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Borowski v. Von Solbrig





Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County; the Hon. Wilbert F. Crowley, Judge, presiding.


Rehearing denied May 29, 1975.

This is a medical malpractice case. The plaintiff, Frank Borowski, was injured in an automobile accident. He brought this action in the circuit court of Cook County against Dr. Charles R. Von Solbrig and the Von Solbrig Memorial Hospital. He alleges that the negligence of the defendants in treating his injuries was a proximate cause of the amputation of his left leg. The jury returned a verdict of $200,000. Prior to trial the plaintiff had settled his claim against the driver of the automobile for $30,000 and executed a covenant not to sue. In entering judgment against the defendants, the trial court reduced the amount of the verdict by the amount received from the driver of the automobile and entered judgment for the plaintiff in the amount of $170,000. The defendants appealed from the judgment, and the plaintiff cross-appealed, asking for a judgment against the defendants in the full amount of the verdict, $200,000. The appellate court reversed and remanded the cause for a new trial. However, it also held that if the plaintiff had received a verdict against the defendants under proper instructions to the jury, the cause of action against the defendants and the cause of action against the automobile driver being separate and distinct, it would have been improper to reduce the verdict by the amount recovered from the original tortfeasor. (14 Ill. App.3d 672.) We granted leave to appeal. The bases of the appellate court's reversal and remandment for a new trial were erroneous jury instructions and defects in the plaintiff's hypothetical questions. We affirm the appellate court's order reversing the judgment and remanding the cause for a new trial.

On July 14, 1964, at about 7 a.m., an automobile traveling 25 miles per hour struck the plaintiff as he was walking across a street. He received severe injuries not only to his left leg, which was subsequently amputated, which loss is the basis of the cause of action in this case, but also to his face and right leg. Plaintiff was taken by ambulance to the defendant hospital. It is not disputed that as a result of the accident he received comminuted-type fractures of the nasal bones and that the bridge of his nose was broken and depressed. He had a laceration on his nose and was bleeding from his nostrils when he entered the hospital. He also received crushing injuries to the muscles of the left leg below the knee, compound and comminuted fractures of the left tibia with bony fragments protruding through the skin, a compound and comminuted fracture of the head of the left tibia, a compound and comminuted fracture of the right tibia, and a fracture of the head of the right fibula.

The defendant doctor testified that when he examined the plaintiff in the emergency room he also found but did not record in the hospital records that the plaintiff was shaking, cold, clammy and staring into space; that he had extreme pallor and was unconscious at times and did not answer questions; that the pupils of his eyes were dilated. He further testified that on the basis of these findings he diagnosed but did not record that the plaintiff was in a severe state of shock and had sustained a brain concussion with possible brain damage and that there was a possibility of a basal skull fracture. He also testified that he diagnosed vascular damage to the left leg below the bifurcation of the popliteal artery into the posterior tibial and peroneal arteries.

X rays were taken of the plaintiff, and he was then taken to his room. Surgery was scheduled for 10:50 a.m.; however it was cancelled because, the defendant testified, he thought the plaintiff was a poor surgical risk at the time because of shock. Besides the other symptoms of shock previously observed, the plaintiff's blood pressure had dropped to 80/60. No treatment for shock was administered. The doctor testified that he permitted the patient to "self-stabilize." Plaintiff's condition improved, and surgery was performed at 4:20 p.m. that day. During the surgery the injury to the muscle was repaired and the wound in the left leg was explored for vascular impairment. The defendant doctor testified that three to four inches of the posterior tibial artery had been obliterated. He did not attempt any repair of the artery because it had no chance of success and he thought further surgery would endanger the life of the patient. An intermedullary rod was inserted in the left leg. Following reduction of the fractures, full leg casts were applied to both legs.

After the plaintiff was returned to his room he complained that the leg cast on the left leg was too tight. The next day, July 15, the left leg cast was split down to the knee and on the morning of July 16, it was removed completely and replaced with an aluminum splint. On the evening of July 16 the plaintiff's wife made arrangements to have him transferred to another hospital.

Late that night or early in the morning of July 17, plaintiff was transferred to Garfield Park Hospital where he was treated by Dr. Benages, who was the plaintiff's family doctor. On that morning both Dr. Benages and Dr. Murphy, an orthopedic surgeon, diagnosed gangrene in the lower left leg. Amputation below the left knee followed on July 18. The first amputation failed to arrest the spreading gangrene, and on August 12 a second amputation above the knee was performed. The allegations of malpractice in this case relate solely to the left leg.

The plaintiff's doctors stated that in their opinions it was possible to repair the obliterated artery and to establish circulation; that the delay in the surgery, the failure to perform certain tests and the surgical procedures used were not in accord with accepted standards of medical care in Chicago in 1964. The opinion was also expressed that the plaintiff's leg was gangrenous before he left the defendant hospital.

The defendants contend that judgments should be entered in their favor as a matter of law because there was insufficient evidence to support the verdict in favor of the plaintiff. We do not agree. The record contains sufficient evidence of the doctor's negligence and that this negligence was a proximate cause of the plaintiff's injury to submit the question to the jury.

Except in certain limited situations not pertinent here, the appellate decisions of this State have held that the plaintiff, by the use of expert testimony, must establish the standards of care against which the defendant doctor's conduct is measured. The plaintiff must then further prove by affirmative evidence that, judged in light of these standards, the doctor was unskillful or negligent and that his want of skill or care caused the injury to the plaintiff. See Scardina v. Colletti, 63 Ill. App.2d 481; Newman v. Spellberg, 91 Ill. App.2d 310; Sanders v. Frost, 112 Ill. App.2d 234; Estell v. Barringer, 3 Ill. App.3d 455; Ybarra v. Cross, 22 Ill. App.3d 638.

As in other negligence cases the question of whether the doctor deviated from the standard of care and whether his conduct was a proximate cause of the plaintiff's injury are questions of fact for the jury. Under the established Pedrick criteria, judgment should not here be entered for the defendants unless all of the evidence viewed in the aspect most favorable to the plaintiff so overwhelmingly favors the defendants that no contrary verdict based on the evidence could ever stand. (Pedrick v. Peoria and Eastern R.R. Co., 37 Ill.2d 494.) The opinions of the plaintiff's experts were to a degree weakened on cross-examination and were contradicted by the defendants' witnesses; however, the weight to be given to their testimony was to be determined by the jury. Under these circumstances, judgments for the defendants are inappropriate.

The defendants also contend that they are entitled to judgment because the evidence does not establish that a better result would have been obtained if proper treatment were administered, citing Moore v. Tremelling (9th Cir. 1935), 78 F.2d 821. It is unnecessary to extend the burden-of-proof requirements of a medical malpractice case beyond those of an ordinary negligence case by adding the further requirement that the plaintiff prove a better result would have been achieved absent the alleged negligence of the doctor. We have stated above that the plaintiff must prove that the negligence was the proximate cause of his injury. Under accepted instructions this burden must be sustained by proving that the proposition on which he has the burden (proximate cause) is more probably true than not true. (Illinois Pattern Jury Instruction (IPI), Civil No. 21.01.) In Moore the court thought that in a malpractice case such as this one the jury should not be permitted to speculate upon the relative amount of injury due to the fracture caused by the ...

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