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Dillon v. Evanston Hospital

May 23, 2002


The opinion of the court was delivered by: Justice Freeman


Docket No. 91517-Agenda 22-January 2002.

Plaintiff, Diane Dillon, brought a medical malpractice action in the circuit court of Cook County against, inter alios, Evanston Hospital (hereafter hospital) and Dr. Stephen Sener. A jury found against these particular defendants and in favor of plaintiff. The appellate court affirmed. No. 1-98-2893 (unpublished order under Supreme Court Rule 23). We allowed the hospital and Dr. Sener's petition for leave to appeal (177 Ill. 2d R. 315(a)). We now affirm the judgments below in part and reverse in part, and remand the cause to the trial court for a new trial solely on the issue of damages for the increased risk of future injury.


During the course of treatment for breast cancer, Dr. Sener surgically inserted a catheter into a vein in plaintiff's upper chest under the clavicle. He performed the insertion on April 20, 1989. The purpose of the catheter was to provide a means to administer chemotherapy and to draw blood without repeatedly inserting needles into plaintiff's veins. The catheter inserted into plaintiff was approximately 16 centimeters long.

After plaintiff completed chemotherapy, the catheter ceased to function, and on July 13, 1990, Dr. Sener removed it. However, unbeknownst to plaintiff-or Dr. Sener-the catheter was not removed in its entirety. Rather, Dr. Sener removed only a seven-centimeter portion of the catheter. A nine-centimeter catheter fragment remained in plaintiff. She was not informed of any abnormality despite the fact that she had a chest X ray taken at the hospital in December 1990.

In December 1991, plaintiff had a routine chest X ray taken at a different hospital. The X ray revealed that the catheter fragment had migrated to plaintiff's heart. The tip of the fragment is embedded in the wall of the right atrium or the right ventricle. The rest of the fragment is floating free in plaintiff's heart.

Upon learning that the fragment was in her heart, plaintiff met with Dr. Sener. He could not recall his specific actions in removing the catheter from plaintiff. However, he acknowledged that the fragment was in her heart. Based on the length of time that the fragment had been there, Dr. Sener recommended that plaintiff not attempt to remove it because several risks were attendant to removal. For example, all or part of the fragment could escape and travel further into the heart, making retrieval more difficult, or removal could tear the heart wall. Dr. Sener opined that it would be more dangerous to attempt to remove the catheter fragment than it would be to leave it in place.

Plaintiff sought opinions from other physicians; all but one agreed with Dr. Sener. Based on the majority of medical opinion she received, plaintiff decided to leave the catheter fragment in her heart.

Plaintiff filed a complaint for medical malpractice against Dr. Sener, Dr. David Lim, who assisted in the insertion, the hospital, and the catheter's manufacturer, Davol, Inc., a division of Bard, Inc. (hereafter Davol). After the completion of pretrial proceedings, the trial court entered summary judgment in favor of Dr. Lim. Trial commenced on plaintiff's fifth amended complaint, which named as additional defendants radiologist Dr. Ronald Port and nurse Kathy Henderson.

At the close of a trial, the jury found in favor of plaintiff and against Dr. Sener and the hospital. However, the jury found in favor of the remaining defendants. Dr. Sener and the hospital did not present the jury with any special interrogatories to determine on which basis the jury found defendants to have been negligent. The jury awarded plaintiff $1.5 million for past pain and suffering, $1.5 million for future pain and suffering, and $500,000 for the increased risk of future injuries. Plaintiff had not sought compensation for past or future medical expenses. Dr. Sener and the hospital appealed.

The appellate court affirmed, with one justice dissenting. No. 1-98-2893 (unpublished order under Supreme Court Rule 23). Dr. Sener and the hospital appeal. Additional pertinent facts will be discussed in the context of the issues raised in this appeal.


I. Fifth Amended Complaint: Negligent Insertion

Dr. Sener and the hospital first contend that plaintiff's fifth amended complaint was untimely.

Plaintiff filed her original complaint on July 1, 1992. Count I alleged that the hospital was negligent in (1) allowing the catheter to be removed in a way that caused a portion to remain in plaintiff, (2) failing to advise plaintiff of the fact that a portion of the catheter remained in her, and (3) providing a defective catheter. In count II, plaintiff alleged that Dr. Sener failed to remove the catheter. Similarly, in count III, plaintiff alleged that Dr. Sener's actions in not removing the entire catheter were negligent. Notably, the original complaint contained no allegations against Dr. Sener or the hospital that the insertion of the catheter was negligent.

Plaintiff attached to the original complaint a report of a reviewing health professional. The report stated that the cause of action was meritorious because, inter alia, the catheter was improperly placed.

On April 19, 1993, plaintiff filed a second amended complaint adding a count against Dr. Lim, which alleged that he assisted in plaintiff's surgery and that he negligently inserted the catheter. On March 21, 1995, the trial court granted him summary judgment.

