Willaby v. Bendersky

FIRST DIVISION
June 25, 2008
No. 1-04-1311
MARY WILLABY, ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) Cook County.
)
v. )
) No. 99 l 6981
CLARA BENDERSKY, HASMUKH PATEL, )
and WESTLAKE COMMUNITY HOSPITAL, )
) The Honorable
Defendants-Appellants. ) John E. Morrissey,
) Judge Presiding.
JUSTICE GARCIA delivered the opinion of the court.
Mary Willaby, filed suit against Dr. Clara Bendersky, Dr.
Hasmukh Patel, and Westlake Community Hospital, alleging medical
negligence. A laparotomy sponge was left in Willaby's abdomen
following surgery to repair an evisceration that occurred
subsequent to a hysterectomy. The matter proceeded to a jury
trial. At the close of all of the evidence, the trial court
granted Westlake's motion for a directed verdict, and the jury
subsequently returned a verdict in favor of Drs. Bendersky and
Patel. Willaby raises several issues on appeal, including (1) Dr.
No. 1-04-1311
Patel's closing argument denied her a fair trial, (2) the trial
court erred in striking the testimony of her nursing expert and
granting Westlake's motion for a directed verdict, and (3) the
jury's verdict is against the manifest weight of the evidence. For
the reasons that follow, we affirm in part, reverse in part, and
remand the matter to the circuit court for a new trial against
Westlake only.
BACKGROUND
In 1997, Mary Willaby began experiencing abdominal pain.
Willaby, who was 50 years old and obese, saw her doctor, Dr.
Miller, who diagnosed her with having fibroid tumors in her uterus.
Dr. Miller referred Willaby to the defendant Dr. Bendersky, a
board-certified gynecologist and obstetrician. Dr. Bendersky
recommended a total abdominal hysterectomy and bilateral salpingo-
oopherectomy , the removal of both of Willaby's fallopian tubes and
her uterus.
Dr. Bendersky performed the hysterectomy on June 16, 1997, at
Westlake. When Dr. Bendersky closed Willaby's abdomen, she did not
notice any "intestinal adhesions"--portions of Willaby's bowels
that were stuck together. Willaby stayed at Westlake for several
days recovering. During this time, Willaby's white blood cell
count rose and she had a fever. She also experienced
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No. 1-04-1311
serosanguinous drainage, a drainage consisting of blood mixed with
peritoneal fluid, from the surgery wound site. Willaby was
discharged from Westlake on June 20.
Following her discharge, Willaby experienced abdominal pain
and bouts of projectile vomiting. She called Dr. Bendersky, who
advised her to go to the Westlake emergency room. On June 21,
1997, Willaby was readmitted to Westlake and was referred to the
defendant Dr. Patel, a board-certified general surgeon. Dr. Patel
believed Willaby was suffering from either a bowel obstruction or
a paralytic ileus, a condition commonly seen following
hysterectomies where movements in the bowel slow.
Although Dr. Patel considered operating on Willaby, he opted
not to because her condition appeared to be resolving. Dr.
Bendersky ordered a cystogram to determine whether Willaby's
bladder had been injured during the hysterectomy. The cystogram
came back negative. A nursing note in Willaby's chart indicated
the presence of serosanguinous drainage from the surgical wound and
questioned whether Willaby's wound had become infected.
On June 30, 1997, Dr. Miller discharged Willaby. Before she
left Westlake, Dr. Bendersky removed the skin staples from
Willaby's hysterectomy wound and covered the wound with a bandage.
Shortly after her staples were removed, and before she left
Westlake, Willaby suffered a wound dehiscence, meaning the layers
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No. 1-04-1311
of her abdominal wall at the surgical site separated. Willaby then
suffered an evisceration, a dangerous condition where her
intestines emerged outside of her abdominal cavity through the
wound dehiscence. Willaby was able to catch her intestines before
they spilled onto the floor. She called for help and several
nurses and a doctor responded. The doctor, who is unidentified in
the record, was able to massage Willaby's intestines back into her
abdomen. The doctor then applied an abdominal binder. Willaby was
rushed to surgery with Dr. Patel.
