Iaccino v. Anderson

FIRST DIVISION
December 20, 2010

No. 1-07-0207

JONATHON IACCINO, a Minor, by His ) Appeal from the
Parents and Next Friends, JOHN IACCINO ) Circuit Court of
and ELISA IACCINO, and JOHN IACCINO ) Cook County, Law
and ELISA IACCINO, Individually, ) Division.
)
Plaintiffs-Appellants, )
)
v. ) No. 00 L 42329
)
LORI L. ANDERSON, LINDA )
R. GIBSON, and WOMANCARE, P.C., )
a Corporation, ) Honorable
) Daniel M. Locallo,
Defendants-Appellees. ) Judge Presiding.

PRESIDING JUSTICE HALL delivered the opinion of the court:

This case concerns an action for medical malpractice brought

by plaintiffs John Iaccino and Elisa Iaccino, individually and as

parents and next friends of the minor plaintiff, Jonathon

Iaccino, against defendants Dr. Lori L. Anderson, Dr. Linda R.

Gibson, Womancare, P.C. (Womancare), and Northwest Community

Hospital1 for injuries Jonathon sustained during labor as a

result of oxygen deprivation (hypoxia).

Plaintiffs maintained that Dr. Anderson negligently

administered the drug Pitocin to Mrs. Iaccino during labor,

causing hyperstimulation of her uterus (tachysystole) resulting

1
The hospital settled prior to the first trial and is not

a party to this appeal. The first trial ended in a mistrial.
No. 1-07-0207

in Jonathon being deprived of oxygen.2 Plaintiffs contend Dr.

Anderson deviated from the applicable standard of care by

negligently monitoring Jonathon's fetal heart rate,3 and as a

2
Pitocin is a synthetic version of the hormone oxytocin,

which is used to induce labor by stimulating uterine

contractions. See Northern Trust Co. v. Burandt & Armbrust, LLP,

403 Ill. App. 3d 260, 264, 933 N.E.2d 432 (2010); see also

Velazquez v. Portadin, 163 N.J. 677, 681, 751 A.2d 102, 105

(2000) ("Pitocin is a medication used to increase the intensity

and frequency of uterine contractions in women whose contractions

are insufficient to deliver the baby. If Pitocin causes the

contractions to occur too frequently or last too long, the baby

may be harmed because blood flow to the baby slows during

contractions. That condition is called hyperstimulation of the

uterus. When the uterus is hyperstimulated, the interval between

contractions is shortened and there is not enough time for the

baby to catch up on its oxygen needs before the start of another

contraction").

At trial, hyperstimulation of the uterus was defined as "a

persistent pattern of more than five contractions in ten minutes,

contractions lasting more than two minutes, or contractions of

normal duration occurring within one minute of each other."
3
Expert testimony established that during labor one of the

ways babies compensate for a lack of oxygen is to speed up their

heart rates.

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No. 1-07-0207

result, failed to timely discontinue the use of Pitocin,

resulting in Jonathon's brain being deprived of oxygen during

labor and delivery.

Plaintiffs further claim that Dr. Anderson was negligent in

failing to recognize uterine hyperstimulation, failing to

recognize evidence of fetal intolerance to labor as allegedly

reflected on the external electronic fetal monitor (EFM)4 strip,

failing to recognize cephalopelvic disproportion (CPD),5 failing

to recognize arrest of descent into the birth canal, and failing

to recommend a cesarean section.

4
An electronic fetal monitor is a machine that produces a

printout or fetal monitoring strip to "continually assess the

fetal heart rate and the relationship of the fetal heart rate to

maternal contractions, and are continually analyzed to determine

whether there is fetal distress or stress upon the fetus caused

by a lack of oxygen to the fetus." Baglio v. St. John's Queens

Hospital, 303 A.D.2d 341, 342, 755 N.Y.S.2d 427, 428 (2003). An

external fetal monitor is essentially an ultrasound transmitter

affixed to the woman's abdomen that monitors the baby's heart

rate.
5
"Cephalopelvic disproportion," or CPD, is a " 'condition

in which the head of the fetus is abnormally large in relation to

the size of the mother's pelvis.' " Mendez v. United States, 732

F. Supp. 414, 426 n.15 (S.D.N.Y. 1990), quoting 1 J. Schmidt,

Attorney's Dictionary of Medicine and Word Finder C-99 (1986).

