Medical Malpractice Motion 18 - Motion for New Trial - Part 2
The Cook County Jury Verdict Reporter shows that Mr. Helms has only tried 3 cases in the courts of Illinois, one of them being a very similar case he lost before a different judge while defending Northwestern Memorial Hospital Exhibits, p. 19. But there may be others.
33. The trial court allowed defense to cross examine Dr. Gatewood with a text Creasy and Resnick p. 869-70 but refused to allow plaintiff to use it in cross-examination. The same with Fetal Heart Rate Monitoring Drs. Freeman and Garite p.876. The trial court repeatedly interfered with the same method of cross-examination by Plaintiffs' counsel of defense witnesses.
34. The trial court erred in refusing to allow redirect of Dr. Gatewood about the cross-examination regarding total occlusion of the cord and drop of pH p. 901
35. The trial court erred in refusing to allow redirect of Dr. Gatewood about the cross-examination regarding “one percent predictive value in strips.” P. 811
36. The trial court erred in allowing Mr. Quandt to cross examine Dr. Plazas with a medical record of Hilaria Lopez he never saw and did not rely on, and allowing him to read it into the record. P. 964-969
38. The trial court erred by allowing, over objection, hospital's fact witness Yara Torres Anderson to testify as an expert witness, give expert opinions, testify as to facts and opinions not disclosed in depositions or 213's, testify as to her current training and expert and use that 6 years of subsequent training to interpret monitoring strips, and testify about interpretations she never charted or made when caring for the patient in 1999. p. 1067
39. The trial court erred by limiting closing argument to 1 1/2 hour per side in an effort to rush the case to the jury late Friday afternoon. This case took 4.5 years to prepare, and was on trial for 4 weeks. It was a very complicated case, perhaps the most complicated of injury cases, with 6 expert witnesses, and a multitude of technical information. Plaintiff had to save time for rebuttal and could not argue in 45 minutes.
40. The trial court erred by entering a directed verdict on numerous deviations from the standard of care by nurses and physician defendants, only 10 minutes before closing arguments began, limiting plaintiff's closing argument to the only deviation of standard of care that was circumstantial (application of fundal pressure), and allowing defense to argue that plaintiff failed to prove all the other deviations.
41. The trial court erred by allowing Kathryn Cavanaugh to testify as an expert witness, in violation of 735 ILCS 5/8-2501 (d). She testified that she spent 60% of her time in administration and 40% of her time as a defense expert witness.
42. The trial court erred by losing his temper and shouting at plaintiffs' attorneys within hearing of the jury numerous times, including when plaintiffs presented their motion to bar Kathryn Cavanaugh, and the court stated on the record that he didn't care and wanted the record to show the jury could hear him.
43. The trial court erred by asking plaintiffs' attorneys if he could meet privately with defense counsel “for settlement purposes”, failing to make a sealed record of what was said, never mentioning it again or disclosing to plaintiff what was said, thereby giving defense counsel an opportunity to say whatever they wanted off the record during trial and influence the court's decisions.
44. The trial court erred in making the jury laugh at numerous times, especially during plaintiffs' examination of witnesses, and telling “Seinfeld” jokes, and failing to remind the jury what the 2 rules he kept referring to were. This is a death case, and judicial levity has no place in such a trial.
THE COURT: All right. Doctor, you were here earlier when we talked about fast talkers and slow talkers.
THE WITNESS: I'm sorry.
THE COURT: And I'm assuming that, as I'd assume with every other witness, that you know about Seinfeld.
THE WITNESS: I don't know about Seinfeld.
THE COURT: All right. Well, you heard me in my philosophy of Seinfeld as giving us all guideposts to life.
All right. You are now becoming a fast talker, Doctor.
THE WITNESS: Okay. I'm sorry.
THE COURT: And we don't want fast talkers. Okay?
THE WITNESS: Okay.
THE COURT: All right.
45. The court erred in refusing to instruct defendants to answer the question, instead accusing plaintiffs' counsel of “unfairness” in front of the jury. This type of attitude from the trial court, in addition to the Seinfeld jokes and yelling at counsel, deprived plaintiffs of a fair trial: Example:
Q Did you review any records of Hilaria Lopez's from Winfield Moody on 12/25/99?
A I attempted to --
Q I'm sorry.
A -- they were closed on December 25.
