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06/02/87 Diamonda Tobias, v. Lee F. Winkler Et Al.

June 2, 1987

DIAMONDA TOBIAS, PLAINTIFF-APPELLANT

v.

LEE F. WINKLER ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

509 N.E.2d 1050, 156 Ill. App. 3d 886, 109 Ill. Dec. 211 1987.IL.732

Appeal from the Circuit Court of Sangamon County; the Hon. Jerry S. Rhodes, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE SPITZ delivered the opinion of the court. LUND and KNECHT, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SPITZ

This action was brought to recover damages occasioned by the alleged negligence of both defendants in failing to inform plaintiff of the foreseeable risks and dangers associated with a surgical procedure known as gomez-type gastroplasty. The action was also brought against defendant Winkler to recover damages occasioned by his alleged intentional infliction of emotional distress upon plaintiff in failing to perform a reversal of the aforesaid surgical procedure, as he had allegedly agreed to do. The trial court, upon defendants' motions for summary judgment, entered judgment in favor of defendants and against plaintiff. Plaintiff appeals from the summary judgment.

Plaintiff first met with defendant Winkler in January 1982. At that time, she was suffering from obesity, which was aggravating an asthmatic condition. Subsequently, plaintiff was admitted to defendant St. John's Hospital, and on January 22, 1982, defendant Winkler performed a surgical procedure known as gomez-type gastroplasty upon plaintiff. Plaintiff alleges that the only side effect or complication discussed with her prior to the surgery was the fact that she would have to eat smaller meals on a permanent basis. Plaintiff also alleges that immediately following the surgery, she began to experience continual pain, nausea, and vomiting, as well as other complications associated with the surgery, and that if she had been informed that any of these were potential risks associated with the surgery, she would not have consented to the procedure.

Plaintiff was discharged from the hospital on February 1, 1982; however, she was readmitted on February 16, 1982, because of nausea and vomiting. Subsequently, a second surgical procedure was performed to dilate the opening of the gastroplasty. Plaintiff was discharged for the second time on March 2, 1982.

After the second operation, plaintiff was able to tolerate liquids; however, she still was unable to eat. She was on chicken broth at the time of the second discharge, and was sometimes able to keep it down. Plaintiff continued to experience vomiting while in the hospital in February and March. Upon her second discharge she was still on a liquid diet with continued vomiting.

While at home, plaintiff was unable to keep liquids down and she continued to experience nausea and vomiting. On March 10, 1982, plaintiff was again rehospitalized.

In June 1982, plaintiff was readmitted to the hospital because of further problems with her gastroplasty. At this time, plaintiff alleges that she requested Winkler to "reverse" the gastroplasty procedure and that Winkler held himself out to be qualified to reverse the procedure. Plaintiff further alleged the following in count III of her complaint:

"5. That on or about June 4, 1982, Defendant Lee F. Winkler performed a surgical procedure upon Plaintiff which did not result in the reversal of the aforesaid gomez-type gastroplasty.

6. That the surgical procedure . . . merely revised the previously performed gomez-type gastroplasty by dilating the existing gastroplasty channel to a larger opening.

8. That Lee F. Winkler knew, or should have known, considering the mental state of Plaintiff prior to her admission into the aforesaid hospital on or about June 1, 1982, that his failure to reverse the gomez-type gastroplasty would cause severe shock, emotional distress and mental anguish upon Plaintiff.

9. That as a result of Defendant Lee F. Winkler's failure to perform a reversal of the gomez-type gastroplasty procedure upon Plaintiff, Plaintiff did suffer severe shock, emotional distress and mental anguish and still continues to suffer the same.

10. That as a direct and proximate result of Defendant's intentional failure to perform a reversal of the gomez-type gastroplasty surgical procedure, but merely to revise the same, Plaintiff was caused to suffer severe shock, emotional distress and mental anguish.", ...


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