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Henry v. McKechnie

August 05, 1998

WILLIAM HENRY, PLAINTIFF-APPELLANT,
v.
JAMES K. MCKECHNIE, M.D., DEFENDANT-APPELLEE.



The opinion of the court was delivered by: Justice McCULLOUGH

IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS

Appeal from Circuit Court of Coles County

No. 94L66

Honorable Paul C. Komada, judge Presiding.

Plaintiff William Henry appeals from a judgment entered in the circuit court of Coles County in favor of defendant James K. McKechnie, M.D., following a jury trial. Plaintiff sought recovery of damages for defendant's negligence in treating his broken leg. The issues are whether (1) the jury should have been instructed in this medical malpractice case on the doctrine of lost chance/increased risk of harm; (2) the trial court erred in refusing plaintiff's tendered jury instruction on lost chance/increased risk of harm; and (3) plaintiff has waived any alleged error in the trial court's refusal of his tendered instruction Nos. 12 and 14. We affirm.

On August 30, 1992, plaintiff was injured while playing pick-up football. He was taken by ambulance to the emergency room of St. Anthony's Hospital in Effingham, Illinois. Later the same day, plaintiff was transferred to Sarah Bush Lincoln Health Center (hereinafter Sarah Bush) in Mattoon, Illinois, where he was placed under the care of defendant. Defendant testified that plaintiff had a comminuted fracture of the right proximal tibia and fibula with depression of the lateral tibial plateau. Defendant performed the surgery on plaintiff's leg on August 31, 1992, at Sarah Bush. During surgery, a tourniquet was used on plaintiff's leg for two hours and eight minutes. Plaintiff remained under defendant's care throughout his stay at Sarah Bush and was authorized to be discharged on Friday, September 4, 1992, at around 5 p.m. However, according to the testimony of Tracy Gentry, plaintiff remained in the hospital room and under the care of the hospital staff for approximately three more hours, leaving the hospital at 8:05 p.m. According to defendant, at no time between the surgery and plaintiff's discharge was the splint cast or surgical wound dressing removed to visualize the wound site.

Plaintiff went home immediately after discharge. Early on Sunday afternoon, September 6, 1992, plaintiff experienced severe pain and intense burning sensations in the affected leg. A neighbor drove him to St. Anthony's Hospital emergency room. There, the splint cast and surgical wound dressing were removed. Photographs were then taken of plaintiff's leg. Plaintiff testified that the proffered reason for deciding to have the photographs taken was that "someone in the hospital decided, so they said they could protect their selves [sic] that it didn't happen there." Plaintiff's temperature on admission to St. Anthony's was 102.3 degrees fahrenheit. The examination of plaintiff's leg by emergency room physician Dr. Thomas Bucinski revealed purulent drainage from which it was determined that infection was present. It was determined that plaintiff needed a higher level of care than could be offered at St. Anthony's, and he was transferred to Barnes Hospital in St. Louis.

Plaintiff presented himself to Barnes Hospital emergency room on September 7, 1992. His treating physician, Dr. Clayton Perry, described Henry's condition as "a very clear picture of a fulminant infection. It was an infection out of control." Plaintiff's leg was amputated, at first through the knee joint and then later above the knee joint. Dr. David Olysav testified that on November 6, 1992, plaintiff's leg was further amputated at Memorial Medical Center in Springfield, Illinois, to accommodate the fitting of a prosthetic device.

Plaintiff relied on the testimony of Dr. Michael Davis that the failure to inspect the surgical wound for infection was a breach of the standard of care and that, had plaintiff's wound site been inspected for infection and the infection found and properly treated, his leg could have been saved. Davis also testified that the time the tourniquet was used during the operation performed on plaintiff by defendant was excessive, a breach of the standard of care, and created a situation in which plaintiff's leg was more susceptible to infection. Bucinski similarly testified that not inspecting the wound site for infection was a breach of the standard of care in light of the symptoms observed in plaintiff while hospitalized at Sarah Bush. Defendant presented contrary medical expert testimony with regard to standard of care and whether his actions breached the standard of care in this case.

At the conference on instructions, plaintiff tendered instructions relying on the decision of Holton v. Memorial Hospital, 176 Ill. 2d 95, 679 N.E.2d 1202 (1997). Plaintiff's tendered instruction No. 11 stated: "A person who undertakes to render services to another is liable for physical harm resulting from his failure to exercise reasonable care if that failure increased their [sic] risk of harm." Noting this is a nonpattern instruction, the trial court refused it but allowed plaintiff's attorney to argue his theory of the case to the jury.

Plaintiff's tendered issues instruction No. 12 was a modifica-tion of Illinois Pattern Jury Instructions, Civil, No. 20.01 (3d ed. 1995) (hereinafter IPI Civil 3d). The second and third paragraphs of plaintiff's tendered instruction No. 12 read as follows:

"The Plaintiff further claims that one or more of the foregoing proximately caused any increased risk of harm or lost chance of recovery.

The defendant denies that he did any of the things claimed by the Plaintiff, denies that he was professionally negligent in doing any of the things claimed by the Plaintiff and denies that any claimed act or omission on the part of the defendant proximately caused any increased risk of harm or lost chance of recovery."

Plaintiff's tendered instruction No. 14, a modified version of IPI Civil 3d No. 21.02, regarding plaintiff's burden of proof, contained the following language to which defendant objected: "Third, that the professional negligence of the defendant proximately caused an increased risk of harm or lost chance of recovery." Plaintiff's ...


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