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Burge v. Morton





APPEAL from the Circuit Court of Peoria County; the Hon. CALVIN R. STONE, Judge, presiding.


Plaintiff Pamela Burge filed a complaint to recover damages allegedly occasioned by the negligence of defendant John L. Morton, D.D.S. After a jury trial, the circuit court of Peoria County entered judgment in defendant's favor.

On May 25, 1979, plaintiff was scheduled to have two lower wisdom teeth extracted by defendant, who had been her dentist since 1969. While it is unclear from the record when plaintiff's appointment began, it had been scheduled for 2:30 p.m. Plaintiff was placed in a treatment chair, and both gums were anesthetized. As plaintiff is diabetic, defendant inquired as to whether her diabetes was under control and was told that it was. Defendant then attempted the extraction of her lower left wisdom tooth, but the tooth broke into several pieces and he was unable to remove its root tips. After suturing the gum, defendant informed plaintiff of the complication and asked if she preferred he cease his work or if she still wanted to continue with the second extraction. After asking the advice of Sue Driscall, defendant's assistant, plaintiff elected to continue. The attempted extraction of the lower right wisdom tooth resulted in the same complication.

Driscall scheduled an appointment for plaintiff with an oral surgeon and instructed her as to the post-extraction procedures she should follow. Plaintiff was also given a prescription for Chymoral, an antiswelling medication, and V-Cillin K, a type of penicillin. She was allowed to rest in the treatment chair before leaving the office at approximately 4 p.m. and told to telephone if she had any problems.

Although she took the prescribed medication, plaintiff became increasingly ill over the weekend which followed the attempted extractions. On May 28, 1979, she telephoned defendant and explained she was hurting, swelling, and needed something to relieve her pain. She did not explain she was nauseous, vomiting, and unable to get out of bed. She thereafter was taken to the emergency room of a local hospital and admitted as an in-patient. Her attending physician and employer, Dr. Lawrence Dunkelberger, a board-certified diplomate in internal medicine, increased her penicillin dosage from 1.6 million units to 24 million units, but the severe infection which had developed at the situs of one of the attempted extractions failed to improve. Thereafter, Dr. Stephen Doughty, a consulting infectious disease specialist, changed plaintiff's antibiotic medication from penicillin to clindamycin and a subsequent antibiotic sensitivity test revealed that the bacterium which was causing the infection was resistant to any form of penicillin. The change in antibiotics apparently stayed the infection as plaintiff was released from the hospital after being treated a little over a week.

• 1 The first of two issues presented for our review is whether the trial court erred in instructing the jury concerning the intervention of an outside agency; however, before reaching this issue, we must consider whether it has been preserved for review.

The instruction conference in this cause occurred in two sessions. During the first session, defendant submitted the instruction in question. Plaintiff's counsel did not object, stating, inter alia, "I fail to see how it is relevant, but it is harmless." During the second session, counsel proffered his objection, which he renewed in his post-trial motion.

Supreme Court Rule 239(b) provides that "[c]counsel may object at the conference on instructions to any instruction * * *" (Ill. Rev. Stat. 1979, ch. 110A, par. 239(b)), and the failure to do so at that time results in the lack of preservation for review (Delany v. Badame (1971), 49 Ill.2d 168, 274 N.E.2d 353). As counsel voiced his objection at the instruction conference, we find no waiver here present.

The instruction in question is Illinois Pattern Jury Instruction, Civil, No. 12.05 (2d ed. 1971), which provides as follows:

"12.05 Negligence-Intervention of Outside Agency

If you decide that a [the] defendant[s] was [were] negligent and that his [their] negligence was a proximate cause of injury to the plaintiff, it is not a defense that something else may also have been a cause of the injury.

[However, if you decide that the sole proximate cause of injury to the plaintiff was something other than the conduct of the defendant, then your verdict should be for the defendant.]"

Defendant advanced the theory that the penicillin-resistant bacterium was the sole proximate cause of plaintiff's infection. Plaintiff responded that but for defendant's acts, she would not have been so traumatized as to allow the infection to set in; therefore, there was no evidence that the microorganism was the sole proximate cause of the illness. The instruction's notes provide that the second paragraph should only be used when such evidence is present.

The expert witnesses who testified at trial agreed that the mouth is a harborer of a great number of bacteria which may produce infection, and this fact has been widely noted. (See Annot., 83 A.L.R.2d 7 (1962); Annot., 13 A.L.R.2d 11 (1950).) The experts agreed that the prescription of V-Cillin K was proper and that penicillin is the recommended antibiotic for postoperative care after dental work of this nature. The experts ...

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