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Estell v. Barringer

FEBRUARY 1, 1972.




APPEAL from the Circuit Court of Sangamon County; the Hon. JOHN B. WRIGHT, Judge, presiding.


Rehearing denied March 2, 1972.

This is a medical malpractice case in which the theory of the plaintiff-appellant is apparently: "The law ought to be * * *."

But — in Illinois, it isn't.

As originally filed, the case was constructed on three footings — res ipsa loquitur, negligence and lack of consent. The trial court dismissed the res ipsa theory and the case went to jury trial on the remaining two theories. At the close of plaintiff's evidence, the court directed a a verdict in favor of defendant, and this appeal follows. The question as to lack of consent is not raised, and we are faced squarely with the questions: Does the doctrine of res ipsa loquitur apply to this medical malpractice action, and did the trial judge properly grant a directed verdict on the negligence issue?

The medical testimony in the record before us comes from two neuro-surgeons, the defendant himself (called under Section 60 of the Civil Practice Act) and Dr. Ruge (a medical expert designated by the court under Illinois Supreme Court Rule 215). Consequently, the lengthy transcript and record is a morass of hypertechnical and complex exercises in medical semantics. We will attempt to narrate as concisely as possible the professional history spread out before us:

The plaintiff was first seen by Dr. Barringer in 1955, upon a referral from plaintiff's hometown local physician. The major complaint was that of pain to the left side of his face; sharp paroxysms of pain were triggered by the most common of movements such as lying down, straining, lifting, yawning, eating, sneezing, coughing or touching the face. After taking a complete medical history, Dr. Barringer then examined the 49-year-old plaintiff, and the results of that entire examination were related in the most exact minutia in the doctor's Section 60 testimony. Dr. Barringer testified that it was very difficult to be specific in this case, since the symptoms might fit Horton's syndrome, were possibly indicative of a carotid aneurysm and suggested the possibility of dental infection. In any event, the diagnosis was that of atypical left facial neuralgia. Dr. Barringer's medical advice was for a thorough dental examination, and if that proved negative then vitamin B-12 shots; if that in turn did not prove satisfactory then to be followed by progressively larger dosage shots of histamine, and if this did not afford relief then alcohol injections of the trigeminal nerve. Dr. Barringer sent his report advising these conservative measures to plaintiff's family physician and it was not until nearly a year later that plaintiff was referred back to Dr. Barringer for possibility of alcohol injection. This was performed by Dr. Barringer on the infra-orbital nerve with satisfactory results of desired numbness. There was then a lapse of over five years before plaintiff came to see Dr. Barringer again. A complete neurological examination was again made and from the history given by plaintiff the pain in the left cheek had steadily become more severe as well as having spread up into the left eye and forehead. The diagnosis was again trigeminal neuralgia, probably caused by a left carotid aneurysm. Plaintiff was admitted to the hospital for further study and for a left carotid arteriography. That test proved to be normal and Dr. Barringer ruled out aneurysm as well as the possibility of tumor or any other disease. Again, for the relief of pain, alcohol injection was resorted to with satisfactory and desired effect of numbness. This was followed by histamine desensitization. Plaintiff was discharged, and it was not until five months later, in March of 1962, that plaintiff returned to Dr. Barringer's office with complaints of very severe pain. Dr. Barringer then suggested that he enter the hospital for surgery — a trigeminal rhizotomy. At that time Dr. Barringer advised the plaintiff that "we'd tried everything else and there was only one thing left, that was to do an operation." Dr. Barringer testified that on the numerous visits that he had had with the plaintiff in the past he informed plaintiff that he was anxious to try conservative measures first, because of the entire risk of operative procedure — being "a paralysis of the left side of the face, the eyelid included." Dr. Barringer, however, did not advise the plaintiff that there might be some loss of hearing or equilibrium, since he stated he had no reason to anticipate loss of either sense. Dr. Barringer described in minute detail the operation that he was about to perform, the alternative type procedures, the various medical options as to methods of surgery, pros and cons of one approach over the other and the various risks involved. He chose to perform a trigeminal rhizotomy via posterior fossa operation to sever the fifth nerve for the purpose of producing numbness to the left side of the face, thus reducing or eliminating the pain. The operation itself requires cutting back over the cerebellum, depressing seventh and eighth nerves in order to get down to the fifth nerve. Following the operation, plaintiff suffered paralysis of the face, loss of left eyelid control, loss of hearing in the left ear and some loss of sense of balance.

