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Jeffers v. Weinger

OPINION FILED MARCH 21, 1985.

PEGGY M. JEFFERS ET AL., PLAINTIFFS-APPELLEES,

v.

JESSE M. WEINGER, M.D., ET AL., DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Peoria County; the Hon. Calvin R. Stone, Judge, presiding.

JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:

Plaintiffs, Peggy Jeffers and Philmon Jeffers, brought suit against the defendants, Dr. Jesse Weinger, an orthopedic surgeon specializing in back surgery, and the Orthopedic Surgery Group, S.C., in the circuit court of Peoria County alleging medical malpractice. The jury returned a verdict in plaintiffs' favor, and defendants appeal.

In March 1977, Peggy began experiencing back problems. Her condition was diagnosed as a herniated disc by Dr. Weinger, who performed back surgery at that time. In 1979, Peggy again began experiencing back pain which was again treated by Dr. Weinger, this time without the need of further surgery. Neither of these events is at issue in the present appeal.

On August 11, 1980, Peggy had a severe recurrence of her back problem and had to be admitted to Methodist Medical Center. On August 26, Dr. Weinger performed a laminectomy and discectomy. The following afternoon Peggy complained to a nurse of numbness in her right leg. Later that evening she again complained of numbness. At 8 p.m. the charge nurse on the orthopedic floor called Dr. Weinger and reported that Peggy had been complaining of numbness in her foot and leg. Dr. Weinger advised the nurse to keep an eye on Peggy, monitor her carefully, and let him know if there was any change. Peggy complained of numbness once again at 10 p.m., but no further calls were made to Dr. Weinger.

Dr. Weinger saw Peggy at approximately 8 a.m. the following morning, August 28, 1980. He examined her and found an unusual sensory loss from the groin all the way down to her toes on her right side, with intact sensation on her left side. There was also motor weakness and paralysis on the right leg, while the left leg was normal. Peggy's abdomen was distended and she had to be catheterized. A large volume of urine was removed. Upon examining Peggy, Dr. Weinger found that a neurological deficit existed and made a differential diagnosis that Peggy had a probable bleed in the wound site. He then ordered blood chemistry tests. As a result of his examination and the tests, Dr. Weinger decided surgery was necessary and he reoperated at approximately 5 p.m. on August 28 and removed a blood clot. It is undisputed that the blood clot was compressing a bundle of nerve roots called the cauda equina. These nerve roots serve all of the body from the hips downward, and transmit sensation and motor power or muscle power to the legs and lower extremities. They also control the bladder, bowels and sexual functions. The loss of function in the cauda equina is referred to as cauda equina syndrome, from which Peggy now suffers.

Following surgery on August 28, Peggy still had no feeling in her leg and she could not move it. Dr. Weinger advised her that in time her condition would improve. Peggy began having bladder problems when she left the hospital, and she consulted a urologist for this disorder. She no longer has any sensation that she has to urinate. When she does urinate, she is unable to completely void her bladder and, consequently, she has to catheterize herself twice every day. Also since August 28, 1980, she has had only two natural bowel movements. She has to try from one to four enemas to produce a bowel movement. Sometimes this is not sufficient, and she has to manually remove the fecal material. Peggy also suffers from electrical shocks which shoot up her right leg, and she has developed a neurological ulcer on her heel. Further, she has no sensation in the right side of her pubic and vaginal area, which has affected her sexual relationship with her husband. At the time of trial Peggy could walk; however, she favored her right leg and sometimes required the use of crutches.

Defendants moved for a directed verdict at the close of plaintiff's case in chief and again at the close of all evidence. Both motions were denied. The jury returned a verdict in favor of Peggy in the amount of $800,000 and in favor of her husband in the amount of $100,000 (loss of consortium) and against both defendants. Following the denial of timely post-trial motions for a new trial or judgment n.o.v., this appeal was taken. For the following reasons, we affirm the decision of the circuit court of Peoria County.

The defendants have presented the following issues for our review: (1) whether the testimony of plaintiffs' experts was based upon a false assumption resulting in plaintiff's failure to meet their burden of proof with regard to defendant doctor's alleged malpractice on August 27, 1980; (2) whether the plaintiffs failed to meet their burden of proof regarding causation of Peggy's injuries with respect to activities on August 28, 1980; (3) whether the defendant doctor's judgment regarding Peggy's treatment can be characterized as negligent; (4) whether the defendant, Orthopedic Surgery Group, S.C., was a proper party defendant; (5) whether the trial court erred in allowing testimony regarding the possible loss of a foot; (6) whether the trial court erred in failing to read an entire evidence deposition; (7) whether the trial court erred in giving a certain jury instruction; and (8) whether the trial court erred in allowing jury verdicts which were not itemized to reflect monetary distribution among economic loss and non-economic loss.

No claim of medical malpractice was made by plaintiffs regarding Dr. Weinger's skill in performing either surgery. Nor was any claim made that the blood clot which caused the cauda equina syndrome was the result of any negligence. The only claim made in the instant case is that Dr. Weinger's activities on the night of August 27 and his delay in reoperating on August 28 constituted negligence.

The first three assignments of error relate to claims by the defendants that the evidence was insufficient to support the verdict of the jury and consequently the trial court erred in denying their motions for directed verdicts and their post-trial motions. The rules regarding the standard of review in determining the sufficiency of the evidence have been called to our attention, have been considered, and have been applied to the facts disclosed by the record and the claims of the appellants. See Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 229 N.E.2d 504; Lawson v. G.D. Searle & Co. (1976), 64 Ill.2d 543, 356 N.E.2d 779.

Although stated separately, the defendants' arguments on the sufficiency of the evidence are interrelated and are specifically directed at either the inadmissibility or incompetence of the testimony of the plaintiffs' experts or at the failure of such expert testimony to support any claim of negligence proximately causing Peggy's injuries.

• 1 Defendants contend that plaintiffs' experts based their respective opinions of malpractice on inaccurate data and presumed facts. Defendants claim this expert testimony should not have been considered by the jury, relying on Butler v. Palm (1962), 36 Ill. App.2d 351, 184 N.E.2d 633, and Logsdon v. Baker (D.C. Cir. 1975), 517 F.2d 174, for the general proposition that a plaintiff cannot meet the burden of proof required when that person's expert bases testimony on inaccurate data. The gist of this argument is that both experts, Drs. Clarence Fossier and Saul Frankel, were under the impression that Dr. Weinger was informed on the evening of August 27 that Peggy had complained of "progressive" numbness in her right leg when, in fact, the term "progressive" was not used or charted by any nurse that night.

The record initially discloses Dr. Frankel never testified as to "progressive" numbness during direct examination nor did defendant mention "progressive" numbness on cross-examination. Therefore, there is no basis in defendants' argument that Dr. Frankel's opinion was based upon a false assumption.

Dr. Clarence Fossier, an orthopedic surgeon, testified in behalf of the plaintiffs and on direct examination the following questions and answers occurred:

"Q. Doctor, did you, at my request, review certain materials in ...


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