Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Stringer v. Zacheis

OPINION FILED MARCH 31, 1982.

JACK W. STRINGER, PLAINTIFF-APPELLANT,

v.

GALE ZACHEIS, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Macon County; the Hon. JERRY L. PATTON, Judge, presiding.

JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:

Medical malpractice.

Dr. Zacheis was sued on negligence and res ipsa loquitur.

Summary judgment for defendant on both counts.

We affirm.

Plaintiff appealed from the granting of a summary judgment for defendant on both counts of his complaint of medical malpractice. Count I was grounded in negligence, count II asserted a res ipsa loquitur theory.

We affirm.

• 1, 2 In medical malpractice cases, as in other cases, summary judgment is properly granted where there is no genuine issue as to any material fact. The court is to determine the existence or absence of a genuine issue as to any material facts from the affidavits, depositions, admissions, exhibits, and pleadings in the case. The court has the duty to construe evidence strictly against the moving party and liberally in favor of the opponent. It is well settled that the right to summary judgment must be free from doubt and determinable solely as a question of law. (Hill v. Lutheran Hospital (1978), 58 Ill. App.3d 1003, 374 N.E.2d 1147.) And in medical malpractice cases, the trial court should be extremely cautious in entering summary judgment because of the reluctance of a member of the medical profession to testify against another member. Sanders v. Frost (1969), 112 Ill. App.2d 234, 251 N.E.2d 105.

The depositions and affidavits in this case reveal that Dr. Zacheis performed a Nissen repair of a hiatal or diaphragmatic hernia on plaintiff on January 22, 1976. The hiatus is the opening in the diaphragm through which the esophagus normally passes into the stomach. The sphincter at the end of the esophagus was not closing because of the dilatation at the lower end of the esophagus. This caused a reflux from the stomach into the esophagus causing pressure and gas pains. The Nissen repair attempted to solve this problem through sewing the upper part of the stomach around the esophagus so the esophagus stops the contents of the stomach from coming back up. In making this repair, a bougie, which is a dilator, is pushed down like a tube through the esophagus, so the repair will not be made too tight and the surgeon will have something to stabilize the esophagus enabling him to wrap the stomach around it. After the repair, the stomach apparently slipped from the esophagus, causing a recurrence of the pressure and gas pains. Plaintiff eventually went to Carle Clinic in Champaign where Dr. Cooley repaired the diaphragmatic hernia on January 24, 1978, again using the Nissen procedure.

NEGLIGENCE

To reverse summary judgment on count I, plaintiff argues that defendant was negligent (1) in not utilizing enough stitches to maintain the repair; (2) in using a bougie which was too small causing the repair to be too tight; and/or (3) in failing to administer proper post-operative care.

• 3, 4 In a medical malpractice action, the plaintiff generally must establish the standard of care through expert testimony. (Expert testimony is not required in cases involving gross negligence or common treatment which could be appraised by jurors without expert aid. However, these exceptions are not applicable here.) Once the standard of care is established, plaintiff must prove that, judged in the light of that standard, the doctor was unskillful or negligent and that his want of skill or care caused the injury to the plaintiff. Walski v. Tiesenga (1978), 72 Ill.2d 249, 381 N.E.2d 279.

• 5, 6 Dr. Cooley testified that the minimum sized bougie he used in Nissen repairs was larger than the bougie defendant used on plaintiff. He also testified that he added additional sutures to the fold around the esophagus. However, mere testimony that another physician would have acted differently is not sufficient to establish a prima facie case. Differences in the exercise of individual judgment are consistent with the exercise of due care in the inexact science of medicine. (Walski.) Dr. Cooley was asked and said nothing about the accepted standard of the community regarding the additional stitches or the size of bougie used. Therefore, it appears no standard of care was established; only differences in the procedures of two surgeons. Since no standard of care was shown, plaintiff could not make out a prima facie case of negligence by showing a deviation from an established standard.

• 7 Regarding the post-operative care, Dr. Cooley stated that if a patient — with the type of symptoms plaintiff had when plaintiff came to Cooley — had come to Cooley a month after the operation, Dr. Cooley would re-X-ray and esophagoscope the patient, depending on the severity of the symptoms. This was not done by Dr. Zacheis. However, nowhere does plaintiff state that he complained of such symptoms to Dr. Zacheis a ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.