APPEAL from the Circuit Court of Cook County; the Hon. JAMES
C. MURRAY, Judge, presiding.
MR. JUSTICE WILSON DELIVERED THE OPINION OF THE COURT:
Plaintiffs, Edward and Clara Kolakowski, filed this medical malpractice action against two neurosurgeons, Dr. David C. Voris and Dr. K.S. Parameswar, and an orthopedic surgeon, Dr. Leonard R. Smith. *fn1 A jury found all three doctors not liable for Edward Kolakowski's injuries. The trial court, having previously reserved ruling on Dr. Smith's motion for a directed verdict, then granted his motion. Subsequently, plaintiffs successfully moved the court to grant a new trial as to defendants Voris and Parameswar. Pursuant to Supreme Court Rule 306 (Ill. Rev. Stat. 1979, ch. 110A, par. 306), we granted the two neurosurgeons' petition for leave to appeal from that order. They contend on appeal that the trial court abused its discretion in granting the new trial. Plaintiffs cross-appeal from the trial court's order granting a directed verdict in favor of the orthopedic surgeon, Dr. Smith. For the reasons set forth herein, we affirm both of the trial court's orders.
This litigation has been pending since August of 1974 when plaintiffs filed their initial complaint. The record includes hundreds of pages of medical testimony, some of which we summarized in the prior appeal from defendant hospital's summary judgment. (Kolakowski v. Voris (1979), 76 Ill. App.3d 453, 395 N.E.2d 6 aff'd (1980), 83 Ill.2d 388, 415 N.E.2d 397.) Because we will focus on the legal standard for granting new trials and whether the trial court abused its discretion, we need not describe the evidence at length.
In the summer of 1973, Edward Kolakowski (plaintiff), *fn2 suffering severe pain in his left shoulder, entered Mercy Hospital for heat treatments. The pain persisted, however, and on August 15, 1973, Dr. Parameswar performed a neurological examination of plaintiff and took a myelogram of plaintiff's spine. The myelogram indicated that there was a defect between two cervical discs in plaintiff's spine, which put pressure on the nerve root. Dr. Parameswar told plaintiff he could choose between continuing the conservative treatments or undergoing surgery. He described the two possible surgical approaches and explained the risks involved. Drs. Parameswar and Voris both recommended that plaintiff undergo an anterior disc removal and interbody fusion.
On August 24, 1973, Drs. Voris and Parameswar operated on plaintiff. After they had removed the defective disc from plaintiff's spine, Dr. Smith inserted a bone plug into the space, to fuse with the cervical vertebrae, and closed the wound. Following the surgery, plaintiff's condition was monitored at frequent intervals. The first indication of possible complications occurred at 6 p.m., approximately eight hours after the surgery, when plaintiff complained that his right arm was weak and numb. He also said that he could not bend his legs. A 7:30 p.m. notation indicated that plaintiff was "shaky" and had vomited. At 10:45 p.m., plaintiff had a temperature of 102. He could bend his right leg slightly. Hospital personnel unsuccessfully attempted to reach Dr. Voris. Thereafter, plaintiff's condition apparently fluctuated. On August 26 he experienced spasms in his legs. At times there was some indication that he could bend his legs slightly, which would signify improvement. However, the doctors concluded that his recovery was not proceeding as expected. Accordingly, Dr. Voris ordered a second myelogram, which was performed on August 27. It revealed a complete obstruction between the sixth and seventh cervical vertebrae. Defendants immediately performed a decompressive laminectomy on plaintiff from the back of the neck. During this operation the doctors removed fragments of extruded disc material from the fifth and sixth cervical levels. The post-operative report stated that there was no evidence of spinal cord compression, and the cause of plaintiff's difficulties remained unknown. After this second operation, plaintiff was still unable to move his extremities. His condition was diagnosed as an impaired function of the cervical spinal cord.
