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Livengood v. Howard

APRIL 27, 1973.




APPEAL from the Circuit Court of Peoria County; the Hon. CHARLES W. IBEN, Judge, presiding.


This is an appeal by Defendant, Henry Howard, from a verdict and judgment for $50,000 in favor of Plaintiff, Richard Livengood, entered by the Circuit Court of Peoria County in a medical malpractice action.

The plaintiff, 19 years old at the time the suit was filed, first became aware of an ailment in his left ear in January of 1968, when pain developed and there was a purulent discharge from that ear. At the time he was serving in the U.S. Navy and while on leave in March, 1968, he consulted his family physician, Dr. Dan Bower, who told him that he had a perforated ear that was draining. Soon after he was ordered to Great Lakes, Illinois and treated in the Naval hospital from March until September of 1968. The discharge from his ear continued and he also had dizzy spells and on occasions "blacked out". In September, 1968, he was discharged and returned to his home in Peoria.

In the meantime, during July of 1968, he had again consulted Dr. Bower regarding his ear and was advised by Dr. Bower that he should consult Dr. Howard, the defendant in this case, but he did not do so until four months later on November 1, 1968. The physical examination by the defendant revealed an odorous drainage from his left ear and practically no hearing in that ear. The defendant suspected a serious infection in the mastoid bone and because of swelling and distortion he could not see into the inner ear. An x-ray revealed extensive infection and disease in the left mastoid area and the possibility of cholesteatoma, a tumor of skin which develops in the middle ear after there is a hole in the ear drum. When plaintiff visited the defendant again on November 5, he was advised that it was necessary to perform an operation on the mastoid and clear out all the diseased tissue and relieve the pressure. The hearing in that ear had already been destroyed and the plaintiff was advised that failure to operate could result in meningitis, brain absess or death.

The surgery, known as a left radical mastoidectomy, was performed on November 18, 1968. The defendant found granulations, pus and debris which obscured the cranial nerve but which he considered necessary to remove. Because the debris and pus were so thick it could not be removed by air suction. Therefore, defendant proceeded to remove the debris by scraping. During the course of the surgery the nerve became frayed or partially severed. Realizing the frayed nerve should be repaired, he called in Dr. Alcocer, another ear specialist, to help him. Dr. Alcocer, in repairing the injured nerve, used a surgical microscope which afforded magnification up to ten times that of the binocular loop used by defendant. Following the surgery the left side of plaintiff's face drooped and was paralyzed.

Plaintiff brought this suit to recover damages for negligent performance of the surgery. The case went to trial on two counts, one which alleged defendant was negligent, and another which alleged failure to obtain legal consent. The pleadings alleged severance of the seventh cranial nerve, failure to avoid injury to plaintiff's hearing function and failure to repair the hearing function. At the close of plaintiff's evidence the trial judge directed a verdict in favor of the defendant on Count two. Also on defendant's motion the court ruled there was a total lack of evidence that any impairment to plaintiff's hearing was caused by the defendant. The plaintiff was permitted to amend his pleading basing his damages solely on facial paralysis resulting from injury to the nerve.

On appeal it is the contention of the defendant there was an absence of competent evidence to support one or more of the essential elements of the plaintiff's case, and therefore, the trial judge erred in denying his motion for judgment notwithstanding the verdict.

• 1 The general rule in a malpractice case is that the plaintiff has the burden to prove the proper standard of care imposed upon the defendant and then to prove by affirmative evidence an unskilled or negligent failure to comply with the standard and a resulting injury. Estell v. Barringer, 3 Ill. App.3d 455, 278 N.E.2d 424. See also, Comte v. O'Neil, 125 Ill. App.2d 450, 261 N.E.2d 21.

The evidence produced by the testimony of the plaintiff's witnesses established a standard of care used by a specialist who practices in the field of medical science with which we are concerned. Dr. David Austin of Chicago, a specialist in ear, nose and throat surgery testified as an expert in behalf of the plaintiff. The defendant's objection to this evidence is that Dr. Austin had never been in Peoria nor practiced in the Peoria area, and therefore, a standard of surgical procedure in that community was not established. Austin testified that there was a standard applicable to the specialty generally and such a standard prevailed in the central Illinois area. This testimony was supported by that of Dr. Alcocer, a surgeon practicing in Peoria, whose testimony concerning the applicable standard was quite similar to that of Dr. Austin.

Dr. Austin stated that although he though the surgery was necessary for the plaintiff's welfare, it was risky procedure to remove skin with a curette from the region of the facial nerve, especially without the use of a surgical microscope. He noted it is a standard operation to leave cholesteatoma in the area of the nerve and the end state of the surgery would be the same whether or not the skin is removed.

Dr. Alcocer, who testified on behalf of both parties, was called into the operating room by the defendant to help repair the nerve, bringing with him a surgical miscroscope. He testified that he would never perform a mastoid surgery of the type in this case without a surgical microscope. It is extremely beneficial in allowing a surgeon to perform accurately. He also stated that when granulated tissue is found on or about the nerve, he would not remove these granulations because of the possibility of injury to the nerve. The mere opening of the car to release the pressure would be a sufficiently beneficial result of the surgery. See Annotation, 76 ALR2d 783.

It was Dr. Howard's testimony supported by other medical evidence, that an injury to the cranial nerve could be considered an ordinary or incidental result of the surgery even when performed skillfully.

• 2 There is a substantial conflict of medical evidence and the verdict in favor of the plaintiff is supported by ample evidence. We are of the opinion that the plaintiff established his case by sufficient evidence and that the trial court did not error in denying the defendant's motion for judgment notwithstanding the verdict. The test established by Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d 494, 229 N.E.2d 504, was not met by the defendant.

Since the plaintiff presented evidence of both failure to comply with the standard and a resulting injury, it was proper to submit the disputed facts ...

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