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04/02/87 Maynard Lee Massa, v. the Department of

April 2, 1987





507 N.E.2d 814, 116 Ill. 2d 376, 107 Ill. Dec. 661 1987.IL.423

Appeal from the Appellate Court for the Fifth District; heard in that court on appeal from the Circuit Court of St. Clair County, the Hon. Thomas Daley, Judge, presiding.


JUSTICE SIMON delivered the opinion of the court.


The Department of Registration and Education instituted an administrative procedure under section 12 of the Veterinary Medicine and Surgery Practice Act seeking the suspension or revocation of Dr. Maynard Lee Massa's license to practice veterinary medicine because of alleged instances of gross malpractice (Ill. Rev. Stat. 1981, ch. 111, par. 6913(14)) and false or misleading advertising. (Ill. Rev. Stat. 1981, ch. 111, par. 6913(9)). Following an administrative hearing, the Veterinary Examining Committee recommended that Dr. Massa's license be revoked because of his gross malpractice in the treatment of an 18-month-old female German Shepard, Palamor's Charlie of Merivern (Charlie), and that he be reprimanded for his false and misleading advertising. Those recommendations were adopted by the Department. Dr. Massa sought judicial review of the gross malpractice finding and resulting license revocation in the circuit court of St. Clair County, and the circuit court reversed the Department's finding of gross malpractice as a Conclusion against the manifest weight of the evidence. The appellate court affirmed (139 Ill. App. 3d 202), and we allowed the Department's petition for leave to appeal (103 Ill. 2d R. 315(a)).

John Drexler and Patricia Turrise were Charlie's coowners, and Charlie was in Drexler's possession on Saturday night, May 24, 1980, when Drexler noticed that Charlie was listless and had no appetite. The following morning, Charlie's condition showed no improvement, and the dog registered a body temperature of 105 degrees, four degrees above normal. Unable to contact his regular veterinarian, Drexler took Charlie to Dr. Massa at the Tinley Park Animal Hospital and left her there. According to Drexler, he received a call from Dr. Massa the following day indicating that surgery was necessary to save the dog's life, and Drexler gave his consent with the understanding that because her owners intended to breed her, Charlie's reproductive organs should be removed only if absolutely necessary. Drexler then telephoned Turrise, a veterinary technician, and she told Drexler to withdraw his consent at once. Drexler immediately contacted Dr. Massa by phone, but Dr. Massa informed him that Charlie was undergoing surgery at that time. Drexler claims to have asked that any body organs removed be saved, to which Dr. Massa purportedly replied: "I am not a machine shop. I don't save parts." The evidence establishes that Dr. Massa removed Charlie's uterus and ovaries through a 6-centimeter ventral midline incision just posterior to the umbilicus. Charlie died the next day.

Upon learning of Charlie's death, Turrise called the Tinley Park Animal Hospital and spoke to Dr. Massa, who informed her that the reproductive organs had to be removed because of pyometra (an accumulation of pus in the uterus). According to her testimony, which Dr. Massa denied, Turrise asked to see the removed organs, but Dr. Massa said that they had been discarded in the trash and professed sorrow that no request to save the organs had been made earlier. Turrise then offered to go through the trash herself to find the uterus, but, she testified, Dr. Massa then became irate, saying "you can't have it. I burned it." At the hearing, Dr. Massa testified that he refrigerated the uterus and turned it over to the University of Illinois diagnostic laboratory later that summer as instructed by his insurance carrier. Dr. Massa did not offer any evidence as to the Conclusions reached by that facility or even any proof that the uterus had been disposed of as claimed.

The owners arranged for a necropsy to be performed upon Charlie's body by Advanced Veterinary Laboratories. That procedure was conducted by Dr. Gregory Petkus, who testified at the hearing. Dr. Petkus found that Charlie had been in overall good health, with a good coat and no signs of emaciation, but she had suffered from pyothorax, with pleurisy and pneumonia at the time of her death. There were 250 milliliters of purulosanguineous fluid in the right lung; the lung was 50% to 75% covered with abscesses. Both lungs showed evidence of hemorrhaging and edema, and the trachea and bronchia were filled with a frothy fluid. Dr. Petkus concluded that Charlie's death was caused by these thoracic conditions.

Dr. Petkus also examined Charlie's abdominal cavity and concluded upon a gross examination of tissues which had surrounded the uterus that Charlie's uterus could not have been swollen to three times its normal size, filled with pus and ready to rupture as Dr. Massa claimed. Had such conditions existed, Dr. Petkus testified, the arteries and veins leading to both the ovaries and cervix would have been enlarged, as would have been the blood vessels and fatty ligaments around the uterus. Dr. Petkus said, however, that all those tissues appeared of normal size when he examined Charlie's cadaver. Additionally, there was no blood in the abdomen, as would be expected from the removal of an enlarged uterus without ligating the engorged blood vessels. In sum, Dr. Petkus found this to have been a well-performed surgical removal of a healthy uterus.

According to Dr. Petkus, Charlie's lung condition was discernible in a routine examination, without the use of radiographs. (Tinley Park Animal Hospital did not have X-ray equipment, and Dr. Massa claimed that Charlie could not have survived the 20-mile trip to the nearest available X-ray facility.) Proper treatment would include immediate antibiotic therapy, using an antibiotic effective against a broad spectrum of infections. A chest tap should be used to drain the chest of fluids, and the removed fluids should be analyzed to isolate the type of infection for prescription of more effective antibiotics. Dr. Massa indicated that he gave Charlie aziomycin, which Dr. Petkus said to be acceptable but not a broad-spectrum antibiotic. There was no evidence that Dr. Massa administered a chest tap. Moreover, Dr. Petkus testified that steroids should not be given until after it is determined that fungus is not involved in the chest condition. Aziomycin contains steroids.

Dr. David Helland, an author and lecturer in veterinary clinical pathology who has practiced his specialty in Cook County, conducted a histologic examination of tissue samples taken from Charlie's thoracic and abdominal cavities. In his opinion, Charlie suffered from an over-whelming disease of her respiratory system. His examination disclosed no evidence of disease to her reproductive organs. In Dr. Helland's opinion, Dr. Massa's treatment in this case deviated from the standard of care in south suburban Cook County, and the failure to accurately diagnose Charlie's condition amounted to gross malpractice.

Two veterinarians testified for Dr. Massa. Both indicated that if a pyothorax and pyometra existed, and if the uterus appeared to be in danger of rupturing, the uterus should be surgically removed without delay, notwithstanding the risks of complication caused by the chest condition, because of the danger of peritonitis if the uterus ruptured in the animal. They also testified that a greatly enlarged uterus could be removed through a 6-centimeter incision using the "balloon" method: because the uterus would be filled with fluid, it could be manipulated to be removed lengthwise by extracting one end of the uterus first, forcing the fluid through the uterus to the extracted end, then removing the remainder of the uterus. However, members of the Veterinary Examining Committee who were present at the hearing questioned the wisdom of such a procedure, indicating that there was no reason not to enlarge the incision to accommodate a swollen uterus.

Dr. Massa testified in his own behalf, recalling symptoms and treatment almost solely from memory. He claimed that the Tinley Park Animal Hospital had possession of the medical file (Dr. Massa had since moved to Belleville), and although requested to locate and produce the file, it had been unable to do so. Yet, Dr. Massa was in possession of two unmarked photographs supposedly depicting both Charlie's cadaver and the greatly enlarged uterus he had removed ...

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