Dr. Barringer testified that "Six per cent of the cases of trigeminal surgery in the hands of Dr. Max Minor Peet, one of the finest in this country, at the University of Michigan, ended up in facial paralysis, and this is the standard in the field, and because of this, we certainly want to postpone surgery. We have no idea — there's no theory been proved — nor known facts to prove any connection between those particular nerves." He further testified from his records that he had seen 417 cases of trigeminal neuralgia in his practice, personally performed 13 temporal retrogasserian neurectomies, and 18 posterior ones (as performed here). He had had only 2 cases of facial paralysis resulting after the temporal approach, and the case at bar was the only one where facial paralysis occurred after the posterior avenue was utilized. He testified that he had no opinion as to why or what could have caused the facial paralysis here although there could be several speculative theories, one being the depression or stretching of the seventh nerve during the course of the posterior fossa rhizotomy.

"MR. McGRADY: Doctor, based upon a reasonable degree of medical certainty, could you tell us how, if in any way, the seventh nerve would be involved in posterior fossa rhizotomy?

"DR. BARRINGER: The facial nerve is in the field of surgery in the posterior fossa rhizotomy. It could be stretched, causing the facial paralysis. It could be that the facial nerve was already, previously injured by some disease process, and inflammation — Bell's palsy is the most common cause of facial paralysis. It could be a vascular disease — a thrombosis condition. As shown in this man from the very beginning, this was atypical. Then he had a third nerve paralysis, which cleared up — we never did have an explanation for that. This indicates a disease in the brain stem area again, in the same region. There's a possibility of even a tumor in the posterior fossa — however, we found none. This was one of the reasons to go ahead in performing the operation, we might conceivably find a tumor here. There's a possibility of the nerve being hooked around one of the blood vessels there — that can cause pain. This is but one theory of the cause of trigeminal neuralgia for many years — those are some of the theories.

"MR. McGRADY: Now, doctor, could this account for the condition in which Mr. Estell now finds himself?

"DR. BARRINGER: Yes. Any one of these could have produced the result."

The only other medical expert testimony that was furnished upon the trial of this cause came from a Dr. Ruge, an impartial neurosurgeon appointed by the court under Illinois Supreme Court Rule 215(d) on the original motion of plaintiff-appellant. No question whatever was raised as to the neurosurgical expertise of Dr. Ruge who examined the plaintiff three months before the trial. His evidentiary deposition was duly read into the record after the trial court had ruled on certain objections therein.

Dr. Ruge, as laconicly stated as possible, testified thusly: there are numerous methods used by neurosurgeons in performing a trigeminal operation, the one employed here being one of the most common; a severing or dividing of the nerve fibers necessarily results in a loss of sensation or numbness, "and this is sort of the old classic idea"; there have been attempts at relieving trigeminal pain without substituting numbness and this area has produced considerable discussion among neurosurgeons to the point that the question has never been settled; he had personally performed posterior fossa trigeminal nerve operations and in none of those operations had he experienced the patient losing control of the eyelid; he would advise a patient of risks in this type operation but it would depend upon the type patient involved since some "are not going to be emotionally able to accept it," and "if something is very rare, I don't feel compelled to go into all of the minutiae"; the result here is rare and it is not always psychologically advisible to tell a patient of all the potentials; loss of control of the eyelid "could or might have been" connected with the operation, "but I don't know that that is the case"; he didn't think that ...

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