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No. 1-07-0207

Plaintiffs contend Dr. Gibson was negligent in failing to

identify and respond to fetal intolerance to labor; failing to

maintain good quality electronic fetal monitoring; performing an

inadequate initial examination at 7:56 a.m.; improperly

disconnecting the internal fetal electrode while waiting for the

arrival of a surgical assistant to assist in performing the

cesarean section; and failing to perform a timely cesarean

section.

Defendants' theory of the case was that the proximate cause

of Jonathon's injury was an infection in the placenta that

traveled to the fetal brain, causing brain damage before any

alleged malpractice by defendants. The jury returned a general

verdict in favor of defendants and against plaintiffs.

Plaintiffs now appeal and seek a new trial.

For the reasons that follow, we affirm. Additional facts

are set forth as each issue is addressed.

ANALYSIS

Plaintiffs contend the trial court erred by allowing
defendants to cross-examine and impeach plaintiffs' expert

witness, Dr. Gary Blake, with a written medical report the doctor

prepared as part of plaintiffs' compliance with the pleading

requirements of section 2-622(a)(1) of the Illinois Code of Civil

Procedure (Code) (735 ILCS 5/2-622(a)(1) (West 2004)). Although

this was the third issue raised in plaintiffs' appellate brief,

we address it first because it involves a matter of first

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impression before this court.

In 1985, the Illinois legislature enacted section 2-622 of

the Code in an effort to curtail frivolous medical malpractice

lawsuits and to eliminate such actions at the pleading stage

before the expenses of litigation mounted. DeLuna v. St.

Elizabeth's Hospital, 147 Ill. 2d 57, 65, 588 N.E.2d 1139 (1992);

B. Elward, The 1985 Illinois Medical Malpractice Reform Act: An

Overview and Analysis, 14 S. Ill. U. L.J. 27, 28 (1989).

Section 2-622(a)(1) requires the plaintiff (if proceeding

pro se) or his attorney to file an affidavit of merit with the

complaint stating that the affiant has consulted and reviewed the

facts of the case with a health care professional who, in a

written medical report -- after a review of the medical records

and other relevant material -- has determined that there is a

"reasonable and meritorious" cause for filing the action. 735

ILCS 5/2-622(a)(1) (West 2004). A copy of the medical report

must be attached to the affidavit and the report must clearly

identify the "plaintiff and the reasons for the reviewing health
professional's determination that a reasonable and meritorious

cause for the filing of the action exists." 735 ILCS 5/2-

622(a)(1) (West 2004); Moyer v. Southern Illinois Hospital

Service Corp., 327 Ill. App. 3d 889, 902, 764 N.E.2d 155 (2002).

In the instant case, the trial court permitted defense

counsel to impeach Dr. Blake with alleged inconsistencies between

some of the opinions contained in the doctor's written medical

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No. 1-07-0207

report and his trial testimony. The question on review is,

assuming a proper foundation had been laid, whether the trial

court erred in allowing the doctor's written medical report to be

used as a prior inconsistent statement for impeachment purposes.

In a medical malpractice action, the plaintiff must

establish the standards of care against which the physician's

conduct is measured by the use of expert testimony. Kotvan v.

Kirk, 321 Ill. App. 3d 733, 741, 747 N.E.2d 1045 (2001). The

value of expert testimony depends upon the facts and reasons

which form the basis of the expert's opinion. In re Custody of

Brunken, 139 Ill. App. 3d 232, 239-40, 487 N.E.2d 397 (1985).

"The general rule is that an expert's testimony is to be

judged by the rules of weight and credibility applied to all

other witnesses." Hegener v. Board of Education, 208 Ill. App. 3d

701, 734, 567 N.E.2d 566 (1991). An appropriate method of

testing the credibility of a witness is to show that on a prior

occasion the witness made statements inconsistent with his or her

trial testimony. Sommese v. Mailing Brothers, Inc., 36 Ill. 2d
263, 268-69, 222 N.E.2d 468 (1966).

