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07/13/88 Diana Harden Wilsman, v. Witold A. Sloniewicz

July 13, 1988





526 N.E.2d 645, 172 Ill. App. 3d 492, 122 Ill. Dec. 386 1988.IL.1090

Appeal from the Circuit Court of Kane County; the Hon. James F. Quetsch, Judge, presiding.


JUSTICE WOODWARD delivered the opinion of the court. NASH and INGLIS, JJ., concur.


Plaintiff, Diana Harden Wilsman, appeals from a judgment of the circuit court of Kane County granting defendant's motion for a directed verdict. On appeal, Wilsman contends that she met the necessary burden to withstand the motion for a directed verdict. We reverse and remand.

In March 1983, plaintiff filed suit against defendant, Dr. Witold Sloniewicz, and Geneva Community Hospital, alleging that defendant negligently performed a tubal ligation. Plaintiff alleged that following this operation she suffered severe abdominal pain for four years and had damages of $350,000. The hospital was subsequently dismissed by plaintiff, and a jury trial began in the circuit court of Kane County in August 1987.

The plaintiff first called Dr. Sloniewicz as an adverse witness pursuant to section 2-1102 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-1102). Defendant testified that when he admitted Wilsman to the hospital to perform the tubal ligation she was complaining of severe headaches and pain in her abdomen. The procedure defendant used to perform the tubal ligation was removal of a section of the fallopian tube and placement of hemoclips on the tube to close the opening. This procedure was repeated for the fallopian tube on the other side of the uterus. After the operation, the defendant saw Wilsman on June 20 and 27, 1977, to remove her sutures. Wilsman had no complaints at that time, and Dr. Sloniewicz did not treat her again. After the June 27, 1977, visit, Wilsman's outstanding bills owed to the defendant totaled $215. Dr. Sloniewicz testified that if a patient had an outstanding bill, he would only see such a patient on an emergency basis unless arrangements were made to pay for the arrearage. Defendant further stated that Wilsman never discussed such an arrangement with him.

The next witness was the plaintiff, Diana Wilsman, Ms. Wilsman testified that she had been suffering abdominal pain for six months prior to visiting the defendant. She asked Dr. Sloniewicz to perform a tubal ligation because she did not want to have any more children. She stated that she continued to have severe abdominal pain and saw Dr. Sloniewicz three or four times in 1978 and again in 1979. Wilsman said the defendant prescribed an antacid for her stomach pains. In 1981, Wilsman had a vaginal hysterectomy, and in 1982, her fallopian tubes and ovaries were removed. After her second operation, she was informed that hemoclips had been used for the tubal ligation. The pains in her stomach continued sporadically until Dr. Zapata removed scar tissue from her stomach. On cross-examination, Wilsman stated that Sloniewicz billed her for visits in 1978 and 1979, but her divorce decree only indicated a debt to the doctor of $215.

Plaintiff then called two doctors to testify on her behalf. The first, Dr. William Matview, testified as an expert witness. Dr. Matview testified that Dr. Sloniewicz deviated from the standard of care in the community by using hemoclips to perform a tubal ligation. He also stated that the clip used by Dr. Sloniewicz was too large. Dr. Matview testified that the placement of the clips could have caused swelling in the fallopian tubes and could cause abdominal pain. Dr. Matview stated on cross-examination that when he gave his deposition, he testified that it was appropriate to use hemoclips for the type of surgery performed on plaintiff. Dr. Mario Zapata testified concerning plaintiff's 1985 surgery and said that the scar tissue he removed could have been caused by previous surgery.

At the close of plaintiff's case, defendant moved the court to strike parts of Dr. Zapata's testimony as being in violation of Supreme Court Rule 220 (107 Ill. 2d R. 220). The court granted this motion. Next defendant moved to strike Dr. Matview's entire testimony in violation of Supreme Court Rule 220; the court denied this motion. Defendant then moved for a directed verdict based on plaintiff's alleged failure to prove causation. During the Discussions, the court, on its own initiative, asked plaintiff's counsel if Dr. Matview testified as to the prevailing community medical standards. The court found that the plaintiff had not offered sufficient evidence as to community standard of care and directed a verdict in favor of defendant.

It is axiomatic that directed verdicts should only be entered when all the evidence viewed in a light most favorable to the plaintiff so overwhelmingly favors the defendant that a contrary verdict based on that evidence could never stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510.) Plaintiff contends that she presented sufficient evidence to survive the motion for a directed verdict. Specifically, she argues that she made out a prima facie case with respect to the standard of care.

The applicable standard of care consists of affirmative evidence of what reasonably careful medical practitioners in the community would have done in a similar case. (Spike v. Sellett (1981), 102 Ill. App. 3d 270.) The standard must be that which is generally accepted in the medical community. It is not sufficient for plaintiff's expert witness to testify that he would have acted differently in the circumstances or that alternative methods of proceeding existed. Thome v. Palmer (1986), 141 Ill. App. 3d 92.

At trial, Dr. Matview, plaintiff's expert witness, testified that he was a physician and surgeon licensed since 1966 in the State of Illinois and is board-certified in obstetrics and gynecology. Dr. Matview has offices in Schaumburg, Elgin, and Crystal Lake. We reasonably infer that Dr. Matview was familiar ...

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