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Greco v. Coleman





Appeal from the Circuit Court of Madison County; the Hon. William E. Johnson, Judge, presiding.


Rehearing denied December 23, 1985.

Defendant was found to be guilty of negligence at a second jury trial which followed a mistrial which had been declared after the jury was unable to reach a verdict. Total damages were set at $32,500. Defendant, Dr. Barrett L. Coleman, was granted leave to appeal from an order of the circuit court of Madison County which granted plaintiff Anthony Greco's motion for a new trial on the sole issue of damages. (See Greco v. Coleman (1984), 127 Ill. App.3d 806, 469 N.E.2d 631.) On appeal, defendant contends that the trial court erred in granting plaintiff a new trial on the issue of damages only. Defendant prays that we reinstate the jury's verdict minus a $5,600 set-off pursuant to our supreme court's decision in Powers v. Illinois Central Gulf R.R. Co. (1982), 91 Ill.2d 375, 438 N.E.2d 152. Alternatively, the defendant seeks a new trial on both the issues of liability and damages.

The evidence adduced at trial indicates that on or about September 8, 1973, the plaintiff was involved in an automobile collision which caused fractures to his clavicle and odontoid process. Immediately after the collision, plaintiff was transported to the emergency room at St. Elizabeth's Hospital in Granite City, Illinois, where several X rays were taken of his clavicle and cervical spine. The radiologist who interpreted these X rays determined that they showed no fractures. Shortly thereafter, it was discovered that plaintiff had a fractured clavicle and it was immobilized by a clavicle strap. Since plaintiff was experiencing pain in the back of his head and his neck, a symptom of a possible neck fracture, his neck was immobilized by a cervical collar.

After about two weeks of plaintiff's persistent complaints of head and neck pain, the treating physician called the defendant, an orthopedic specialist, for a consultation. On September 21, 1973, the defendant reviewed the written notations of the nurse and treating physician concerning plaintiff, then went to plaintiff's room to examine him. Believing that plaintiff's pain was caused by muscle spasms rather than a fracture, the defendant removed plaintiff's cervical collar and proceeded to manipulate plaintiff's neck by moving it to different positions so he could determine its range of motion. After doing so, defendant examined the X rays taken when plaintiff was originally admitted to the hospital and determined that the X rays of plaintiff's cervical spine showed no fractures. Plaintiff was discharged from the hospital on September 26, 1973, and was released to return to work approximately one month later.

Plaintiff's head and neck pain continued unabated after his discharge from the hospital. On November 5, 1973, plaintiff sought treatment for this pain from Dr. Walter Heidke, a chiropractor. After plaintiff explained the circumstances surrounding the injury and the pain he was suffering, Dr. Heidke immediately took X rays of plaintiff's cervical spine. These X rays revealed a displaced fracture of the odontoid process, whereupon Heidke referred plaintiff to Dr. Leon Fox, an orthopedic surgeon.

On November 7, 1973, plaintiff went to Jewish Hospital in St. Louis, Missouri, to obtain treatment from Dr. Fox. Upon arrival, X rays were taken of plaintiff's cervical spine. Dr. Fox examined these X rays and those taken by Dr. Heidke and concluded that plaintiff had a forward displaced fracture of the odontoid process. Plaintiff was immediately admitted to the hospital and placed in traction. Since plaintiff showed no signs of improvement after about 18 days in traction, he was fitted with a supporting brace and discharged from the hospital with the hope that the partial healing shown in the November 7 X rays would continue without traction.

Plaintiff continued treatment with Dr. Fox after his discharge from the hospital. When X rays taken on February 5, 1974, showed that the fracture was not healing, Dr. Fox scheduled plaintiff for bone-wire graft surgery. On March 14, 1974, bone grafts from plaintiff's hip crest were implanted around the fracture. These bone grafts were held in place by wires. After surgery, plaintiff's body was immobilized in a stryker bed, and his skull was placed in traction. Fourteen days later plaintiff was fitted with a cast extending from his head to his waist. He remained in this cast until June 21, 1974, when he was placed in a supporting brace. He remained in a brace until October 1974, when he was placed in a cervical collar. Dr. Fox agreed to let plaintiff return to work in November 1974.

At trial, plaintiff claimed that defendant's failure to recognize a possible odontoid process fracture and to properly treat it was a proximate cause of his injuries. Dr. Lee James Cordrey, an orthopedic surgeon, testified that the X rays taken at St. Elizabeth's Hospital on September 8, 1973, showed a questionable forward displacement of the odontoid process. In Dr. Cordrey's opinion, defendant was negligent for failing: (1) to recognize this possible fracture; (2) to take follow-up X rays or tomograms of plaintiff's cervical spine; and (3) to review the September 8 X rays with a radiologist in consultation. Dr. Cordrey believed that prompt diagnosis of the fracture would have made conservative, non-surgical treatment of the fracture, such as immobilization of the neck in a plaster cast, fully effective. Dr. Cordrey did not believe that the cervical collar worn by plaintiff prior to his examination by defendant was sufficient to immobilize the fracture.

In accord with Dr. Cordrey, Dr. Walter Heidke also testified that the September 8, 1973, X rays showed a possible odontoid process fracture. Although Dr. Leon Fox refused to offer an opinion as to what the September 8, 1973, X rays showed, he stated that one would be "blind not to see" the fracture in the later X rays. Dr. Fox further testified that while plaintiff's head and neck motion was permanently reduced by 75% due to the surgery, prompt diagnosis and conservative, non-surgical treatment may have allowed the neck to heal with no loss of motion. The plaintiff testified that although he no longer feels any pain from the fracture, his ability to perform certain work and leisure activities is limited due to the fracture.

The defendant testified pursuant to section 2-1102 of the Civil Practice Law (Ill. Rev. Stat. 1981, ch. 110, par. 2-1102) and also on his own behalf. He testified that if a person with an odontoid process fracture has his neck promptly immobilized, the fracture has a 50% chance of healing without surgery. Although the defendant stated that a cervical collar is not sufficient immobilization for an odontoid process fracture, he admitted that the first thing which should be done when one sustains this type of fracture is to place the neck in a cervical collar. He further testified that significant movement of a previously immobilized odontoid process fracture significantly reduces the possibility that the fracture will heal without surgery. Defendant admitted that plaintiff's neck was in a good state of immobilization when he examined plaintiff.

Dr. Don C. Weir, a radiologist, saw no evidence of an odontoid process fracture in the September 8, 1973, X rays. He admitted, however, that the odontoid process appeared to be slightly displaced in these X rays and that he would have taken further X rays or a tomogram of the cervical spine to check this slight displacement. Dr. George L. Hawkins, Jr., a neurosurgeon, also saw no evidence of a fracture in the September 8 X rays. In his opinion, a substantial number of patients with odontoid process fractures need surgery to promote union of the bones even if the fracture is promptly diagnosed and immobilized in a plaster cast.

After the evidence was presented, the jury deliberated and returned with a verdict for plaintiff in the amount of $32,500. The ...

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