When Dr. Patel opened Willaby's abdomen, he noticed she had
several adhesions--areas where her intestine was either stuck
together or stuck to another organ. Dr. Patel also noticed that an
internal suture from her hysterectomy wound was "stuck" to the
peritoneum, the inner lining of Willaby's abdominal wall. Dr.
Patel cut the suture to release it from the abdominal wall and
freed the intestine from the stitch. Dr. Patel then brought out
all of Willaby's intestines to examine them. A 12-inch portion of
Willaby's small intestine was twisted and was not receiving blood.
Dr. Patel removed this portion of the intestine and reconnected the
healthy portions of the bowel. Because Willaby's appendix looked
abnormal, Dr. Patel removed it. Subsequent pathological testing,
however, revealed that Willaby's appendix was normal.
Before Dr. Patel closed Willaby's abdomen, he was assured by
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No. 1-04-1311
the nurses in the operating room that all laparotomy sponges and
other instruments used in the surgery were accounted for. Dr.
Patel closed Willaby's abdomen. However, unbeknownst to Dr. Patel,
a 12-inch by 12-inch laparotomy sponge remained in Willaby's
abdominal wall.
The sponge, like all laparotomy sponges, contained a
radiopaque tail making it detectable by X-ray. Dr. Patel ordered
an X-ray of Willaby on July 6, 1997, "to see how the intestines
were looking." The X-ray indicated the presence of a foreign
object, which was determined to be a surgical drain. Dr. Patel was
aware a surgical drain had not been placed in Willaby's abdomen.
However, he did not see the X-ray report until November 1997. By
that time, Willaby had returned to Dr. Miller complaining of nausea
and leakage from her navel. Dr. Miller ordered a CAT scan, which
indicated the presence of a foreign object. On December 1, 1997,
Dr. Patel performed exploratory surgery on Willaby and discovered
the laparotomy sponge.
Willaby filed a medical negligence suit against Dr. Bendersky,
Dr. Patel, and Westlake. On November 6, 2003, the date trial was
set to commence, Willaby filed a motion for summary judgment,
claiming there was no factual dispute that (1) Dr. Bendersky placed
a suture through Willaby's bowel, (2) Dr. Patel allowed a sponge to
remain in Willaby's abdomen, and (3) Westlake failed to comply with
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No. 1-04-1311
its procedures and protocols to ensure a proper sponge count was
achieved and failed to conduct a sponge count after the June 30,
1997, surgery. Willaby also filed a "Motion for Ruling on Res
[Ipsa] Loquitur," in which she asked the court "for a ruling
granting the applicability of the doctrine of res ipsa loquitur" in
regard to Dr. Bendersky, Dr. Patel, and Westlake.
The trial court denied Willaby's summary judgment motion,
finding it untimely. No ruling on the res ipsa loquitur motion
appears in the record. The trial court also granted several
motions in limine, including one filed by Dr. Patel seeking to bar
any reference to the parties' finances. On November 14, 2003, a
jury trial began.
I. Dr. Bendersky
Willaby sought to prove at trial that Dr. Bendersky, when
performing the hysterectomy, negligently placed a suture through
her bowel, which became infected and led to the wound dehiscence
and evisceration. According to this theory, Dr. Bendersky and Dr.
Patel should have recognized the rise in her white blood cell
count, her fever, and the serosanguinous drainage as signs of an
infection and a pending wound dehiscence and evisceration. Willaby
claimed, however, they negligently failed to respond to those
signs.
To support this theory, Willaby called Dr. Bendersky to
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No. 1-04-1311
testify as an adverse witness. Dr. Bendersky acknowledged the rise
in white blood cell count and temperature, but testified she was
not concerned because they normally rise following surgery. Dr.
Bendersky was not concerned with the serosanguinous drainage
because its appearance was not purulent, or pus-like. Dr.
Bendersky also testified that she did not place a stitch through
Willaby's bowel during the hysterectomy.
Willaby also called Dr. Patel to testify as an adverse
witness. According to Dr. Patel, Willaby did not exhibit any signs
of a wound dehiscence, such as a wound infection or increased
abdominal pressure. Dr. Patel was not concerned with the
serosanguinous drainage because it commonly occurs in obese
patients as fat drains out of the wound. Dr. Patel testified that
the wound dehiscence and evisceration were likely caused by
coughing. According to Dr. Patel, a nurse told him Willaby sat up
in bed and coughed prior to the wound dehiscence and evisceration.
