, 2018. Defendants' experts opined that Julien's autism diagnosis supported the conclusion that his disabilities resulted from a chronic condition rather than an acute injury occurring at birth. Defendants also sought to supplement its answers to disclose Dr. Young as a witness. Plaintiff moved to strike the supplemental disclosures, arguing that defendants were "trying to inject this new issue into the case." They also argued that the disclosures were untimely, since they were filed less than 60 days before trial.

¶ 11 The motion judge agreed with plaintiff, finding that Illinois Supreme Court Rule 218(c) (eff. July 1, 2014) requires all discovery to be completed no later than 60 days before trial. On the day of trial, defendants moved to continue the trial to conduct additional discovery, and to reinstate the supplemental disclosures stricken by the motion judge. The trial court denied the motions. The court stated that it "checked the dates" and "didn't hear anybody say something that raised a red flag to me misrepresenting the dates."

¶ 12 Plaintiff subsequently filed motion in limine No. 19 "barring any reference to autism" at trial. Plaintiff's motion stated that the record contained references to "a possibility of autism," and "[t]he term autism has also come up during the depositions of some treating physicians and experts." Plaintiff alleged that no witness would testify for either party that Julien is autistic. Furthermore, "[n]one of plaintiffs' or defendants' experts have offered an opinion—neither in a discovery deposition nor Rule 213 disclosure—diagnosing Julien Florez with autism." See Ill. S. Ct. R. 213 (eff. Jan. 1, 2018). Plaintiff alleged that "autism implies a genetic component to the brain dysfunction," and no expert testified that Julien has a genetic condition that led to his brain injury. Therefore, autism is irrelevant to the issues at trial and mentioning autism would only serve to confuse the jury. The trial court granted plaintiff's motion in limine .

¶ 13 B. Trial

¶ 14 Testimony at trial established that Aimee was admitted to Evanston Hospital on March 22, 2009, five days past her due date. All tests and ultrasounds performed prior to her admission registered normal. Dr. Jennifer Lesko examined Aimee at 12:24 p.m.; as part of the exam, she observed the fetal heart rate as indicated by the fetal monitor. Dr. Lesko explained that the fetal heart rate will accelerate and decelerate. Although accelerations are generally reassuring, there are two types of decelerations worth noting: variable decelerations, in which the drop in heart rate lasts less than 30 seconds and has no temporal relationship to uterine contractions, and prolonged decelerations, where the baby's heart rate drops for more than two minutes before returning to baseline. The fetal heart rate is also monitored for fluctuation or variability. Moderate variability, defined as the fluctuation of the heart rate of more than 6 but less than 25 beats per minute, is a reassuring sign for fetal health. Conversely, where variability is minimal or absent, this may indicate a lack of oxygen to the baby.

¶ 15 At around 2:40 p.m., they broke Aimee's "bag of waters to help with getting contractions to be a little bit more frequent." Dr. Lesko stated that "the abrupt release of water * * * can sometimes cause the baby to have a deceleration." At 2:45 p.m., the monitor showed the baby experienced a prolonged deceleration. Dr. Lesko testified that the deceleration was consistent with the breaking of the bag of waters. At 3:45 p.m., Aimee was given an epidural. Dr. Lesko agreed that the prolonged deceleration noted at this time was "consistent with when her epidural was being placed." During her attendance of Aimee, Dr. Lesko noted variable decelerations in the baby's heart rate but it always returned to baseline. She assessed the decelerations as moderate.

¶ 16 Around 5:30 p.m., Aimee had not made significant progress in labor, and Dr. Lesko considered administering Pitocin. Pitocin increases the strength and frequency of contractions to achieve vaginal delivery. In her notes, Dr. Lesko wrote that she did not start Aimee on Pitocin because "given [her] remoteness from delivery and frequency of prolonged decels, [she] may not make it to have the normal spontaneous vaginal delivery. Patient aware that she may require a C-section." Dr. Lesko testified that although she did not recommend using Pitocin at the time, she wrote that she "would consider it." Around this time, she communicated with Dr. Drachler, who was taking over Aimee's care. In her notes, she wrote that he was "aware and in house."

¶ 17 Dr. Drachler ordered that Pitocin be administered "slowly" in order to augment Aimee's labor. Nurse Wegrzyn testified that at 5:32 p.m., she began administering...