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Chiero v. Chicago Osteopathic Hospital





APPEAL from the Circuit Court of Cook County; the Hon. JAMES C. MURRAY, Judge, presiding.


In 1972, plaintiff, Louis Chiero, filed a medical malpractice action in the circuit court of Cook County against the various defendants for personal injuries he allegedly incurred as a result of a surgical procedure performed at Chicago Osteopathic Hospital. In 1976, following extensive pretrial discovery, the trial court granted the defendants' motion for summary judgment.

Plaintiff appeals contending material questions of fact exist which preclude the entry of summary judgment.

We affirm the trial court.

In March 1970, plaintiff was admitted to Chicago Osteopathic Hospital and found to have a congested, obstructed prostate. As he underwent a transurethral resection (TUR) of his prostate gland, plaintiff suffered a cardiac arrest. With the aid of emergency measures, he was successfully revived.

In 1972, plaintiff filed a one-count complaint against the defendants alleging that they were negligent in one or more of the following ways:

"a. Operated on the plaintiff without initially ascertaining that it was safe to do so and without taking adequate pre-operative testing.

b. Administered excessive sedatives, opiates, and/or anesthetic solutions to the plaintiff thereby precipitating or contributing to cause a cardiac arrest.

c. Failed to monitor or otherwise supervise the patient's pulse and other vital signs prior and during the operative procedure.

d. Failed to take adequate preventive steps to prevent the * * * accumulation or injection of an air embolism in the plaintiff's body.

e. Failed to take proper post-operative steps to prevent brain damage after the defendants knew or should have known that a cardiac arrest had taken place.

f. Failed to have a cardiac arrest team, neurosurgeon or other qualified members of the medical staff available or out of the confines of the operating room contrary to the by-laws of the Chicago Osteopathic Hospital and contrary to recognized standards.

g. Failed to have adequate laboratory testing prior to initiating an operation on the plaintiff.

h. Caused an operative procedure to be performed without supplying or having available cardiac monitory devices or without using same during the prosthetic resection.

i. Failed to provide consultations and further failed to discuss the probable complications to the plaintiff with other members of the hospital or medical staff.

j. Initiated an operative procedure on the plaintiff without adequately or sufficiently informing him of the probable complications during such an operation.

k. Failed to consult with the anesthesiologist or provide a properly qualified anesthesiologist prior to sedation."

Plaintiff further alleged that as a proximate result of the above negligence he suffered a cardiac arrest "from which he expired but was thereafter resuscitated with consequent brain * * * damage." Each of the defendants answered the complaint denying any negligence on their part with regard to plaintiff's care and treatment.

From 1972 to 1976, the parties engaged in extensive pretrial discovery. On July 26, 1976, the defendants asked plaintiff to identify each expert witness he intended to call at trial. The request went unanswered. Subsequently, in response to an order by the trial court, plaintiff disclosed that he intended to call at trial Dr. Dennis Streeter as an expert medical witness.

On November 9, 1976, the defendants deposed Dr. Streeter. Dr. Streeter had reviewed the depositions of Dr. Witte and Dr. Buziak, the hospital medical records concerning the care and treatment of the plaintiff, and interrogatory answers filed by Chicago Osteopathic Hospital and Drs. Lombardo, Szwed, Kovachevic, Caleel, Buziak and Witte.

Dr. Streeter explained that a TUR surgical procedure involves the removal of the fibromuscular portion of the prostate gland by the use of electrocautery. Chips and pieces of the prostate gland are carried into the bladder by an irrigating solution. The chips and pieces and the irrigating solution are then removed from the bladder by an Ellick Evacuator.

During the use of the Ellick Evacuator, many things can be absorbed into the circulatory system, including air. While the human body can handle small amounts of air in the venous circulation with no real difficulty, a large volume of air, such as 50, 75 or 100 cc's, can result in an air embolism. Although Dr. Streeter had never encountered a clinically detectable air embolism in the 100 TURs he had personally performed, an air embolism is a recognized and reported risk of the TUR surgical procedure.

Dr. Streeter asserted that during the TUR surgical procedure performed at Chicago Osteopathic Hospital, a large volume of air entered the right side of plaintiff's circulatory system resulting in an air embolism which eventually caused a cardiac arrest. Plaintiff was resuscitated by proper emergency measures.

Once the underlying factual basis of plaintiff's medical malpractice action was established, the following colloquy ensued at Dr. Streeter's deposition:

"Q. Is it correct, sir, that an air embolism can occur during the performance of a transurethral resection without any negligence on the part of the doctor performing that particular procedure?

A. It can occur as a normal happenstance in action during a T.U.R.

Q. Now, Doctor, you stated that you have formed some opinions regarding the propriety of care rendered by the various physicians ...

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