Dr. Patel acknowledged that during the evisceration repair
surgery, he noticed that Willaby's bowel had several adhesions.
Although adhesions can be an indication of an infection, they are
commonly seen after surgery and can occur for unknown reasons. In
Dr. Patel's opinion, Willaby did not have any kind of wound or
abdominal infection during her entire hospitalization.
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No. 1-04-1311
Willaby presented expert testimony from Dr. Melvin Gerbie, a
board-certified obstetrician-gynecologist, and Dr. Rogelio Riera,
a retired general surgeon. Dr. Gerbie testified Dr. Bendersky
failed to identify and act upon Willaby's symptoms, especially the
serosanguinous drainage, indicating a pending wound dehiscence and
evisceration. Dr. Riera testified that both Dr. Bendersky and Dr.
Patel deviated from the standard of care when they failed to
"explore" Willaby's surgical wound by opening it and draining it
prior to the evisceration. It was the opinion of Dr. Gerbie and
Dr. Riera that an errant stitch through Willaby's bowel caused an
infection that ultimately caused the wound dehiscence and
evisceration. Dr. Gerbie did not believe the wound dehiscence and
evisceration was caused by coughing.
Dr. Gerbie acknowledged that wound dehiscence is often
associated with obesity, in part because of the increased intra-
abdominal pressure put on the incision. He also testified that
suturing a bowel was not necessarily a deviation of the standard of
care.
Dr. Bendersky presented expert testimony from Dr. Lance
Mercer, a board-certified obstetrician-gynecologist. It was Dr.
Mercer's opinion that Dr. Bendersky did not place a stitch through
Willaby's bowel. However, even if she did place such a stitch, it
would not be a deviation of the standard of care.
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No. 1-04-1311
Dr. Mercer also explained that pus, not serosanguinous
drainage, is indicative of an infection. Serosanguinous drainage
could be indicative of a wound dehiscence and evisceration if it is
"copious," meaning it continues to pour out of the patient. In his
view, Willaby's drainage was not copious. Rather, some amount of
drainage would be expected in an overweight patient with a long
incision. Dr. Mercer disagreed with Dr. Gerbie's opinion that the
presence of serosanguinous drainage required an exploration of the
wound.
Dr. Mercer did not know what caused Willaby's wound dehiscence
and evisceration, but opined Willaby's obesity was a factor. He
did not believe an infection was the cause. He also did not
believe the removal of Willaby's staples played any role in the
wound dehiscence and evisceration.
Dr. Richard Jorgenson, a board-certified general surgeon, gave
expert testimony on behalf of Dr. Patel. Dr. Jorgenson explained
that an evisceration is "a sudden monumental event" that cannot be
anticipated. Dr. Jorgenson did not find the serosanguinous
drainage, the elevated white blood cell count or the fever to
indicate a pending wound dehiscence and evisceration. A fever and
an elevated white blood cell count are both nonspecific findings.
Further, instances of serosanguinous drainage will usually heal
themselves. Dr. Jorgenson also testified that exploring the wound
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No. 1-04-1311
prior to June 30, 1997, would not have prevented the wound
dehiscence and evisceration and could have possibly exposed the
wound to an infection. In Dr. Jorgenson's opinion, Willaby's wound
dehiscence and evisceration occurred because she had weak tissue.
Her obesity was also a contributing factor, as obesity leads to
healing difficulties. According to Dr. Jorgenson, Dr. Patel's
treatment before and after the wound dehiscence and evisceration
complied with the standard of care.
II. Dr. Patel
Willaby sought to prove at trial that Dr. Patel, as the
surgeon in charge of the evisceration repair, was responsible for
the sponge being left in her abdomen and that he acted negligently
when he removed Willaby's normal appendix.
Dr. Patel testified it was his responsibility as a surgeon to
make sure that all sponges are removed from a patient's body before
closing the patient. He also admitted that only he had the ability
to put a sponge in a patient and remove it. Dr. Patel was not
concerned that a sponge had been left in Willaby because the nurses
reported the sponge count as correct.
