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Newman v. Spellberg

JANUARY 24, 1968.

EMANUEL NEWMAN, PLAINTIFF-APPELLANT,

v.

MITCHELL SPELLBERG, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County; the Hon. GEORGE LEIGHTON, Judge, presiding. Judgment reversed, cause remanded.

EBERSPACHER, J.

This is a medical malpractice action brought to recover damages occasioned by the alleged negligence of the defendant physician arising out of a gastroscopic examination performed upon the plaintiff. At the close of the plaintiff's case, the court sustained the defendant's motion for a directed verdict. Judgment for the defendant was entered on the verdict from which the plaintiff brings this appeal.

The plaintiff, Emanuel Newman, is 48 years old. The defendant, Mitchell A. Spellberg, is a physician, has engaged in practice for 30 years and maintains his office in Chicago, Illinois. He was certified as a specialist in internal medicine and gastrology in 1942 and has been practicing his specialty since that time.

In early 1959, the plaintiff experienced discomfort in the stomach and consulted the defendant. Through the defendant's examination it was determined the plaintiff had a peptic ulcer. Treatment was prescribed and in April 1959 the defendant advised the plaintiff that an X ray indicated that the ulcer was completely healed. The defendant further advised the plaintiff that in order to assure his opinion a gastroscopic examination was desirable. Accordingly, at defendant's instruction, the plaintiff and defendant met at the out-patient surgery unit of Michael Reese Hospital, Chicago, Illinois, on May 7, 1959, at 8:00 a.m. The plaintiff was accompanied by his wife.

The plaintiff entered one of the rooms of the surgery unit and after removing a portion of his clothing was given two injections over a 15-minute period by a nurse. He was then given a fluid with which to gargle. Still later the plaintiff's throat was swabbed with an anesthetic to "freeze" the throat. The defendant who had entered in the meantime inserted a rubber tube into the plaintiff's stomach and drained its content. The tube was withdrawn and the plaintiff was instructed to lie upon his back with his head hanging over the edge of the table. The room was dark and a cloth towel was placed over the eyes of the plaintiff. The nurse leaned over the upper portion of the plaintiff's body and held both of his arms, remaining in that position during the entire course of the gastroscopic examination, which the defendant then commenced. *fn1

Plaintiff further testified that he felt the instrument being passed into his throat and down into his esophagus and stomach; that it was uncomfortable but that he did not retch nor fight it in any way, and that as the instrument was being inserted defendant described what he was doing and told him his stomach was being inflated, and that he would be able to look around within the stomach with the aid of the light. He testified that the defendant then made his visual examination and informed plaintiff that everything was clear and there was nothing to worry about and that he had no ulcer. Plaintiff testified that he then heard someone walk into the room and defendant started to talk to this individual and began explaining to him the process of the examination and the practice in the use of the instrument. Plaintiff further testified that while defendant was talking to this individual "he took me under one arm and moved me upward toward him with his body and when he moved me, I felt a sharp pain in my back," and that he had felt no pain in his back until defendant moved him at that time. Plaintiff testified that after defendant's description of the use of the gastroscope to the third party, for about two or three minutes, the instrument was then removed very slowly; following the removal of the instrument, the lights were turned on, the towel removed, and plaintiff was propped up in a sitting position, and told the defendant that he had a pain in his back to which the defendant replied, "Don't worry about the pain in your back. It was because of the position you were in that you probably got a kink in your back." Plaintiff testified that defendant then introduced him to the third person in the room, who appeared to be an intern, wrote out a prescription for him, and left the room; that he complained constantly about the pain in his back and that it was a sharp pain when he first felt it and that it was continuous. On cross-examination, plaintiff testified that the movement that defendant induced was a movement of his body of one or two inches forward, when the defendant pulled plaintiff under the arm toward him, and that plaintiff was positive that such movement "caused the puncture."

The plaintiff then dressed and, due to his weakness and pain, sat with his wife in the waiting room for some 15 minutes before leaving the hospital. This was at approximately 10 o'clock. During the drive home, the plaintiff's pain continued in its intensity. Sometime after one o'clock the plaintiff's wife contacted the defendant by telephone who prescribed codeine. She called back within ten minutes and the defendant advised her to return the plaintiff to the hospital. The defendant testified that at this time it occurred to him that there may have been a perforation of an internal organ.