Q Did you review any records of Hilaria Lopez's from Winfield Moody on Christmas Day?
A I was not able to.
Q I'm --
A I was not able to review --
Q Did you or did you --
THE COURT: Mr. Geraci, this isn't a fight.
MR. GERACI: I'm not trying to make it a fight.
THE COURT: The witness is trying - yes, you are.
The witness is trying to answer the question, and you're talking over her. So let's just show a little civility. Okay?
MR. GERACI: Would your Honor direct the witness --
THE COURT: I directed --
MR. GERACI: -- not to explain over my answer but just to say -- answer it yes or o?
THE COURT: You didn't ask me for that kind of assistance; you just started to talk over the witness' answer.
MR. GERACI: I will ask your Honor for assistance.
THE COURT: I told you not to do that before, as I've instructed witnesses not to do that to you.
MR. GERACI: Question --
THE COURT: There's only one rule that applies, treat each other as if you wanted to be treated that way.
46. The trial court erred in sustaining defendants' objection to questioning Dr. Chan about why no decision to move to c-section was made earlier, and the difference between her trial testimony and deposition testimony.
MR. GERACI: That's exactly my point, Judge, is that the defense has put on witnesses that have said one thing, and now, on Dr. Chan's direct, she's said exactly the same thing that she said in her deposition on direct, and the timing of this has all changed.
The -- this late entry that Torres did says he was there at 6:35. Dr. Chan says the first time she met him was at 6:56, four minutes to 7:00.
THE COURT: You can -- you can -- you can probe the discrepancies between what the witnesses say.
MR. GERACI: Okay. I'll --
THE COURT: That goes to credibility of the witnesses.
MR. GERACI: I'll --
THE COURT: But that's not a theory of liability --
MR. GERACI: I understand what the Court's saying --
THE COURT: -- against the Defendants.
MR. GERACI: -- and I fully accept the ruling. I disagree with it but --
THE COURT: There's already testimony in the record as to that entry from the Northwestern records; right?
MS. KOCOUR: I believe so.
MR. GERACI: Yes.
THE COURT: All right.
MR. GERACI: And it's an exhibit.
THE COURT: But in listening to these -- this witness' answer to the last two questions, it occurs that -- to me -- that she might have a different recollection of whether the anesthesiologist was there at 6:30 -- 6:35.
Now, maybe she won't. Maybe she won't but that is a -- that is -- that is a factual portion of the case -- My ruling is simple.
MR. GERACI: Sure.
THE COURT: The question is objectionable; the objection will be sustained; the jury is to be -- is going to be instructed to disregard the question.
Despite the Court stating that he would allow the following question, the Court erred in sustaining it:
Q Did the anesthesiologist show up at the right-right about the time you made the decision to move to the OR at about 1856?
MR. HELMS: Objection to relevance.
THE COURT: That question will be - that objection will be sustained.
47. The trial court erred by refusing to consider admissions of defendant Chan as evidence of deviation from the standard of care.
Nothing she says here is going to be -- serve as the basis -- short of an admission of liability, which you haven't been able to get out of her yet -- short of that, nothing is going to serve as the basis for a verdict against any of these Defendants.
a. One of the deviations that the trial court erred in granting defendants' motion for directed verdict was failure to administer terbutaline.
And you knew at that time, did you, that cutting off blood flow causes hypoxia and ischemia?
A It always causes hypoxia but not always ischemia.
Q Hypoxia, yes; ischemia, not always; correct?
Q Did you at that time have any thought that instead of pushing and contracting the uterus, you should have been taking actions to relax the uterus?
Q Was it within your medical knowledge at that time, as a third-year resident, that terbutaline, the drug terbutaline, relaxes the uterus?
Q You never suggested a shot of terbutaline to Dr. Socol to relax the uterus; correct?
A That wasn't necessary.
Q You didn't suggest terbutaline --
A No, I did not.
Q No one else did?
A I don't believe so.
Q Dr. Socol didn't mention terbutaline?
A I don't believe so.
Q And neither of the nurses or Dr. Kansal ever mentioned terbutaline to relax the uterus?
b. Another was delay in c-section. Jennifer Chan admitted that she, the nurses and Dr. Socol made no decision to move to a c-section until 6:56 pm.
This baby could not have been delivered vaginally unless it went past zero station; correct?
