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Loizzo v. St. Francis Hospital





Appeal from the Circuit Court of Cook County; the Hon. Thomas R. Flood, Judge, presiding.


Plaintiff, Frank Loizzo, brought this action in the circuit court of Cook County to recover damages for personal injuries allegedly occasioned by a catheter which was negligently left in his body following surgery. All of the defendants had rendered medical care to the plaintiff for treatment of his heart condition, but they were not all involved concurrently. Plaintiff filed a complaint, which was later amended to include all of the defendants, under the res ipsa loquitur doctrine. The trial court, finding that the requisite element of exclusive control of the catheter had not been established, granted each of defendants' motions for summary judgment.

On March 30, 1977, while preparing to perform a surgical procedure known as a left and right cardiac catheterization with coronary angiogram at defendant St. Francis Hospital in Evanston, defendants Dr. Edward Pinsel and Dr. A. Jerald Rothenberg discovered a 12-inch size 6 French catheter in plaintiff's body. The catheter extended from the iliac vein into one of the chambers of plaintiff's heart. The plaintiff underwent a thoractomy on April 1, 1977, to remove the catheter.

Plaintiff had been previously hospitalized at defendant Northwest Community Hospital on December 16, 1976, December 25, 1976, and March 21, 1977, for treatment of severe chest pain. During these hospitalizations he was under the care of defendants Dr. Miles Lynch, Dr. John L. Lynch, and Dr. Joseph E. Franger. His condition was diagnosed as a myocardial infarction and coronary insufficiency. On the latter two occasions plaintiff was admitted through the emergency room of the hospital which was staffed by physician-employees of defendant Medical Emergency Services Associates (MESA).

The amended complaint, stated in five counts, alleges that each of the defendants was guilty of one or more of the following negligent acts or omissions:

"(a) Caused a certain radio-opaque [sic] catheter, size 6 French, approximately 12 inches long to be placed into the plaintiff's body; whereupon, it was not removed;

(b) Caused the aforesaid catheter to become broken and displaced;

(c) Allowed a portion of the catheter to remain in the plaintiff's body after his discharge from the hospital;

(d) Used the aforesaid catheter in a manner not intended by its manufacturer;

(e) Was otherwise careless and negligent."

Each of the defendants denied placing the catheter in the plaintiff's body and denied knowledge of the identity of the person or persons who inserted the catheter. The doctors Lynch and Franger stated that they did not place any catheters in plaintiff's body. Doctors Pinsel and Rothenberg inserted several catheters, but claimed that they had never used the type of catheter they found in plaintiff. Hospital personnel from each of the defendant hospitals submitted affidavits asserting that the catheters of the type found were never purchased or used by their employers. Doctors Leslie Webber and Lawrence Cohen, MESA's employees who treated plaintiff at Northwest Community Hospital's emergency room, claimed not to have inserted any catheters into plaintiff. Although plaintiff was billed by Northwest Community Hospital for a central venous pressure (CVP) monometer unit, Dr. Miles Lynch asserted that plaintiff's treatment did not include a CVP monometer unit. There was further evidence that the catheter in a CVP monometer unit is small and clear, unlike the catheter found in plaintiff's body.

The amended complaint does not allege that plaintiff's hospitalizations at St. Francis and Northwest Community hospitals were the only occasions in which he was treated at a hospital or in which he underwent invasive procedures. To the contrary, plaintiff had been treated previously at Norwegian American Hospital for a bladder ailment. Plaintiff's answers to defendants' interrogatories also reveal that he was examined or treated by seven other physicians in the 15-year period prior to the discovery of the size 6 French catheter. His answers fail to disclose, as requested by the interrogatories, the reasons for each of these consultations.

Plaintiff testified in his deposition that only clear tubing was utilized at Northwest Community Hospital, that he was unaware of MESA personnel inserting any catheters into his body, and that paramedics may have inserted an I.V. catheter on the way to Northwest Community's emergency room. (Other testimony indicated that, if the paramedics had inserted an I.V. catheter, it would have been a size 18 or size 20 catheter approximately 1 1/2 inches long.) Plaintiff proffered no evidence contrary to the contentions of the various defendants.

Following discovery, each defendant moved for summary judgment based upon plaintiff's failure to show when, where, or by whom he was injured and the defendants' contentions that they had not caused the catheter to be placed in plaintiff's body. The trial court, finding that the res ipsa loquitur doctrine raised an inference of ...

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