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March 5, 1996


Appeal from the Circuit Court of Cook County. Honorable Thomas E. Flanagan, Judge Presiding.

Presiding Justice Hartman delivered the opinion of the court: Scariano and Burke, JJ., concur.

The opinion of the court was delivered by: Hartman

PRESIDING JUSTICE HARTMAN delivered the opinion of the court:

Plaintiff Brenda Perry filed this medical malpractice action to recover damages for injuries allegedly sustained during and following the course of an abdominal hysterectomy performed by defendant's decedent, Dr. Charles Smith. Following a jury trial in November 1993, Dr. Smith was found not guilty. Plaintiff appeals from that judgment, questioning whether (1) the circuit court erred in directing a verdict against her on the res ipsa loquitur count; (2) defense closing argument was improper; (3) the circuit court erred in allowing testimony not previously disclosed pursuant to former Supreme Court Rule 220 (134 Ill. 2d R. 220) (repealed eff. Jan. 1, 1996); (4) the verdict was against the manifest weight of the evidence; and (5) plaintiff was denied a fair trial. *fn1 We affirm in part and reverse in part and remand for reasons noted below.

Evidence was adduced relative to plaintiff's second amended, two-count complaint and defendant's answer thereto. At the close of plaintiff's case, defendant's motion for a directed verdict was denied as to plaintiff's negligence count, but allowed as to her res ipsa loquitur count. To conform the pleadings to the proof, plaintiff sought and received leave to file a third amended complaint. Counts I and II of plaintiff's third amended complaint alleged that Dr. Smith negligently performed the abdominal hysterectomy on August 18, 1980, and failed to render proper post-operative care; count III sought damages pursuant to the doctrine of res ipsa loquitur. The court struck count III and refused plaintiff's tender of Illinois Pattern Jury Instructions, Civil, No. 105.09 (3d ed. 1995), embodying the doctrine of res ipsa loquitur. The jury found for defendant, as earlier noted. Plaintiff's post-trial motion for a new trial was denied. This appeal followed.

At trial, plaintiff testified that in July 1980, she was referred to Dr. Smith because of menstrual problems, which he diagnosed as fibroid tumors, and recommended surgery. Plaintiff testified to having undergone the recommended hysterectomy and to the subjective complications which thereafter developed, implying they were caused by defendant's decedent in having performed the operation negligently and in having rendered post-operative care negligently, as well as in failing to discover and treat properly a ureter injury occasioned by the operation. She testified to subsequent surgical procedures required, together with her asserted pain, suffering, disability and loss of earnings.

Video evidence deposition testimony of Sister James Anthony Baksa, was introduced by plaintiff at trial. Sister Baksa testified that she heard Dr. Smith tell plaintiff's mother, while they were in plaintiff's hospital room, that he had made a mistake and had made a cut in the tube leading from plaintiff's bladder to her kidney. An Asian doctor was also present during this conversation. On cross-examination, Sister Baksa testified that she and plaintiff have been close friends for 20 years. She was present with plaintiff in her hospital room almost every day following the surgery, remembered that she may have seen Dr. Smith on other occasions, but recalled hearing Dr. Smith speak only on the single occasion outlined above. She did not recall hearing plaintiff respond in any way to Dr. Smith's purported admission.

Dr. Jin Jyung, a senior resident in August 1980, testified by deposition, first as defendant's witness and then as plaintiff's witness. He gave plaintiff a physical examination upon her admission to the hospital, noted that she suffered from heavy and irregular bleeding, and recommended a total abdominal hysterectomy. Dr. Jyung assisted in plaintiff's surgery. If plaintiff's ureter had been cut or nicked during the operation it would have been noted in the chart, but was not. Dr. Jyung saw no urine in the surgical area during the procedure. The operational report indicated that adhesions (scar formations that cause organs to stick together) were present in the abdominal area and removed during the operation.