In order to be used for impeachment, a witness's prior

statement must be materially inconsistent with his trial

testimony. Thompson v. Abbott Laboratories, 193 Ill. App. 3d 188,

205, 549 N.E.2d 1295 (1990). Moreover, before a statement may be

admitted as a prior inconsistent statement, a proper foundation

must be laid. Central Steel & Wire Co. v. Coating Research Corp.,

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No. 1-07-0207

53 Ill. App. 3d 943, 946, 369 N.E.2d 140 (1977).

The foundation is laid by directing the witness's attention

to the time, place and circumstances of the statement and its

substance, or in the case of a written instrument, by identifying

the signature. Boyce v. Risch, 276 Ill. App. 3d 274, 278, 657

N.E.2d 1145 (1995); Vancil v. Fletcher, 90 Ill. App. 2d 277, 283,

232 N.E.2d 789 (1967). The purpose of the foundation is to alert

the witness to the prior inconsistent statement in order to avoid

unfair surprise and to provide the witness with an opportunity to

deny, correct, or explain the statement. Boyce, 276 Ill. App. 3d

at 278. A trial court's decision to permit a prior statement to

be used for impeachment purposes will not be disturbed absent a

clear abuse of discretion. Van Steemburg v. General Aviation,

Inc., 243 Ill. App. 3d 299, 329, 611 N.E.2d 1144 (1993).

In this case, the trial court properly ruled in allowing

defense counsel to cross-examine and impeach Dr. Blake using

excerpts from his written medical report. In his written medical

report, Dr. Blake interpreted the decelerations that he saw on
the fetal monitor strip as "variable decelerations." At trial,

Dr. Blake changed his opinion and testified on direct examination

that he interpreted the decelerations as either "late

decelerations," or "variable decelerations with a late

component."

A proper foundation was laid for impeachment using Dr.

Blake's written medical report as a prior inconsistent statement

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No. 1-07-0207

during cross-examination when the doctor changed his opinion once

more and testified that he interpreted the decelerations simply

as "late decelerations." Defense counsel impeached Dr. Blake

with the inconsistencies in the doctor's written medical report

and his trial testimony as it related to the doctor's

interpretation of the fetal heart decelerations on the fetal

monitor strip.

Plaintiffs argue that allowing an expert to be impeached

with his written medical report would unfairly handicap the

expert because the report is only a threshold opinion usually

prepared at a point before all of the facts are fully developed

in discovery. We must disagree.

Section 2-622 does not prescribe the form that a written

medical report must take and there is nothing in the statute that

prevents the author of such a report from qualifying his opinions

to make clear that they are preliminary opinions subject to

amendment or supplementation upon the acquisition of additional

information such as additional medical records or deposition
testimony. Therefore, allowing an expert doctor to be impeached

with his written medical report would not be unfair since the

doctor could explain that his report was prepared during the

early stages of discovery or he could attempt to explain any

inconsistencies between his report and his trial testimony. See

Cohen v. Dauphinee, 739 So. 2d 68, 77 (Fla. 1999) (Anstead, J.,

dissenting) (interpreting similar statute); see also Barnett v.

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No. 1-07-0207

Hidalgo, 478 Mich. 151, 164, 732 N.W.2d 472, 480 (2007).

It would then be up to the jury to assess those explanations

in evaluating the credibility of the doctor's testimony. In some

cases, the jury may conclude that the doctor sufficiently

explained why his opinion had changed. In other cases, the jury

may conclude that a particular explanation was not credible. But

these are evaluations the jury should be entitled to make based

on all of the relevant and competent evidence. Cohen, 739 So. 2d

at 77 (Anstead, J., dissenting).

Allowing an expert to be cross-examined and impeached with

his written medical report serves to further the underlying

purpose of section 2-622 in screening out frivolous and

nonmeritorious medical malpractice lawsuits. The expert's

verified written medical report is the document that permits

medical malpractice litigation to be initiated in the first

place. Section 2-622(g) of the Code provides that a plaintiff's

failure to comply with the pleading requirements of section 2-

622(a)(1) shall be grounds for dismissal under section 2-619. 735
ILCS 5/2-622(g) (West 2004).

