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Merkle v. Kegerreis





Appeal by defendant from the Circuit Court of Kane county; the Hon. HARRY C. DANIELS, Judge, presiding. Heard in this court at the October term, 1952. Judgment affirmed. Opinion filed April 20, 1953. Released for publication May 12, 1953.


Adolph Merkle filed this action in the circuit court of Kane county against the defendant, Roy Kegerreis, a physician and surgeon, specializing in X-ray diagnosis and treatment, to recover damages resulting from personal injuries sustained by him on account of the alleged negligence of the defendant in removing a planter wart from the ball of plaintiff's foot by the administration of an X-ray treatment. The defendant filed his answer in which he denied the negligence charged and a trial was had before the court, without a jury. At the conclusion of the trial on November 15, 1951, the court took the cause under advisement and on November 28, 1951, rendered judgment in favor of the plaintiff and against the defendant for $10,000.

The following day the defendant filed a motion for a new trial. The principal grounds of this motion were that the court had admitted incompetent evidence offered by the plaintiff at the trial and had refused to admit competent evidence offered by the defendant and that the judgment was excessive.

On February 15, 1952, additional specifications to his motion for a new trial were filed by the defendant and in support thereof an affidavit of the official court reporter who took in shorthand the testimony of the several witnesses who testified upon the trial and an affidavit of one of the three attorneys who represented the defendant at the trial were filed.

The affidavit of the official court reporter recited that he, in his official capacity, took complete shorthand notes of the testimony in this case; that he last saw these complete notes about two days after the trial and that they were then in the usual place for keeping such notes. He further stated that he looked again for them on February 1, 1952, after having been requested to furnish a transcript of the testimony to defendant's attorneys and found part of the notes were missing; that he then made a thorough search for them and could not find them and that he does not now know where they are and has no way of supplying the lost parts. The defendant's attorney stated in his affidavit that neither he nor the other counsel representing the defendant who participated in the trial made any notes during the trial of sufficient extent, detail or definiteness to enable them to supply the missing parts of the testimony presented during the trial; that much of the missing testimony was of a technical and medical nature, which makes it impossible to stipulate to its content.

The court reporter's affidavit discloses that he still possessed his notes of all of the testimony of the defendant when he was called for adverse examination under section 60 of the Practice Act [Ill. Rev. Stats. 1951, ch. 110, § 184; Jones Ill. Stats. Ann. 104.060] and had his notes of all of the testimony of Gordon W. Abbott, and of Loretta Merkle, two of the plaintiff's witnesses: that a portion of his notes of the testimony of the plaintiff on direct examination and a portion of his notes of his cross-examination, were missing but he had his complete notes of his re-direct and his re-cross-examination; that he has his notes of a portion of the testimony of Paul G. Tobin (another witness for the plaintiff) on direct examination but none of his cross, re-direct or re-cross-examination; that a large part of his notes of the direct examination of the defendant when he took the stand in his own behalf, and all of his notes of his cross, re-direct and re-cross-examination were lost.

Upon a hearing the trial court, on April 9, 1952, denied the defendant's motion for a new trial. On June 30, 1952, counsel for defendant presented to the trial court a report of proceedings consisting of 93 pages being a transcription of all the notes of the testimony which had not been lost or misplaced and which transcript had been prepared by the official court reporter. The record discloses that at this time counsel for defendant, addressing the court said: "This comes on for hearing on notice for presenting a report of proceedings for certification by your Honor. Counsel for appellee and myself agree that this report, from the available record is not complete and that neither your Honor nor the court reporter can certify that it is complete because it is not complete. Having discussed with counsel for appellee what we have to do next, it appears to me that the only possible thing is for the court to call back the witnesses who testified on the original hearing, to supply the matters that are omitted from the incomplete report of proceedings. I am relying on the many cases which state that under the Practice Act it is the duty of the court in the case where an incomplete report of proceedings is presented, which he cannot certify, to make up and settle the report of proceedings which he can, in his own discretion, certify. All we ask is that the court find for itself a correct report of proceedings and we have no alternative but to rely on the report that the court certifies and that is a judicial trust placed on the trial judge and no one but the trial judge can do it. . . . Under the circumstances we must ask the court to call in the witnesses and ask them what they said or what they know about the case so we may have a complete report of proceedings. We have presented to your Honor this morning all that we have in the nature of a report and this is the transcript provided by the court reporter and the affidavit of the court reporter fully sets out what parts are missing." The court stated that it would be utterly impossible to reproduce this record and suggested that the parties agree on a narrative form of statement of the missing evidence but the parties did not accept the suggestions and the trial court certified to the report of proceedings as presented by counsel for appellant to the effect that "the foregoing report of proceedings is a true and correct report of proceedings in part but does not contain all the evidence heard and received at said hearing."

