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Piacentini v. Bonnefil

MARCH 25, 1966.




Appeal from the Circuit Court of Cook County; the Hon. ELMER N. HOLMGREN, Judge, presiding. Affirmed in part, reversed and remanded in part.


Rehearing denied by Appellant May 25, 1966.

Rehearing denied by Appellee April 21, 1966.

Plaintiff, a minor, by her mother and next friend, brought an action for malpractice and alleged in her complaint, first, that the defendants negligently permitted a gauze sponge to remain in her body after an appendectomy or during and after a follow-up corrective operation and, second, that defendant Bonnefil was negligent in his treatment and diagnosis of plaintiff before the operation. After the plaintiff had presented all of her evidence a judgment was entered in favor of the defendants following verdicts returned by the jury upon the direction of the trial judge, from which plaintiff now appeals.

Plaintiff first became a patient of Dr. Bonnefil on March 31, 1958, at which time she was treated for an infection of the genital organs. She was subsequently treated for various conditions four times before November 29, 1958, by either Dr. Bonnefil or his associates, the last date being November 28 at which time her condition was diagnosed by an associate as being an upper respiratory infection. On November 29, 1958, plaintiff (then approximately three years old) was taken to the defendant doctor's office by her mother because she (plaintiff) looked very pale and white, had pain on the right side of her stomach and was vomiting occasionally but there is no testimony as to which if any of these symptoms were told to the doctor. His records pertaining to the condition of the plaintiff on that date contained the notation "Questionable abdominal pain. Question of mesenteric adenitis." *fn1 The illness of the child continued and a blood count was taken which "fitted with the diagnosis of mesenteric adenitis and it fitted with the diagnosis of a respiratory infection. It did not fit very well the diagnosis of appendicitis. . . ." On March 4 the doctor did not exclude the possibility of appendicitis and on the evening of March 5 he decided to hospitalize the plaintiff because she was complaining more of having pain. The doctor told plaintiff's parents to bring her to St. James Hospital (which was operated by the defendant corporation) early the next morning; that "there was no necessity of getting her to the hospital that evening because it was not a typical case of appendicitis." After the child was hospitalized on the morning of March 6 Dr. Driscoll was called in as a consultant and was told that the child had "nausea and anorexia." An appendectomy operation was performed by Dr. Bonnefil that day and the appendix was found to be in the retrocecal position. It was inflamed, enlarged and perforated and had ruptured twelve to twenty-four hours prior to the operation. During the operation and while the abdominal cavity was open the doctor used surgical gauze sponges, each of which was four inches by four inches and had a black line of radio-opaque material running through it. There is no testimony that any other type of sponge was used during the operation or that any sponges were used inside the abdominal cavity. The abdominal cavity was closed upon completion of the operation. The plaintiff was discharged from the hospital on March 12, 1959, but returned on March 26 to enable the doctor to perform an operation to remove an abscess at the incision. A drain was inserted by the use of forceps. Gauze sponges, which did not have the radiopaque material in them, were used during this operation to "blot out the pus and wipe the pus that was coming out," but there was no testimony that they were used inside the abdominal cavity, which remained closed. Dr. Bonnefil, examined pursuant to section 60 of the Civil Practice Act (Ill Rev Stats 1963, c 110, § 60), testified that:

The abscess was very superficial. It was immediately under the skin layer. It was above the muscle. Between the muscle and the skin. It didn't extend below that to any other organs or into the abdomen. . . . I made an incision about 3 to 3 1/2 inches along the same incision line. . . . I cut about 1/8 of an inch deep, the thickness of the skin. At no time did I cut through the lower layer. After the cut was made the pus came out. It was explored with my finger. I introduced the finger into the incision to explore the inside of the cavity to make sure there was nothing else. I felt inside all around to make sure that the abscess was superficial, that there was no connection between the cavity under the skin and the abdominal cavity internally. I was satisfied that there was no such connection. . . . I could feel everything was all right with the finger. I did not feel any foreign object in the wound.

