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06/02/94 SALLIE JEAN JONES AND MARK R. JONES v.

June 2, 1994

SALLIE JEAN JONES AND MARK R. JONES, PLAINTIFFS-APPELLANTS,
v.
ALLEN B. MINSTER, MICHAEL H. JACKER, CHESTER G. LASKOWSKI, AND JAY L. LEVIN, DEFENDANTS-APPELLEES (WILLIAM C. SCHAFERNAK, DEFENDANT).



Appeal from the Circuit Court of Lake County. No. 91-L-356. Honorable Bernard E. Drew, Jr., Judge, Presiding.

Rehearing Denied July 6, 1994.

Quetsch, Colwell, PECCARELLI

The opinion of the court was delivered by: Quetsch

JUSTICE QUETSCH delivered the opinion of the court:

The plaintiff, Sallie Jean Jones, filed a complaint alleging a res ipsa loquitur theory of negligence against the defendants, Doctors Jacker, Laskowski, Levin, and Minster, seeking the recovery of damages for injuries allegedly caused during an operation on her back. The trial court granted summary judgment in favor of the defendants, and the plaintiff appeals. We reverse and remand.

The plaintiff underwent back surgery (a bilateral hemilaminectomy and diskectomy) at the Condell Memorial Hospital on August 25, 1989. Doctor Jacker, an orthopedic surgeon, was the primary surgeon for the procedure and he was assisted by Doctors Laskowski and Levin. During the operation, a tear occurred in the dura of the plaintiff's spinal column, and nerve roots protruded through the tear. Doctor Minster, a neurosurgeon working in a hospital 20 to 30 minutes away, was called to repair the tear. He immediately drove to the Condell Memorial Hospital and repacked the protruding nerves inside the dura and closed the tear with four sutures. Doctor Jacker then completed the surgery.

Following the surgery, the plaintiff developed bowel and bladder incontinence and loss of sensation in her saddle area. The plaintiff's expert witness, Doctor Kirshenbaum, a neurosurgeon who examined the plaintiff's medical records following her surgery, described these symptoms as cauda equina syndrome. The syndrome is caused by damage to the cauda equina, which are the nerve roots that extend down from the bottom of the spinal cord.

Doctor Kirshenbaum testified during his deposition that the plaintiff's cauda equina syndrome was the result of the surgery, since the symptoms had not appeared prior thereto. Doctor Kirshenbaum stated that he could not identify any specific actions by the defendants which caused the plaintiff's injuries. However, in his opinion, cauda equina syndrome cannot occur during this type of back surgery in the absence of negligence.

Doctor Daniel Wynn, a neurologist who treated the plaintiff after the operation, testified that the plaintiff does suffer from cauda equina syndrome and that such an illness is not an ordinary complication of back surgery. Doctor Wynn stated that something must have happened during the surgery which affected the nerve roots and spinal cord simultaneously, possibly an "ischemic insult." An ischemic insult is a period of time in the surgery when there was insufficient blood flow to the plaintiff's spinal cord. Doctor Wynn stated that an ischemic insult can occur during surgery in the absence of any negligence on the part of the doctors, and he had no opinion as to whether there was any medical negligence during the plaintiff's operation.

Doctor Jacker testified that the plaintiff did not suffer nerve damage during the surgery and that a possible nonnegligent cause of her illness was arachnoiditis, a condition where the nerve roots stick together. Doctor Jacker stated that Doctor Minster was asked to repair the torn dura because of his experience as a neurosurgeon in working with dural tissue. Doctor Minster testified that it was possible that the nerves could have been damaged when the dura was torn, although he had seen no evidence of nerve damage. Doctor Minster also testified that the plaintiff's injuries were not the result of his repair of the torn dura. The trial court subsequently granted summary judgment in favor of the four defendants on the plaintiff's claim of negligence based on res ipsa loquitur, and the plaintiff appeals.

Summary judgment is proper when, construing the evidence in the record strictly against the movant and liberally in favor of the opponent ( Smith v. Armor Plus Co. (1993), 248 Ill. App. 3d 831, 839, 187 Ill. Dec. 625, 617 N.E.2d 1346), the pleadings, depositions, affidavits, admissions, and other matters on file demonstrate that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. (735 ILCS 5/2-1005(c) (West 1992).) A party against whom summary judgment is sought need not prove her case at this preliminary stage, but she must present some factual basis that would arguably entitle her to judgment. Smith, 248 Ill. App. 3d at 839.

The res ipsa loquitur doctrine is a species of circumstantial evidence permitting the trier of fact to draw an inference of negligence if the plaintiff demonstrates that she was injured (1) in an occurrence that ordinarily does not happen in the absence of negligence, and (2) by an agency or instrumentality under the exclusive control of the defendants. ( Gatlin v. Ruder (1990), 137 Ill. 2d 284, 295, 148 Ill. Dec. 188, 560 N.E.2d 586, citing Spidle v. Steward (1980), 79 Ill. 2d 1, 5-6, 37 Ill. Dec. 326, 402 N.E.2d 216.) The plaintiff argues that there are questions of material fact regarding whether the elements of res ipsa loquitur exist in this case, and the trial court therefore erred in granting the defendants' motions for summary judgment.

The defendants argue that summary judgment was properly granted since the testimony established that a dural tear was an ordinary complication of the plaintiff's operation. They cite several cases which hold that res ipsa loquitur does not apply in a medical malpractice action where the injury is a normal or common complication of the surgery. (See Chiero v. Chicago Osteopathic Hospital (1979), 74 Ill. App. 3d 166, 29 Ill. Dec. 646, 392 N.E.2d 203; Stringer v. Zacheis (1982), 105 Ill. App. 3d 521, 61 Ill. Dec. 113, 434 N.E.2d 50.) However, the plaintiff is not suing the defendant because of the tear in her dura; she is seeking the recovery of damages for the cauda equina syndrome which developed following the surgery. Although the testimony established that a dural tear is a relatively common complication of back surgery, both Doctor Kirshenbaum and Doctor Wynn testified that cauda equina syndrome is not an ordinary complication of the surgery the plaintiff underwent.

The defendants next argue that summary judgment was properly granted since there are other possible causes of cauda equina syndrome besides the defendants' negligence, including arachnoiditis or an ischemic insult. In support of this argument, they cite Rinck v. Palos Hills Consolidated High School District 1979), 82 Ill. App. 3d 856. There, the plaintiff, a student at the defendant Stagg High School, was injured when a student standing next to him inserted the plug of an electric frying pan into an electrical outlet. ( Rinck, 82 Ill. App. 3d at 858.) When the plug was inserted, a spark or fragment hit the plaintiff and caused an electrical shock to his right hand and arm. ( Rinck, 82 Ill. App. 3d at 858.) The plaintiff filed an action alleging a res ipsa loquitur theory of negligence, which the trial court dismissed. ( Rinck, 82 Ill. App. 3d at 859.) The appellate court affirmed, holding that there were several possible causes for the accident apart from ...


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