The record discloses that upon the trial of this case five witnesses testified. The first witness was the defendant, called by the plaintiff under section 60 of the Practice Act. All of his testimony upon this examination is in the record. The plaintiff then testified in his own behalf and some 25 typewritten pages of his direct, cross, re-direct and re-cross-examination appears in the record but some of his re-direct and re-cross-examination according to the affidavit of the court reporter, has been lost. The next witness for the plaintiff was Dr. Gordon W. Abbott, who testified that he was the family physician of the plaintiff and had been for many years. He further testified that he was consulted by the plaintiff in February or March 1949 following the X-ray treatment administered by the defendant on January 26, 1949. All of Dr. Abbott's direct, cross, re-direct and re-cross-examination is found in the record. Dr. Paul G. Tobin, was called as a witness for the plaintiff and he testified that he was the surgeon who operated upon the plaintiff in the spring of 1951 at which time Dr. Abbott was present. He stated that he removed the large toe, second toe, the entire distal third of the first metatarsal and also the medial half of the metatarsal together with involved skin tissue and other subcutaneous tissue and muscle of plaintiff's left foot. Some eight pages of the testimony of this witness appears in the record. The wife of the plaintiff was the only other witness called by the plaintiff and all of her testimony appears in the record.

When called by the plaintiff under section 60 of the Practice Act the testimony of the defendant, as abstracted by his counsel, is as follows: "My name is Roy Kegerreis, I live at Elmhurst, Illinois. I am a physician and surgeon, regularly licensed by the State of Illinois since 1930. I specialize in the branch of my profession known as radiology, meaning that I administer X-ray treatments. In January, 1949, I was associated with and on the staff of St. Joseph's Hospital in the City of Elgin, in the capacity of roentgenologist. I performed X-ray treatments at the hospital and held myself out to the public as a roentgenologist and as an expert in that line. I had given Adolph Merkle an X-ray treatment once about 14 months previous to January 26, 1949. On January 26, 1949, I treated him for a plantar wart, located on the ball of the left foot on the side towards the big toe. Plantar is the Latin name for the sole of the foot. The wart was about half an inch in diameter with some smaller warts aside of it. The area treated was half an inch by an inch.

"I treated him in the X-ray department of the hospital. He came to me up at the hospital, and prior to that time I had not seen him for about 14 months. The X-ray machine has an aperture and you put a shield over the foot so as to expose the region, in this case half an inch by one inch, and the X-rays were put on there, 1225 units; we call them roentgens. The patient was lying on a table with the sole of the foot exposed toward the rays. I am not sure whether he was lying on his back. His foot was held in place by the lead shield we put on it, and usually also with sandbags or bricks. The shield covered the foot except for the area treated. The side is exposed; the X-rays came from one direction. The machine was pointed towards the sole of the foot. He was lying on a table with his foot up on it, much as the manner you are in now. The X-ray machine hasn't a lens, it just has an opening. The machine was made by Standard X-Ray Company in Chicago. I always adjust the patient and the machine, and I did in this case, placing his foot in position in front of the machine. I then started the machine working. It is possible to regulate the strength of the rays by adjusting the machine. The current is kept at a constant — the voltage is varied. If the voltage were too high you would get more X-rays than you wanted. The result might be too much radiation on the flesh; in the parlance of the language that is called an X-ray burn. I do not remember independently how long this patient's foot was exposed, but I looked at the report and the entry in the book. I would, without an independent recollection, estimate that it was seven minutes. If the machine were left on too long it would not produce exactly the same results as if the current were too strong. It would cause a burn if it was left on too long, or if the voltage was too strong. At the time I administered this treatment, I examined the machine and it was in good working order. After the treatment was over, I gave the patient a certain amount of opinion and instruction. He then put on his shoe and walked away.