The dressing on the wound was required to be changed at least twice daily and, since plaintiff was discharged from the hospital five days after the operation, this was done at the plaintiff's home by Dr. Bonnefil and also by Carol Anderson, a medical assistant to another physician. Each day during the period that Carol Anderson changed the dressing there was a strong odor and greenish discharge emanating from the incision. On either April 12 or 15 the doctor removed the drain and on approximately April 17 Carol Anderson noticed a piece of gauze, which had worked its way out of the wound, protruding through the opening of the incision and "it had green matter." Dr. Bonnefil was notified and at his direction plaintiff was taken to St. James Hospital where a gauze sponge, eight to ten inches long (which was longer and thicker than that used at home), saturated with green blood-like pus and blood, and which did not have the radio-opaque material running through it, was removed and thrown away.

The plaintiff in a malpractice action has the the burden of proving that the doctor was unskillful and negligent and in addition that this want of skill and care caused the injury to the plaintiff. Wade v. Ravenswood Hospital Ass'n, 3 Ill. App.2d 102, 120 N.E.2d 345. The test by which a plaintiff's evidence is judged when subjected to a motion for a directed verdict is whether there is any evidence or reasonable inference arising from that evidence tending to prove the cause of action alleged in the complaint. Scardina v. Colletti and Norwegian American Hospital, 63 Ill. App.2d 481, 211 N.E.2d 762.

[3-7] Plaintiff first argues that Dr. Bonnefil was negligent in his preoperative diagnosis and claims that the court erred in sustaining objections to nine hypothetical questions asked of the expert witness, Dr. Lawrence, as to the standard of care. *fn2 We have examined these questions and find no error in the rulings of the court. Since there must be some evidence tending to prove each of the facts assumed in a hypothetical question (Chicago & E.I.R. Co. v. Wallace, 202 Ill. 129, 66 N.E. 1096; Butler v. Palm, 36 Ill. App.2d 351, 184 N.E.2d 633), hypothetical questions Nos. 8, 9, 10 and 11 were properly rejected by the court because they assumed a fact not in evidence. Questions Nos. 12 and 15, which inquired whether it would be usual and customary to hospitalize the child at various times prior to March 6, were properly rejected since even an affirmative answer would not give rise to an inference that the doctor was guilty of negligence in not hospitalizing the child until March 6. Question No. 16 which inquired whether there would have been a greater opportunity to avoid a ruptured appendix if the patient was hospitalized on March 4 rather than March 6, was properly rejected for the same reason. With respect to questions Nos. 13 and 14, no offer of proof was made and therefore the propriety of the rulings thereon are not properly before a court of review. In re Estate of Garner, 8 Ill. App.2d 41, 130 N.E.2d 219; Grosh v. Acom, 325 Ill. 474, 156 N.E. 485.

There was no other evidence offered as to Dr. Bonnefil's negligence in his preoperative diagnosis. We believe that all reasonable men would reach the conclusion that the evidence and reasonable inferences therefrom did not establish the doctor's guilt of that negligence.

Plaintiff next attempted to establish that a gauze sponge was left in her body during the appendectomy or the follow-up corrective operation because of the negligence of either or both of the defendants. Dr. Bonnefil, called as a witness under section 60 of the Civil Practice Act (Ill Rev Stats 1963, c 110, § 60), testified that a wound of this nature (referring to the plaintiff's incision) does not have a tendency to draw things into it. An objection was sustained as to hypothetical question No. 7 asked of the expert witness Dr. Lawrence (whereby the plaintiff sought to establish the same general point) which stated:

Doctor, assume that a three year old child had a drainage situation from a wound which was open on March 25, 1959 following a prior appendectomy at the same site which was closed on that date, prior appendectomy having been on March 6, 1959; assume, Doctor, that after this wound was open and during the period which it was draining, which period went from March 25, 1959 until the date which I will specify on which a foreign — some gauze was removed from the wound. During that period the wound was dressed by applying four by four standard gauze bandages, Johnson & Johnson packaging, over the wound in layers from three to five inches thick, covered over with adhesive and changed twice or three times a day by either a technician or by a physician.

And do you have an opinion, Doctor, based on reasonable medical and surgical certainty, as to whether any of the dressing pads, the four by four pads which I have mentioned might or could have worked its way into the wound between one dressing period and the next . . . so that the material that worked its way into the wound which was similar, excepting that it was four by four, to Plaintiff's Exhibit Number 2 [a Johnson & Johnson gauze pad box, the gauze being the same kind of dressing used by her], appeared so that only a small corner appeared above the wound and that the rest was in below the surface of the wound and below the skin.

Do you have an opinion, Doctor, as to whether — based on reasonable and medical surgical certainty whether any such dressing might or could have worked ...

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