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06/26/87 Marlene Weekly, v. James Solomon

June 26, 1987





510 N.E.2d 152, 156 Ill. App. 3d 1011, 109 Ill. Dec. 531 1987.IL.896

Appeal from the Circuit Court of Lake County; the Hon. Charles Scott, Judge, presiding.


JUSTICE NASH delivered the opinion of the court. DUNN and REINHARD, JJ., concur.


In this medical malpractice action, plaintiff, Marlene Weekly, appeals from a directed verdict entered in favor of defendant, Dr. James Solomon, at the close of plaintiff's case in a jury trial. She contends that the trial court erred in excluding the testimony of plaintiff's expert medical witness on the grounds he was not qualified to testify as to the applicable standard of care required of the defendant physician in treating plaintiff and in informing her of the foreseeable risks and results of his treatment.

In January 1980, plaintiff underwent a bariatric surgical procedure performed by Dr. Solomon known as "gastric stapling." Thereafter, plaintiff filed a multiple-count complaint against Dr. Solomon, Dr. John Belucci, and St. Therese Hospital. The counts against Dr. Belucci and the hospital were dismissed in the trial court, and this appeal is concerned only with the entry of a directed verdict in favor of Dr. Solomon as to count III of the complaint grounded in negligence. Therein plaintiff alleged that Dr. Solomon was negligent in that he failed to warn plaintiff of the nature and risks of the surgery, failed to prescribe the proper post-operative diet, and used improper surgical technique.

Plaintiff first consulted Dr. John Belucci on January 26, 1980, for treatment of an excess weight problem. Dr. Belucci recommended gastric stapling, a surgical procedure in which the upper part of the stomach is stapled to reduce the size of the stomach and thereby limit the patient's intake of food. Dr. Belucci referred the plaintiff to Dr. Solomon, who performed the surgery. Plaintiff testified that she was told that she would lose weight as a result of this procedure because she would be incapable of eating large portions of food; however, she did not lose weight after the surgery.

At trial, plaintiff sought to call Dr. Daniel Radecki as an expert witness, at which time the court permitted counsel to examine Dr. Radecki outside the presence of the jury to establish his competency to testify as to the applicable standard of care. Dr. Radecki testified that he was a general surgeon practicing medicine in Toledo, Ohio, a community of about 380,000, its hospitals ranging in size from 150 to 500 beds. Dr. Radecki stated that he had performed and assisted in various types of bariatric surgery, including gastric stapling, and was familiar with the Pace procedure, which was the stapling method used by defendant in treating plaintiff. He had once attended a symposium on bariatric surgery in Chicago but had never spoken to any doctors who practiced in Lake County or who performed the variety of the Pace procedure used on the plaintiff. He was not familiar with any of the hospital facilities in Lake or Cook counties. Dr. Radecki stated that at the time of plaintiff's surgery there was a national standard for the Pace procedure; however, he also stated that the procedure had been modified to the extent that surgeons performed it in different ways.

On defendant's motion to bar Dr. Radecki from testifying, the trial court found that for purposes of the locality rule, plaintiff had neither established a similarity between Toledo, Ohio, and Waukegan, Illinois, nor shown that Dr. Radecki was familiar with the standard of care in Waukegan. The court also found that there was no national standard of care, as the testimony had shown there were differences of opinion as to the proper stapling technique, and a profusion of other surgical techniques for the treatment of obesity. Based upon these findings, the court barred Dr. Radecki from testifying as an expert witness.

In moving the court to reconsider its ruling, plaintiff asked the court to take judicial notice of certain statistical data pertaining to Waukegan and Toledo. The court denied the motion to reconsider, and at the close of plaintiff's case in chief directed a verdict in favor of Dr. Solomon.

We consider first whether the trial court erred in barring Dr. Radecki from testifying as an expert medical witness. In a medical malpractice action, plaintiff must show, through expert testimony, the standard of care applicable to the defendant physician and the failure of defendant to conform to the standard. The proponent of an expert's testimony must lay a foundation which affirmatively establishes the expert's qualifications and competency to testify. (Purtill v. Hess (1986), 111 Ill. 2d 229, 242-43, 489 N.E.2d 867.) The expert witness must show that he is familiar with the methods, procedures, and treatments ordinarily observed by other physicians, in either the defendant physician's community, a similar community, or that the standards upon which he bases his opinion are national or international in scope. (Purtill v. Hess (1986), 111 Ill. 2d 229, 243, 489 N.E.2d 867; Duvall v. Laidlaw (1986), 141 Ill. App. 3d 717, 722, 490 N.E.2d 1004.) It is within the sound discretion of the trial court to determine if the witness is qualified to testify as an expert to establish the standard of care and as to whether defendant conformed to the standard. Dolan v. Galluzzo (1979), 77 Ill. 2d 279, 285, 396 N.E.2d 13; Thompson v. Webb (1985), 138 Ill. App. 3d 629, 632, 486 N.E.2d 326.

In the present case, plaintiff sought to establish the standard of care through the testimony of Dr. Radecki, who practices medicine in Toledo, Ohio. He testified that he did not know the standard of care in Lake County, Illinois, for the surgical procedure used in plaintiff's case and that he was unfamiliar with the Lake County hospitals and had not discussed the surgical procedure with any Lake County physicians.

Nor did plaintiff establish that Toledo was a community similar to Waukegan. "Similar locality" is defined in terms of the medical conditions and facilities available to the physician. In Purtill v. Hess, the court noted that the similar locality rule requires comparison of the availability of medical facilities for examination and treatment, the presence or absence of specialists and other medical personnel for consultation and assistance, and other variables. (Purtill v. Hess (1986), 111 Ill. 2d 229, 246, 489 N.E.2d 867.) In the present case, the only pertinent evidence offered by plaintiff was Dr. Radecki's testimony as to the population of Toledo and the size of its hospitals. This alone was insufficient to establish that Toledo was similar ...

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