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Eckley v. St. Therese Hospital

OPINION FILED JULY 24, 1978.

SUSAN ECKLEY, PLAINTIFF-APPELLANT,

v.

ST. THERESE HOSPITAL ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Lake County; the Hon. JOHN L. HUGHES, Judge, presiding.

MR. JUSTICE NASH DELIVERED THE OPINION OF THE COURT:

Plaintiff, Susan Eckley, brought this action against St. Therese Hospital and seven physicians, defendants herein, for damages allegedly caused by their negligent care and treatment of her. Prior to trial she entered into a loan-receipt agreement with two of the defendants, Dr. S.I. Sipos, Jr., and Dr. Nathan Tolwinsky, and they were dismissed from the case. At the close of plaintiff's evidence, the trial judge directed a verdict in favor of the hospital and four of the remaining physician defendants and allowed the case to be submitted to the jury only as it concerned Dr. Benjamin Pessis. The jury returned a verdict for that defendant and plaintiff appeals.

Plaintiff contends: (I) that the trial court improperly directed verdicts in favor of certain defendants; and (II) that trial error entitling her to a new trial occurred as follows: that the trial court improperly advised the jury of the death of a defendant's wife; that the court permitted improper use of the loan-receipt agreement in argument; that the court erred in permitting the defense to call Dr. Robert Hoffman as an expert witness and unduly restricted plaintiff's examination of witnesses; that the court improperly failed to impose sanctions for defendants' failure to abide by discovery orders; that plaintiff was prejudiced by the trial court's refusal to allow photographs of her scars to be submitted to the jury; and that the trial court abused its authority in requiring plaintiff's counsel to submit to the court and defense counsel copies of the hypothetical facts plaintiff proposed to present to its expert medical witness. Plaintiff also contends that the remaining 68 points of error raised in her post-trial motion, but not argued in her brief, should be considered on appeal.

Plaintiff, a married woman 28 years of age, first consulted with Dr. Tolwinsky on September 3, 1971, regarding symptoms associated with pregnancy for which he prescribed a medication. On October 3 she had a miscarriage at her home and was admitted to St. Therese Hospital in Waukegan. Dr. Tolwinsky was not in town and she was attended by his partner, Dr. Sipos, a gynecologist, who examined her and diagnosed an incomplete abortion. On October 4, Dr. Sipos performed a surgical procedure known as a dilation and curettage in an effort to control the uterine bleeding caused by the miscarriage.

In the course of the surgery Dr. Sipos ran a surgical instrument known as a curet through the wall of plaintiff's uterus and into her abdominal cavity. It lacerated connecting tissues and damaged the small bowel. In withdrawing the curet Dr. Sipos pulled the bowel out of the vagina then pushed it back through the hole in the uterus and into the abdominal cavity with forceps. Realizing he was not qualified to repair the injuries to the bowel, Dr. Sipos summoned Dr. Pessis, who was a member of the hospital staff and fully qualified to diagnose and perform abdominal surgery. The two doctors worked together with Dr. Pessis undertaking repair of the bowel while Dr. Sipos repaired the injuries to the uterus and thereafter plaintiff was placed on antibiotics and a soft diet. She remained in the hospital until her discharge on October 16, during which time no untoward symptoms were noted except a partial obstruction of the bowel which subsided without treatment. That condition developed at a time after she had received roast beef with a hospital meal on the fourth or fifth day following surgery.

On October 25, after she had been home for a week, plaintiff experienced discomfort in her lower stomach. She called Dr. Tolwinsky's office and an appointment was made for her to see Dr. Sipos later that day. While awaiting that appointment she also attempted to reach Dr. Pessis and was informed by his associate, Dr. Victor Steiner, that they could not see her and to see her gynecologist. She kept her appointment with Dr. Sipos later that day and on examination he stated he found nothing wrong and she returned home with a prescription for medication and directions to minimize her activities and to rest.

On the night of November 8 and early morning of November 9 plaintiff was examined in the hospital emergency room after she experienced severe pain in her abdomen. Neither Dr. Sipos nor Dr. Tolwinsky was available and she was examined by Dr. Steiner, the associate of Dr. Pessis, who happened to be in the hospital. On examination Dr. Steiner found evidence of some type of a pelvic infection, prescribed an antibiotic and advised plaintiff to get in touch with her gynecologist immediately. Plaintiff returned home but later that day came back to the hospital in severe pain and saw Dr. Tolwinsky in the emergency room who admitted her to the hospital.