If the expert, in sworn testimony in the ensuing litigation,

testifies to something inconsistent with the opinions set forth

in his written medical report, then there may be legitimate

concern as to whether there was valid cause to initiate the

litigation in the first instance. See Cohen, 739 So. 2d at 76

(Anstead, J., dissenting). In addition, if a physician writing

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No. 1-07-0207

such a report knows that he or she may be subject to cross-

examination concerning the opinions contained in the report, then

the physician will be more careful to make only those accusations

of medical malpractice that have a reasonably valid scientific

basis.

" 'The principal safeguard against errant expert testimony

is cross-examination.' " Leonardi v. Loyola University of

Chicago, 168 Ill. 2d 83, 104, 658 N.E.2d 450 (1995), quoting

Sears v. Rutishauser, 102 Ill. 2d 402, 407, 466 N.E.2d 210

(1984). And as Justice Anstead asked in delineating the public

policy underlying a statute similar to our section 2-622(a)(1) of

the Code, "what better way do courts have to ensure compliance

with this policy than by making it known that an expert's opinion

will not go unchecked or unchallenged at trial?" Cohen, 739 So.

2d at 76 (Anstead, J., dissenting).

The legislative policy underlying section 2-622 of the Code

favors the disclosure and evaluation of any material changes in

the trial testimony and opinions of an expert who provides a
written medical report pursuant to section 2-622 of the Code. If

an expert doctor's trial testimony is inconsistent with the

opinions contained in his written medical report, then it is

legitimate to raise that inconsistency before the jury. Cohen,

739 So. 2d at 77 (Anstead, J., dissenting).

In sum, we hold that an expert doctor's written medical

report prepared pursuant to section 2-622 of the Code may be used

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No. 1-07-0207

against him as a prior inconsistent statement for impeachment

purposes.

Plaintiffs next contend the trial court erred by allowing

defense expert Dr. Franciosi to render causation opinions at

trial. Plaintiffs maintain the trial court erred in ruling that

the opinions were admissible because they had not been disclosed

during the doctor's discovery deposition or in his Rule 213(f)

(210 Ill. 2d R. 213(f)) interrogatory answers. We disagree.

Under Rule 213(f)(3), upon written interrogatory, each party

must disclose the subject matter, conclusions, opinions,

qualifications and reports of a witness who will offer opinion

testimony. Gee v. Treece, 365 Ill. App. 3d 1029, 1035, 851 N.E.2d

605 (2006). The purpose of the rule is to avoid surprise and

permit litigants to ascertain and rely upon the opinions of

experts retained by their adversaries. Brax v. Kennedy, 363 Ill.

App. 3d 343, 354, 841 N.E.2d 137 (2005).

Whether an opinion has been adequately disclosed under Rule

213 is a matter within the trial court's discretion. Lawler v.
MacDuff, 335 Ill. App. 3d 144, 147, 779 N.E.2d 311 (2002). A

trial court's ruling concerning admission of evidence pursuant to

Rule 213 will not be reversed absent an abuse of discretion.

Department of Transportation v. Crull, 294 Ill. App. 3d 531, 537,

690 N.E.2d 143 (1998).

Dr. Franciosi is a pediatric pathologist. He was originally

retained by Northwest Community Hospital to review a pathology

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No. 1-07-0207

report of the mother's placenta as well as pathology slides of

her placenta. After Dr. Franciosi completed his review, the

hospital submitted his opinions in its Rule 213 disclosure, which

included the following description of the doctor's anticipated

testimony:

"Dr. Franciosi will testify that, based on his review

of the *** slides, he sees evidence of inflammation

involving the placental membrane and disk. This

inflammation is evidence of a maternal reaction to bacteria

which was present in the amniotic fluid prior to Jonathon's

delivery and which caused inflammation 24 to 36 hours before

Jonathon's delivery. The bacterial organism which caused

the infection likely migrated from Mrs. Iaccino's vagina

and, ultimately, entered the amniotic sac. Once the

organism entered the amniotic sac, Mrs. Iaccino's body would

have reacted by producing polymorphonuclear leukocytes. In

the process of destroying the invading bacteria, such PMN's

produce enzymes, or cytokines, which are known to cause
placental vasospasm. Such placental vasospasm is known to

cause interference with the process of the placenta

providing oxygenated blood to the fetus. Dr. Franciosi is

expected to describe this process in greater detail at his

deposition and at trial.

