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Spidle v. Steward

OPINION FILED JANUARY 30, 1979.

JUDITH MARIE SPIDLE ET AL., PLAINTIFFS-APPELLANTS,

v.

LEE A. STEWARD, M.D., DEFENDANT-APPELLEE. — (ANTON DIPPOLD, M.D., ET AL., DEFENDANTS.)



APPEAL from the Circuit Court of Coles County; the Hon. JOSEPH R. SPITZ, Judge, presiding.

MR. JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:

Plaintiffs, Judith Marie Spidle and Ada Spidle, wife and husband, sued defendant, Lee A. Steward, M.D. in the circuit court of Coles County alleging malpractice. The plaintiff wife had been a patient of defendant's and sought damages for personal injuries allegedly resulting from improper treatment. Plaintiff husband sought damages for medical bills arising from those injuries and for which he had become liable and damages for loss of his wife's consortium. The complaint as amended set forth a basis of proof upon the theories of specific negligence and res ipsa loquitur. At jury trial, the court directed a verdict in favor of defendant as to the res ipsa charges and the jury found for the defendant upon the allegations of specific negligence. Plaintiffs appeal the judgment subsequently entered for the defendant.

Plaintiffs maintain that the trial court erred in directing the verdict and in refusing their tendered instruction defining the doctor's duty and explaining the extent to which expert testimony was necessary and in order for them to prove their case.

The evidence showed that between November of 1971 and August of 1972, defendant had been treating Mrs. Spidle by medication for several severe attacks of pelvic inflammatory disease. Because of the recurrence of these attacks, he concluded that surgery was necessary and on August 11, 1972, performed a supracervical hysterectomy upon her. After the surgery she started having fecal discharges from her vagina which were diagnosed as having resulted from a fistula or opening that developed between her vagina and colon. The discharges continued until corrective surgery by another doctor and she has continued to have considerable difficulty. Substantive evidence was introduced that the fistula proximately resulted from the surgery.

• 1 If the evidence in a negligence case establishes a sufficient foundation to invoke the doctrine of res ipsa loquitur, the burden shifts to the defendant to prove that he was not guilty of negligence which was a proximate cause of the injury in issue. The parties agree that a foundation for res ipsa loquitur could be established in this case only upon a showing that,

1. The instrumentality involved, here the operation, was under the control of the surgeon;

2. The result obtained was one which would not ordinarily have occurred if the surgeon used proper care; and

3. The injury was not a result of the negligence of the injured plaintiff.

See Edgar County Bank & Trust Co. v. Paris Hospital, Inc. (1974), 57 Ill.2d 298, 312 N.E.2d 259.

Recently, in Walker v. Rumer (1978), 72 Ill.2d 495, 381 N.E.2d 689, the supreme court affirmed our decision (51 Ill. App.3d 1005, 367 N.E.2d 158) ruling that the complaint stated a cause of action for medical malpractice susceptible to proof under the doctrine of res ipsa loquitur. The supreme court described the essence of res ipsa in such cases in these words, "in determining whether the doctrine is applicable the circuit court is required to decide as a matter of law whether `the occurrence is such as in the ordinary course of things would not have happened' if the party exercising control or management had exercised proper care." 72 Ill.2d 495, 502, 381 N.E.2d 689, 691.

No question is raised that the operation was not under the control of the surgeon. At that time the plaintiff wife was under anesthesia and not shown to have been negligent in any respect. However, the only proof made by plaintiffs that the fistula would not have occurred as a result of the surgery if the defendant "had exercised proper care" was the testimony of its expert witness Dr. Thomas Wilson, a specialist in gynecology. After Dr. Wilson had discussed the factors a doctor should consider in deciding whether to operate upon a woman who has had several acute attacks of pelvic inflammatory disease or whether to continue treatment by medicine, the following colloquy took place:

"Q. Is a hysterectomy, supracervical hysterectomy, removal of the tubes and ovaries, a type of surgery which in ordinary course, is likely to lead and have as one of its results, now, in the ordinary course, mind you, in the ordinary course, likely to lead to and have as one of its results, in the absence of any negligence, the formation of fecal vaginal fistulas?

A. This is a rare and unusual complication of ...


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