Q And the only way to deliver Giselle at the time she was at zero station, which was all the time, was by C section; correct?
A If she remained there forever --
A -- but she did not --
Q But she did remain there forever; correct? Until delivery?
A -- because we intervened.
Q At the time you intervened, you found her body floating in the abdomen; correct?
A It was free from the uterine cavity, correct.
Q Could you have moved to the OR -- did you choose to wait to move to the OR because you wanted to deliver vaginally?
A We thought she was going to deliver vaginally.
Q It was your decision to have her deliver -- deliver vaginally; correct?
A The attending and mine.
Q Both of you decided that you were not going to move to the OR?
A Not unless indicated.
c. Chan also admitted she caused cord compression by turning up the Pitocin instead of turning it down, another deviation from the standard of care the court directed out.
And you knew the purpose of turning up the Pitocin was to increase the strength and frequency of the contractions; correct?
Q You knew that increasing the contractions of the uterus would cause cord compression; correct?
A Not necessarily.
Q Did it cause cord compression?
Q Isn't it a fact that every contraction in a woman in this stage of labor at the time we're talking about here, 1745 hours, that's when the uterus contracts, the fetal blood flow decreases, the heart rate drops and goes back up?
Q And that increasing the Pitocin increased the contractions; correct?
d. Admission on timing of rupture of uterus by Dr. Chan
Q Line 17, “Do you know, from your experience with her and the medical records, when the uterus ruptured ?”
Answer, “Do I know when it ruptured?”
“I can guess that it probably ruptured within 15, 20 minutes before we moved to the back for delivery.”
A Right. I can guess. I can't say with certainty.
Q Next page, Question, “At what time?” Answer, “Approximately 1842 is going back, but maybe that's what happened.”
But that's a guess on your part?
A Yes, it's a guess.
e. Dr. Chan again admitted on questioning by Mr. Helms that she failed to consider a c-section:
Would you agree that in the presence of severe -- I'm sorry -- repetitive severe variable decelerations, it is appropriate to take measures to deliver -- either resuscitate to get rid of
Redirect Examination by mr. Helms these decelerations or to deliver?
A Yes, that would be appropriate.
Q Were you doing that at all times between 6:07 and the delivery around 7:00?
A Doing resuscitative measures?
Q Doing both of those things, attempting to deliver and doing the known resuscitation measures.
A Yes, we were.
Further Redirect Examination by Mr. Helms
And my question is, you agree that this baby needed everything known for resuscitation between 6:00 and seven o'clock, didn't she?
A For resuscitative maneuvers?
48. The trial court erred by permitting leading questions by Mr. Helms and Mr. Quandt on direct and re-direct over repeated and standing objections, in violation of basic trial procedure and the motion in limine against it. See preceding paragraph for an example. It became evident that both defense counsel intended to keep doing it and that further objections were absolutely useless, due to the refusal of the trial court to sustain these objections, and the trial court's obvious irritation with objections of plaintiffs' counsel.
49. The trial court erred in sustaining defendant's objection to question of Dr. Chan asking for an admission on the time of deviations:
Q Do you agree that this case, if you narrow it down even more, centers around what you, Dr. Socol, and these two nurses did with this patient after 6:07?
A That the --
MR. HELMS: Your Honor, objection to relevance. Doesn't reflect --
THE COURT: Sustained. Sustained.
50. The trial court erred in allowing defense attorneys to question and argue that “only one doctor” stated there was negligence. There is no “number of experts” rule in Illinois, and only 1 expert per specialty is permitted. Number of witnesses on a side is irrelevant and prejudicial, yet the experienced defense attorneys repeatedly made this impermissible argument.
52. The court erred by permitting defense counsel to lead their own witnesses in violation of the motion in limine against it:
Redirect Examination by Mr. Helms
Q When you were asked about telling or instructing Miss Lopez to push, some of the questions sounded like -- may have sounded like you tell somebody to push constantly.
How often do you tell a patient to push when she's in the second stage of labor, which we've defined as when you reach complete or nearly complete until the delivery?
How -- when and how often do you ask them to push?
The whole re-direct of many defense witnesses took the same form. “Experienced” defense counsel would only do this if they expected the court to permit it. The trial court erred by permitting it, sustaining previous objections to it, making it clear the court was ignoring the motion in limine and that repeated objections would be overruled.
