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Borowski v. Von Solbrig

SEPTEMBER 13, 1973.




APPEAL from the Circuit Court of Cook County; the Hon. WILBERT F. CROWLEY, Judge, presiding.


Rehearing denied October 26, 1973.

This is a medical malpractice case in which plaintiff alleges that defendant doctor and hospital negligently treated a pre-existing leg injury suffered by plaintiff and that as a result the leg had to be amputated above the knee. After accepting a settlement from the automobile driver whose negligence produced the original injury to the leg, plaintiff pursued this cause of action against the instant defendants. After a jury trial, plaintiff was awarded a verdict of $200,000. This verdict was reduced by the trial judge to a judgment against defendants of $170,000, the amount of the reduction being equal to the sum received from the automobile driver. Defendants bring this appeal alleging a number of trial errors, among which were that the jury received erroneous instructions; that the hypothetical questions propounded to plaintiff's expert witnesses were prejudicial; and that plaintiff did not prove, to a probability, the causal connection between the alleged malpractice and the loss of the leg. Plaintiff brings a cross-appeal asking for a reinstatement of the full $200,000 judgment.

We reverse the judgment and remand the case for a new trial.

Due to the complexity of the medical testimony and the number of expert witnesses called, the trial of this cause of action lasted nearly four weeks. The report of proceedings is contained in five volumes, and the abstract is well over 1600 pages. A recapitulation of all the evidence would cover many pages and would be unnecessary for the purpose of this opinion. Suffice it to say that we have reviewed the record in this case in the greatest detail and find the following statement of facts to be sufficient to support our decision.

On July 14, 1964, plaintiff, a pedestrian, was struck by an automobile traveling at a speed of approximately 25 m.p.h. He was severely injured and "off and on" was unconscious at the scene of the accident and while in the ambulance. Plaintiff was taken to the nearby defendant hospital where he was attended by various medical personnel, including defendant doctor. Shortly after his arrival at defendant hospital, it was discovered that as the result of the accident, plaintiff had sustained the following injuries: a badly comminuted nasal fracture; a severe crushing injury to the left leg below the knee consisting of a laceration across the leg; a compound, comminuted and displaced fracture of the left tibia with bony fragments protruding through the skin to three inches; and a compound, comminuted, impacted fracture of the head and neck of the left fibula; a comminuted fracture of the right tibia and the head of the right fibula.

Defendant doctor testified at trial that he also found, but did not enter into the hospital records, the following condition of plaintiff upon his admission: that plaintiff was shaking, cold, clammy, staring into space; he had extreme pallor and was unconscious at times and did not answer questions; the pupils of the eyes were dilated. On the basis of these findings, the doctor testified that he diagnosed, but did not record, that plaintiff was in a severe state of shock and had sustained a brain concussion with possible brain damage and possible skull fracture. He further testified that he diagnosed vascular damage to the left leg below the bifurcation of the poplitieal artery into the posterior tibial and peroneal arteries.

Surgery on plaintiff's leg injuries was not performed by defendant doctor until some eight hours and 20 minutes after his admission to the hospital. The doctor testified that the delay in surgery was justified by the fact that during these eight hours plaintiff was a very poor surgical risk due to his condition of shock and possible brain damage. Plaintiff alleged that the delay was not warranted, and he produced expert witnesses who testified to that effect. Plaintiff and his wife, who was then at the hospital, testified that prior to surgery, his left leg was not immobilized and contended that this fact caused further injury to the leg during his transportation to and from various parts of the hospital. Plaintiff produced experts who testified that failure to immobilize a fractured leg could produce further injury.

Defendant doctor testified that once plaintiff's condition had stabilized and he began surgery, he made an affirmative attempt to correct any vascular impairment to the plaintiff's left leg. He visually explored the wound and found that three to four inches of the posterior tibial artery had been obliterated. He then cleaned the wound, positioned the fractured bones and applied full leg encircling casts to both the right and left legs. He testified that he did not attempt any further repair of the left leg artery because the chances of success were nil, and he believed any further surgery at that time might have caused death to plaintiff. Plaintiff, in turn, produced expert testimony to support his allegation that the surgery as performed was improper in various respects. Plaintiff's experts testified that the doctor could not have seen the posterior tibial artery from the approach that he testified he used during the open reduction of the left leg fracture, and that the doctor should have at least obtained proximal and distal control over the artery before the cast was applied. In sum, their testimony was that the delay in surgery was not in accord with prevailing practice and caused or contributed to cause the eventual loss of the left leg.

Defendant rebutted with his own expert witnesses who testified that his treatment was within the bounds of accepted practice in the community as of July, 1964, and could not have caused or contributed to the eventual amputation.

Immediately after surgery plaintiff made strenuous and repeated complaints that the left leg cast was too tight. The hospital records indicate that over the next two days plaintiff experienced pain, swelling, discoloration and lack of sensation in the casted left leg. The full leg encircling cast was split to the site of the fracture on July 15 and removed on July 16. Plaintiff's experts testified that the use of this type of cast was not in accord with good practice and could have caused or contributed to the loss of the leg.