Plaintiff received physical therapy and other treatment as an outpatient, but his pain continued, as did his limited ability to move his arms and legs. Gradually, however, plaintiff was able to assume some of the functions necessary for daily living. He could feed himself with his right hand. He could also walk around at home, although he needed his wheelchair or walker outside the home.
In 1976, plaintiff went to California to be examined by Dr. J. DeWitt Fox, who agreed to testify for plaintiff in the lawsuit pending against defendants. In October of 1977, he operated on plaintiff's back. After two operations, plaintiff was required to use a permanent catheter for the first time. He also suffered a substantial loss of function in his deltoid muscle, causing his right arm to hang limply by his side.
At the trial, Dr. Fox testified as one of plaintiff's expert witnesses. He stated that his surgery was aimed at plaintiff's "original" problem rather than an attempt to correct anything the defendants had done. According to Dr. Fox, however, defendants' surgery had not conformed with the proper standard of care. Dr. Fox believed that plaintiff's problem was caused by disc fragments driven into the spinal cord and up against the nerve root at the time of the August 24, 1973, surgery. He hypothesized that defendants had failed to remove all disc fragments during the anterior dissectomy. Then, when Dr. Smith inserted the bone plug, disc material apparently was forced up against the spinal cord, causing the plaintiff's subsequent quadraparesis. Dr. Fox acknowledged, however, that the actual disc material that defendants found during the second operation could not have caused plaintiff's condition because of its location. He assumed that some disc fragments remained in the surgical site, and had been forced against the spinal cord. Regarding the matter of plaintiff's post-operative care, Dr. Fox testified that defendants should have undertaken immediate exploratory surgery on plaintiff following the first operation, rather than wait three days. *fn3
Dr. Adolph Gerol, plaintiff's second expert, also stated his opinion that the defendants had deviated from proper surgical standards.
The two defendant neurosurgeons testified at length regarding the operations. They removed the defective disc and inspected the surgical site, finding no disc material. Because they initially operated from the front of the neck, they could not see the spinal canal and cord; this view was obstructed by the longitudinal ligament which forms a "curtain" in front of the spinal cord. The doctors testified that this ligament was intact, signifying that no disc fragments from the first operation could have penetrated it and thereby pass into the spinal canal to lodge against the spinal cord. Further, the doctors testified that during the second operation, performed from the back of plaintiff's neck, they found no disc fragments compressing the cord. The fragments they did find were in a location where they could not reach the spinal cord.
Dr. Smith, the orthopedic defendant, corroborated the neurosurgeons' testimony that the surgical site was clean before he inserted the bone plug to complete the first operation. The X rays of the surgical site revealed a complete and successful fusion.
The neurosurgeons suggested that, since the second exploratory operation indicated that there was no spinal cord damage (which apparently would have caused immediate physical symptoms), plaintiff's post-operative condition could have been caused by a blood clot which blocked the flow of blood to the spinal cord, causing plaintiff's pain. Such a condition, neither detected nor anticipated, would have developed in the hours following the surgery. Plaintiff's experts disagreed with this theory, stating that plaintiff's symptoms were inconsistent with the blood clot theory.
Defendants' expert witness, Dr. Oscar Sugar, testified that the surgeons had acted at all times in accordance with the proper standard of care and that plaintiff's condition was medically, surgically, and anatomically incapable of being caused in the manner suggested by plaintiff's experts. Dr. Sugar testified that the bone plug used in the fusion could not have produced such force as to drive disc material into the spinal cord, even if such material were present in the spinal canal at the time of the operation.
The trial court based its decision to grant plaintiff a new trial on two grounds: (1) the prejudicial closing argument of counsel for defendant Voris; and (2) the extensive cross-examination of Dr. Fox, which dwelt on his medical treatment of plaintiff. In urging us to reverse the trial court's order, defendants contend that the court used the wrong legal standard in assessing the alleged trial errors. They argue that error sufficient to precipitate a new trial must be, ...