Q Which may be due to cord compression; is that correct?
Q I believe Mr. Geraci asked you, even in the presence of those variable decelerations -- some 67 that he's counted -- you and Dr. Socol, nonetheless, in the labor and delivery room asked this woman to push, to deliver vaginally; isn't that correct?
Q Isn't that what's commonly done?
Q Okay. It was commonly done back then; it's commonly done today, isn't it?
Q Isn't that the way you have to achieve a vaginal delivery, is to have the patient push even in the presence of variable decelerations?
Q Now, Mr. Geraci pointed to your deposition and asked you a question about when you believe that the uterine rupture occurred in this case; is that correct?
Q Now, that was based, in all fairness to
And again and again the Court fails to enforce its order in limine
BY MR. QUANDT:
Q Dr. Graham, when you say “they,” would it also be your opinion that Dr. Socol complied with the standard of care of a reasonable and qualified obstetrical attending?
A Yes, sir.
Q And you indicated that there are -- there are indications for doing a Cesarean section.
What do you mean by the term “indication”? What indications occur? What is meant by that?
A I mean, we don't want to do just a C section for -- we want to have a specific reason. A C section's a surgery, and you have to have an indication to do a surgery.
Q In other words, for a patient such as Hilaria Lopez going in, the plan of management the morning of was to try to achieve a vaginal delivery; is that correct?
A That's correct.
Q And that should have been the reasonable expectation based upon the fact of the three prior deliveries that she had in Mexico; is that correct?
A That's correct.
Q Now, Doctor, is it correct that one of the things that a doctor has to weigh in his mind, in considering whether or not to move into a Cesarean section, are the potential risks to the mother? Is that correct?
A That's correct.
Mr. Quandt was encourage by the trial court's confidence that it was “sure that would be the last time” he asked leading on redirect.
Otherwise, you can just do them all the time; correct?
A At least --
MR. GERACI: Judge --
MR. QUANDT: I'll withdraw the question.
THE COURT: Let's stay away from the leading questions.
MR. QUANDT: Okay.
BY MR. QUANDT:
Q Doctor, is it correct that when an obstetrician is dealing with a pregnant mother, that he really is dealing with two patients?
MR. GERACI: Object; leading again.
THE COURT: All right. That's one there. I'm sure that's the last thing -
MR. QUANDT: That's preliminary.
BY MR. QUANDT:
Q Are they dealing with two patients?
THE COURT: You can answer.
And showing Mr. Quandt knew exactly what he was doing:
Q Truth of the matter is Mother Nature doesn't really take a time-out or day off on Christmas Day, does she?
MR. GERACI: Objection.
THE COURT: Sustained.
MR. QUANDT: I'll withdraw that. Thank you.
So this interpretation that you're giving us today is the same interpretation that you and
Dr. Chan --
MR. GERACI: I'll object --
THE COURT: Excuse me?
MR. QUANDT: Strike that.
MR. GERACI: Sorry, your Honor, to interrupt his question but it's leading.
53. The trial court erred in permitting redirect beyond the scope of the cross.
If a baby is seriously acidotic or hypoxic, if its blood pH is down below -- well below that 7.20 line that you told us about before, is that fetus likely to be able to return to a heart rate of 140 to 50 between variable decelerations?
MR. GERACI: Object; beyond the scope.
THE COURT: Overruled.
The trial court readily sustained defense's same objection:
And the decision to do a C section wasn't made until...
MR. HELMS: Your Honor, this now exceeds the scope --
THE COURT: Yeah, this is way beyond anything that's gone on before. That's sustained.
54. The trial court erred in sustaining defense objections to cross examination of their expert Ernest Graham regarding risk factors for uterine rupture including hyperstimulation. The trial court also erred in instructing the jury at this time that Hyperstimulation of the uterus was not an issue in the case. Hyperstimulation was admitted by Jennifer Chan at 1812, which is why she cut off the pitocin:
Q This is a normal pattern; correct?
A I'm sorry?
Q You thought labor was progressing normally?
And three minutes -- three minutes after you conducted this examination, at 6:09, you saw hyperstimulation on the fetal monitoring strip; correct?
A Between 1810 and 1820.
Yet the trial court sustained defense objection to cross on that issue of defense expert:
Now, isn't it also true that risk factor for uterine rupture includes hyperstimulation of the uterus?
