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Waterford v. Halloway





Appeal from the Circuit Court of Cook County; the Hon. Allen A. Freeman, Judge, presiding.


Plaintiff-appellant Bernice Waterford appeals from an adverse jury verdict in her medical malpractice action against defendant-appellee, Dr. Mahmoud Halloway. At trial, plaintiff assailed the adequacy of Dr. Halloway's treatment prior to, during, and subsequent to the hysterectomy he performed on her in November 1979. On appeal, plaintiff has elected to reassert malpractice only as to the post-operative care provided by Dr. Halloway. Specifically, plaintiff asserts that Dr. Halloway's care deviated from recognized standards of care in that he failed to diagnose and treat an abscess she developed following the operation. Additionally, plaintiff raises two trial errors for review. First, plaintiff alleges that the trial court erred when it permitted defendant to examine two treating physicians as experts, where they had not been designated experts in defendant's discovery disclosure. Second, Mrs. Waterford asserts that the trial court erred in failing to directly respond to a question posed by the jury during the course of their deliberations. For the reasons which follow, we affirm the judgment of the trial court.

As noted, plaintiff has abandoned many of the malpractice allegations raised at trial. It is therefore unnecessary to recapitulate all the evidence adduced during the trial. With this in mind, we briefly summarize the facts germane to the appeal.

Plaintiff went to her physician, Dr. Earl Frederick, regarding a gynecological problem she had developed. Dr. Frederick examined her and diagnosed the problem as uterine fibroid tumors, for which he recommended surgery. He referred Mrs. Waterford to defendant for that purpose. Dr. Halloway then examined plaintiff and confirmed Dr. Frederick's diagnosis. Dr. Halloway also recommended a hysterectomy, and plaintiff acquiesced in that recommendation. The surgery was ultimately performed by Dr. Halloway on November 27, 1979.

Following the operation, Mrs. Waterford failed to respond as expected; in defendant's words, her post-operative course was "quite stormy." Plaintiff developed a fever which reached 103 degrees. Her hemoglobin count declined from 13 grams prior to the surgery to 8.6 grams, and then further to 7.3 grams. Plaintiff exhibited a foul-smelling discharge from the site of the surgery. As a result, Dr. Halloway initially placed plaintiff on an antibiotic regimen to ward off infection, and also directed that Mrs. Waterford be transfused to aid in combatting any infection. Defendant elected to delay that transfusion, however, so that an adverse reaction to that procedure would not be confused with the pre-existing fever. Mrs. Waterford was eventually transfused on December 3.

On December 2, Dr. Halloway performed a vaginal examination of plaintiff, and determined that she had developed cellulitis, a diffuse infection of the wound site. Dr. Halloway did not find any evidence of an abscess, however. Because of Mrs. Waterford's continued distress, Dr. Halloway discussed the matter of her treatment with Dr. William Ashley, a specialist in internal medicine, who thereafter continued to see plaintiff on a daily basis. Dr. Ashley recommended, inter alia, that plaintiff be transfused with blood and that cultures be done of the "vaginal cuff and/or cul-de-sac." A culture of the former only was done, and as noted, plaintiff was transfused.

No further pelvic examinations of Mrs. Waterford were done. On December 7, an ultrasound examination of Mrs. Waterford revealed the existence of pelvic abscesses. An abscess is an encapsulated mass of infected material. In Mrs. Waterford's case, the abscess constituted a life-threatening condition, and necessitated immediate treatment. Dr. William McCarthy, a general surgeon, was called in by defendant to aid him in treating plaintiff. Dr. McCarthy performed a second operation on Mrs. Waterford on December 7 to deal with the abscess. During that second surgery, Dr. McCarthy discovered a hole in plaintiff's colon, and found adherences of the intestines in the original operative site. Plaintiff asserts that the hole was the product of Dr. Holloway's initial surgery, while defendant attributes it to the second operation. In any event, Dr. McCarthy repaired the hole in the colon and performed a colostomy, creating a surrogate anus while the injured portion of the bowel healed. He also aspirated and drained the abscess, the original reason for the operation.

As a result of this second operation, a third operation was later performed to close the colostomy. Mrs. Waterford also suffered from additional complications during her recovery, including pleurisy, pneumonia, and two hernias, all of which she attributes to the initial operation performed by defendant.

We address first plaintiff's challenge to the adequacy of Dr. Halloway's post-operative treatment of her symptoms. As to this issue, plaintiff claims that the jury's decision that no actionable malpractice occurred was against the manifest weight of the evidence. Accordingly, plaintiff requests that we reverse their decision.

• 1 Neither party broaches any disagreement with the essential elements of the medical malpractice action. In order to hold a physician liable in such a case:

"[P]laintiff, by the use of expert testimony, must establish the standards of care against which the defendant doctor's conduct is measured. The plaintiff must then further prove by affirmative evidence that, judged in light of these standards, the doctor was unskillful or negligent and that his want of skill or care caused injury to the plaintiff." (Borowski v. Von Solbrig (1975), 60 Ill.2d 418, 423, 328 N.E.2d 301.)

Pared of extraneous facts, Mrs. Waterford's claim is that, because of her symptomology, a competent gynecologist would have suspected a post-operative infection. Given this suspicion, the physician should have performed repeated pelvic examinations of plaintiff in an effort to detect pelvic abscesses, and to treat any such abscess which developed. Dr. Halloway's failure to so proceed, from plaintiff's perspective, constituted a culpable deviation from the standard of care giving rise to liability for malpractice.

The duty of a physician providing medical care is defined by whether the doctor possessed and employed the knowledge, and used the skill and care, which a reasonably well-qualified and competent specialist in the same field, and practicing in the same locality, would ordinarily use in similar cases and circumstances. (Northern Trust Co. v. Skokie Valley Community Hospital (1980), 81 Ill. App.3d 1110, 1126-27, 401 N.E.2d 1246.) These standards are normally established by way of the testimony of expert witnesses. (Walski v. Tiesenga (1978), 72 Ill.2d 249, 257, 381 N.E.2d 279.) Here, plaintiff asserts that both party's experts indicated that competent medical care would mandate pelvic examinations on a repeated basis. Hence, plaintiff posits the standard was established and breached by defendant's failure.

To be sure, there was a great deal of consistency between the testimony of plaintiff's expert, Dr. Buel Morley, and defendant's expert, Dr. Robert Bouer. The experts uniformly asserted that infection was a common consequence of an invasive surgical procedure such as a hysterectomy. The fact that Mrs. Waterford acquired an infection cannot therefore, standing alone, establish malpractice. The doctors also concurred in their descriptions of the varieties and appropriate treatments of post-operative infections. They stated that infections may be of two types, cellulitis or an abscess. The former is a spreading infection treated with antibiotics, the latter is a localized infection treated by drainage of the abscess itself. The experts noted that abscesses take from four to seven days to develop. As the operation was done on November 27, ...

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