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06/29/89 Janice Poole, v. University of Chicago

June 29, 1989

JANICE POOLE, PLAINTIFF-APPELLANT

v.

UNIVERSITY OF CHICAGO, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

542 N.E.2d 746, 186 Ill. App. 3d 554, 134 Ill. Dec. 400 1989.IL.1026

Appeal from the Circuit Court of Cook County; the Hon. Jacques Heilingoetter, Judge, presiding.

APPELLATE Judges:

JUSTICE McMORROW delivered the opinion of the court. JOHNSON and LINN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCMORROW

Plaintiff Janice Poole (plaintiff) underwent subtotal thyroidectomy surgery performed by a physician employed by defendant University of Chicago (defendant). As a result of that surgery, plaintiff suffered permanent bilateral vocal cord paralysis that severely restricted her ability to breathe or speak. A jury in plaintiff's medical malpractice suit against defendant found that the surgeon had not been negligent in performing the surgery, and plaintiff appeals. Upon review, plaintiff contends that a res ipsa loquitur instruction should have been given to the jury and that defendant's improper cross-examination of plaintiff's expert witness constituted reversible error. We conclude that the trial court should have instructed the jury to consider res ipsa loquitur principles in plaintiff's negligence case against defendant. We further determine that plaintiff was prejudiced by defendant's improper cross-examination of plaintiff's expert witness at trial. As a result, we reverse and remand.

Plaintiff suffers from Graves' disease, a potentially fatal abnormality of the thyroid gland. As treatment for this condition, plaintiff underwent a subtotal thyroidectomy in June 1977 at defendant's hospital. In a subtotal thyroidectomy, a portion of the patient's thyroid is removed. The thyroid sits on both sides of the trachea and is connected across the trachea by a midline called the isthmus. Behind the thyroid, and running alongside the trachea, are the recurrent laryngeal nerves, which are responsible for innervation of the larynx and the vocal cords.

Prior to the surgery, examination of plaintiff revealed that she had a slightly hoarse, basically good voice quality, with normal appearance and motion of the larynx and vocal cords. Following the surgery, examination disclosed that plaintiff's vocal cords were paralyzed in a position that caused decreased passage in her airway and prevented her from speaking. Plaintiff's bilateral vocal cord paralysis was caused during the surgery by damage to the recurrent laryngeal nerves.

The disputed issue at trial centered on the propriety of certain methods used to perform the surgery upon plaintiff. Plaintiff's expert witness at trial, Dr. Alvin Bakst, testified that there are two procedures commonly used in performing a subtotal thyroidectomy. One procedure is to clear the trachea in removing the thyroid gland. In this procedure, the surgeon transects or cuts the isthmus and removes that part of the thyroid located in front of the trachea, leaving the trachea clear, visible, and bare. A second procedure is to remove portions of the thyroid without clearing the trachea, i.e., without removing that part of the thyroid situated in front of the trachea.

It was the expert opinion of Dr. Bakst at trial that a surgeon should locate and protect the recurrent laryngeal nerves when the surgery will include clearing of the trachea. It was also Dr. Bakst's expert opinion that the surgeon should not use electrocautery to control bleeding in the glandular area of the trachea near the recurrent laryngeal nerves. Based on the operative report of the subtotal thyroidectomy performed upon plaintiff, Dr. Bakst concluded that the surgeon who performed this surgery had cleared the trachea but had not located and protected the recurrent laryngeal nerves. Dr. Bakst also concluded that electrocautery had been used to control bleeding in the glandular area of the trachea near the recurrent laryngeal nerves.

Dr. Bakst recognized that vocal cord paralysis is a risk associated with subtotal thyroidectomy surgery and may occur without negligence on the part of the surgeon. However, Dr. Bakst also testified on direct examination that plaintiff's bilateral vocal cord paralysis ordinarily would not have occurred in the absence of a deviation from the standard of care. Dr. Bakst explained that bilateral vocal cord paralysis "implies there was a deviation somewhere during the operation procedure [because] bilateral [voice cord paralysis is] just too much to expect by chance."

On cross-examination, Dr. Bakst testified that bilateral vocal cord paralysis does not in all instances prove that the operating physician was negligent, and that bilateral vocal cord paralysis could be an unavoidable complication of the surgery. Dr. Bakst stated that if the trachea were not cleared during the surgery, and if electrocautery were not used to control bleeding in the glandular area of the trachea, then plaintiff's vocal cord paralysis would not have been the result of the surgeon's negligence, but would instead be an unfortunate complication of the surgical procedure.

On redirect examination, Dr. Bakst repeated his original testimony on direct examination that plaintiff's bilateral vocal cord paralysis ordinarily would not have resulted absent the operating physician's negligence, because the surgery was performed by clearing the trachea without locating and protecting the recurrent laryngeal nerves, and by the use of electrocautery to control bleeding in the glandular area of the trachea near the recurrent laryngeal nerves.

Dr. Bakst also stated that, in his opinion, both the failure to locate the recurrent laryngeal nerves in order to clear the trachea, and the use of electrocautery in the glandular area of the trachea, fell below the standard of care with respect to the performance of a subtotal thyroidectomy. It was Dr. Bakst's opinion that these deviations from the standard of care led to damage of plaintiff's recurrent laryngeal nerves during the surgery, and ...


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