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April 27, 1995


Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois. No. 90-L-8818. Honorable Michael H. Lyons, Judge Presiding.

Released for Publication June 27, 1995.

Present - Honorable Allan L. Stouder, Presiding Justice, Honorable Tom M. Lytton, Justice, Honorable Michael P. MC Cuskey, Justice. McCUSKEY and Lytton, JJ., concur.

The opinion of the court was delivered by: Stouder

PRESIDING JUSTICE STOUDER delivered the opinion of the court:

The plaintiff-appellee, Laura Lewis, brought an action against the defendant-appellant, Dr. Richard Stoval, alleging negligence in the failure to diagnose and treat an infection which developed following total knee replacement surgery. The jury found for the plaintiff, and a judgment was subsequently entered in the amount of $268,135. The defendant appeals contending the trial court erred in admitting into evidence two medical treatises. Finding the error to be harmless because there was sufficient evidence to support the verdict and the defendant suffered no prejudice, we affirm.

On July 26, 1979, the plaintiff underwent surgery to replace her right knee joint with a prosthesis. The defendant performed the surgery. The record shows that for 12 days following the surgery the plaintiff experienced drainage from the wound. On August 1, 1979, a culture was taken of the fluid draining from the wound. The record shows that five days later this culture showed the presence of Staphylococcus epidermidis (hereinafter referred to as Staph epi), a bacteria. Cultures taken on August 6, and August 7, 1979, also showed the presence of Staph epi.

On August 7, 1979, the defendant performed a second surgery to remove a hematoma from the subcutaneous tissue of the plaintiff's knee. During this surgery, the defendant did not enter the knee joint or capsule itself. The plaintiff was released from the hospital on August 18, 1979. Thereafter, the plaintiff was treated with physical therapy and examined by the defendant on a periodic basis.

When movement in the knee did not satisfactorily progress, the plaintiff was readmitted to the hospital in late September 1979 to undergo a manipulation procedure. After this procedure, the plaintiff was again prescribed physical therapy. The defendant next examined the plaintiff on October 31, 1979. At that time he aspirated the knee. According to the defendant's records, the report of the culture was negative for infection. On November 5, 1979, the defendant examined the knee. His records indicate he found no observable signs of infection and stated the knee appeared "benign."

Three days later, on November 8, 1979, the plaintiff went to see Dr. Alain Menguy at the Carle Foundation Hospital in Champaign-Urbana. Subsequent tests revealed a Staph epi infection within the knee joint. In January 1980, Dr. Menguy removed the prosthesis and fused the plaintiff's leg at the knee joint. The result of this procedure was the shortening of plaintiff's right leg by four inches and the inability to bend her leg at the knee. The record shows that in 1987 the plaintiff underwent surgery which successfully replaced her knee joint with a second prosthesis.

The first trial of plaintiff's action ended in a mistrial when the jury was unable to reach a verdict. Prior to the commencement of the second trial, the defendant moved to bar the admission of two medical treatises. One of the articles was co-authored by plaintiff's expert, Dr. David Schurman, in 1980. Schurman was an orthopedic surgeon from Stanford University. The second article was a 1977 article which was mentioned in a footnote in the Schurman article. The defendant argued the articles could not be used as substantive evidence, but only for purposes of impeachment. The plaintiff contended the articles were key to her case because they showed the state of knowledge concerning Staph epi in 1979.

This was viewed as important because the record indicates that in the first trial, one of the defense theories was that Staph epi was not viewed as an infectious agent (pathogen) in 1979. In the second trial, the plaintiff was anticipating this defense and thus wished to present evidence to show that it was generally known in 1979 that Staph epi could cause infection. The court ruled that Schurman could read from his 1980 article to show this was his opinion.

At trial, Schurman testified that in 1979 Staph epi was viewed as a pathogen in the setting of artificial joint replacements. After so testifying, Schurman was asked to identify a copy of his 1980 article entitled "Cephalothin and Cefamandole Penetration into Bone, Synovial Fluid, and Wound Drainage Fluid." The article concerned the rate of penetration of two antibiotics into various body tissues when administered prophylactically prior to surgery in joint and hip replacements. Schurman read a sentence from the article to the jury. The sentence read, "Staphylococcus aureus and Staphylococcus epidermidis account for the majority of the infections after total joint replacement (sic) and therefore are worthy of special attention." In addition to the article itself, the plaintiff offered an exhibit which consisted of an enlarged reproduction of the page of the article on which the above sentence appeared. The defendant objected asserting the article was hearsay. The trial court admitted the article and the enlargement into evidence.

Schurman was next asked about a 1977 article from the Journal of Bone and Joint Surgery entitled "The Penetration Characteristics of Cefazolin, Cephalothin and Cephradine into Bone in Patients undergoing (sic) Total Hip Replacement" co-authored by a number of doctors including Dr. Burke A. Cunha. The Cunha article was mentioned in a footnote in Schurman's 1980 article. The article was cited to refer the reader to studies involving the concentration of cephalothin in bone.

Over defense objection, Schurman was allowed to read the following two sentences from the Cunha article to the jury: "Prophylaxis is usually directed against Staphylococcus aureus and Staphylococcus epidermidis, the organisms implicated in more than 90 per cent of the infections following implant surgery." and "Cephalosporins are commonly used to prevent infection after total joint replacement since they have a high degree of activity against the usual pathogenic organism encountered in this setting, namely Staphylococcus aureus and Staphylococcus ...

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