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02/19/97 MICHAEL NORDNESS v. MITEK CORPORATION

February 19, 1997

MICHAEL NORDNESS, PLAINTIFF-APPELLANT,
v.
MITEK CORPORATION SURGICAL PRODUCTS, INC., A CORPORATION, DEFENDANT-APPELLEE.



Appeal from the Circuit Court, Cook County. The Honorable Kathy M. Flanagan, Judge Presiding.

Released for Publication March 31, 1997.

The Honorable Justice Leavitt delivered the opinion of the court. Gordon, J., concurs. Cousins, P.j., dissents.

The opinion of the court was delivered by: Leavitt

JUSTICE LEAVITT delivered the opinion of the court:

The plaintiff, Michael Nordness, brought this action against the defendant, Mitek Corporation Surgical Products, Inc., seeking damages for injuries he suffered when a drill bit it manufactured broke and became embedded in his shoulder during reconstructive surgery. The trial judge entered summary judgment in favor of the defendant because she concluded that there was no evidence tending to show that the presence of the drill bit had caused the plaintiff an injury We reverse.

We review orders granting summary judgment de novo. Delaney v. McDonald's Corp., 158 Ill. 2d 465, 467, 634 N.E.2d 749, 199 Ill. Dec. 696, (1994). Summary judgment should be granted only where "the pleadings, depositions, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." 735 ILCS 5/2-1005(c) (West 1994). We consider the pleadings, depositions, and any affidavits, drawing all reasonable inferences from them in a light most favorable to the non-moving party. First State Insurance Co. v. Montgomery Ward & Co., 267 Ill. App. 3d 851, 855, 642 N.E.2d 715, 204 Ill. Dec. 814 (1994). Although a plaintiff need not prove his entire case at the summary judgment stage, he must introduce evidence that would support a finding in his favor. Payne v. Mroz, 259 Ill. App. 3d 399, 403, 631 N.E.2d 337, 197 Ill. Dec. 334 (1994).

The record establishes that on June 18, 1990, Dr. John Brna performed reconstructive surgery on the plaintiff's right shoulder. The plaintiff had a history of dislocating his shoulder and had, as a result, undergone previous surgeries on the same shoulder. At the time of the surgery, the ligaments that attached the ball of the plaintiff's humerus to his shoulder socket had been stripped from the socket. To reattach those ligaments, Dr. Brna planned to drill a hole and insert small barbs into the glenoid bone. When inserted into the hole, the barbs expand and lock in place. The bone then heals around them, and they serve as anchors, holding the shoulder together by clamping the ligaments to the shoulder socket.

Mitek does not dispute that it manufactured the drill bit that Dr. Brna used to drill into the plaintiff's shoulder. While Dr. Brna was drilling the plaintiff's glenoid bone, the tip of the drill bit broke off and lodged in the bone. Dr. Brna did not remove the broken bit, which measured one and one half centimeters in length, because he did not believe that a reasonable surgical procedure to so do existed. Instead, he "overdrilled" the hole with a larger drill bit and inserted the barb. The broken drill bit remains encased in the plaintiff's glenoid bone.

The plaintiff initially brought suit against various medical providers, including Dr. Brna, but he voluntarily dismissed the action. In his second amended complaint, the plaintiff sued the defendant and alleged three theories of recovery: negligence, strict liability, and implied warranty of merchantability.

In its motion for summary judgment, the defendant contended that the "plaintiff has suffered no injury or damages proximately caused from the drill bit breaking and plaintiff is at no risk from future injuries from the drill bit being left in his shoulder." In support of its motion, the defendant submitted the deposition of Dr. Brna, in which he stated that there was no risk in leaving the drill bit embedded in the bone. Dr. Brna acknowledged that when he informed the plaintiff about the drill bit the plaintiff expressed concern. Nonetheless, Dr. Brna maintained that the drill bit nether delayed the plaintiff's recovery nor caused any discomfort or pain. Furthermore, the drill bit would not cause future discomfort, disability or disfigurement. Dr. Brna also stated that the plaintiff had not complained that he was feeling pain in the shoulder. The plaintiff had incurred no additional expenses with Dr. Brna as a result of the embedded drill bit. Dr. Brna asserted that he had performed this surgery numerous times and that he had done nothing unusual during surgery to cause the drill bit to break. Following surgery, he examined the drill. He noted that "there may have been some sort of defect in the bit where it wasn't manufactured properly or it had been damaged in some way."

On September 22, 1994, in response to the defendant's motion, the plaintiff swore an affidavit stating that he experienced pain, stiffness, and a popping noise in his right shoulder. Also, he no longer can touch the back of his neck with the affected arm, and he cannot bend his arm behind his back. None of these conditions existed before his surgery. The record also establishes that the plaintiff has not returned to see Dr. Brna since April 2, 1991. The plaintiff contended that the doctor, therefore, did not possess sufficient information from which to form an opinion as to the plaintiff's current condition.

The only issue raised by the defendant in its motion for summary judgment was that the plaintiff suffered no injury as a result of the embedded drill bit. Furthermore, that is the only issue addressed in the parties' briefs. Therefore, we assume, for purposes of our discussion, that the plaintiff can prove that the defendant breached some duty owed him which resulted in the breaking of the drill bit during surgery. Our decision is limited to the narrow question of whether the plaintiff has raised a genuine issue of material fact as to whether the presence of the unwanted object in one's body, without more, constitutes a compensable injury.

In entering judgment for the defendant, the trial judge assumed that the facts averred in the plaintiff's affidavit were true and concluded that the plaintiff had presented no evidence that raised a genuine issue of material fact demonstrating that the symptoms of which he complained were caused by the continued presence of the drill bit in his shoulder. The judge concluded that the plaintiff's affidavit, standing alone, did not create a genuine issue of material fact regarding Dr. Brna's opinion regarding "lack of injury, lack of damage, lack of permanency." However, given the facts in this case, we do not believe the plaintiff need counter the doctor's opinions as to lack of injury or damage to recover. In this regard, we distinguish among the terms, injury, damage and damages: "'Injury is the illegal invasion of a legal right; damage is the loss, hurt, or harm which results from the injury; and damages are the recompense or compensation awarded for the damage suffered.'" Giammanco v. Giammanco, 253 Ill. App. 3d 750, 758, 625 N.E.2d 990, 192 Ill. Dec. 835 (1993). See Matusak v. Chicago Transit ...


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