The opinion of the court was delivered by: Murphy, Chief District Judge
The Court heard arguments on Defendant's pending motions on April 2, 2007. For the reasons set forth on the record at the hearing and below, Defendant is entitled to summary judgment.
Plaintiff Rose Marie Hossler, as administrator of the Estate of Terry Hossler, has brought this medical malpractice action against the United States. Specifically, Plaintiff alleges that Defendant's agent, (Dr. Michael Petith, VA Hospital, Marion), negligently perforated her husband's esophagus while conducting an esophageal dilation.
While performing this procedure, Dr. Petith encountered esophageal cancer in Mr. Hossler that had gone previously undetected, and which had resulted in his esophagus being in a weakened state. As a result of the perforation, Mr. Hossler required several additional surgeries, and according to Plaintiff, the perforation and the additional surgeries ultimately caused his death.
Plaintiff has brought a four-count complaint as follows: Count I-Survival action, Count IIWrongful Death, Count III-Survival action-Res Ipsa Loquitur, and Count IV-Wrongful Death-Res Ipsa Loquitur. Defendant's motions for summary judgment are discussed below.
Summary judgment may be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that 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." FED. R. CIV. P. 56(c). In considering a summary judgment motion, a court must review the entire record and draw all reasonable inferences in the light most favorable to the non-moving party. Schneiker v. Fortis Ins. Co., 200 F.3d 1055, 1057 (7th Cir. 2000); Baron v. City of Highland Park, 195 F.3d 333, 337-38 (7th Cir. 1999). In evaluating a motion for summary judgment, "[t]he court has one task and one task only: to decide, based on the evidence of record, whether there is any material dispute of fact that requires a trial." Waldridge v. American Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994).
Defendant has moved for summary judgment on the ground that Plaintiff has no expert to establish medical negligence. Generally, in a medical negligence action, a plaintiff must establish with expert testimony the standard of care against which a defendant's conduct should be measured. Cassady v. Hendrickson, 486 N.E.2d 1329, 1334-1335 (Ill.App.1985) (citing Walski v. Tiesenga, 381 N.E.2d 279, 283 (Ill.1978)) (other citations omitted). Plaintiff must then show by affirmative evidence that in light of that standard, Defendant's conduct was negligent, and that the negligence caused an injury. Cassady, 486 N.E.2d at 1336 (citing Borowski v. Von Solbrig, 328 N.E.2d 301, 305 (Ill.1975)).
Here, Plaintiff argues that no expert is required because the doctrine of res ipsa loquitur applies. Specifically, Plaintiff argues that an esophageal perforation does not normally occur in the absence of medical negligence. In other words, Plaintiff argues that the perforating instrument was in the sole control of Dr. Petith, and that the perforation would not have occurred unless Dr. Petith made some mistake in handling the instrument.
Resipsa loquitur is a type of circumstantial evidence doctrine which allows the trier of fact to infer negligence if Plaintiff shows: (1) an occurrence of a nature which ordinarily does not happen absent negligence; (2) the instrumentality was within Defendant's control and Defendant's actions proximately caused the injuries; and (3) the injury was not due to Plaintiff's actions, (i.e., there was a lack of contributory negligence). Cassady, 486 N.E.2d at 1336 (citing Spidle v. Steward, 402 N.E.2d 216 (Ill.1980)) (other citations omitted).
When a plaintiff relies on the doctrine of res ipsa loquitur, the Court must determine whether the doctrine applies. Gatlin v. Ruder, 560 N.E.2d 586, 590 (Ill.1990) (citing Ill.Rev.Stat.1987, ch. 110, par. 2-1113). In making this determination, the Court shall: rely upon either the common knowledge of laymen, if it determines that to be adequate, or upon expert medical testimony, that the medical result complained of would not have ordinarily occurred in the absence of negligence on the part of the defendant. Proof of an unusual, unexpected or untoward medical result which ordinarily does not occur in the absence of negligence will suffice in the application of the doctrine.
Gatlin, 560 N.E.2d at 590 (citing Ill.Rev.Stat.1987, ch. 110, par. 2-1113).
Plaintiff asks this Court to rule that as a matter of course, perforation of the esophagus simply does not occur in the absence of medical negligence. Here, however, the evidence is to the contrary. For example, Dr. Coordes, the physician who repaired the perforation testified that based on his review of the medical records of Dr. Petitih's procedure, as far as he could tell, "nothing was outside the standard of care." In addition, it is undisputed that during the dilation procedure, Dr. Petith encountered esophageal cancer that had previously gone undetected in Mr. Hossler. It is also undisputed ...