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01/27/89 Carlos Ramos, v. Prahlad Pyati

January 27, 1989





534 N.E.2d 472, 179 Ill. App. 3d 214, 128 Ill. Dec. 290 1989.IL.86

Appeal from the Circuit Court of Cook County; the Hon. Paul F. Elward, Judge, presiding.


PRESIDING JUSTICE MURRAY delivered the opinion of the court. LORENZ and PINCHAM, JJ., concur.


Defendant, Prahlad Pyati, M.D., appeals from several rulings of the trial court in a medical malpractice suit filed by plaintiff, Carlos Ramos, in which he alleged that defendant performed surgery on his hand outside the scope of the surgery to which he had consented. Specifically, defendant contends that: (1) the trial court erred in denying his motion for a directed verdict because plaintiff failed to prove a prima facie case of medical malpractice; (2) the court erred in directing a verdict in favor of plaintiff based on its Conclusion that plaintiff did not consent to the use of the ring finger tendon as a donor tendon; and (3) the court abused its discretion in limiting his expert's opinion testimony. For the reasons set forth below, we affirm.

The record discloses that in November 1977 plaintiff injured his thumb while at work. He was referred to defendant, after seeing three other doctors, in February 1978. Defendant subsequently diagnosed plaintiff's injury as a ruptured thumb tendon and, after obtaining plaintiff's consent to surgically repair the tendon, he operated on the thumb. During the course of the operation, defendant was unable to join the two ends of the ruptured tendon because of scar tissue which had formed and caused the ends to retract. He then examined plaintiff's palmaris longus (wrist) tendon and found it unsuitable as a donor to bridge the gap between the ends of the ruptured tendon. Defendant proceeded to examine "the already exposed area for another available, suitable tendon" and chose the digitorum sublimis superficialis (ring finger) tendon. After the surgery, plaintiff continued to see defendant for approximately one month.

In July 1979, plaintiff filed an action against defendant for medical malpractice, alleging that his hand was "rendered unusable for his customary mode of employment" *fn1 and that defendant had breached his duty by not: (1) advising him of the serious nature of the proposed operations; (2) exercising a proper degree of care in the performance of the operation; and (3) discontinuing the surgery when he knew or should have known that the "required surgery" would probably cause a greater disability than the already injured condition of his thumb.

At trial, plaintiff testified that although he signed a written consent form authorizing surgery on his thumb, he did not consent to a graft of his ring finger tendon or any other tendon. Plaintiff further stated that defendant only told him that he would have "two small operations" in his wrist to repair his thumb injury; that after the surgery and a cast that had been placed on his hand was removed, he experienced stiffness in his hand and discovered five scars from incisions made by defendant; and that as a result of the surgery he cannot bend his ring finger independently of his other fingers, he has trouble picking up nuts and bolts and handling his tools which he uses in his occupation as a mechanic, and he does not have the same grip strength that he had prior to the surgery.

Defendant testified that due to the passage of time and the number of patients he had seen since treating plaintiff (nine years), he could not remember the specifics of the conversations he had with plaintiff concerning his surgery. Based on his custom and practice, however, he stated that he would have explained the surgical procedure to plaintiff and the consequences of treatment. Specifically, defendant would have explained to plaintiff that he would attempt to rejoin the ends of the ruptured tendon or, if he could not do so, he would graft his wrist tendon to do so. He also would have advised plaintiff that if the wrist tendon was unsuitable, he would use a tendon from another source. Defendant further stated, however, that it was likely since he had not planned to use the ring finger tendon, he would not have told plaintiff that he was planning to use it. Additionally, defendant testified that he did not consider using plaintiff's calf tendon as a donor tendon because its use might require getting another consent from plaintiff.