"The X-rays were administered for the purpose of removing the wart, but it would not remove it instantly, — it would deteriorate and fall away, the height of the reaction being reached in 10 days or two weeks. If the machine were properly used and the treatment carefully and properly administered, the X-ray treatment would not be the cause of a deterioration of the foot to such an extent that it would have to be partially amputated. On the 14th of February Mr. Merkle called on me; he phoned me on the 11th of February, and I saw him again on the 14th of February. Both times that I saw him it was at the hospital — he came back as per instructions to have me look at it. In the telephone conversation he said it was yet very sore, and I assured him that that was a normal reaction and would decrease in soreness with time. When he saw me three days later it had decreased a little bit and the soreness was going out. At that time I wrote: There is marked reaction, seems to be subsiding, treated area peeling off. That is, the fever is going out of it. Hot boric acid solution for 20 minutes twice a day, and he could trim off the thick part if he wished — that was my instruction the last time I saw him, which was in the hospital.

"That time at the hospital I did not tell him I was through with the case nor to see his family physician and let him take care of it. In March, over a year later, at the suggestion of Doctor Abbott, I saw him at his home, and I told him then that he was under the care of his family physician and not me. I saw his foot then, in March, and it was very bad. The bones were exposed. You could see the bones down in the wound. That was March, 1950, a year later, when I saw him in his home. He was sitting on a chair as I recall. The flesh between the big toe and the second toe was gone and the bones were exposed. The ball of the foot and the surrounding structures in the toes were inflamed. The region that was treated was not wasted away. The inflamed area was approximately between half an inch and an inch away from the treated area. I have not seen him since March, 1950, but at that time the patient told me he had been advised by someone that he would have to have his foot amputated. I felt that wasn't necessary and told him it was my judgment they shouldn't take off the foot."

When called as a witness in his own behalf the defendant testified, as abstracted by his counsel: "My name is Roy Kegerreis, I reside at Elmhurst, Illinois, I am a physician and surgeon and have been practicing medicine since 1930. I am a graduate of Rush Medical College and have degrees from Ohio State University, Iowa University and the University of Michigan. In 1949 I was roentgenologist at St. Joseph's Hospital and received a salary for my services. I am no longer connected with them, as I am in private practice and also work for the State of Illinois Welfare Department a day and half a week as consultant. I specialize in X-ray diagnosis and treatment, and have specialized in that line since I began practicing. I know Mr. Merkle, the plaintiff. About a year or more prior to 1949 I removed a planter wart from his foot. In January 26, 1949, I removed a planter wart from his foot. I placed a lead shield over the foot, except a region approximately 1 1/2 inches by one inch. The largest wart was approximately one-half inch in diameter. The lead plate covered all of the sole of the foot except where the warts were. This lead plate is the usual and customary plate used by radiologists. The machine is one built by Standard X-Ray Company in Chicago and was in perfect working order at the time, and is still in operation at St. Joseph's Hospital. The plaintiff was in my office probably a total of 15 minutes. The X-ray was applied for seven minutes. I was there at the time, but when we give treatments no one stays in the room with the patient — we have a window in the door through which they are observed. This is the usual and customary method in treatments of that kind. After the patient left, I saw him twice, according to my notations in the record. These records are in my handwriting, and show where the plantar wart was located at the time I made the diagnosis."

The Practice Act provides that the Supreme Court may, by general rules, regulate and determine the practice and procedure by which cases shall be reviewed in this court, including the form and contents of the record and all other matters of practice in connection with the review of cases (Ill. Rev. Stat. 1951, chap. 110, par. 203, sec. 79 [Jones Ill. Stats. Ann. 104.079]). Rule 36 (1-c) provides that the proceedings at the trial, consisting of the testimony and the rulings of the trial judge and all matters upon which such rulings were made and other proceedings which the appellant desires to incorporate in the record on appeal, shall be procured by the appellant and submitted to the trial judge for his certificate of correctness (Ill. Rev. Stat. 1951, chap. 110, par. 259.36 (1-c) [Jones Ill. Stats. Ann. 105.36, subd. 1-c]). The preceding paragraph (1-b) of the same rule provides that all parts of the record on appeal so designated by the praecipe shall be incorporated in the record by copies certified by the clerk "Provided, however, that the original copy of the report of proceedings at the trial, as certified by the trial ...

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