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Thompson v. Lietz

OPINION FILED APRIL 24, 1981.

GERALD THOMPSON ET AL., PLAINTIFFS-APPELLEES,

v.

GERALD LIETZ, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Champaign County; the Hon. JOHN R. DeLaMAR, Judge, presiding.

MR. JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:

Plaintiffs brought a medical malpractice suit against the defendant in the circuit court of Champaign County and recovered substantial verdicts. Defendant appeals and we affirm. Plaintiff-husband's recovery was based on the personal injury suffered and plaintiff-wife's recovery was on loss of consortium.

The factual background is relatively uncomplicated. Plaintiff-husband (Gerald) submitted to an operative procedure by defendant for the repair of a bilateral inguinal hernia. The post-operative progress was unsatisfactory in that Gerald suffered pain and swelling in the region for some time and finally experienced severe atrophy of his testicles and penis to the extent that the usual connubial relations have become impossible. All of these anatomical structures were normal prior to the operation.

Some 2 1/2 years following the operation Gerald consulted a urologist who examined and treated him. This doctor testified on Gerald's behalf at trial. He was of the opinion that the atrophy was a permanent condition and was the result of making the hernia repair too tight, cutting off the blood supply to the region. He also believed that Gerald's impotence might be alleviated by the use of hormone treatments, although there has been no real change in his condition, nor improvement, following a regimen of hormone injections. He suggested that what remains of the testicles be removed in order to alleviate the continuing pain and discomfort. The doctor further testified that he was unable to point to any specific acts of negligence in the operative procedure since he was not present and that how tight to make the repair is a matter of judgment; further, that atrophy following this surgery is an uncommon occurrence, but since both testicles became atrophied, the procedure used was deficient.

The head of surgery at a local hospital testified on behalf of the defendant. This doctor stated that atrophy of the type found here can result even from a careful operative procedure. However, according to his testimony, the risk was slight and he was not aware of any other such case. He agreed with plaintiffs' expert that the cause was insufficient blood supply and that the tightness of the repair is a matter of judgment.

Defendant testified on his own behalf and recounted some prior occasions on which Gerald had discussed with him some problems concerning impotency. In the course of post-operative treatment he noticed the atrophy and considered complaints from Gerald about impotency but believed that the problem was emotional in nature in view of his past history. He acknowledged that the current condition was related to the surgery.

Both Gerald and his wife testified that prior to the surgery there had been no problems concerning conjugal relations.

The foregoing represents the testimony only in synoptic form, since one of defendant's principal contentions on appeal is that the trial court erred in submitting the case to the jury on the theory of res ipsa loquitur. At the close of the plaintiffs' case the trial court directed verdicts in favor of the defendant on all theories except res ipsa.

The resolution of this issue will depend on an interpretation of the supreme court decision in Spidle v. Steward (1980), 79 Ill.2d 1, 402 N.E.2d 216. Plaintiffs maintain that under Spidle a res ipsa case may be presented to a jury even though no expert evidence of specific negligence has been presented, it being sufficient that the expert testifies that the injury had some negligent antecedent. Defendant, contra, asserts that by citing Clark v. Gibbons (1967), 66 Cal.2d 399, 426 P.2d 525, 58 Cal.Rptr. 125, and Contreras v. St. Luke's Hospital (1978), 78 Cal.App.3d 919, 144 Cal.Rptr. 647, our supreme court, at least sub silentio, indicated that specific acts of negligence are required to be presented before the prima facie foundation of res ipsa has been laid. Otherwise, defendant argues, a bad result will yield liability.

The threshold question in Spidle was evidentiary in nature. Plaintiffs' expert there had answered equivocally to the critical question of whether the injury was likely to occur in the absence of negligence and the defendant argued that under such circumstances, res ipsa loquitur could not be invoked. The supreme court answered:

"Unfortunately, the expert in this case answered the question indirectly. We cannot conclude with equanimity, from this colloquy alone, whether he meant fistula formation after hysterectomies is usually a result of negligence or whether there is an equal probability that they occur despite the exercise of due care. In this case, however, the expert also testified about the inadvisability of operating on Mrs. Spidle if her pelvic inflammatory disease was in an acute or an acute flare-up stage. The defendant even agreed with the plaintiffs' expert regarding the inadvisability of operating during an acute stage, although denying that Mrs. Spidle was in such a stage. Evidence was introduced, however, that Mrs. Spidle was in an acute stage and that the defendant, after the operation, admitted he `operated a little too soon.' In a light most favorable to plaintiffs, a reasonable person could conclude that plaintiffs' expert believed that this fistula, more probably than not, resulted from defendant's negligence. If believed, this is evidence of more than a mere unusual occurrence [citation], from which the jury could have inferred negligence under res ipsa loquitur." 79 Ill.2d 1, 9-10, 402 N.E.2d 216, 219-20.

The basic emphasis throughout the Spidle opinion is on the record as a whole, not on individual, specific acts. In discussing Drewick v. Interstate Terminals, Inc. (1969), 42 Ill.2d 345, the court said that control was the controverted factor, and:

"We see no reason to treat the probability component of res ipsa loquitur differently from the control component. Plaintiffs have the burden of proof on each element of res ipsa loquitur. And we think that from this record, read as a whole, a jury could have decided that each of these elements was proved." (Emphasis added.) 79 Ill.2d 1, 11, 402 N.E.2d 216, 220.

In discussing Walker v. Rumer (1979), 72 Ill.2d 495, and Edgar County Bank & Trust Co. v. Paris Hospital (1974), 57 ...


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