With respect to the preferred choice of donor tendons, Dr. Donald Miller, plaintiff's expert witness, testified that the ring finger tendon is the last choice of four other tendons based upon medical texts relied on at trial. Dr. Miller described the order of use of the preferred donor tendons as (1) the wrist tendon, (2) the calf tendon, (3) toe extensor tendons, (4) small or index finger tendons, and (5) the ring finger tendon. He further explained that the ring finger tendon is the last choice because it, unlike the other tendons that are "fine" and nonfunctional, does not have as much elasticity as the nonfunctional tendons to provide the greatest amount of flexion, and it has a function -- "serves a purpose." Additionally, Dr. Miller stated that removal of the ring finger tendon results in a little weakening of that finger and loss of "some of the elasticity and strength of the hand." He also stated that he had used the ring finger tendon in two instances -- accident cases -- only because the other preferred tendons were unavailable. It was Dr. Miller's opinion that had defendant used a tendon other than the ring finger tendon, plaintiff's flexion in his thumb would be greater than it is and his ring finger, unimpaired, would be normal, and plaintiff would have greater strength in his hand. Accordingly, it was Dr. Miller's opinion that defendant therefore deviated from the standard of care. Lastly, Dr. Miller stated, in response to a question on direct examination whether failure to tell plaintiff prior to surgery about the possible use of the ring finger tendon was a deviation from the standard of disclosure, "that in [the] form of consent telling the patient exactly what is to be done is very important, specifically spell it out and define it so that there was a breach of care."

The testimony of Dr. John Bell, defendant's expert witness, was limited to his opinion given in a deposition taken by plaintiff based on defendant's failure to answer in writing interrogatories submitted to him pursuant to Supreme Court Rule 220 (107 Ill. 2d R. 220), i.e., that the operative procedure was in conformity with acceptable medical practice.

During the trial, defendant moved for a directed verdict at the close of plaintiff's case on the grounds that plaintiff failed to present evidence that defendant's alleged failure to obtain an informed consent from plaintiff proximately caused his injury, there was no evidence showing that the operation had caused loss of flexion or other injury, plaintiff's claim that his hand was "unusable" for his customary employment was disproved since he had testified that he had continued working at his former job after the surgery, and plaintiff had failed to prove a prima facie case for medical malpractice. The court denied defendant's motion. At the close of all the evidence, plaintiff moved for a directed verdict on the issues of consent, absence of consent, and proximate cause "between the performance of the surgery and the resultant injury." The court granted the motion as to the absence of consent for the use of the ring finger tendon as a donor, but denied it as to proximate cause and did not direct a verdict as to the thumb surgery. Prior to closing statements, the court instructed the jury on the directed verdict as follows:

"The Court has decided, as a matter of law in this case, that the defendant, Dr. Pyati, is liable to the plaintiff, Mr. Ramos, for failure to get the consent of Mr. Ramos to the surgery on his ring finger.

The amount of damages to be awarded, if any, to the plaintiff for this liability will be decided by the jury. All other issues of liability and damages are to be decided by the jury."

The jury subsequently returned a verdict on the issue of liability as to the use of plaintiff's ring finger tendon, as instructed by the court, and assessed damages in the amount of $94,000. No verdict was returned as to plaintiff's thumb. This appeal followed.

Defendant first argues that the trial court erred in denying his motion for a directed verdict at the close of plaintiff's case because he failed to prove by a prima facie case of medical malpractice. The elements which must be proved by a plaintiff to establish medical malpractice are: (1) the standard of care by which the physician's treatment is measured; (2) a deviation from that standard; and (3) that the deviation proximately caused the plaintiff's injury. (Borowski v. Von Solbrig (1975), 60 Ill. 2d 418, 328 N.E.2d 301; Newell v. Corres (1984), 125 Ill. App. 3d 1087, 466 N.E.2d 1085.) Proof of these elements is generally based upon expert testimony, unless the conduct is so grossly negligent or the treatment so common that a layman may understand the conduct without the necessity of expert testimony. (Walski v. Tiesenga (1978), 72 Ill. 2d 249, 381 N.E.2d 279.) Failure to prove any one of these elements requires a directed verdict in a defendant's favor. Walski, 72 Ill. 2d 249, 381 N.E.2d 279.

Here, defendant contends that plaintiff failed to prove by expert testimony the standard of care to which defendant was held, asserting that defendant's choice of tendons was merely a matter of preference and therefore an alternative method of treatment which is not a basis for establishing negligence. (See Walski v. Tiesenga (1978), 72 Ill. 2d 249, 381 N.E.2d 279.) Since plaintiff's expert testified that any of the other tendons are useful to the performance of plaintiff's type of operation, defendant asserts that his use of the right finger tendon was within acceptable medical practice.

