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Ohligschlager v. Proctor Comm. Hosp.

MAY 16, 1972.




APPEAL from the Circuit Court of Peoria County; the Hon. CALVIN R. STONE, Judge, presiding.


Suit was brought by plaintiff against defendants for injuries sustained by her while she was a patient in the Proctor Hospital under the care of the defendant, Dr. Joe Cannon. In September, 1966, plaintiff, a fifty-five year old obese woman, was admitted to the Proctor Hospital, arrangements for her admittance having been made by the defendant, Dr. Joe Cannon. Dr. Cannon had been treating her for a condition causing vomiting and diarrhea since September 13, 1966. She was quite ill but not comotose upon her admission. She checked into the hospital at about 4:40 P.M. and at 6:30 Cannon appeared and inserted a needle into plaintiff's arm and commenced intravenous feeding. Certain liquids were intravenously fed for the purpose of correcting the dehydrated condition of the plaintiff and eventually a substance known as Sparine was added to the intravenous feedings. The purpose of the drug is to stop vomiting. Directions by the manufacturer cautioned that care should be exercised during the intravenous administration not to allow perivascular extravasation for the chemical irritation may be severe. The instruction also cautions that care should be taken to prevent the concentrate from getting on the skin or clothing of patients, nurses or others who are handling the preparation and that injections of Sparine should be made only into vessels previously undamaged by multiple injections or trauma. The drug is considered to be an irritant and there is little question that the defendants were aware of the dangerous properties of the drug in the event of infiltration.

Cannon testified that he had knowledge of the dangerous properties of Sparine but he did not tell this to anyone at the hospital or to the plaintiff. He ordered 50 milligrams of Sparine added to the intravenous feeding at 6:40 P.M. and every six hours thereafter as needed, but testified that he had no personal knowledge if the drug was administered. He had no recollection of giving any additional instructions because of the additive. The chart at the hospital indicated that at 10:40 plaintiff was again given Sparine. Cannon testified that he assumed the fluid in the intravenous feeding injured plaintiff.

Plaintiff sustained injury to the inner aspects at her elbow, a little above and below the same, and it was necessary to subsequently perform a skin graft on the area. The record disclosed that the injury was caused by extravasation, i.e., the fluid being fed intravenously getting into the flesh area and outside of the vein, and destroying the flesh in that area. The testimony indicated that the drug Sparine could cause such an injury. It is conceded that the injury occurred sometime after 6:30 P.M. on September 13 and prior to 7:00 A.M. the following day.

Plaintiff's complaint consisted of four counts and after she had rested her case she was granted leave to and did file two additional counts. The trial court dismissed the first two counts of plaintiff's complaint prior to trial and at the close of plaintiff's case directed a verdict in favor of both defendants as to the remaining four counts.

Plaintiff contends that the trial court erred in sustaining defendant Proctor Community Hospital's motion to dismiss Count I, which count was based on the theory of res ipsa loquitur, and for dismissing Count II, that charged the defendant hospital with negligence based on lack of informed consent.

• 1 In Graham v. St. Luke's Hospital, 46 Ill. App.2d 147, 196 N.E.2d 355, the court stated:

"* * * [I]n order to recover in a malpractice case, the plaintiff must show by affirmative evidence: first, that defendant was unskilful or negligent; and, second, that his want of skill or care caused injury to the plaintiff. If either element is lacking in her proof, she has presented no case for consideration of the jury."

Count I fails to charge the defendant with being unskilled or negligent and that this lack of skill and negligence caused the injury. The law requires that there be proof of lack of skill or negligence and the complaint must therefore be drafted to meet that requirement. Bollenbach v. Bloomenthal, 341 Ill. 539, 173 N.E. 670.

Count II of the complaint alleges substantially the same facts as Count I with the added charge that the defendant hospital failed to obtain the informed consent of the plaintiff before inserting the needle for the intravenous feeding and failed to inform plaintiff of the attendant risk and dangers of such medical procedure.

• 2 We believe the law in Illinois as stated in Green v. Hussey, 127 Ill. App.2d 174, 262 N.E.2d 156, is applicable. The court there stated:

"We conclude that to establish liability for defendants' failure to inform plaintiff of the foreseeable risks or results involved in X-ray and cobalt therapy and available alternatives, if any, plaintiff had the burden of proving by expert medical evidence that the reasonable medical practitioner of the same school, in the same or similar circumstances, would have told the patient of such risks, or that the disclosures as made by the defendants did not meet the standard of what a reasonable medical practitioner would have disclosed under the same or similar circumstances. * * * Also, plaintiff had the burden of proving by expert medical testimony that such failure was the proximate cause of her damage."

It is not sufficient for plaintiff to merely allege the failure to obtain the informed consent and to allege the failure on the part of the defendant to tell the plaintiff attendant risks and damages. Count II of the complaint is insufficient for the reason that it fails to allege sufficient ultimate facts to state a cause of action.

• 3-6 Plaintiff next contends that the court erred in directing a verdict for defendant on the remaining counts. The parties are in accord that a verdict should be directed for the defendant when the evidence viewed in its aspects most favorable to the plaintiff so overwhelmingly favors the defendant that no contrary verdict based upon that evidence could ever stand. (Pedrick v. Peoria and Eastern Railroad Company, 37 Ill.2d 494, 229 N.E.2d 504.) "On motion to direct a verdict, the trial court should overrule the motion if, upon an examination of the record there is any evidence that fairly tends to prove the allegations of the plaintiff's complaint. When the evidence is considered in its aspect most favorable to the plaintiff there is a total failure to prove any necessary element of her case, the motion for a directed verdict should be sustained. The evidence may not be weighed, and all contradictory evidence or explanatory circumstances must be rejected." Graham v. St. Luke's Hospital, supra.

Plaintiff proved her injury and proved that she was injured in the defendant hospital while under the care of defendant Cannon. The question is whether or not she proved by competent expert testimony that the injury was caused by the negligence of either or both of the defendants.

Plaintiff in her complaint, Count III, charges that defendant Proctor Hospital:

"[N]egligently and carelessly did one or more of the following;

a. Failed to inform and advise plaintiff of the nature of the proposed medical procedure, the probability of success, alternate methods of treatment, and the risks and ...

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