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12/30/87 Rosemary Coffey, v. Jack D. Brodsky

December 30, 1987





518 N.E.2d 638, 165 Ill. App. 3d 14, 116 Ill. Dec. 16 1987.IL.1950

Appeal from the Circuit Court of Champaign County; the Hon. George S. Miller, Judge, presiding.


JUSTICE KNECHT delivered the opinion of the court. McCULLOUGH, J., concurs. JUSTICE LUND, Concurring in part and Dissenting in part.


Plaintiff, Rosemary Coffey, filed a two-count complaint against defendant, Dr. Jack Brodsky, as a result of injuries allegedly sustained by plaintiff following an abdominal hysterectomy September 17, 1982. A jury trial was held in the circuit court of Champaign County. The court granted defendant's motion for a directed verdict at the close of all the evidence on count I. The jury returned a verdict for defendant on count II. Plaintiff appeals, claiming the trial Judge erred in directing the verdict, in denying her motion to strike the testimony of defendant's expert and in refusing to give plaintiff's instruction No. 14A. We reverse and remand for a new trial on both counts.

The facts are not disputed. Count I of the complaint invoked the theory of res ipsa loquitur. Plaintiff alleged that during the course of the hysterectomy, her left ureter was enclosed by one or more sutures used to close up the peritoneum, the membrane which lines the abdominal cavity. She alleged the injury would not have occurred had defendant employed the skill and care used by a reasonably well-qualified OB-GYN specialist. She alleged the presence of the suture was the proximate cause of her injury. Defendant denied these allegations.

Count II alleged specific negligence. Paragraph four of count II alleged defendant "negligently and carelessly violated the . . . duty . . . [by] [enclosing] the plaintiff's left ureter with one or more reperitonealizing sutures." On the first day of trial, plaintiff amended this paragraph to conform to discovery and anticipated proof to read:

"4. That defendant negligently and carelessly violated the aforesaid duty in that during the course of said operation he did place or cause to be placed a suture in such a position that it caused partial obstruction of the plaintiff's left ureter."

Defendant's answer to count II denied the existence of a duty, any violation, or any causation of plaintiff's injury. On the last day of trial, defendant amended his answer to read:

"4. Admits that during the course of said operation Defendant did place or cause to be placed a suture in such a position that it caused a partial obstruction of the Plaintiff's left ureter and denies the remaining allegations contained in numbered paragraph 4 of Count II of the Complaint."

Prior to the operation plaintiff had never experienced symptoms of urinary tract infection. She had no prior difficulty in retaining urine or having adequate pressure on urination. A few days before the hysterectomy, she underwent a dilation and curettage performed by defendant.

The hysterectomy was performed September 17, 1982. Plaintiff did not recall any preoperative Discussions with the defendant regarding potential complications. On September 22, 1982, plaintiff testified Dr. George B. Perlstein, a urologist, ran tests on her at defendant's request. Dr. Perlstein performed further surgery September 25, 1982, to repair the ureter. Plaintiff described her subsequent symptoms as constant urgency, inability to urinate, and a sharp, burning sensation. Dr. Perlstein prescribed medication to stimulate bladder muscles and promote complete urination. Plaintiff noticed no improvement under this regimen. Dr. Perlstein prescribed self-catheterization in July 1983. Plaintiff was required to insert a catheter in her urethra at every urination in order to remove residual urine. Each catheterization normally resulted in about two ounces of urine, though occasionally four to five ounces were produced. Plaintiff stated at the time of trial she had developed symptoms of urinary tract infection two to three times a year since 1982.

Defendant, a board-certified obstetrician and gynecologist, testified as an adverse witness pursuant to section 2-1102 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, par. 110, par. 2-1102). He stated he first saw plaintiff July 21, 1982, for extraordinary vaginal bleeding. He took a history at that time. A D & C was performed at Burnham City Hospital September 11, 1982. Plaintiff was readmitted on September 15 after a recurrence of bleeding. Following a Discussion of options with defendant, plaintiff chose to proceed with a hysterectomy. Defendant stated at trial the usual hospital stay in such cases was seven to nine days.