We disagree with defendant's reasoning. At trial the parties were required to establish the standard of care based on their personal expertise and two medical texts. We note even though the order of preferred tendons varies in the texts, use of the ring finger tendon is the last choice in both texts. We conclude, as apparently did the jury, that the reason for the ring finger tendon's position in last place is because, as Dr. Miller explained, it lacks the elasticity of the other tendons and is a functional, rather than a nonfunctional, tendon and removal of it results in some physical impairment. Plaintiff's expert therefore established a sufficient standard of care; the ring finger tendon is to be used only if no other tendons are available.

Defendant also contends that plaintiff failed to prove damages. Defendant points out that plaintiff claimed that his hand was unusable for his customary mode of employment, yet plaintiff admitted that after the operation his hand was usable for his job since he was able to continue his work duties as a loader and could still lift packages weighing over 100 pounds. Defendant apparently forgot the fact, however, that in a pretrial conference his counsel, along with plaintiff's counsel, agreed to change the language of plaintiff's claim that his hand was "unusable for his customary mode of employment" to "less usable" for "everything" involving the use of his hand. We also observe that plaintiff's job as a loader is different from his work as a mechanic in which he, subsequent to the operation, has experienced difficulty in using his tools and picking up small objects.

Similarly, we reject defendant's argument that plaintiff's claim for scarring is spurious because plaintiff knew there would be incisions when he consented to the operation. We cannot determine what weight the jury gave to this issue, but the fact remains that there were five incisions, rather than the two plaintiff consented to when the operation was explained to him. Defendant further argues that there was no evidence that plaintiff's thumb was injured or worsened as a result of the operation. We find it unnecessary to address this argument because the jury did not enter a verdict on plaintiff's thumb injury claim and, therefore, no issue exists on this point. As regards defendant's assertion that plaintiff failed to show that his ring finger was damaged because the use of the ring finger tendon normally results in a little weakening of the end joint of that finger, some loss of elasticity, and loss of strength in the hand, we first observe that plaintiff did not consent to the use of his ring finger tendon, as discussed below, and, secondly, this normal result would not have occurred had defendant used a nonfunctional tendon. Plaintiff therefore sufficiently proved damages.

Defendant further contends that plaintiff failed to prove a lack of informed consent and, arguendo, if he did not consent to the grafting of his ring finger tendon, he nonetheless failed to prove that breach of the standard of disclosure proximately caused any damage. In support thereof, defendant asserts: (1) that plaintiff's expert witness, Dr. Miller, did not establish the medical standard of disclosure but merely expressed his opinion on how to avoid legal liability in a written consent form; (2) that he owed no duty to inform plaintiff of the "remote" risk that he might have to use another tendon if the wrist tendon was unsuitable; (3) that once plaintiff consented to the surgical procedure, his consent extended to all necessary actions taken during the course of the operation, expressly and impliedly; and (4) there was no evidence, expert or otherwise, as to whether a prudent person in plaintiff's position would have declined the procedure followed by defendant.

As correctly stated by defendant, a plaintiff, who claims lack of informed consent as a basis for recovery, must prove the standard of disclosure by expert testimony, i.e., "that the reasonable medical practitioner of the same school, in the same or similar circumstances, would have told the patient of such risks, or that the disclosures as made . . . did not meet the standard of what a reasonable medical practitioner would have disclosed under the same or similar circumstances." (Green v. Hussey (1970), 127 Ill. App. 2d 174, 184, 262 N.E.2d 156.) It is also well settled that a physician only owes a duty to inform a patient for foreseeable risks, results and alternatives of a given procedure that a reasonable physician would have disclosed in the same or similar circumstances. Guebard v. Jabaay (1983), 117 Ill. App. 3d 1, 452 N.E.2d 751.

In the instant case, notwithstanding the fact that plaintiff claimed defendant never informed him that a graft of another tendon might have to be performed, and defendant testified that he had not foreseen use of the ring finger tendon for the graft and therefore would not have told plaintiff of that possibility, the following questions and answers were offered by plaintiff on the standard of disclosure to obtain informed consent:

"Q. Now, doctor, based upon a reasonable degree of medical and surgical certainty, did the defendant in failing to advise Mr. Ramos of the fact that he preferred to use the sublimis tendon or the ring finger tendon as a second choice to the palmaris longus tendon [wrist tendon], was it a ...

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