During the night of July 16-July 17, plaintiff was transferred to Garfield Park Hospital and placed under the care of Dr. James Benages. During the morning of July 17, he was examined by Dr. Benages who diagnosed actual gangrene in his left leg. This diagnosis was concurred in by Dr. Murphy who examined plaintiff shortly thereafter, and the left leg was amputated at a point below the knee on July 18. This operation was not completely successful in checking the spread of gangrene, and therefore a second amputation at a point above the knee was performed on August 12, 1964.

After his recovery and release from the hospital, plaintiff and his wife sued the automobile driver who struck him, Francis Paluck, and defendant doctor and hospital in a second count for medical malpractice. Before the action came to trial, plaintiff and his wife settled their claim against the automobile driver. Plaintiff received $30,000 in exchange for a covenant not to sue running to Mr. Paluck. The pleadings were amended, and Mrs. Borowski, plaintiff's wife, and Mr. Paluck were dropped from the suit, and the action proceeded against the instant parties.

After trial the jury returned a verdict against defendants in the amount of $200,000. On motion of defendants, that judgment was reduced by the amount received as a settlement with Mr. Paluck, and judgment was entered against the defendants for $170,000.

In this appeal defendants ask that the judgment against them be reversed or that the cause be remanded for a new trial because of the many prejudicial errors committed during the trial. Plaintiff cross-appeals asking that the original judgment be reinstated.


• 1 The first principle of medicine, primum non nocere, "first, no harm to the patient," is the first principle of the law. (Kramer, The Negligent Doctor (1968).) It is found in the legal requirement that demands that those persons practicing medicine and surgery shall be duly able and careful. The purpose of this rule is to protect the health and lives of the public by making such practitioners answerable in damages to their patients for failure to employ the requisite care, skill, or knowledge in the performance of their professional duties. 61 Am.Jur.2d, Physicians, Surgeons, etc., Sec. 105.

• 2 The breach of these professional duties of skill and care, or their improper performance by a physician or surgeon, whether they can be said to arise out of contract between physician and patient, or from the obligation imposed by their consensual relationship, whereby the patient is injured in body or health, constitutes actionable malpractice.

• 3 The elements necessary to establish a medical malpractice case in Illinois are the same elements required of any negligence action. Plaintiff must prove: (1) that defendant owed him a duty, (2) that defendant failed to perform or breached that duty, (3) that the breach was the proximate cause of plaintiff's injuries, and (4) damages. Plaintiff must also prove that he was in the exercise of ordinary care and caution for his own safety; in other words, his freedom from contributory negligence. However, there is no suggestion that contributory negligence is an issue of this case.

We will now proceed to discuss the first three of these elements in greater detail.

(1) The duty of care required of a physician or surgeon in Illinois was established as early as 1886, and the formulation of this duty has remained basically unchanged to date. In Holtzman v. Hoy (1886), 118 Ill. 534, 8 N.E. 832, the court said:

"The duty which the defendant, as a physician and surgeon, owed to the plaintiff, was to bring to the case * * * that degree of knowledge, skill and care which a good physician and surgeon would bring to a similar case under like circumstances. While this rule, on the one hand, does not exact the highest degree of skill and proficiency attainable in the profession, it does not, on the other hand, contemplate merely average merit." 118 Ill. at 536, 8 N.E. at 832.

In Schireson v. Walsh (1933), 354 Ill. 40, 187 N.E. 921, the Illinois Supreme Court stated that because the rule is a safe one for both the public and the medical profession, it is not disposed to depart from it or to enlarge the professional requirements of a physician or surgeon. In more recent cases, a substantially similar rule has been stated. In Gault v. Sideman (1963), 42 Ill. App.2d 96, 191 N.E.2d 436, the court said that in actions for malpractice, the physician is held responsible for any injury resulting from a want of reasonable care, skill and diligence in his practice. See also, Scardina v. Colletti (1965), 63 Ill. App.2d 481, 211 N.E.2d 762.

• 4 Illinois does not recognize the "schools of medicine" approach in establishing what standard of care must be used as a measure of the defendant doctor's conduct. (Bacon v. Walsh (1913), 184 Ill. App. 377.) However, Illinois does follow the "locality rule" under which a defendant doctor is bound to exercise such care and diligence as a good practitioner practicing in a same or similar community or hospital. Bacon v. Walsh (1913), 184 Ill. App. 377.

• 5 (2) When the doctor fails to possess and apply the knowledge and skill and care that is ordinarily used by reasonably well-qualified doctors in similar cases and circumstances, the physician breaches his duty to his patient. Plaintiff must show by affirmative evidence that the doctor was unskilled or negligent. Scardina v. Colletti (1965), 63 Ill. App.2d 481, 211 N.E.2d 762.

Proof that a good result was not achieved is not proof of negligence. Plaintiff must show what the average reasonable physician in good standing would have done in a similar case and that the defendant doctor failed to conform his conduct to that norm. Proof of a bad result of a mishap is no evidence of lack of ...

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