During the hysterectomy, defendant testified he found the left fallopian tube and ovary adherent to the posterior leaf of the left broad ligament. He stated this presented no difficulty. After removing plaintiff's uterus, left ovary, and left fallopian tube, he checked the ureter to see if any damage had taken place. He stroked the ureter to produce a peristaltic wave, which distinguished the ureter from blood vessels and other structures in the abdominal cavity. The uppermost and lowermost parts of the ureter were not visible. The peritoneum was closed with a continuous O chromic catgut suture, designed to dissolve in two to four weeks.

Immediately following the hysterectomy defendant described the operative procedure in a report in which he stated the left ovary and fallopian tube were adherent to the posterior surface of the left broad ligament. At trial, he testified there was no present inflammation, but stated "apparently there was an old chronic inflammation." He did not note this in his operating report.

Defendant assisted Dr. Perlstein in the September 25, 1982, operation and observed a kink in the left ureter five to six centimeters away from the bladder. He observed a bite of suture through the ureter's outermost layer, the adventitia. Defendant testified the part of the ureter with the obstruction was not the part he could observe when stroking the ureter during the hysterectomy. He noticed the ureter was much closer to the resutured area than one expected; however, he felt this was a minor variation on the normal anatomy.

Dr. George B. Perlstein, a board-certified urologist, examined plaintiff September 22, 1982, at defendant's request. Tests revealed blockage in the left ureter. Plaintiff was diagnosed as having hydronephrosis, an accumulation of urine in the left kidney. Dr. Perlstein said he assumed the condition resulted from the suture in the ureter. A nephrostomy tube was inserted in order to drain the kidney.

Dr. Perlstein testified the ureter's condition totally blocked the flow of urine for all practical purposes. On September 25, 1982, he operated to repair the ureter. He observed a stitch in the peritoneum which took in two to three inches of the ureter. The resulting kink involved an inch or less of the ureter and resembled "a partially unbent paper clip." Dr. Perlstein performed a ureteral reimplantation using a Boari flap procedure. Prior to the operation, the ureter entered the bladder at the base. Following the Boari flap procedure, the ureter entered the bladder at the top left portion.

In March 1983, plaintiff saw Dr. Perlstein, complaining of excess residual urine. Tests showed plaintiff retained more urine than normal after voiding. Dr. Perlstein prescribed medication to stimulate the bladder to empty more completely. In July 1983 he prescribed self-catheterization, plus medication to resist infection. Both the condition and the treatment were considered permanent. The doctor stated plaintiff's condition increased the risk of urinary tract infection. He testified with a reasonable degree of medical certainty the urine retention problem was "probably" related to his surgery on plaintiff, but he did not know why. Dr. Perlstein stated the September 25, 1982, surgery was made necessary by the suture in the adventitia.

Dr. Gerald Zatuchni, a board-certified professor of obstetrics and gynecology at Northwestern University, testified as plaintiff's expert. Dr. Zatuchni stated the hysterectomy records did not indicate any anatomical distortions which would make the operation more difficult than usual. Defendant did not mention in the operating report any thickening of the peritoneum or any lack of pliability, although such items should be noted in the reports if they exist. Although adhesions found at the left ovary and fallopian tube could also cause the peritoneum to thicken, no thickening was noted in defendant's operating report.

Dr. Zatuchni found nothing to indicate the hysterectomy was of a difficult nature requiring extra steps to identify the ureter. He stated within a reasonable degree of medical certainty there was no anatomical or other reason for inadvertently including a portion of the ureter in the suture. Defendant's conduct therefore fell below the minimum standard of care. On cross-examination, Dr. Zatuchni stated defendant's only deviation from the standard of care during the hysterectomy was placing the stitch in the adventitia.

Defendant's expert was Dr. Antonio Scommengna, a board-certified obstetrician-gynecologist, chairman of the department of obstetrics and gynecology at Michael Reese Hospital in Chicago, and professor of obstetrics and gynecology at the University of Chicago. Dr. Scommengna stated, within a reasonable degree of medical certainty, defendant did not deviate from the standard of care. He referred ...

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