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05/19/87 Genetta Payne, v. Everett Nicholas

May 19, 1987

GENETTA PAYNE, PLAINTIFF-APPELLANT

v.

EVERETT NICHOLAS, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

509 N.E.2d 547, 156 Ill. App. 3d 768, 108 Ill. Dec. 851 1987.IL.647

Appeal from the Circuit Court of Cook County; the Hon. David Cerda, Judge, presiding.

APPELLATE Judges:

JUSTICE STAMOS delivered the opinion of the court. HARTMAN and BILANDIC, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE STAMOS

Plaintiff brought this medical malpractice action seeking damages from defendant. The jury returned a verdict for defendant. Plaintiff appeals and contends that numerous errors were committed by the trial court.

Plaintiff, Genetta Payne, is a 31-year-old unmarried computer terminal operator. Plaintiff testified that in 1978 she had a cyst removed from her chest; such surgery left a transverse or vertical scar in the center of her chest approximately one-half inch long. The scar caused an intermittent throbbing and itching sensation. In October 1979, when she was hospitalized for an unrelated condition, her attending physician discovered a lump on her breast and referred her to defendant, a general surgeon. As defendant examined plaintiff, he noted the scar from the cyst removal and told plaintiff the scar did not look good but "could be made to look better." Defendant told plaintiff nothing else about the scar and did not inform her that there was a risk the scar would look worse.

Defendant performed surgery on plaintiff's scar the following day. He visited plaintiff on each of the three days thereafter. Defendant did not remove plaintiff's bandage and did not tell plaintiff to seek radiation treatments. Plaintiff was instructed to make a follow-up appointment with defendant one month later. Approximately two weeks after surgery, plaintiff's attending physician, Dr. Burachynskyj, removed the sutures from plaintiff's surgical wound. At plaintiff's follow-up appointment with defendant in November, defendant examined plaintiff's scar and asked her if she had taken radiation treatments at the hospital following surgery. Defendant told plaintiff that such treatment should have been sought immediately after surgery. Defendant then injected cortisone directly into the scar to flatten it. Plaintiff stated that the scar was now open, raised and very long.

The cortisone injection was very painful. The pain was similar to that plaintiff experienced during surgery when plaintiff could feel the pulling and cutting of the surgical procedures as well as a burning sensation. This pain lasted approximately six months.

Plaintiff returned to defendant two weeks later. Again she was given an injection of cortisone into the scar. Plaintiff did not keep her next appointment with defendant because the injections were too painful.

Plaintiff exhibited her new scar to the jury. She testified that the scar is now approximately three inches in length and is painful when she bathes the area or bumps it. In addition, plaintiff stated that she feels ashamed when she is around women and men. Plaintiff stated that this scar prevents her from wearing swimsuits and lower-cut blouses.

On cross-examination, plaintiff testified that defendant never told her there was a possibility that the scar would grow back. Plaintiff maintained that defendant initiated the comments on plaintiff's scar when he first examined her. Plaintiff admitted that her new scar does not physically prevent her from carrying on with her work.

Defendant, a board-certified general surgeon, testified that he first saw plaintiff on October 4, 1979, at the request of her attending physician. Defendant noted in a report to Dr. Burachynskyj that plaintiff had a keloid scar which she stated was painful and requested excision. Defendant's report stated that no assurances were given as to the end result of surgery. Defendant further recommended in his report that superficial X-ray treatment was to follow. Defendant did not show this report to plaintiff although he maintained that he told her he was ordering such treatment. Defendant noted in his preoperative report that plaintiff's scar was approximately one-half inch in length prior to surgery. During surgery, defendant removed the tissue surrounding the scar approximately 1 to 1 1/2 inches in length. Defendant initially denied telling plaintiff that he would try to improve the scar, but was then presented with a transcript of his deposition in which defendant admitted that he had so told plaintiff.

Defendant did not seek a consultation with a plastic surgeon but performed surgery the following day. Plaintiff signed a surgery consent form which contained the provision that no assurances had been given as to the result. Defendant prescribed a painkiller after the surgery, but did not write any other orders with regard to plaintiff's treatment, and specifically did not write an order for X-ray treatment. Defendant admitted that the hospital in which plaintiff was staying did not have the equipment with which to provide this type of superficial skin dose radiation. Defendant did not suggest to plaintiff's attending physician that such radiation be used and made no arrangements for plaintiff to be treated at another facility. Defendant admitted that he did not give plaintiff a prescription for this treatment and that, without such prescription, no X-ray laboratory would have proceeded with this treatment.

Defendant did not examine plaintiff's wound on his three visits following her surgery. Defendant then left town for approximately two weeks, leaving instructions with his nurse to remove plaintiff's sutures. Defendant made no arrangements for plaintiff to see a plastic surgeon or to have her scar injected with steroids during his absence. In closing plaintiff's surgical wound, defendant stated he did not intend to evert the wound with an inner layer of sutures, causing it to turn outward from its normal plane, but only intended to approximate the wound edges.

Dr. T. Shelly Ashbell, plaintiff's expert witness, a board-certified plastic surgeon and chairman of the division of reconstructive surgery of the Chicago Medical School, testified that plastic surgery is a specialty within the field of general surgery, requiring additional training. Dr. Ashbell stated that scar revision is a procedure that should only be done by a plastic surgeon because only plastic surgeons have been trained in the techniques of such surgery. Dr. Ashbell explained that a keloid scar is a scar that continues to grow beyond the edge of a wound, while a hypertrophic scar is a scar which has become thick, hard and wide but remains within the bounds of the wound. Dr. Ashbell testified that he had performed thousands of scar revisions.

Dr. Ashbell examined plaintiff and the operative and pathology reports of plaintiff's surgery as well as defendant's deposition testimony. Dr. Ashbell opined that defendant deviated from the acceptable standard of care in his treatment of plaintiff. Dr. Ashbell stated that plaintiff should have been referred to a plastic surgeon because defendant was unqualified to perform such surgery. Moreover, it was error for defendant to change the direction of plaintiff's scar from transverse to vertical as scars that lay transversely are under minimal tension and heal much better. Dr. Ashbell explained that eversion, or the raising of the edges of skin, is necessary to insure the proper tension to produce a thin, fine scar, particularly in the presternal area. Based on defendant's deposition, in which he stated that he did not evert the skin, Dr. Ashbell opined that defendant deviated from the requisite standard of care.

Dr. Ashbell also stated that defendant deviated from this standard in failing to prescribe radiation therapy. Such therapy would have minimized the tendency for recurrence of the excised scar. Defendant's responsibility as surgeon was to see that such treatment was carried out within three days after surgery. Defendant should also have examined the surgical wound within two to five days following the surgery. Steroids or cortisone injections are less effective than X-ray therapy in minimizing scar tissue, Dr. Ashbell opined. However, if used, such therapy should begin immediately.

On cross-examination, Dr. Ashbell admitted that all he knew about defendant's background, i.e., that defendant was a general surgeon with no plastic surgery training, was what he had been told by plaintiff's attorney. Dr. Ashbell conceded that if he learned that defendant had a significant amount of plastic surgery training, he would change his opinion of defendant's decision to perform the instant surgery. He also admitted that he never saw plaintiff's original scar and assumed it was horizontal and not vertical because he had been told such by plaintiff's counsel. Dr. Ashbell also admitted that when a scar revision is performed, the incision must be ...


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