Dr. Gerbie acknowledged that in some situations, such as in an
emergency, a sponge may be left in a patient without any negligence
on the part of healthcare providers. However, in this case,
Willaby's wound dehiscence and evisceration ceased to be an
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No. 1-04-1311
emergency once her bowel was resected. Dr. Gerbie and Dr. Riera
both testified Dr. Patel deviated from the standard of care in
leaving the sponge behind. Dr. Riera, however, agreed that it was
within the standard of care for Dr. Patel to rely on a sponge count
as communicated by the nurses. Dr. Riera also testified it was
improper for a doctor to remove a healthy organ without the
patient's consent.
According to Dr. Jorgenson, leaving the sponge behind was not
a deviation of the standard of care because the evisceration repair
surgery was an emergency. He also testified that it was within the
standard of care for Dr. Patel to rely on the sponge count as
communicated by the nurses. Dr. Jorgenson also explained that the
appendix serves no purpose in the body. He testified it was common
practice to remove an abnormal looking appendix because leaving it
in can be fatal. He also explained there is no way to perform a
biopsy on an appendix during an operation.
III. Westlake
The theory Willaby sought to prove against Westlake was that
the nurses were negligent in failing to perform an accurate sponge
count.
Testimony from Westlake nurses Mary George, Donna Leder, and
Mercedes Fitzgerald established that except in emergency cases,
Westlake's nursing policy requires nurses to count all sponges at
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No. 1-04-1311
least three times: an initial count taken prior to the surgery; a
first count taken during surgery when the first layer of the
abdominal wall is closed; a final count taken when the final layer
of the abdominal wall is closed. An interim count is required to
be taken when a nursing shift change occurs during surgery. This
count is not necessarily accurate because sponges may have placed
in the patient's body and the surgeon cannot be expected to remove
them so they can be counted.
Each count of the sponges involves two nurses. For the
initial count, the "scrub nurse" unwraps each sponge from its
packaging and counts each aloud. The scrub nurse also checks that
each sponge has a radiopaque tail. The "circulating nurse" records
the number of sponges unwrapped on a "count sheet." The count
totals from the subsequent counts are then matched against the
initial count.
The count sheet, however, is only "temporary," meaning it does
not become part of the patient's medical chart. An "intraoperative
report," which contains the nurses' signatures indicating the
counts taken are correct, is kept in a patient's chart. The
intraoperative report, however, does not indicate the actual number
of sponges used.
Nurse George was the scrub nurse for Willaby's hysterectomy
surgery. At trial, Nurse George identified the intraoperative
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No. 1-04-1311
report from that surgery. The report was signed, indicating the
first and final counts matched the initial count.
Nurse Leder was a scrub nurse for Willaby's evisceration
repair surgery. At trial, Nurse Leder identified the
intraoperative report from that surgery, which indicated the counts
were done and were accurate. She also testified she was relieved
by Nurse Mercedes Fitzgerald in the middle of the surgery.
Nurse Fitzgerald testified she followed Westlake's sponge-
counting procedures during Willaby's evisceration repair surgery.
Fitzgerald also identified Willaby's intraoperative report where
her signature indicated the first and final counts were taken, and
that they matched the initial count. According to Fitzgerald, her
count was correct.
Willaby also presented expert testimony from Nurse Lutricia
Cloud, who testified the Westlake nurses deviated from the standard
of care by failing to maintain an accurate sponge count, by failing
to follow nursing and hospital protocol regarding counting sponges,
and by failing to advise Dr. Patel they did not have an accurate
sponge count. Nurse Cloud defined the standard of care as "the
best possible care for patients which prevents or avoids causing
them any harm."
Westlake presented expert testimony from Nurse William Culver.
Nurse Culver testified that Westlake's sponge-counting policy
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No. 1-04-1311
complied with the standard of care and that the nurses complied
with the policy during Willaby's evisceration repair surgery.
Nurse Culver defined the standard of care as "what a reasonably
qualified registered nurse would do in the same or similar
situation."
After the presentation of evidence concluded, Willaby sought
leave to file a first-amended complaint to conform the pleadings to
the proofs and to add a res ipsa loquitur count against Dr. Patel.