Additionally, Dr. Franciosi will testify that, based on

his review of the above-mentioned records and pathology

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No. 1-07-0207

slides, there is evidence of an intervillus thrombus within

the maternal intervillus space. Dr. Franciosi will testify

that the intervillus thrombus was likely present 48 hours

prior to Jonathon's delivery and that such intervillus

thrombi are also known to cause interference with the

transfer of oxygenated blood between mothers and fetuses.

Moreover, Dr. Franciosi will testify that there was a

large infarction present in the placenta which was present

at least 72 hours prior to Jonathon's delivery. Such

infarctions are also known to interfere with the placenta's

ability to supply oxygenated blood to a mother's fetus.

Also, Dr. Franciosi is expected to testify that there

is fibrin deposition in the placenta which was present 5 or

more days prior to Jonathon's delivery. Such fibrin

deposition is also known to interfere with the placenta's

function of transferring oxygenated blood to a mother's

fetus.

Dr. Franciosi will explain all of these processes in
greater detail at his deposition and at trial."

The hospital settled prior to the beginning of the first

trial, which subsequently ended in a mistrial. Defendants

adopted the hospital's disclosure of Dr. Franciosi's above

anticipated testimony as well as his discovery deposition.

At the second trial, which is the subject of this appeal,

defendants theorized that the effect of the cytokines along with

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the other three pathologies Dr. Franciosi identified in the Rule

213 disclosure -- intervillus thrombus, infarction, and fibrin

deposition -- all combined to interfere with the placenta's

function of transferring oxygenated blood to Jonathon during

labor, resulting in him being born with metabolic acidosis.

Plaintiffs filed a pretrial motion in limine seeking to bar

Dr. Franciosi from opining that the three pathologies he

identified in the Rule 213 disclosure combined to cause

Jonathon's injury. Plaintiffs argued then, as they do now, that

in his Rule 213 disclosure and discovery deposition, Dr.

Franciosi never opined that Jonathon's brain injury was caused by

pathologies in the placenta. Plaintiffs contend the doctor's

statements and opinions contained in the Rule 213 disclosure and

discovery deposition are irrelevant because they failed to

establish a causal connection between the three pathologies in

the placenta and Jonathon's injury.

We find that the trial court did not abuse its discretion in

denying the motion in limine. In his discovery deposition, Dr.
Franciosi established a causal connection between the three

identified pathologies in the mother's placenta and Jonathon's

injury.

The record reveals that during his discovery deposition,

counsel for the hospital posed several hypothetical questions to

Dr. Franciosi. The doctor gave responses from which it could be

inferred that the three identified pathologies (or as counsel

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referred to them, conditions), all combined to possibly cause the

medical condition complained of (metabolic acidosis), as shown by

the following colloquy:

"Q. I'm going to ask you a specific question, and I'd

like to have you answer the question that I ask

specifically. With regard to all of the conditions that you

listed, might or could these conditions exist in combination

in a maternal placenta wherein a child is delivered without

medical problems?

A. In my opinion, no.

Q. Is it possible, Doctor, that it can occur, that

these conditions could exist in a maternal placenta wherein

a child is born without medical problems?

[Plaintiffs' former counsel]: Objection, asked and answered.

A. In my opinion, no.

Q. Okay. So if I understand you correctly, Doctor,

it's your testimony to a reasonable degree of medical

certainty that the conditions which you've set forth in your
disclosure, Exhibit Number 2, can never exist in a maternal

placenta wherein a child is born without medical problems?

A. My --

[Plaintiffs' former counsel]: In combination?

A. In combination, yeah. In my opinion, these in

combination will not, you know, be in a, quote/unquote,

normal pregnancy."

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Dr. Franciosi's responses to the hypothetical questions

posed by counsel, along with the doctor's Rule 213 disclosure,

constituted a professional opinion within a reasonable degree of

medical certainty from which the trier of fact could infer a

causal connection between the three pathologies (intervillus

thrombus, infarction, and fibrin deposition) and Jonathon being

born with metabolic acidosis.

An expert witness's answers to hypothetical questions are an

acceptable basis for his or her expert opinion. Simers v.