MR. QUANDT: Objection, your Honor --
MR. HELMS: Objection.
MR. QUANDT: -- foundation.
THE COURT: Sustained.
THE COURT: All right. The jury's instructed to disregard the last question -- it's stricken from the record -- and it's further instructed that the issue of hyperstimulation is not an issue you are going to consider when you are deciding this case. Okay.
55. The trial court erred by telling the jury they would be done on Friday and then rushing the cross examination of Dr. Socol and limiting the closing arguments, sending the jury out late on Friday afternoon after recessing the trial for several whole days in the middle of evidence for religious holidays. The trial court should have not set a schedule when the defense delayed the trial, then had no witnesses ready at 2:00 pm. on 10/19, or expected to stick to it and reducing the time for closing arguments because of it.
(Whereupon, a recess was had at 2:03 p.m., after which the trial was resumed at 2:10 p.m. as follows, within the presence and hearing of the jury:)
We have a full day tomorrow. We're still on track to get done within the time frame that I said.
I know some of you are saying, “No, that jerk; he told us we were going to be done, and we're not going to be done; this is taking way too long,” but we're still there. Don't -- stay with us. Okay?
56. The trial court erred in sustaining defense objection to the salary of its expert witness Katherine Cavanaugh. She testified that 40% of her income is derived from defense expert testimony. What that figure is goes to bias of the witness.
Q Okay. And you derive about 40 percent of your income from expert testimony?
A The last year I did, yes.
And just give us an average of your Little Company salary, not to pry.
MS. KOCOUR: Your Honor, objection.
THE COURT: Sustained.
55. The trial court erred in interrupting plaintiff's cross-examination of defense expert Sarah Kilpatrick on what texts she considered authoritative.
THE COURT: Okay. This is a first for me.
I have never seen this tried this way. I don't know that it can't be, but it's the first time I've ever seen it.
The witness has been asked to go through how many books?
Because it's not clear.
MR. GERACI: There's about --
MR. QUANDT: Before they all have exhibits, can we have the exhibits identified in the record?
THE COURT: Let's just get the numbers here.
MR. QUANDT: I agree.
THE COURT: I mean, I just want to get the number of books that this --
MR. GERACI: I think there's 19.
THE COURT: All right. You've shown -- did you put 19 up in front of the witness?
MR. GERACI: Yes.
THE COURT: All right. You want the witness to go through 19 books, read them, and then make a decision as to whether or not they're authoritative?
THE COURT: -- I have never seen this done this way.
MR. GERACI: Well --
THE COURT: You've just tendered books to a witness and said, “Look through these books and tell me whether they're authoritative, in your view.”
MR. GERACI: Yes.
MR. GERACI: I know, Judge. I just don't want to be brought back here during every one of my cross-examinations, which is what has been happening.
Admitted, the trial court was unfamiliar with cross-examination of expert on learned treatises, but there was no reason to make it appear to the jury that plaintiff counsel was doing something wrong, and then interfere with the cross-examination.
57. The trial court erred in sustaining defense objection to the following question which was proper cross at R. 1838
not certain that the pushing itself is impinging blood flow to the baby.
Q Is it true that it was the duty of the physicians in this case, once they saw a certain amount of problems with the strip, to stop pushing?
MR. QUANDT: Objection as to the form; “problems with the strip,” your Honor.
THE COURT: Sustained.
This witness testified, as did all defense witnesses and defendants, that the strip was concerning because of variable decelerations and pitocin administration.
58. The trial court erred by granting defendant Socol motion prohibiting asking Dr. Socol about the time of the uterine rupture.
I had a motion in limine with regard to Mr. Geraci asking Dr. Socol about possibilities in terms of the timing of the
THE COURT: I doubt that is true. Whatever.
Any opinion questions have to be phrased with the use of the word “probability” and not “possibility.”
MR. GERACI: I'm not asking him opinion questions.
I'm asking him as a fact witness, as a defendant, if he thinks there is a -- he says probably within a half hour. If you think it is possible within the realm of medical possibility.
He explains why because he says then -- he goes on. There's two more questions. 1807 is where I think the thing started. I can't be sure. Probably within 1936 1 a half hour, but it could go back to 1807. 1807 is where this change in the pattern is. That's all he says.
Am I putting him on as my witness? No, but he has identified that a rupture can start earlier possibly, possibly.