APPEAL from the Circuit Court of Cook County; the Hon. J.F.
HEILINGOETTER, Judge, presiding.
MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:
Rehearing denied July 15, 1980.
Plaintiff brought this medical malpractice action against Dr. Bolgla and several others to recover for injuries he suffered during a corrective eye surgery which resulted in a partial paralysis of his right side. Dr. Bolgla died before trial, and defendant was appointed special administratrix. The various other defendants were dismissed before trial. At the close of all the evidence, a jury returned a verdict in defendant's favor and this appeal followed. On appeal, plaintiff contends that: (1) habit testimony was improperly admitted at trial; (2) the trial court erred in prematurely giving a Prim instruction (People v. Prim (1972), 53 Ill.2d 62, 289 N.E.2d 601, cert. denied (1973), 412 U.S. 918, 37 L.Ed.2d 144, 93 S.Ct. 2731) to the jury; and (3) a special interrogatory submitted to the jury was ambiguous and improper in form. We reverse and remand for a new trial.
On July 5, 1973, plaintiff had surgery performed on his left eye to correct a muscle disorder which allowed his eye to wander and turn out. After surgery, he was paralyzed on his right side and at the time of trial, he had a spastic rightsided paralysis of 50 percent in the right shoulder, a loss of fine finger movement in his right hand, an inability to heel gait on the right side, a right circumductive walk, and a right sided numbness. Plaintiff alleged that these conditions were the result of certain of Dr. Bolgla's negligent acts.
Dr. Bolgla was the anesthesiologist during plaintiff's operation. As the case was submitted to the jury, plaintiff claimed that Dr. Bolgla was negligent in failing to watch and record plaintiff's breathing during the administration of the anesthetics or in allowing a respiratory depression to occur to plaintiff as a result of the administration of the combination of anesthetics.
The evidence at trial conflicted as to the cause of plaintiff's resulting condition. Dr. Harris, an anesthesiologist, testified that after reviewing plaintiff's hospital records, Dr. Bolgla's anesthesiology records of plaintiff and others, and depositions of certain people, it was his opinion that a respiratory depression had occurred during plaintiff's operation. He stated that plaintiff's symptoms were the result of asphyxial (characterized by suffocation) brain damage which probably occurred over a five- to 12-minute period. He testified that Dr. Bolgla's failure to chart plaintiff's respiration during the operation suggested that he may have been casual in his observation of the breathing. He concluded by saying that had Dr. Bolgla placed his hand on plaintiff's chest to monitor respiration, the parties "wouldn't be here today."
Dr. Gerol, a neurosurgeon, testified that in his opinion hypoxia (lack of oxygen) occurred during the administration of the anesthesia which resulted in plaintiff's paralysis. He thought that Dr. Bolgla was taking plaintiff's blood pressure but not watching his breathing.
Dr. Brunner, an anesthesiologist, testified that Dr. Bolgla's performance at the surgery met the prevailing standards of good medical conduct. He stated that a review of Dr. Bolgla's chart revealed no evidence that hypoxia occurred during surgery and that the records actually indicated the opposite.
Dr. Pawl, a neurosurgeon, testified that plaintiff's problem was not caused by hypoxia but was due to a vascular problem. He believed that plaintiff had suffered a stroke, the cause of which was unknown.
Dr. Tobias, a neurosurgeon who had examined plaintiff shortly after the surgery, testified that plaintiff had suffered hemiparesis (muscular weakness affecting one side) and that he did not know if the condition was permanent. He did not consider a global oxygen loss to be a logical explanation of plaintiff's condition. He felt that the most likely cause would be a spasm of the blood vessel to the brain.
Based on the foregoing expert testimony the critical question was whether hypoxia had occurred during the operation and whether Dr. Bolgla was negligent in failing to detect it presumably because of his failure to properly monitor plaintiff's respiration. Dr. Liao, Nurse Flynt and Nurse Foxworth were the only persons who were present at plaintiff's surgery and who testified at trial. A third nurse who was at the surgery did not appear as a witness, and there is no indication in the record as to what she could relate about the circumstances of the surgery.
Dr. Liao, the opthalmologist who performed the actual ocular surgery, testified that nothing unusual happened during surgery and he did not have to stop because plaintiff moved. During surgery it is the anesthesiologist's job to monitor breathing which can be done by watching the drape over the patient or watching an electrocardiogram monitor. Dr. Bolgla did not report anything unusual about plaintiff's breathing during the operation, and to his knowledge, the operation was perfectly normal. Plaintiff was breathing normally after the surgery.
Nurse Flynt was the operating room technician during surgery and assisted Dr. Liao. During surgery a tube connected to plaintiff's nose supplied oxygen to plaintiff. At one point plaintiff's head moved slightly and the surgery was stopped. She did not know if any respiratory difficulty was noticed. She did not know what Dr. Bolgla did, but when plaintiff quieted down, he said "You can proceed." Plaintiff was breathing at that time and his breathing was not unusual, labored or out of the ordinary for that type of operation. Later that afternoon Dr. Bolgla told her that something had happened to plaintiff but that he did not know what.
Nurse Foxworth testified that she was a scrub nurse for plaintiff's surgery but she did not have a specific recollection of the operation. She assumed that she was present because her name appeared on the chart. She had been a scrub nurse on past occasions when Dr. Bolgla had been the anesthesiologist and Dr. Liao had been the surgeon. Over plaintiff's objection, she testified that Dr. Bolgla had a particular practice and method of monitoring a patient's respiration during surgery when the anesthetic in question was being used ...