The trial court allowed the motion.
The court next considered a motion filed by Westlake to strike
Nurse Cloud's testimony on the basis that she failed to properly
identify the standard of care. The trial court granted the motion,
stating,
"Looking at Nurse Cloud's testimony in
its best light, Nurse Cloud never stated that
she was familiar with the applicable standard
of care for nurses practicing in the
Chicagoland area.
* * *
Were I to allow her testimony to go to
the jury in the manner and form that it was
offered, the jury would be called upon to
apply an incorrect standard of care for nurses
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No. 1-04-1311
based solely on Cloud's testimony. And Cloud
is the only one called by the plaintiff who
directly criticizes the nurses."
Based on the striking of Nurse Cloud's testimony by the trial
court, Westlake filed a motion for a directed verdict. The trial
court granted the motion "due to the insufficiency of Nurse Cloud's
testimony as a matter of law."
IV. Verdict
The jury returned a verdict in favor of Drs. Patel and
Bendersky. Willaby's posttrial motion was denied, and this timely
appeal followed.
ANALYSIS
Before addressing the issues properly before us, we make two
observations. First, Willaby challenges several of the trial
court's rulings, including allowing certain testimony that amounted
to hearsay, allowing certain testimony that should have been barred
by Supreme Court Rule 213 (210 Ill. 2d R. 213), and rejecting a
certain jury instruction. With the exception of cases of limited
value which are neither explained nor analyzed, Willaby fails to
provide a reasoned basis for these contentions. " 'The appellate
court is not a depository in which the appellant may dump the
burden of argument and research.' " In re Marriage of Auriemma,
271 Ill. App. 3d 68, 72, 648 N.E.2d 118 (1994), quoting Thrall Car
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No. 1-04-1311
Manufacturing Co. v. Lindquist, 145 Ill. App. 3d 712, 719, 495
N.E.2d 1132 (1986). Supreme Court Rule 341(h)(7) (210 Ill. 2d R.
341(h)(7)) requires the appellant to clearly set out the issues
raised, supported by relevant authority. Because Willaby has
failed to do this, these arguments are waived. Universal Casualty
Co. v. Lopez, 376 Ill. App. 3d 459, 465, 876 N.E.2d 273 (2007)
(arguments not supported by relevant authority are waived).
Second, Willaby appeals the trial court's denial of her motion
for summary judgment against Westlake. However, our supreme court
has explained that the denial of a motion for summary judgment is
not reviewable on appeal where the motion raises only factual
issues, like that filed by Willaby in this case, because "any error
is merged into the judgment entered at trial." Belleville Toyota,
Inc. v. Toyota Motor Sales, U.S.A., Inc., 199 Ill. 2d 325, 355, 770
N.E.2d 177 (2002). Accordingly, we do not consider this issue.
As to the issues properly before us, we first address
Willaby's contentions against Dr. Patel and Dr. Bendersky and then
her contentions against Westlake.
I. Dr. Patel and Dr. Bendersky
Willaby contends certain comments made by counsel for Dr.
Patel in his closing argument denied her a fair trial. She also
contends the jury's verdict in favor of Drs. Patel and Bendersky is
contrary to the manifest weight of the evidence.
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No. 1-04-1311
A. Closing Argument
In concluding his closing argument, counsel for Dr. Patel
stated, "The decision facing a doctor who is sued for malpractice
is a difficult one. Should he defend himself in court risking his
financial future?" Counsel for Willaby promptly objected. The
trial court sustained the objection and instructed the jury to
disregard the comment.
Willaby contends the reference to Dr. Patel's "financial
future" denied her a fair trial and constituted reversible error.
Willaby argues Dr. Patel's finances were not at issue in the case
and notes Dr. Patel himself filed a motion in limine seeking to bar
any reference to the parties' finances.
An improper comment that also violates a motion in limine does
not necessarily constitute reversible error. See Magna Trust Co.
v. Illinois Central R.R. Co., 313 Ill. App. 3d 375, 395, 728 N.E.2d
797 (2000) ("Violation of a motion in limine is not per se
reversible error"). To constitute reversible error, such a comment
must cause substantial prejudice, not cured by the trial court's
actions. "Improper comments generally do not constitute reversible
error unless the party has been substantially prejudiced." Magna
Trust Co., 313 Ill. App. 3d at 395. Where the trial court sustains
a timely objection and instructs the jury to disregard the improper
comment, the court sufficiently cures any prejudice. Magna Trust
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No. 1-04-1311
Co., 313 Ill. App. 3d at 395.
