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Ybarra v. Cross

AUGUST 19, 1974.




APPEAL from the Circuit Court of Cook County; the Hon. WALTER J. KOWALSKI, Judge, presiding.


Plaintiff sued Dr. Roland Cross and Henrotin Hospital for damages because of injuries allegedly sustained as a result of the defendants' negligence. At the close of plaintiff's case the court directed verdicts in favor of both defendants and against plaintiff. From the judgments entered thereon plaintiff appeals.

Plaintiff raises an issue as to the propriety of the trial court directing verdicts in favor of the defendants, relying upon the rule enunciated by the Illinois Supreme Court in Pedrick v. Peoria & Eastern Ry Co., 37 Ill.2d 494, 510, 229 N.E.2d 504, 513-14, wherein the court stated:

"[V]erdicts ought to be directed * * * only in those cases in which all the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict based on that evidence could ever stand."

In order to evaluate plaintiff's argument, it is necessary to recount in some detail the relevant evidence adduced at the trial. Plaintiff Ybarra testified that on January 16, 1967, he became sick at work. He stated that he could not pass his urine and he went to see the company doctor who recommended he see Dr. Cross at Henrotin Hospital. Plaintiff saw Dr. Cross on the afternoon of January 16, 1967, and after the examination returned home. While plaintiff was at home, he was still "suffering little pains in the stomach." Plaintiff testified that thereafter the pains became more severe and he was unable to urinate. He stated that on January 19, 1967, his wife and a neighbor drove him back to Henrotin Hospital. While plaintiff Ybarra was being interviewed by a receptionist at the hospital, he lost consciousness and his next memory was lying in bed in one of the hospital rooms.

Plaintiff further testified that he was informed that an immediate operation was necessary. During the operation a "hole and the tube" were inserted in plaintiff's stomach and a tube inserted in his penis. Plaintiff stated after this first surgery, he thought he saw Dr. Cross on one occasion.

Plaintiff testified that on February 7, 1967, another operation was performed by Dr. Cross. Dr. Cross had called plaintiff's wife and told her that it was necessary that plaintiff have the operation. Dr. Cross did not explain the nature of the second operation to plaintiff. After the second operation, plaintiff had a tube in his abdomen and another one in his penis. Plaintiff testified that he remained in the hospital for several days after the second operation.

Plaintiff testified that at the time he was discharged from the hospital he had one tube in his stomach and one in his penis with a bag strapped to his leg. He was told to see the doctor once a week and he saw Dr. Cross weekly for 4 or 5 weeks. During this period plaintiff was at home and eventually his condition became "worse."

Plaintiff's wife telephoned Dr. Cross on April 6 or 7 and the doctor prescribed some pills for Mr. Ybarra. Plaintiff took the pills and broke out in blisters and was subsequently advised by Dr. Cross to discontinue the medication. Plaintiff testified that Dr. Cross wanted him to return to the hospital but that he was unable to do so.

Thereafter in April, 1967, plaintiff was operated on by Dr. Edwin C. Graf at Presbyterian-St. Luke's Hospital. Plaintiff did not know the nature of this operation and stated that he was hospitalized for several weeks following the operation. Plaintiff further testified that at the time he was discharged from Presbyterian-St. Luke's Hospital, his condition was "pretty good" and subsequently he returned to work.

On cross-examination plaintiff testified that he felt "pretty good" a couple of days after the first operation performed by Dr. Cross at Henrotin Hospital. Mr. Ybarra further testified that a couple of days after his discharge following the second operation performed by Dr. Cross, he felt "pretty good" and even tried to go back to work.

Dr. Roland Cross was called as an adverse witness under section 60 of the Civil Practice Act. (Ill. Rev. Stat. 1973, ch. 110, par. 60.) Dr. Cross testified that he was licensed as a physician in the State of Illinois in 1942 and was Board-certified as a urologist in 1951. In 1967 he was associated with Henrotin Hospital and plaintiff came under his care for urinary retention. Dr. Cross first saw plaintiff on January 18, 1967, and according to the doctor's record, Mr. Ybarra's urine was full of blood. Dr. Cross recommended that plaintiff be hospitalized. Mr. Ybarra was to "think about it" and call back when he was to enter.

On January 19, 1967, Mr. Ybarra was admitted to Henrotin Hospital. At the time of his admission, plaintiff was in the state of acute urinary retention and "could only dribble out urine." There were attempts made to pass a catheter and when these proved unsuccessful, the plaintiff was taken to emergency. Dr. Cross performed a suprapubic cystotomy by means of making an incision in the lower belly and opening up the bladder from above in order to drain it.

Dr. Cross further testified that on January 20, 1967, he performed an IVP (Intravenous Pyelogram) on plaintiff. This IVP did not shed any light on the nature of the plaintiff's obstruction. Dr. Cross had determined that the location of plaintiff's obstruction was mid bulb (midway between the back part of the scrotum ...

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