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03/27/87 James Evans Et Al., v. Sisters of the Third Order

March 27, 1987





506 N.E.2d 965, 154 Ill. App. 3d 137, 107 Ill. Dec. 74 1987.IL.381

Appeal from the Circuit Court of Peoria County; the Hon. Joe McDade, Judge, presiding.


JUSTICE STOUDER delivered the opinion of the court. BARRY, P.J., and HEIPLE, J., concur.


Plaintiffs, James and Claria Evans, appeal from a judgment of the Circuit Court of Peoria County in favor of defendants, Sisters of the Third Order of St. Francis (the hospital) and Dr. Ahmed Ksaibati. The action arose out of the allegedly negligent treatment which left James Evans a quadriplegic.

There was substantial disagreement as to whether Dr. Ksaibati's treatment was negligent and whether Mr. Evans' condition was aggravated by the alleged negligent treatment of Dr. Ksaibati. Even the experts were in considerable disagreement as to what the X rays, taken both before and after the treatment, showed concerning Mr. Evans' condition. With this preface, we will also examine the facts in existence prior to the treatment because the defendants contend that Mr. Evans' condition was a natural consequence of his previous medical condition and history.

James Evans first began feeling numbness and weakness in his extremities in 1973 while employed for Chrysler in Detroit. Chrysler referred Evans to a Detroit neurologist, but the condition persisted, culminating in Evans' leaving Chrysler because of a medical disability and moving back to Peoria in 1974 or 1975. Evans secured seasonal employment as a heavy-equipment operator although he was limited to jobs which only required the use of one hand. The numbness and weakness progressed and by the fall of 1978 he had ceased working altogether.

Evans sought treatment from a Peoria neurologist who admitted Evans for a series of tests. Those tests revealed that Evans had either a cyst or tumor on his spinal column. The neurologist referred Evans to a neurosurgeon since the extent of the problem could not be determined without surgery. The surgeon performed surgery to remove the tumor which had infiltrated and pierced the spinal cord in one area. Afterwards, the surgeon prescribed a course of radiation therapy to prevent regrowth of any portion of the tumor which he was unable to remove.

After the surgery, Evans' condition worsened although he was still able to move his arms and walk. During that time period, Evans applied for and obtained total disability benefits from the Social Security Administration and the Illinois Department of Rehabilitation. By April 1982, Evans' condition continued to worsen and he discontinued physical therapy sessions when told he was not responding. The surgeon who had performed the spinal surgery examined Evans again in 1982, noting pronounced spasticity in both arms and a difficulty in the balance in his legs.

On the evening of July 23, 1983, Evans fell while attempting to walk to his kitchen and struck his head, resulting in a two-inch laceration on his forehead. He lay on the floor unable to move for approximately 30 minutes. The four expert witnesses testifying at trial commented on the severity of Evans' paralysis based, in part, on the fact that he was unable to roll himself over after the fall. Evans was taken to the hospital where he was examined by Dr. Ksaibati, who noted his prior surgical and medical history as well as his level of consciousness and physical condition at the time of admittance. Dr. Ksaibati conducted a neurological exam and checked Evans' tendon reflexes.

Evans' wife requested that Dr. Ksaibati take X rays and admit Evans for observation, but the doctor said it was unnecessary and released him. Evans awoke the next morning unable to move and he was taken to the hospital for testing. Evans was admitted and placed in traction. Evans remained in the hospital for more than a month.

The Evans' eight-count complaint alleged medical malpractice against Dr. Ksaibati and the hospital. The jury trial resulted in a judgment for the defendants. The plaintiffs' post-trial motion was denied, and this appeal followed.

The plaintiffs raise the following issues on appeal: (1) that the denial of plaintiffs' motion in limine permitted evidence to go to the jury concerning the fact that Mr. Evans was considered totally disabled by the Social Security Administration and the Illinois Department of Rehabilitation prior to the injury and treatment which allegedly rendered him a quadriplegic, (2) that the trial court erroneously interpreted Supreme Court Rule 220 (103 Ill. 2d R. 220) by disallowing plaintiff's expert to testify to the present condition of the plaintiff based upon a physical examination performed the day of trial, (3) that the trial court erroneously denied plaintiff's cross-examination of the defendant about certain medical records concerning facts of subsequent medical findings and treatment, and (4) that the determination by the jury was contrary to the manifest weight of the evidence.

The first issue we address is plaintiffs' sufficiency-of-the-evidence argument. The appellate court is not free to reweigh the evidence or to assess the credibility of the testimony and set aside the jury's determination merely because a different Conclusion could have been drawn from the evidence. (McMahon v. Richard Gorazd, Inc. (1985), 135 Ill. App. 3d 211, 481 N.E.2d 787.) Suffice it to say on this appeal that plaintiffs have primarily directed our attention to evidence supporting his position, neglecting in large measure any evidence relating to the opposing arguments. We have already noted the contradictory nature of the evidence and the disagreement among the experts. In this case, we will not ...

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