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Walker v. Rumer

OPINION FILED OCTOBER 6, 1978.

VIRGINIA WALKER, APPELLEE,

v.

DONALD RUMER, APPELLANT.



Appeal from the Appellate Court for the Fourth District; heard in that court on appeal from the Circuit Court of Champaign County, the Hon. Birch E. Morgan, Judge, presiding.

MR. JUSTICE GOLDENHERSH DELIVERED THE OPINION OF THE COURT:

Upon allowance of defendant's, Donald Rumer's, motion to dismiss, the circuit court of Champaign County dismissed count II of plaintiff's, Virginia Walker's, two-count complaint. The circuit court made the required findings and pursuant to Supreme Court Rule 308(a) (58 Ill.2d R. 308(a)) plaintiff sought, and the appellate court allowed, an appeal from the order. The appellate court reversed and remanded (51 Ill. App.3d 1005), and we allowed defendant's petition for leave to appeal.

In count II plaintiff alleged that while she was under his professional care and in the exercise of due care for her own safety, defendant performed a surgical procedure known as a bilateral palmar fasciectomy and

"(5) That from July 18, 1974 and thereafter, the plaintiff and all instrumentalities were under the exclusive control, care, custody and supervision of the defendant;

(6) That while the plaintiff was under the exclusive control, care custody and supervision of the defendant, the plaintiff in some manner unknown to her sustained severe and permanent injuries to both of her hands;

(7) That said injuries were the result of carelessness and negligence of the defendant; * * *."

The appellate court held that count II contained allegations sufficient to state a cause of action under the doctrine of res ipsa loquitur and that the circuit court erred in dismissing it.

The appellate court reasoned that because in most circumstances the evidence of the cause of a patient's injury was "inaccessible to the patient" and "accessible to the defendant," the application of the doctrine of res ipsa loquitur would do "no more than place the doctor, the hospital or their staff in the same status as any other defendant in any other negligence action." The court stated, too, that with the burden of going forward with the evidence shifted to the defendant, evidence that the condition complained of resulted from a cause other than defendant's negligence would render the doctrine of res ipsa loquitur inapplicable; and if there were no evidence of negligence the case could be concluded either by summary judgment before trial or by directed verdict at the close of the plaintiff's case. (51 Ill. App.3d 1005, 1008-09.) We do not agree that the doctrine of res ipsa loquitur is to be applied in the manner suggested by the appellate court.

Defendant contends that heretofore the doctrine has been limited in its application to those cases in which the "act of malpractice is understandable by the average person without the need of medical testimony." He argues that the rationale of Edgar County Bank & Trust Co. v. Paris Hospital, Inc. (1974), 57 Ill.2d 298, was that intramuscular injections are so commonplace that the doctrine was there applicable. He argues further that a bilateral palmar fasciectomy is not a commonplace surgical procedure and that the average person is not sufficiently familiar with and so able to understand what is involved as to permit an inference of negligence by application of res ipsa loquitur.

In Metz v. Central Illinois Electric & Gas Co. (1965), 32 Ill.2d 446, 448-50, the court said:

"When a thing which caused the injury is shown to be under the control or management of the party charged with negligence and the occurrence is such as in the ordinary course of things would not have happened if the person so charged had used proper care, the accident itself affords reasonable evidence, in the absence of an explanation by the party charged, that it arose from want of proper care. (Feldman v. Chicago Railways Co. 289 Ill. 25; Bollenbach v. Bloomenthal, 341 Ill. 539.) This is essence is the doctrine of res ipsa loquitur, and its purpose is to allow proof of negligence by circumstantial evidence when the direct evidence concerning cause of injury is primarily within the knowledge and control of the defendant. * * *

Whether the doctrine applies in a given case is a question of law which must be decided by the court, but once this has been answered in the affirmative, it is for the trier of fact to weigh the evidence and determine whether the circumstantial evidence of negligence has been overcome by defendant's proof."

In Edgar County Bank & Trust Co. v. Paris Hospital, Inc. (1974), 57 Ill.2d 298, 305, the court held that "given the appropriate state of facts" the doctrine of res ipsa loquitur is ...


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