In this case, there is no question that counsel's reference to
the doctor's financial future was improper. However, the trial
court immediately sustained Willaby's objection and instructed the
jury to disregard the offending comment. Willaby puts forth no
argument that substantial prejudice remained even after the trial
court took this prompt action. Accordingly, we reject Willaby's
claim of reversible error based on defense counsel's improper
comment.
B. The Sufficiency of the Evidence
Willaby contends the jury's verdict in favor of Dr. Bendersky
and Dr. Patel is against the manifest weight of the evidence.
In an appeal from a jury verdict, "a reviewing court may not
simply reweigh the evidence and substitute its judgment for that of
the jury." Snelson v. Kamm, 204 Ill. 2d 1, 35, 787 N.E.2d 796(2003). Rather, a jury verdict may be reversed only where it is
against the manifest weight of the evidence. Snelson, 204 Ill. 2d
at 35. "A verdict is contrary to the manifest weight of the
evidence when the opposite conclusion is clearly evident or when
the jury's findings prove to be unreasonable, arbitrary and not
based upon any of the evidence." York v. Rush-Presbyterian-St.
Luke's Medical Center, 222 Ill. 2d 147, 179, 854 N.E.2d 635 (2006).
Willaby presented evidence at trial to show Dr. Bendersky
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No. 1-04-1311
deviated from the standard of care by placing a suture in her bowel
and by failing to detect an infection that led to the wound
dehiscence and evisceration. Willaby also presented evidence that
Dr. Patel failed to diagnose a pending wound dehiscence and
evisceration, left a sponge in her abdomen, and negligently removed
her healthy appendix. The defendant doctors, however, presented
evidence that Dr. Bendersky did not place a stitch through her
bowel and that the wound dehiscence and evisceration were not
caused by an infection but, rather, occurred because Willaby was
obese, because Willaby coughed, or because of unknown reasons. Dr.
Patel also presented evidence demonstrating that he acted within
the standard of care when he relied on the nurses' representation
that there was an accurate sponge count and when he removed an
abnormal looking appendix.
Willaby essentially argues on appeal that her theory of
liability against Dr. Bendersky and Dr. Patel should have been
accepted by the jury. However, where the parties present
conflicting evidence, we cannot say the jury's verdict is against
the manifest weight of the evidence. York, 222 Ill. 2d at 179.
Because the evidence was conflicting, we do not disturb the
jury's verdict in favor of Drs. Patel and Bendersky.
II. Westlake
Turning to the contentions against Westlake, Willaby argues
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No. 1-04-1311
the trial court erred when it struck the entirety of Nurse Cloud's
expert testimony and directed a verdict in Westlake's favor.
A plaintiff in a medical negligence case must plead and prove
three elements: (1) the proper standard of care against which the
defendant healthcare professional's conduct is measured; (2) a
deviation of that standard; and (3) an injury proximately caused by
that deviation. Purtill v. Hess, 111 Ill. 2d 229, 241-42, 489
N.E.2d 867 (1986). Generally, "expert testimony is necessary in
professional negligence cases to establish the standard of care and
that its breach was the proximate cause of the plaintiff's injury."
Snelson v. Kamm, 204 Ill. 2d 1, 43-44, 787 N.E.2d 796 (2003). In
this case, Willaby called Nurse Lutricia Cloud as her expert
witness.