Bickers, 260 Ill. App. 3d 406, 412, 632 N.E.2d 219 (1994);

Granberry v. Carbondale Clinic, S.C., 285 Ill. App. 3d 54, 59-60,

672 N.E.2d 1296 (1996). Moreover, a physician may testify to

what might or could have caused an injury. Geers v. Brichta, 248

Ill. App. 3d 398, 407, 618 N.E.2d 531 (1993). "It remains for

the trier of fact to determine the facts and the inferences to be

drawn therefrom." Geers, 248 Ill. App. 3d at 407.

Plaintiffs next contend that Dr. Franciosi lacked personal

knowledge of the clinical facts necessary to give a competent
opinion as to the cause of Jonathon's injury. Plaintiffs

maintain that the doctor's lack of personal knowledge as to what

occurred during the labor and as to the nature of Jonathon's

injury rendered the doctor incompetent to give expert testimony

as to the cause of the injury. Again, plaintiffs' contentions

must be rejected.

An expert witness is permitted to state an opinion based on

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facts not within his or her personal knowledge so long as those

facts are of a type reasonably relied upon by experts in the

particular field. J.L. Simmons Co. v. Firestone Tire & Rubber

Co., 108 Ill. 2d 106, 117, 483 N.E.2d 273 (1985); Hatfield v.

Sandoz-Wander, Inc., 124 Ill. App. 3d 780, 787, 464 N.E.2d 1105

(1984).

In the instant case, Dr. Franciosi based his testimony

primarily on the placental slides. He also considered various

medical records from Jonathon's admission to Northwest Community

Hospital. There is no suggestion in the record that these

sources of information are not the type reasonably relied upon by

pediatric pathologists to support their medical opinions.

Therefore, Dr. Franciosi was entitled to rely on the placental

slides and medical records in rendering his causation opinions.

Plaintiffs next contend they suffered prejudice from the

admission of Dr. Franciosi's causation opinions because they were

unable to effectively rebut these undisclosed opinions at trial.

Again, we must disagree.
As we previously determined, a review of the record shows

that Dr. Franciosi's causation opinions were disclosed. The

doctor's opinions as to the possible causes of Jonathon's

injuries were expressed in his timely disclosed discovery

deposition.

Moreover, the record shows that Dr. Franciosi's causation

opinions were rebutted by plaintiffs' expert witness, Dr. Michael

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Kaufman. Dr. Kaufman, a board-certified anatomic pathologist,

opined to a reasonable degree of medical certainty that the three

pathologies identified by Dr. Franciosi (intervillus thrombus,

infarction, and fibrin deposition), were all consistent with a

normal, aging placenta and were not predictive of infection or

sepsis or diagnostic of a hypoxic environment to the fetus.

Plaintiffs next contend the trial court abused its

discretion by permitting defendants to cross-examine and impeach

plaintiffs' expert witnesses using medical literature without

first establishing the requisite foundation as to the

authoritativeness of that literature. We must reject this

contention as well.

It is well settled that the admission of evidence and the

scope of cross-examination of expert witnesses rests within the

sound discretion of the trial court, whose rulings will not be

disturbed absent an abuse of that discretion. See Stapleton v.

Moore, 403 Ill. App. 3d 147, 156, 932 N.E.2d 487 (2010); Tsoukas

v. Lapid, 315 Ill. App. 3d 372, 380, 733 N.E.2d 823 (2000).
An expert may be cross-examined with articles and treatises

he does not recognize, provided some other expert has testified

that the publications are authoritative. See Bowman v. University

of Chicago Hospitals, 366 Ill. App. 3d 577, 587-88, 852 N.E.2d

383 (2006); Stapleton, 403 Ill. App. 3d at 157-58; see also

Tsoukas, 315 Ill. App. 3d at 380 ("[i]t is not improper to allow

questioning to discover what potentially relevant information

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plaintiff's expert may have failed to consider in reaching an

opinion"). In addition, an expert may be cross-examined with

respect to material he has reviewed, but upon which he did not

rely. Piano v. Davison, 157 Ill. App. 3d 649, 671-72, 510 N.E.2d

1066 (1987); Jager v. Libretti, 273 Ill. App. 3d 960, 962-63, 652

N.E.2d 1120 (1995).

