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Kolakowski v. Voris





Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. David A. Canel, Judge, presiding.


Rehearing denied January 29, 1981.

Edward and Clara Kolakowski brought suit in the circuit court of Cook County, claiming damages for injuries suffered by Edward (plaintiff) resulting from the alleged negligence of defendants, Drs. David C. Voris, K.S. Parameswar and Leonard R. Smith. Mercy Hospital (hereafter referred to as defendant) was sued in separate counts based on the doctrine of res ipsa loquitur. After the submission of affidavits, interrogatories and depositions, defendant's motion for summary judgment was granted. The appellate court reversed the judgment, finding that there were genuine issues of material fact present. (76 Ill. App.3d 453.) We granted defendant's petition for leave to appeal.

The plaintiff has had an extensive history of back problems commencing in 1951 when he fell 26 feet into a pit injuring his lower back and legs. He was hospitalized twice in 1956 and placed in traction. Plaintiff underwent a laminectomy and fusion operation in 1956 and was diagnosed as suffering from a severe degenerative disease of the lumbar disc. He reinjured his back in an automobile accident in 1972. In July of 1973, plaintiff visited his family physician, Dr. John Caserta, complaining of pain in his left shoulder. Dr. Caserta prescribed heat treatments which failed to improve defendant's condition. Consequently, on July 17, 1973, plaintiff was admitted to defendant's hospital. Dr. David Voris, a neurologist, was engaged as a consultant by Dr. Caserta. Dr. Voris examined plaintiff, diagnosed his condition as arthritis or rheumatism, advised that he avoid further surgery and ordered traction and heat treatments. After these treatments, plaintiff was released and continued receiving treatments as an outpatient. However, his discomfort became unbearable, and he was readmitted by defendant on August 11, 1973. Plaintiff was placed in traction, which only aggravated his pain. Dr. Voris then decided to perform a myelogram, an X ray of the spinal cord after the injection of a contrast medium. This test was scheduled for August 16, 1973, with Dr. K.S. Parameswar assisting. A few days later, Dr. Voris informed plaintiff that the myelogram showed possible spinal cord impairment and recommended an anterior interbody discectomy and fusion. Dr. Voris informed plaintiff that possible complications from this surgery include infection, quadriplegia and quadriparesis.

The surgery was performed on August 24, 1973, with Drs. Voris and Parameswar making the anterior incision and removing the disc from the patient's spine. Dr. Smith, an orthopedic surgeon, implanted a "plug" of bone into the space left by the removed disc. Various employees of the hospital, i.e., nurses and the anesthesiologist, were also present. After surgery, plaintiff was lifted off the operating table and onto a cart. He was returned to his room at approximately 2 p.m.

At 6 p.m. he was visited by a nurse who noted on his chart that plaintiff complained of an inability to bend his left leg as well as weakness and numbness on his right side. It was noted at both 7:45 p.m. and 8:45 p.m. that plaintiff experienced stiffness and an inability to move his legs. At 10:15 p.m. a notation on his chart showed that plaintiff could not move his left leg, could only bend the right leg slightly and had a fever of 102°. Because these complaints were not anticipated post-operative symptoms, defendant's personnel called Dr. Voris but failed to reach him. It appears that no attempt was made to reach Dr. Parameswar or any other neurosurgeon. On the following day, August 25, 1973, Dr. Voris examined plaintiff and found his finger and leg movement poor. He had little grip strength and poor flexion and extension of the wrist. Dr. Voris diagnosed plaintiff's condition as spastic quadriparesis, i.e., hyperactive muscle tone restricting movement. This condition could have been attributable to one of two causes: (1) spinal cord edema (tissue swelling due to an abnormal accumulation of fluid in the area), which can be corrected without surgery, or (2) spinal cord compression which requires immediate surgical intervention for decompression. Dr. Voris felt that the cause was spinal cord edema because plaintiff still had some functioning in his limbs. He concluded that the proper course was to treat the edema with drugs to reduce swelling and then to observe plaintiff's progress. When plaintiff's condition failed to improve after several days, Dr. Voris and Dr. Parameswar ordered a myelogram. At that time, according to plaintiff's son, plaintiff asked Dr. Voris the reason for the myelogram. Dr. Voris allegedly responded, "Your right foot slipped off the operating table." Dr. Voris denies making such a statement.

The myelogram indicated a blockage at the seventh cervical level. A laminectomy was immediately performed by Dr. Voris and Dr. Parameswar, and fragments of extruded disc were removed from the fifth and sixth cervical level. The post-operative report recorded that no evidence of spinal cord compression or edema was found. The report also stated:

"It is not felt that an adequate explanation for this patient's difficulty with leg movement has been found * * *."

Plaintiff's condition was diagnosed as an impaired function of the cervical spinal cord. Plaintiff has lost the use of his limbs and is virtually a quadriplegic.

Introduced into the record was the discovery deposition of Dr. J. DeWitt Fox, plaintiff's only expert witness. Dr. Fox stated that, in his opinion, the injury occurred when the bone plug was implanted by Dr. Smith during the fusion portion of the operation. Dr. Fox stated that, in the course of impacting this plug, extruded disc material had been forced against the spinal cord and nerves, causing the plaintiff's paralysis. Dr. Fox also stated that the hospital chart did not indicate negligence of any hospital personnel.

On appeal, the defendant presents two theories to support the contention that the doctrine of res ipsa loquitur is inapplicable in the present case: (1) the defendant did not have exclusive control, a requirement for the application of the doctrine, and (2) plaintiff's introduction of proof of specific negligence defeated his right to rely on the doctrine of res ipsa loquitur. Defendant also challenges the appellate court's ruling on the issue of summary judgment. Defendant argues that the trial court appropriately granted its motion for summary judgment because (1) the affidavit of plaintiff's attorney is defective since it violates Supreme Court Rule 191 (73 Ill.2d R. 191), and (2) there are no genuine issues of material fact to be resolved.

The purpose of the doctrine of res ipsa loquitur "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." (Metz v. Central Illinois Electric & Gas Co. (1965), 32 Ill.2d 446, 449.) For plaintiff to take advantage of this inference, he must show that he was injured (1) in an occurrence which would not have occurred in the absence of negligence, (2) by an instrumentality or agency under the management or control of the defendant, and (3) under circumstances which were not due to any voluntary act or negligence on the part of the plaintiff. (Spidle v. Steward (1980), 79 Ill.2d 1, 5; Metz v. Central Illinois Electric & Gas Co. (1965), 32 Ill.2d 446, 448-49; Prosser, Torts sec. 39, at 214 (4th ed. 1971).) This court has held that the doctrine of res ipsa loquitur is available to a plaintiff in a medical malpractice case. Walker v. Rumer (1978), 72 Ill.2d 495, 500; Edgar County Bank & Trust Co. v. Paris Hospital, Inc. (1974), 57 Ill.2d 298, 305.

It is the duty of the trial court, in the first instance, to determine as a matter of law whether plaintiff's case is one in which the doctrine may be applied. (Metz v. Central Illinois Electric & Gas Co. (1965), 32 Ill.2d 446, 449.) The defendant argues that the plaintiff is not entitled to rely on the res ipsa loquitur doctrine because the plaintiff was never in the exclusive control of the defendant. Defendant points out that, at the time of the ...

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