In Illinois, two foundational requirements and a discretionary
requirement of competency must be established before a health care
professional may offer expert testimony regarding the standard of
care. Sullivan v. Edward Hospital, 209 Ill. 2d 100, 114-15, 806
N.E.2d 645 (2004); Purtill, 111 Ill. 2d at 243; Alm v. Loyola
University Medical Center, 373 Ill. App. 3d 1, 5, 866 N.E.2d 1243(2007). Specifically, a trial court must determine (1) whether the
healthcare professional is a licensed member of the school of
medicine about which he or she proposes to testify, and (2) whether
the healthcare professional is familiar with the methods,
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No. 1-04-1311
procedures, and treatments ordinarily observed by other healthcare
providers in either the defendant's community or a similar
community. Sullivan, 209 Ill. 2d at 114-15; Purtill, 111 Ill. 2d
at 243. Once these foundational requirements are met, the trial
court has discretion to find the healthcare professional qualified
and competent to state his or her opinion regarding the standard of
care. Sullivan, 209 Ill. 2d at 115; Purtill, 111 Ill. 2d at 243.
Westlake does not argue Nurse Cloud was not qualified or
competent to state her opinion. Rather, Westlake's claim is that
Nurse Cloud's testimony did not accurately state the applicable
standard of care for the Westlake nurses. Based on her failure to
properly identify the standard of care, the trial court sustained
Westlake's motion to strike Nurse Cloud's testimony and directed a
verdict in Westlake's favor "due to the insufficiency of Nurse
Cloud's testimony as a matter of law."
The long-standing rule in Illinois is that "a verdict should
be directed only in those cases in which all of the evidence, when
viewed in its aspect most favorable to the opponent, so
overwhelmingly favors the movant that no contrary verdict based on
that evidence could ever stand." Heastie v. Roberts, 226 Ill. 2d
515, 544, 877 N.E.2d 1064 (2007), citing Pedrick v. Peoria &
Eastern R.R. Co., 37 Ill. 2d 494, 510, 229 N.E.2d 504 (1967). A
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No. 1-04-1311
directed verdict is reviewed de novo. Schiff v. Friberg, 331 Ill.
App. 3d 643, 657, 771 N.E.2d 517 (2002).
Nurse Cloud testified the Westlake nurses failed to maintain
an accurate sponge count, failed to follow nursing and hospital
protocol regarding counting sponges, and failed to advise Dr. Patel
that they did not have an accurate sponge count. She defined the
standard of care as "the best possible care for patients which
prevents or avoids causing them any harm."
It is true that Nurse Cloud did not accurately describe the
standard of care applicable in an Illinois professional negligence
case. See, e.g., Advincula v. United Blood Services, 176 Ill. 2d
1, 23, 678 N.E.2d 1009 (1996) ("In Illinois, the established
standard of care for all professionals is stated as the use of the
same degree of knowledge, skill and ability as an ordinarily
careful professional would exercise under similar circumstances").
However, Nurse Culver's expert testimony accurately described the
standard of care as "what a reasonably qualified registered nurse
would do in the same or similar situation." While Nurse Culver
testified on behalf of the defense after the plaintiff rested her
case, we are obliged by Pedrick, 37 Ill. 2d at 510, to consider all
of the evidence when determining whether a directed verdict is
proper at the close of the case. Cf. Walski v. Tiesenga, 72 Ill.
2d 249, 252, 381 N.E.2d 279 (1978) (directed verdict at close of
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No. 1-04-1311
plaintiff's case proper where "plaintiff failed to establish the
requisite professional standard of care against which the
defendant's conduct was to be judged"). The record also contains
additional testimony regarding the standard of care provided by
Nurses George, Leder, and Fitzgerald, who described in detail
Westlake's sponge-counting procedures. Because evidence of the
applicable standard of care was before the jury, the trial court
erred in directing a verdict based on Nurse Cloud's inaccurate
testimony regarding the applicable standard of care.
It also not proper to strike all of Nurse Cloud's testimony
simply because she inaccurately stated the standard of care. Other
aspects of Nurse Cloud's testimony, including that the nurses
failed to maintain an accurate sponge count, deviated from
Westlake's sponge-counting procedures, and failed to notify Dr.
Patel of the inaccurate count, were properly before the jury.
When we consider all of the evidence in Willaby's favor, we
cannot say a verdict for Willaby on the issue of Westlake's
negligence could not stand. See Anderson v. Martzke, 131 Ill. App.
2d 61, 65, 266 N.E.2d 137 (1970) (trial court erred in directing a
verdict in favor of defendant doctor error where defendant doctor,
called as an adverse witness, gave expert testimony sufficient to
establish prima facie case).
