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Mcmillen v. Carlinville Area Hospital





Appeal from the Circuit Court of Macoupin County; the Hon. Jeanne E. Scott, Judge, presiding.


Rehearing denied June 15, 1983.

This appeal presents another facet in a rapidly developing area of the law: the application of the doctrine of res ipsa loquitur to cases of medical malpractice.

The cause was tried to a jury in the circuit court of Macoupin County on a two-count complaint sounding in malpractice; count I alleged a theory of res ipsa loquitur (hereinafter for convenience RIL), and count II alleged ordinary negligence. At the conclusion of the plaintiff's evidence the trial court directed a verdict in favor of the defendant on the RIL count; the jury returned a verdict in favor of the defendant on the ordinary negligence count. Plaintiff appeals, claiming that the directed verdict was erroneous, or, alternatively, that there was an abuse of discretion on the part of the trial court in denying her motion for continuance. In either event, plaintiff seeks a remandment for a new trial. We disagree and affirm.

• 1 Since the directed verdict came at the close of the plaintiff's evidence and since the plaintiff has not appealed the verdict of the jury on count II, we must view the evidence as it existed at the time of the trial court's ruling. The jury's verdict cannot be used to support that ruling; it was not in existence at the time. We are aware that this court has upon a prior occasion indicated differently. (Alton v. Kitt (1982), 103 Ill. App.3d 387, 395, 431 N.E.2d 417, 423.) Upon further reflection we are of the opinion that the statement in Alton was mistakenly made and we decline to follow it.

The plaintiff's evidence showed that she entered the defendant hospital for correction of a bladder problem. Early in the morning of May 22, 1978, X rays of her kidneys were made. Part of that procedure is to inject the patient with a dye which causes clear images of the kidneys to appear on the X-rays films. The dye is injected intravenously.

Admitted into evidence was an exhibit containing the manufacturer's recommendations for the use of the dye. In pertinent part these provide:

"Severe, life-threatening reactions suggest hypersensitivity to the radiopaque agent, which has prompted the use of several pretesting methods, none of which can be relied upon to predict severe reactions. Many authorities question the value of any. A history of bronchial asthma or allergy, a family history of allergy, or a previous reaction to a contrast agent warrant special attention. Such a history, by suggesting histamine sensitivity and a consequent proneness to reactions, may be more accurate than pretesting in predicting the likelihood of a reaction, although not necessarily the severity or type of reaction in the individual case.

The sensitivity test most often performed is the slow injection of 0.5 to 1.0 ml of the radiopaque medium, administered intravenously, prior to injection of the full diagnostic dose. It should be noted that the absence of a reaction to the test dose does not preclude the possibility of a reaction to the full diagnostic dose. If the test dose causes an untoward response of any kind, the necessity for continuing with the examination should be carefully reevaluated and, if it is deemed essential, the examination should be conducted with all possible caution. In rare instances, reactions to the test dose itself may be extremely severe; therefore, close observation of the patient, and facilities for emergency treatment, appear indicated."

The chief X-ray technologist for the hospital testified that he was aware of the recommendations; that when plaintiff arrived at the X-ray department, he explained the test procedures to her; that he inquired of her about allergies, specifically about fish, it appearing that fish contain iodine which is also present in the dye; that the sensitivity test was performed unremarkably; that the full amount of the dye (about 50 cc) was then injected into a vein in plaintiff's right arm above the elbow; that he carefully observed plaintiff during the entire procedure and did not notice any reactions or anything unusual about plaintiff; and that plaintiff made no complaints during the procedure.

Plaintiff was then returned to her hospital room and about three hours later was returned to the X-ray department for a cystogram test. She was seated in a wheelchair in a corridor in the X-ray department. The technologist was also in the corridor and noticed that plaintiff was having a seizure. In his words, "her whole neck and head * * * went rigid and went straight back into the chair." A physician arrived in the corridor at the same time and he and the technologist placed plaintiff on a stretcher and took her to the emergency room.

Plaintiff's admitting physician, Dr. Villasenor, examined her there. Her vital signs and blood sugar were normal; a brain wave test was performed, and it was normal. Following the incident plaintiff complained of back pain and X rays were taken of her back on May 25, 1978; these showed a compression fracture of the 11th thoracic vertebra; the films of May 25 were compared with chest X rays made on May 22, the date of the incident, and with older films of the chest made December 12, 1977; neither of the latter showed the fracture. Dr. Villasenor testified that it was possible that the fracture could have occurred during the seizure.

Another physician, Dr. Dunseth, testified on behalf of plaintiff. He stated that based upon his examination of the May 25 X rays his conclusion was that plaintiff had recently suffered a compression fracture of the 11th thoracic vertebra; that the fracture was the result of some sort of trauma, such as an acute flexion injury; that the injury was of a permanent nature, could be painful, and could cause problems in the future.

Plaintiff testified on her own behalf and largely corroborated the sequence of events. She stated that the technologist asked her if she were allergic to fish or iodine, to which she replied in the negative; that he asked no other questions; that while the dye was being injected she complained of a burning at the site; that the technologist replied that this was probably due to the solution with which he had swabbed her arm; that near the conclusion of the procedure her arm was "really hurting" and was "red and beginning to swell up"; that again the technologist ...

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