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05/27/87 Harry Green, v. Cook County Hospital Et Al

May 27, 1987

HARRY GREEN, PLAINTIFF-APPELLANT

v.

COOK COUNTY HOSPITAL ET AL., DEFENDANTS-APPELLEES



Before he began his cross-examination of Dr. Hirsh, defense counsel stated in a sidebar conference: "I am just putting on the record because I am going to ask him questions if he would be surprised if Mr. Green could do certain activities today. And I will connect it up later." Defense counsel then raised the following questions on cross-examination:

APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

510 N.E.2d 3, 156 Ill. App. 3d 826, 109 Ill. Dec. 382 1987.IL.678

Appeal from the Circuit Court of Cook County; the Hon. Brian L. Crowe, Judge, presiding.

APPELLATE Judges:

JUSTICE WHITE delivered the opinion of the court. RIZZI and QUINLAN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WHITE

Plaintiff Harry Green appeals from the judgment entered on a jury verdict in favor of the defendants. The defendants are Cook County Hospital, the attending neurosurgeon, and the chief neurological resident. Green charges defendants with medical malpractice during surgery performed on him for the removal of a pituitary tumor.

Plaintiff suffers from acromegaly, a condition which results in abnormal growth of the head, thorax, hands, and feet, caused by a hyperactive pituitary gland. In Green, this hyperactivity was caused by a nonmalignant pituitary tumor. Green alleges that after defendants performed surgery on November 5, 1985, to remove the tumor, he suffered severe and permanent brain damage which impaired his coordination in all extremities, caused a loss of ocular motor control, and left him permanently disabled.

The pituitary gland is housed by the sella turcica (sella), which is a bony structure located in front of the brain stem, between the eyes. The surgical approach to the sella is known as the midline approach since the surgeon must stay on the midline of the head to reach the sella, which contains the pituitary. If he deviates from the midline, he will not be properly positioned in the surgery when the sella is to be entered and the tumor removed.

The sphenoid sinus may contain thin walls of bone, known as septa, which divide the sinus into chambers. If the septa are present, they are broken during the surgery in order to reach the floor of the sella. To help the surgeon stay on the midline during this surgery, radiological indicators of the positions of the septa in the sphenoid sinus are used. Plaintiff based his case both on the theory of res ipsa loquitur and on specific allegations that the surgery was negligently performed in one or more of the following respects: (1) defendants did not enter the sella, but entered the subarachnoid space and introduced bacteria and caused a bacterial meningitis which resulted in brain damage; (2) defendants did not enter the sella, but entered the subarachnoid space and introduced blood cells which caused an aseptic meningitis and resulted in brain damage; or (3) defendants did not enter the sella but entered the subarachnoid space in a manner which caused injury to the brain stem and resulted in brain damage. Defendants' post-operative report of plaintiff's surgery stated that the bony septa that existed within the sphenoid sinus were removed and that the sella was reached and the tumor was removed. No difficulty was noted. The report indicated that facia lata and fat were packed into the sella cavity and adhesive was used to reseal the floor of the sella at the Conclusion of the surgery.

Three tissue samples removed during the surgery were sent to the Cook County Hospital pathology department, which found that none of these samples contained tumor tissue. One of the samples was found to contain brain tissue. There was no lowering of Harry Green's growth hormone level following the November 5, 1981, surgery. CAT scans taken shortly after this surgery revealed the continued presence of septa in the sphenoid sinus.

A second surgery was performed by Dr. Michael Jerva in June of 1984. Again the purpose was to remove a pituitary tumor causing acromegaly. This second surgery was performed by Dr. Jerva upon his belief that the first surgery had not removed the pituitary tumor from Harry Green. Dr. Jerva was successful in reaching the sella and pituitary in this second surgery. He observed no evidence that the sella had been previously entered or that pituitary tumor tissue had been removed. Nor did he find fat in the sella during the second surgery when he entered it.

Pathology reports of the tissue removed by the second surgery indicated the presence of tumor tissue and pituitary tissue. They did not indicate the presence of any brain tissue. Bone removed from the floor of the sella during this second surgery contained neither tumor nor adhesive.

There was a lowering in plaintiff's growth hormone level following the second surgery. Dr. Curtis, who performed the initial portion of the second surgery, testified that he observed apparently undisturbed septa in the sphenoid sinus and signs of what he took to be scarring from the first surgical procedure off the midline.

Defendants maintained that any brain damage suffered was a result of a bacterial meningitis which arose as a complication of a correctly performed surgery and not from any deviation from the applicable medical standard of care during surgery. Meningitis is recognized as an inherent complication of this surgery in 2% to 7% of cases.

The jury denied plaintiff's claim and found in favor of the defendants. Plaintiff now appeals, raising six issues on review: (1) that the evidence mandates the entry of judgment n.o.v. or new trial; (2) that the closing argument of the defendants in accusing plaintiff's counsel of making a lawsuit and manufacturing evidence severely prejudiced the plaintiff and constituted reversible error; (3) that it was improper for the court to instruct the jury that a poor result of surgery is not proof of negligence where a prima facie case under the doctrine of res ipsa loquitur has been established; (4) that the trial court improperly limited cross-examination of one of defendants' expert witnesses; (5) that misconduct of defense counsel constitutes ...


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