Plaintiff continued to amend her original complaint throughout the pretrial proceedings as discovery was being conducted. In January 1994, Davol answered plaintiff's fourth amended complaint. Davol asserted the affirmative defense that plaintiff's injuries were proximately caused by the intervening and superceding negligent acts as described in the reports of reviewing health professionals attached to the fourth amended complaint. One of those reports stated in part that the catheter had been improperly placed. On September 6, 1996, plaintiff filed answers to supplemental interrogatories regarding her expert witness, Dr. Michael Blank. Dr. Blank had a new opinion after reviewing the interrogatory answers of Davol, which disclosed opinions critical of the catheter's insertion. According to Dr. Blank, if Dr. Sener had inserted the catheter in the manner Davol asserted, then Dr. Blank believed that Dr. Sener had deviated from the standard of care in inserting the catheter, which ultimately resulted in the catheter's fracture. On November 6, 1996, in supplemental answers to interrogatories, plaintiff disclosed that Dr. Blank might opine, based on his review of the X rays, that Dr. Sener negligently inserted the catheter in an improper location that ultimately resulted in the catheter's fracture.

In May 1997, Davol disclosed that Dr. Paul Goldfarb would testify to his opinion that the catheter was improperly inserted, causing it to fracture as the result of repeated compression by the clavicle as the catheter passed over the first rib.

On November 17, 1997, plaintiff moved to file her fifth amended complaint adding allegations that the catheter was improperly inserted. The trial court allowed plaintiff leave to file because the removal of the catheter was, according to the court, "a completion of the same process" as the insertion. Plaintiff alleged as follows. Counts I and II alleged that Dr. Sener and the hospital negligently inspected, inserted, and removed the catheter; failed to ascertain that the catheter fragment remained in plaintiff; and failed to advise plaintiff that the fragment remained in her body. Count III alleged that Dr. Sener's actions should be considered negligent under the theory of res ipsa loquitur. Count IV alleged that Davol negligently designed and manufactured the catheter; count V alleged that Dr. Port failed to see the catheter fragment in the December 1990 X ray; and count VI alleged that nurse Henderson improperly maintained the catheter after its insertion in plaintiff. Jury selection began the next day.

Dr. Sener and the hospital contend that the trial court abused its discretion in allowing plaintiff to file her fifth amended complaint, containing the allegations of negligent insertion, because it was not timely. In essence, they believe that plaintiff had ample knowledge from the outset of the litigation that Dr. Sener inserted the catheter and improperly waited until the eve of trial to officially allege negligence regarding the catheter's insertion. Plaintiff responds that Dr. Sener and the hospital cannot complain because plaintiff presented several theories of negligence, the jury returned a general verdict against them on the negligence claim, and they failed to submit a special interrogatory on any matter. Dr. Sener and the hospital in turn reply that we may not consider plaintiff's defense because she did not raise it in the appellate court.

We may consider plaintiff's defense of the trial court's judgment. An appellee in the appellate court may raise a ground in this court which was not presented to the appellate court in order to sustain the judgment of the trial court, as long as there is a factual basis for it. Estate of Johnson v. Condell Memorial Hospital, 119 Ill. 2d 496, 502 (1988); Hammond v. North American Asbestos Corp., 97 Ill. 2d 195, 209 (1983).

Count I of the fifth amended complaint alleged several theories of negligence in addition to the theory of which Dr. Sener and the hospital complain, i.e., negligent insertion. They have not challenged the sufficiency of the evidence on any of those other theories. Also, the jury returned a general verdict against them on the negligence claim. Section 2-1201(d) of the Code of Civil Procedure provides in pertinent part:

"If several grounds of recovery are pleaded in support of the same claim, whether in the same or different counts, an entire verdict rendered for that claim shall not be set aside or reversed for the reason that any ground is defective, if one or more of the grounds is sufficient to sustain the verdict ***." 735 ILCS 5/2-1201(d) (West 2000).

Because Dr. Sener and the hospital did not submit special interrogatories, there is no way of knowing on what theory the jury found defendants negligent. "When there is a general verdict and more than one theory is presented, the verdict will be upheld if there was sufficient evidence to sustain either theory, and the defendant, having failed to request special interrogatories, cannot complain." Witherell v. Weimer, 118 Ill. 2d 321, 329 (1987). We shall not set aside the verdict based on this contention.

II. Res Ipsa Loquitur

Dr. Sener and the hospital next contend that the trial court erred in instructing the jury on plaintiff's theory of res ipsa loquitur against Dr. Sener. As with the prior contention, plaintiff defends the judgment by pointing to the jury verdict. The verdict form shows that the jury returned separate verdicts in favor of plaintiff against Dr. Sener on both negligence and res ipsa loquitur. Because the evidence supports the verdict based on negligence, we shall not set aside ...

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