Even if we were to find the testimony from Nurses Culver,
23
No. 1-04-1311
George, Leder, and Fitzgerald insufficient to establish the
applicable standard of care as a matter of law, we are unconvinced
a directed verdict would be warranted.
It has been established that leaving a sponge in a patient's
body following surgery is prima facie evidence of medical
negligence. Piacentini v. Bonnefil, 69 Ill. App. 2d 433, 447, 217
N.E.2d 507 (1966) ("If a sponge was left in the plaintiff's body
she has established a prima facie case of negligence against the
doctor and the burden of coming forth with the evidence then shifts
to the defendant doctor"). Under similar facts here, Willaby was
not obligated to present an expert to establish the standard of
care and its breach. An expert witness is not required where the
defendant's actions are grossly apparent or where the treatment is
so common that a layperson would understand the conduct without the
necessity of an expert. See Heastie, 226 Ill. 2d at 554; Sullivan,
209 Ill. 2d at 112; Purtill, 111 Ill. 2d at 242.
Failing to keep an accurate count of sponges so that a sponge
is left in a patient's body following surgery is an example of such
a case. See Comte v. O'Neil, 125 Ill. App. 2d 450, 454, 261 N.E.2d
21 (1970) (leaving a sponge in the abdomen an example of the
"common knowledge" or "gross negligence" exception to expert
testimony); Restatement (Second) of Torts, § 328D, Comment d, at
158 (1965) ("there are other kinds of medical malpractice, as where
24
No. 1-04-1311
a sponge is left in the plaintiff's abdomen after an operation,
where no expert is needed to tell the jury that such events do not
usually occur in the absence of negligence"). Based on the
presence of the sponge in Willaby's abdomen, she established a
prima facie case of medical negligence. The burden then shifted to
Westlake to explain that the failure of the nurses to keep an
accurate count such that a sponge was left in Willaby's abdomen was
the result of something other than its negligence. Piacentini, 69
Ill. App. 2d at 447.
For these reasons we cannot say the evidence so overwhelmingly
favored Westlake that a directed verdict in its favor was
warranted. Accordingly, the trial court erred in directing such a
verdict.
Willaby additionally raises the contention that the trial
court erred when it refused to allow her to amend her complaint to
include a negligence count based on res ipsa loquitur against
Westlake. In light of our determination that a remand for a new
trial against Westlake is in order, we do not decide this issue.
Rather, we leave the issue to the sound discretion of the trial
court upon remand.
CONCLUSION
For the reasons stated above, we affirm the circuit court's
entry of judgment in favor of Dr. Patel and Dr. Bendersky. We
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No. 1-04-1311
reverse the circuit court's grant of a directed verdict in favor of
Westlake and remand for a new trial as to Westlake only.
Affirmed in part and reversed in part; cause remanded.
WOLFSON and R. GORDON, JJ., concur.
26
No. 1-04-1311
REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
_________________________________________________________________
MARY WILLABY,
Plaintiff-Appellant,
v.
CLARA BENDERSKY, HASMUKH PATEL,
and WESTLAKE COMMUNITY HOSPITAL,
Defendants-Appellants.
_______________________________________________________________
No. 1-04-1311
Appellate Court of Illinois
First District, First Division
Filed: June 25, 2008
_________________________________________________________________
JUSTICE GARCIA delivered the opinion of the court.
WOLFSON and R. GORDON, JJ., concur.
_________________________________________________________________
Appeal from the Circuit Court of Cook County
Honorable John E. Morrissey, Judge Presiding
_________________________________________________________________
For PLAINTIFF - Michael C. Goode
APPELLANT 11 S. LaSalle Street, Suite 2802
Chicago, Illinois 60603
For DEFENDANT - Edward M. Kay
APPELLEE, Richard L. Murphy
Hasmukh Patel, M.D. Paula M. Carstensen
Clausen Miller, P.C.
10 S. LaSalle Street
Chicago, Illinois 60603
27
No. 1-04-1311
For DEFENDANTS - Mark J. Lura
APPELLEES, Diane I. Jennings
Clara Bendersky, M.D. Anderson, Rasor & Partners, LLP
and Westlake 55 E. Monroe Street, Suite 3650
Community Hospital Chicago, Illinois 60603
28