Mrs. Newman returned the plaintiff to the hospital where they were met by the defendant. The plaintiff testified that he passed out after arriving at the hospital and remained unconscious for the next 48 hours. The defendant gave an injection to the plaintiff for the pain which he described as severe. The plaintiff was then taken to the X-ray department to determine whether there was indication of a rupture of an internal organ. The defendant then ordered the plaintiff put to bed and prescribed certain medication. The defendant testified that the examination, including the X rays, was inconclusive but that he formed a diagnostic impression of a possible viscus perforation. The defendant also determined that a surgeon should be notified. He informed the plaintiff's wife of this decision. Shortly before 4 p.m. the plaintiff's wife informed the defendant of her decision to employ Dr. Morris Parker for surgery. The defendant telephoned Dr. Parker and gave him the tentative diagnosis. Dr. Parker arrived at the hospital at 6:15 p.m. and commenced the surgical operation at 8:00 p.m. Another physician, Dr. Milton Mosko, an allergist and friend of the plaintiff, participated in the examination by Dr. Parker and was also present during surgery.

Dr. Parker testified that an incision was made in the abdominal cavity and that he located a longitudinal split of about two centimeters in length in the back wall of the esophagus at the point where it joins the stomach. Dr. Mosko testified that he saw a small tear in the esophagus which was pointed out to him by Dr. Parker. He further testified that, in his opinion, the perforation of the esophagus was caused by the procedure of the gastroscopic examination, and that the "tear" was produced by a portion of the gastroscope piercing the esophagus. After locating the wound Dr. Parker closed it with sutures. Following the operation the plaintiff experienced a long and difficult recovery.

The defendant, called under section 60 of the Civil Practice Act *fn2 after describing the procedure used in preparation of a patient for a gastroscopic examination, described the procedure used in inserting the instrument through the throat, esophagus and into the stomach. He testified that in addition to himself and a nurse, there was also present an orderly supplied by the hospital, who held the patient's head, who was unknown to him; that during the examination he did not describe the method of procedure to anyone, and that he "possibly told the orderly to rotate the head" into the best position for seeing the lining of the stomach, and that defendant at no time during the course of the examination moved plaintiff's body. Defendant explained that during the course of such examination two movements are used, rotation of the head, and bending the knees to relax the muscles of the stomach and the back. The witness did not have an independent recollection of any movement, but testified that such movement must have been made "because the examination was satisfactory, and the patient was in proper position"; and that if there was a good optimum, he would not have given any direction for movement, and that he could not recall whether it was necessary to give such direction in this examination.

The defendant further testified that the instrument passed through the esophagus with a minimum of difficulty and was temporarily held up at the junction of the esophagus and stomach until the patient relaxed and the instrument passed into the stomach. He next inflated the stomach and the patient indicated no distress. He further testified that he then completed his visual examination, through the gastroscope, during which the patient showed no distress, and found no unusual pathology and that everything was in order, and confirmed his previous diagnosis that plaintiff's ulcer was healed. His testimony was also that when plaintiff's wife advised him by telephone of plaintiff's extreme pain he told her "that it was strange and unusual, because the procedure — the examination itself was satisfactory."

The defendant also testified that in performing this examination and insertion of the instrument, he followed the same procedure that he had followed on several thousand patients, and had, over a period of 30 years, performed approximately 5,000 gastroscopic examinations; and that in this experience he had experienced only one instance of a perforation. The defendant doctor did not recall that the patient complained to him of any pain in the back.

The complaint filed by the plaintiff, as amended, alleges in part that:

". . . The defendant, without due regard for the health and safety of the plaintiff, carelessly, negligently, unskillfully and improperly prepared for, prepared the plaintiff for, and performed the said gastroscopic examination, and carelessly, negligently, unskillfully and improperly failed to provide requisite medical services and attention to the plaintiff following upon the said examination; and, particularly, but not in limitation of the foregoing, the defendant pierced and lacerated an internal organ of the plaintiff, to wit: at the gastro-esophageal junction, with an instrument described as a gastroscope, in the course of the examination ...


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