In the instant case, plaintiffs took issue with three

medical articles: (1) an article authored by Dr. Yvonne Wu,

published in the Journal of the American Medical Association

(JAMA) on September 20, 2000; (2) an article authored by Dr.

Karin Nelson, published in JAMA on July 16, 1997; and (3) a

monograph published by the American College of Obstetricians and

Gynecologists (ACOG).

These articles had either been reviewed by plaintiffs'

expert witnesses prior to their cross-examination or the articles

were established to be authoritative by other expert witnesses

prior to cross-examination. Therefore, the trial court did not

err in permitting defendants to cross-examine and impeach
plaintiffs' expert witnesses using the medical literature in

question.

Plaintiffs next contend the trial court erred by allowing

defense expert Dr. Elias Chalhub to bolster his trial testimony

and credibility by referring to undisclosed medical literature in

violation of Supreme Court Rule 213. Plaintiffs maintain that in

his discovery deposition, Dr. Chalhub did not disclose any

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medical literature as part of his opinion on causation and that,

therefore, the doctor's references at trial to medical literature

violated Supreme Court Rule 213. Again, we must disagree.

At his discovery deposition, when Dr. Chalhub was asked if

he was "relying on any specific literature" to support his

opinions, the doctor responded, "No, I mean, I think the

literature is fairly extensive concerning this case."

Plaintiffs' counsel then asked Dr. Chalhub if he was "going to

point to one particular article or set of articles as a specific

basis" of his opinions. The doctor responded, "No. I mean,

there are too many that are, you know, quite explicit about the

issues in this case."

When plaintiffs' counsel asked Dr. Chalhub if his opinions

were always "right" in relation to other experts, the doctor

responded that it was not a question of "right" or "wrong," but

rather that the "common denominator" was the medical literature

that the experts relied upon. Later in the deposition, counsel

asked Dr. Chalhub if he could cite any "recognized pediatric
neurology text that cites cytokines as a cause of brain damage."

The doctor responded by naming several medical texts.

As noted earlier, the purpose of Rule 213 is to prevent one

party from surprising his opponent with undisclosed testimony.

See Brax, 363 Ill. App. 3d at 354. In this case, Dr. Chalhub's

general references at trial to medical literature did not violate

Rule 213's disclosure requirements. Given Dr. Chalhub's

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discovery deposition, plaintiffs knew early on that the doctor

believed that his causation opinions were supported by the latest

medical literature.

At trial, Dr. Chalhub testified that his opinions were

supported by the medical literature. He did not cite any

particular publication or article and he did not point to any

particular passage. The doctor only testified that his opinions

were supported by the medical literature in general. In this

regard, Dr. Chalhub's trial testimony concerning the medical

literature was consistent with his deposition testimony.

Since we have determined that defendants' use of the medical

literature in the cross-examination of plaintiffs' expert

witnesses was not improper, then it follows that reference to

this literature in defendants' closing argument was also not

improper. See, e.g., Mielke v. Condell Memorial Hospital, 124

Ill. App. 3d 42, 45, 463 N.E.2d 216 (1984) (attorney uses

exhibits to cross-examine expert witnesses and relies on the

exhibits in her closing argument).
Finally, we reject plaintiffs' contentions that the trial

court erred by refusing to admit the proffered testimony of nurse

Adrienne Mikkelsen and nurse Pamela Hibbs. The admission of

evidence is within the sound discretion of the trial court, whose

rulings will not be reversed absent an abuse of that discretion.

Gill v. Foster, 157 Ill. 2d 304, 312-13, 626 N.E.2d 190 (1993).

Plaintiffs maintain the trial court erred by refusing to

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admit nurse Mikkelsen's proffered testimony that approximately an

hour before Jonathon's delivery by cesarean section, she made

three separate requests to defendant doctors to apply a fetal

scalp electrode to monitor the fetal heart rate more accurately.

A review of the record does not support this argument.

The record shows that nurse Mikkelsen's cross-examination

was briefly interrupted during trial and a meeting was held in

chambers to discuss the admission of the nurse's proffered

testimony. Plaintiffs' counsel took the position that the trial

court had not yet ruled on the matter in limine, but that the

parties had agreed to exclude the testimony.

When the trial court determined that the parties may not

have reached such an agreement, the court ruled that the

testimony could be admitted for purposes of explanation but "not

for purposes of addressing the decision making between a nurse

and doctor." Plaintiffs' counsel did not object to the ruling.

