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Sheahan v. Dexter

OPINION FILED AUGUST 30, 1985.

MARTHA B. SHEAHAN, PLAINTIFF-APPELLANT,

v.

DONALD H. DEXTER, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of McDonough County; the Hon. U.S. Collins, Judge, presiding.

JUSTICE BARRY DELIVERED THE OPINION OF THE COURT:

This appeal by plaintiff Martha Sheahan is from a verdict and judgment in favor of defendant Dr. Donald Dexter in a medical malpractice suit arising out of the paralysis of her right vocal cord following a thyroidectomy performed by defendant on August 28, 1978, at McDonough District Hospital, Macomb.

The events leading up to plaintiff's surgery are not in dispute. During a routine physical examination by Dr. Timothy Kling, a lump was discovered in plaintiff's neck which was determined to be a nodule on the right lobe of her thyroid gland. Tests disclosed that the nodule was "cold," i.e., one which does not pick up as much radioactive material as does the rest of the thyroid gland during a thyroid scan test. The possibility of malignancy in a cold nodule is between 9% and 35%. As a young woman, plaintiff worked in a plant where she was exposed to radiation. Because of the risk of cancer, the pathologists who performed the tests for Dr. Kling recommended surgical removal of the nodule, and Dr. Kling gave plaintiff a choice of surgeons available at McDonough District Hospital. She selected defendant because he had previously performed some unrelated surgery on her.

Defendant saw plaintiff on August 4, 1978. He prescribed a synthetic thyroid hormone to see if the tumor would shrink without surgery — a treatment which usually takes several months. She returned two weeks later and indicated to defendant that she did not like taking the thyroid hormone. She stated that, since she might take it for three months and then have to have surgery anyway, she preferred having the surgery done at once before the fall semester began at Western Illinois University where she was employed.

The surgery was performed by defendant, assisted by Dr. Kling, on August 28, 1978. Before the surgery, defendant explained to plaintiff that there are delicate structures in the neck which must be avoided, but he did not specifically inform her of any risk of damage to the recurrent laryngeal nerve or of injury affecting her voice. The night before surgery plaintiff signed a general consent to the surgery on a form provided by the hospital. According to both defendant and Dr. Kling, the surgery was uneventful. Defendant identified the recurrent laryngeal nerve, which is located behind the thyroid gland, and he protected the nerve by moving it to the side with a retractor where it was held during the rest of the operation. The nodule was benign.

Plaintiff had some difficulties during the evening of the day of surgery, and she threatened to go home if she did not get better nursing care. Apparently she had trouble with an intravenous needle, and she had some breathing and swallowing problems. Defendant saw her about 9:30 p.m., at which time he ordered an antihistamine to dry up the secretions that were causing the latter difficulties. He was able to calm her down, and the remainder of her postoperative hospitalization was routine.

Defendant again saw plaintiff at his office 10 days after surgery and at monthly intervals after that. During that time, plaintiff continuously complained of hoarseness, trouble swallowing, "wheezing" during physical exertion, inability to cough, and emotional disturbance. On December 11, 1978, defendant performed a laryngoscopy in order to examine her vocal cords, which appeared to him to be in satisfactory condition. In February plaintiff informed defendant that a professor at Western Illinois University had recommended that she be examined by Dr. G.H. Gehrich, an otolaryngologist in Quincy. Defendant made an appointment for plaintiff with Dr. Gehrich and sent him a letter describing plaintiff's medical history along with her surgical records. Defendant mentioned in the letter that plaintiff had gained a lot of weight since the surgery, that hoarseness after surgery did not seem unusual for a heavy smoker following endotrachael anesthetic, and that there might be possible impairment of the left vocal cord, while noting that the thyroidectomy had involved the right lobe of the thyroid gland. Dr. Gehrich examined plaintiff and wrote to defendant, reporting that he had found a paralysis of the right vocal cord.

After this diagnosis, plaintiff did not return to defendant's care, but was referred by Dr. Kling to a specialist at the University of Iowa hospitals, Dr. William Panje, who confirmed Dr. Gehrich's diagnosis. Dr. Panje treated plaintiff by means of two teflon injections into the area of the vocal cords, and she has regained about 75% to 85% of her normal voice as a result of this treatment. Dr. Panje also referred plaintiff to a psychiatrist, who diagnosed plaintiff as suffering from a post-traumatic stress disorder for which he prescribed an antidepressant medication.

When plaintiff attempted to return to her duties at Western Illinois University following the surgery, she found that she was unable to teach because her voice was not strong enough. She was not offered employment at Western the next year.

In this malpractice action, plaintiff alleged, inter alia, that the performance of the thyroidectomy was the proximate cause of the injury to her vocal cords, that defendant negligently performed the surgery, that the surgery was unnecessary, that he failed to warn and inform her of the risks related to a thyroidectomy, that he did not comply with the rules of the hospital concerning informed consent prior to surgery, that he failed to render proper postoperative care, and that he failed to call in consultants.

This case was tried before a jury in the circuit court of McDonough County in February of 1984. At the conclusion of plaintiff's evidence, the court granted part of a motion by defendant to withdraw certain counts of the complaint from the jury, and as a result, the counts charging defendant with performing unnecessary surgery and with certain preoperative negligences were withdrawn.

In the course of the trial, the jury heard extensive medical testimony from defendant and the other treating physicians, as well as from expert witnesses who testified to the standard of care used in 1978. Plaintiff also testified, as did others in her behalf who described the difference in her voice quality before and after surgery. Plaintiff sought to admit into evidence a video tape made at Western prior to the surgery, in 1977, in which she talked with her grandson and an audio tape of her voice made after surgery, but the trial court refused to allow the tapes to be played for the jury.

On appeal, plaintiff asserts that she is entitled to a new trial because of the following errors: (1) that the verdict in favor of defendant was contrary to the manifest weight of the evidence; (2) that it was error to exclude the video and audio tapes; (3) that it was error to permit testimony by two expert witnesses not previously disclosed; (4) that the trial court refused to give a proper jury instruction on informed consent; (5) that the court erred in allowing defendant to call Dr. Kling as a witness out of order; and (6) that plaintiff was denied her right to poll the jury. We affirm the judgment.

• 1 Plaintiff's contention that the verdict in favor of defendant was contrary to the manifest weight of the evidence is a two-pronged argument involving, first, defendant's alleged negligence in failing to obtain plaintiff's informed consent before surgery, and second, his alleged negligence during postoperative treatment in failing to refer plaintiff to a specialist. As plaintiff points out, the standard for allowing a motion for a new trial requires less conclusive evidence than does a motion for a ...


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