Appeal from the Circuit Court of Cook County; the Hon. HENRY
W. DIERINGER, Judge, presiding. Affirmed.
MR. JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT.
The plaintiff, Theodore Gault, filed a suit in the Circuit Court of Cook County against Dr. Sidney Sideman, Dr. Frank Glassman, and Dr. Irvin Wolin. At the close of the plaintiff's case the trial court, on motion of the defendants, directed a verdict in their favor. The jury returned such a verdict, and the court entered judgment thereon.
The original complaint filed by the plaintiff on December 12, 1955 alleged that the defendants were licensed physicians and held themselves out to the general public as qualified and competent physicians and surgeons and as specialists in orthopedic and general surgery; that sometime prior to the 14th day of December 1953 the plaintiff retained and employed the said defendants "for reward to attend and treat the Plaintiff for a certain physical ailment or condition in his spine, commonly known as a ruptured intervertebral disc and the said Defendants, and each of them, undertook to treat the Plaintiff for the relief and cure of this condition." The plaintiff also alleged that he was not guilty of any contributory negligence. Paragraph 4 of the complaint alleged "that in the course of said treatment, the said Defendants advised the Plaintiff that his said condition could be cured by a surgical operation on the spine, and recommended to the Plaintiff that he submit himself to such an operation for the cure of his said condition, and the said Plaintiff relying upon the Defendants' representations that they could alleviate and cure his said condition consented to subjecting himself to the said operation by the said Defendants." The complaint further alleged that an operation was performed upon the plaintiff. Paragraph 6 alleged that the defendants then and there "so carelessly, negligently and improperly performed the said operation, that during the course thereof, the said Defendants carelessly, negligently and wrongfully severed, lacerated, crushed and otherwise injured certain nerves in Plaintiff's body, that as a direct and proximate result thereof, the said Plaintiff has become permanently paralyzed and crippled in his left leg and sustained other severe injuries, as hereinafter mentioned." In his prayer for damages the plaintiff alleged that he has "suffered bodily pain and injury and mental anguish from then until now and will continue so to suffer in the future; that he has sustained a permanent loss of movement and use of his left leg and he has become permanently crippled and disabled; that he has expended, and will in the future expend, large sums of money in endeavoring to be cured of said disabilities and injuries, and he has lost and will in the future lose large sums of money by reason of being unable to follow his usual occupation as a result of said injuries."
The defendants filed an answer in which they admitted that they were licensed physicians and surgeons in the State of Illinois, and that they held themselves out to the general public as qualified and competent physicians and surgeons "and as specialists in orthopedic and general surgery." They further admitted that they were employed for reward to attend and treat the plaintiff as alleged in the complaint. They admitted due care of the plaintiff and also that they performed the operation alleged. They denied all the other allegations in the complaint.
On March 21, 1962 the case was heard before the court and a jury. Except for perfunctory testimony of a hospital librarian, the only testimony heard by the court was that of the plaintiff and of Dr. Sidney Sideman, who was called by the plaintiff as an adverse witness under section 60 of the Civil Practice Act.
The action was what is commonly referred to as an action against a physician for malpractice. Such an action ordinarily is held to sound in tort, and the instant complaint is in the same form as used prior to the passage of the Practice Act in 1933, as set out in Puterbaugh, Common Law Pleading and Practice, sec 806, p 1016 (10th ed), and in substance corresponds to the complaint set out in 2 Nichols, Illinois Civil Practice, sec 1059, p 241 (1961 rev ed), intended for use after the passage of the Practice Act of 1933. The question as to whether such actions sound in tort or in contract has been a matter of judicial discussion since the decision in the Horse Doctor's case, YB 43 Edward III 33 (1369). In 70 CJS Physicians and Surgeons, sec 57, it is stated that because of the nature of the relationship between a physician and surgeon and a patient, the patient may sue the physician in an action sounding either in contract or tort, and whether the action is in contract or tort depends upon whether it appears from a construction of the complaint that the gravamen of the action is a breach of the contract or a breach of the duty imposed by law on the defendant by reason of his calling and the relationship existing between the parties. It is further stated that the courts have not treated the matter with any degree of consistency. In Carpenter v. Walker, 170 Ala. 659, 54 So. 60, the court said:
"All the allegations as to a contract are mere matters of inducement and to show the relation between the parties, and to show that there was a breach of a duty, owing by the defendant to the plaintiff, based upon or growing out of the contractual relations between the parties. The gravamen of the action, in each count, is clearly the breach of this duty owing by the defendant to the plaintiff, and not a mere breach of the contract itself."
The legal rules which we have been discussing apply to complaints whether they are held to sound in tort or in contract and which allege that the defendant did not use ordinary care in his treatment of the plaintiff. In such actions for malpractice the physician is held responsible for any injury resulting from a want of reasonable care, skill and diligence in his practice, and the burden of proof rests upon the plaintiff. If such a complaint sounds in tort it is necessary that the plaintiff allege his freedom from contributory negligence. Had there been no amendment to the complaint there would be no question but what the trial court had properly directed a verdict for the defendants, as there was no showing made by the plaintiff of negligence or that the procedure followed by the defendants was not procedure which was proper medical practice at the time and place in question. In order for the plaintiff to prevail he would have to show by affirmative evidence, first, that the "defendant was unskillful and negligent, and, second, that his want of skill and care caused the injury to the plaintiff. If either element is lacking in the proof, no case is presented for the consideration of the jury." Wade v. Ravenswood Hospital Ass'n, 3 Ill. App.2d 102, 120 N.E.2d 345; Olander v. Johnson, 258 Ill. App. 89; Wallace v. Yudelson, 244 Ill. App. 320. It has been held that a physician is not an insurer. Yunker v. Marshall & Daly, 65 Ill. App. 667. The responsibility of the physician is to use reasonable care and skill. McNevins v. Lowe, 40 Ill. 209. In Sims v. Parker, 41 Ill. App. 284, the court said:
"Proof of a bad result or of a mishap is of itself no evidence of negligence or lack of skill. The defendant is qualified to practice medicine and surgery, and the evidence of the experts in his profession shows him competent and skillful. Before a recovery could be had against him, it must be shown that his treatment was improper or negligent, not merely that he was mistaken, or that his treatment resulted injuriously to plaintiff. A physician or surgeon, or one who holds himself out as such, is only bound to exercise ordinary skill and care in the treatment of a given case, and in order to hold him liable, it must be shown that he failed to exercise such skill or care. McNevins v. Lowe, 40 Ill. 209.
"`No presumption of the absence of proper skill and attention arises from the mere fact that the patient does not recover, or that a cure was not effected.' Haire v. Reese, 7 Phil R 138."
It has also been held that where the question of proper skill or care on the part of a physician or surgeon is in issue it ordinarily must be proved by expert medical testimony. 26 ILP Medicine and Surgery, sec 37.
At the close of plaintiff's evidence the plaintiff was given leave to amend his complaint by an addition to paragraph 4 of the original complaint. As thus amended the paragraph reads as follows (amendment italicized):
"4. That in the course of said treatment, the said Defendants advised the Plaintiff that his said condition could be cured by a surgical operation on the spine, and recommended to the Plaintiff that he submit himself to such an operation for the cure of his said condition, and the said Plaintiff relying upon the Defendants' representations that they could alleviate and cure his said condition consented to subjecting himself to the said operation by the said Defendants.
"4a) That the said defendants, and each of them, thereby expressly warranted to the plaintiff that said operation would be safe, and would ...