Thereafter, for reasons not explained by the record,

plaintiffs' counsel did not seek to introduce the testimony. A
party cannot complain of an alleged error to which he consented.

McMath v. Katholi, 191 Ill. 2d 251, 255, 730 N.E.2d 1 (2000).

Plaintiffs finally contend the trial court abused its

discretion by barring nurse Hibbs from testifying as to what she

believed the electronic fetal monitor strip indicated about

Jonathon's condition. Nurse Hibbs's edited evidence deposition

was used at trial in lieu of her testimony.

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Nurse Hibbs testified at length as to the scientific

terminology associated with interpreting fetal monitoring strips,

defining such terms as baseline fetal heart rate, types of

variability (short and long term), accelerations, types of

decelerations (early, variable, and late), uteroplacenta

insufficiency, fetal reserve, hyperstimulation, and nonreassuring

fetal heart rate pattern.

Nurse Hibbs was also allowed to give testimony regarding her

interpretation of various sections of the fetal monitoring

strips. Nurse Hibbs testified that the fetal monitoring strips

were "reassuring" during the first hour after the mother was

admitted to the hospital.

Plaintiffs' counsel then jumped ahead to 5 a.m. Nurse Hibbs

testified that from 5 a.m. to 6:30 a.m., the fetal monitoring

strips showed some small decelerations as well as some changes in

the baseline fetal heart rate from "the 140s, 150 to 120s." The

nurse testified that the strips were neither "reassuring" nor

"nonreassuring" but, rather, called for continued monitoring.
Nurse Hibbs testified that she could not interpret the fetal

heart rate tracings taken between 7 a.m. and 8:13 a.m. She

testified that the fetal monitoring strips taken from 8:13 a.m.

to 8:45 a.m. (when the monitor was turned off), showed some

decelerations, but that she could not determine the type of

deceleration. The baby was delivered by cesarean section at

approximately 9:10 a.m.

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Plaintiffs contend that the trial court's rulings required

them to edit out those portions of nurse Hibbs's evidence

deposition where she gave testimony as to what the fetal monitor

strip indicated about Jonathon's condition. Plaintiffs, however,

have failed to provide citation to the record showing exactly

what portions of nurse Hibbs's evidence deposition were edited

out prior to trial. As result, the record on appeal is

inadequate to review this issue. Appellants have the burden of

presenting this court with an adequate record for review.

Haudrich v. Howmedica, Inc., 169 Ill. 2d 525, 546-47, 662 N.E.2d

1248 (1996).

What the record does show is that the trial court stated

that nurse Hibbs could describe and interpret what she observed

on the fetal monitoring strips provided she did not offer any

opinions as to whether the strips indicated that the baby should

have been delivered earlier due to fetal distress or fetal

intolerance to labor. The trial court, citing Sullivan v. Edward

Hospital, 209 Ill. 2d 100, 806 N.E.2d 645 (2004), held that such
issues were outside nurse Hibbs's expertise and should be

determined by a medical physician. The trial court did not err

in this regard.

In Illinois, a physician has a duty to exercise a reasonable

amount of care and skill as is ordinarily possessed by members of

his profession. Magana v. Elie, 108 Ill. App. 3d 1028, 1034, 439

N.E.2d 1319 (1982). The general rule is that when the exercise

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of the proper degree of care and skill of a physician is at

issue, only experts in the profession can testify and establish

the standard of care and skill required. See Smith v. Pavlovich,

394 Ill. App. 3d 458, 462, 914 N.E.2d 1258 (2009), citing Dolan

v. Galluzzo, 77 Ill. 2d 279, 285, 396 N.E.2d 13 (1979); Sullivan,

209 Ill. 2d at 123. In this case the trial court properly barred

nurse Hibbs from offering any opinions that the findings on the

fetal monitoring strips indicated that the baby should have been

delivered earlier due to fetal distress or fetal intolerance to

labor, since such opinions clearly related to whether the

applicable standard of care was breached.

Accordingly, for the reasons set forth above, the judgment

of the circuit court of Cook County is affirmed.

Affirmed.

HOFFMAN and PATTI, JJ., concur.

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