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Stewart v. Von Solbrig Hospital

NOVEMBER 27, 1974.




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


This is a products liability action brought under the doctrine of strict liability concerning a certain type of surgical pin known as the Rush pin. There were three defendants in this suit: Central Steel and Wire Company (hereinafter "Central"), which produced the stainless steel rod in question; R. Retzl Company, which shaped the rod for its final use; and The Von Solbrig Hospital, Inc. (hereinafter the "Hospital"), which implanted the Rush pin in the plaintiff's left leg. Injuries were allegedly sustained due to a break in this Rush pin while it was still implanted in the plaintiff's leg. The jury awarded the plaintiff a verdict of $40,000 against defendants Central and the Hospital while rendering a verdict for defendant Retzl. The court then entered judgments notwithstanding the verdict for both Central and the Hospital on the defendants' motions. The court refused to grant plaintiff's motion for a judgment notwithstanding the verdict against Retzl. Plaintiff has elected to dismiss his appeal from the judgment in favor of Retzl and only appeals the order which granted Central and the Hospital judgments notwithstanding the verdict.

The Rush pin is a type of intramedullary rod. Intramedullary rods have been utilized by the medical profession to align and stabilize fractures to the tibia bone located in the leg. Dr. Charles R. Von Solbrig, an officer and agent of the defendant hospital corporation, had designed a special type of intramedullary rod which is known as the Rush pin. Retzl was employed to fabricate these Rush pins. In turn, Retzl employed Central to supply a specific type of stainless steel rod which Retzl would form into Rush pins.

In December of 1965 the plaintiff, Stewart, visited Dr. Van Solbrig, an officer of the Hospital corporation, complaining of an injury to his left leg. Dr. Von Solbrig found that the plaintiff had sustained a severe fracture to his left tibia. On December 28, 1965, an operation was performed by Dr. Von Solbrig in which a Rush pin was inserted into the tibia of the plaintiff's left leg. The rod used to form the pin had been supplied by Central and the pin had been fabricated by Retzl.

Sometime later the pin broke while in the plaintiff's leg. Several operations and complications concerning the plaintiff's left leg transpired after this break. The plaintiff alleges that these subsequent operations and complications were caused by the break in the pin and that a defect in the pin was the cause of the break. A major part of the trial was concerned with the cause of this break.

The plaintiff presented Dr. Lautenschlager, an expert witness in the field of biological materials, who testified concerning defects in the Rush pin. Dr. Lautenschlager testified that he had examined the Rush pin in question and found that it contained certain inclusions (foreign materials found in the metal rod) and scratches upon the metal's surface. These inclusions and scratches were in excess of the amount which is normally found in a Rush pin. He testified that if these inclusions were not present the strength of the pin would have been increased by 50 percent.

The plaintiff's case was tried on the theory that these alleged defects in the Rush pin were what caused the pin to break and were therefore the cause of the plaintiff's injuries. The defense on the other hand was based upon the theory that the break resulted from the plaintiff walking upon his left leg after the cast was removed despite the doctor's orders not to walk on the leg. The defense presented evidence that: (1) the Rush pin was not designed to support a patient's weight when the leg was not in a cast where the fracture had not healed; (2) walking on an unhealed leg without a cast would cause the pin to break; (3) the plaintiff walked on it without a cast when the leg had not healed; (4) the pin broke shortly after the plaintiff started walking on it; and (5) walking upon it was in fact the cause of the break.

A number of witnesses testified concerning the intended function of the Rush pin. Dr. Von Solbrig, called by plaintiff under section 60 of the Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, par. 60), said that "the last thing in the world you would want on an intramedullary rod would be to serve as a weight bearing thing." Dr. Greener, another witness for the plaintiff who was an expert in the behavior of engineered materials within the human body, testified on cross-examination that the Rush pin in question was not a weight-bearing rod. Finally, Dr. Thompson, again a witness for the plaintiff, testified that he did not think the function of the Rush pin was to bear weight. There was, however, a great deal of testimony by many of the expert witnesses that the intended function of the Rush pin was to keep the fracture in alignment and to keep the fracture from moving.

There was also testimony concerning what would happen if a patient with a non-defective Rush pin implanted in his leg walked on the leg which had not yet mended without a cast. Dr. Thompson, the plaintiff's expert, agreed on cross-examination that one might reasonably expect that a pin so inserted would break under these conditions. Dr. Greener, another expert witness for the plaintiff, testified that surgical implants in general, if subjected to weight overloads, would normally be expected to fail. Dr. Lautenschlager, another expert for the plaintiff, testified that 2 or 3 days of infrequent walking would have produced the break in the Rush pin that had been inserted in the plaintiff's leg.

After the Rush pin was implanted in the plaintiff's left leg on December 28, 1965, the plaintiff's left leg was continually in a cast until January 31, 1967. X-rays of the plaintiff's leg were taken at periodic intervals during this time span. The X-rays showed only partial healing of the fracture. This partial healing appeared to be reversing itself. Dr. Lautenschlager, one of the plaintiff's experts, testified after examining X-rays taken one week before the removal of the cast that there was no union of the tibia in which the Rush pin was inserted. Dr. Von Solbrig testified that this X-ray showed that there had been no union of the tibia bone which could support weight. Dr. Von Solbrig testified that he therefore instructed the plaintiff not to put any weight on that leg after the cast was removed. Several of the expert witnesses testified that none of the X-rays taken while the leg was in the cast, including the one taken on January 24, 1967, one week before the cast was removed, showed any break in the Rush pin.

The evidence concerning whether the plaintiff walked on his left leg was provided by the plaintiff's own testimony. He testified on direct examination that he did not put any weight on the leg after the cast was removed on January 31, 1967. However, on cross-examination, the plaintiff admitted he walked on the leg for several days. He then qualified this by saying he only walked on it with the aid of crutches. However, the defense attorney pursued him on whether he had in fact walked on the leg:

"Q. You also told Dr. Anderson you walked on it?

A. I had walked on it a couple ...

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