Dr. Robert Hoffman, the hospital chief of staff and a board certified general surgeon, was called in consultation by Dr. Tolwinsky and treated plaintiff for a possible bowel obstruction. Plaintiff remained in the hospital for several days being treated conservatively with bed rest, medication and diet until the obstruction relented and she was discharged.

On November 29, 1971, plaintiff again experienced severe pain and saw Dr. Hoffman in the emergency room. He found her bowel was again partially obstructed and advised hospitalization and surgery if necessary but she declined and the condition abated. While plaintiff had no further contact with the hospital and doctors who are defendants herein, she continued to have abdominal discomfort and consulted physicians at the Mayo Clinic in Rochester, Minnesota. Dr. Benjamin Black, a staff physician, performed surgery on her on December 3, 1971, locating a partial obstruction of that part of the small intestine known as the ileum which he stated had been caused by adhesions forming at a previous surgical site. Dr. Black, who testified by evidence deposition, stated that an anastomosis, which is a joining by surgery of two portions of the bowel, had previously been done at that place and he also noted a small hole in the bowel which was sealed off by surrounding structures and adhesions. He corrected the conditions which he found and noted unusual inflammation at the site of the previous surgery which he attributed to the individual reaction of the patient to surgery. Dr. Black also testified that adhesions can result from any bowel surgery and he expected them after surgery performed by himself. He stated that they cause small bowel obstructions as experienced by the plaintiff. Plaintiff was discharged by Dr. Black on December 16, 1971, and he did not see her again.

Over the following years plaintiff experienced discomfort and consulted with several physicians. In June 1972 she again suffered an incomplete abortion and a dilation and curettage was performed at the Mayo Clinic. In 1974 plaintiff and her husband resided in Columbus, Ohio, and there she saw Dr. Anthony Neri, a gynecologist, who testified he performed exploratory surgery and found adhesions involving the large and small intestines which had become attached to her uterus, tubes and ovaries. He attributed the condition to infection, inflammation, surgical reaction and healing and stated it could be related to the perforation of the bowel and uterus plaintiff had sustained in 1971 or to the subsequent surgery performed by Dr. Black later that year. Dr. Neri noted the existence of fibroid tumors in the uterus and large cysts on both ovaries which conditions he testified could occur naturally. To relieve her symptoms he performed a complete hysterectomy; he last saw plaintiff in 1975 when she had no further symptoms. Plaintiff testified that she had had previous abdominal surgery at age 20, an appendectomy and removal of an ovarian cyst. She also had sustained numerous miscarriages during her first marriage.

Prior to trial Doctors Tolwinsky and Sipos entered into a loan-receipt agreement for the sum of $70,000 which plaintiff would be obliged to repay in the event she recovered from other defendants. At the close of plaintiff's case the trial court granted motions of defendants St. Therese Hospital and Doctors Steiner, Schwarz, Mintz and Hoffman for directed verdicts in their favor and a similar motion made by Dr. Pessis was denied. The jury returned its verdict finding for defendant Dr. Pessis and against plaintiff and the court entered judgment on that verdict.

I.

• 1, 2 Plaintiff contends that the trial court erred in allowing motions for directed verdicts on behalf of defendants St. Therese Hospital, Dr. Robert Hoffman and Dr. Victor Steiner. We must then determine whether the evidence, when viewed in its aspect most favorable to plaintiff, so overwhelmingly favors each defendant that no contrary verdict based on that evidence could ever stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 229 N.E.2d 504.) As noted in Borowski v. Von Solbrig (1975), 60 Ill.2d 418, 423, 328 N.E.2d 301, 304-05:

"Except in certain limited situations not pertinent here, * * * 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. [Citations.]"

In regard to the conduct of a defendant hospital in a malpractice action it is the

"* * * plaintiff's obligation to prove that the hospital failed to comply with the standards of proper care which guide institutions holding themselves out as devoted to the care and saving of human life, and that this failure resulted in the injury or ill-being complained of. Scardina v. Colletti, 63 Ill. App.2d 481, 211 N.E.2d 762." (Ybarra v. Cross (1974), 22 Ill. App.3d 638, 644-45, 317 N.E.2d 621, 626.)

We will consider the evidence presented as to each of these defendants in light of these rules.

St. Therese Hospital

Plaintiff's complaint charged the hospital was negligent in that it:

(1) permitted a physician to perform an operation without first examining his qualifications;

(2) disregarded its own bylaws in that it failed to use the degree of supervision over said physicians which its said bylaws indicated must be exercised;

(3) failed to review, at periodic intervals, the surgical and medical skills of the seven ...


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