Plaintiff presented Dr. William Matviuw, a physician specializing in obstetrics and gynecology, as her sole expert witness. In Dr. Matviuw's opinion, Dr. Smith deviated from the standard of care when he performed the abdominal hysterectomy knowing there were dense adhesions that made it difficult to see the ureter. Dr. Smith could have employed either of two procedures that would have identified the location of the ureter relative to the operative field. The first procedure would have involved the use of ureteral catheters, which would have helped to identify the ureter in the pelvic region. Alternatively, Dr. Smith could have consulted a urologist to perform a pyelogram, also known as an IVP, which would have involved an x-ray of the kidney region. In Dr. Matviuw's opinion, the ureter was cut due to Dr. Smith's failure to identify its location, causing injuries of which plaintiff complained.

When Dr. Matviuw was asked whether this type of injury occurs to the ureter in the absence of negligence, defendant objected that the anticipated testimony was improper because Dr. Matviuw had never expressed a res ipsa loquitur opinion at any time prior to trial. Plaintiff subsequently withdrew the question.

Dr. William Tito testified for the defense that on August 28, 1980, as Dr. Smith's surgical consultant, he examined plaintiff and noted a partial small bowel obstruction. In his opinion, plaintiff had an ileus, or a paralyzed bowel which tends to recuperate on its own over a period of time. An ultrasound examination revealed unidentified fluid in plaintiff's pelvis. Subsequent to the ultrasound report, Drs. Tito and Smith performed an exploratory laparotomy on plaintiff. They did not seek the assistance of a urologist for the procedure because the bowel was very irritated and manipulation of the bowels by the urologist would have risked breaking into the bowels. A urologist would not have been able to perform any type of reparative surgery. The fluid later was found to be urine; drains were placed in the abdominal area to eliminate the urine. Neither physician saw a leak and could not determine whether the injury was to the bladder or the ureter. In Dr. Tito's opinion, plaintiff had no symptoms of ureter complications before the procedure was performed.

Dr. Eugene DiMarco, a urologist, consulted with defendant's decedent on plaintiff's condition on September 1, 1980. A test revealed an obstruction of her right lower ureter. If he had been present during the exploratory laparotomy, he would not have performed a loop laparoscopy because the trauma to the patient would have been too great. In Dr. DiMarco's opinion, the leaking urine was caused by an impingement on the ureter, which compromised the blood supply and caused some necrosis.

The defense also called Dr. John Isaacs, a gynecological oncologist and gynecologist, as its expert. Dr. Isaacs was of the opinion that Dr. Smith was within the standard of care in performing the surgery when he proceeded with the abdominal hysterectomy, even after he found the adhesions in plaintiff's pelvic area, and that he properly identified the ureters. According to the operational report, Dr. Smith used the intrafascial technique, which was "the one technique you can use that protects the ureter from damage." He saw no evidence in the operational report of a cut, nick, or trauma to the ureter. In Dr. Isaacs' opinion, the ureter, already in an inflamed or weakened condition, probably popped a little hole during the surgery, which then caused urine to leak into the pelvic cavity. The tugging needed to release the adhesions and plaintiff's chronic pelvic infection added to the cause of the injury.

In Dr. Isaacs' opinion, Dr. Smith complied with the standard of care during the post-operative period before the exploratory laparotomy was performed. The differential diagnosis after the first surgery indicated that plaintiff may have had either a bowel obstruction or an ileus. Plaintiff had no symptoms of leaking urine. Dr. Isaacs stated that a cut or ligated ureter may not cause any symptoms in a patient. Dr. Smith did not violate the standard of care by not consulting a urologist before the second operation because there were no indications that a problem existed in the urinary tract.

Defendant's urological expert, Dr. James Faulkner, testified that the urinary leaking was most likely caused by a loss of blood supply to the ureter. He explained that when the blood supply to the ureter is cut off, the tissue will not receive any oxygen, causing it to die; the pressure of the ...

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