The Appellate Court of Illinois Second District (“Illinois Appellate Court”), in its Order dated October 22, 2019, affirmed the medical malpractice defense verdict in an Illinois medical malpractice case where the defendant surgeon planned to operate on the 54-year-old plaintiff’s back from L3-4 to L4-L5 but instead operated from L2-L3 to L3-L4, thereby requiring additional surgery and allegedly causing harm to the plaintiff.
The defendant surgeon operated a second time four days later during which he encountered a lot of scar tissue, the dura was adhered, and he encountered a dural tear. The defendant surgeon testified during trial that when he got up to L2-L3, he found bulging discs, spinal stenosis, and some arthritis (he did not put those findings in his operative report). He further testified that he had a complication of the dural tear, but that would have occurred if he operated in that area in the first operation. The defendant surgeon testified that he complied with the standard of care and did not cause any injury or damages to the plaintiff.
The Illinois medical malpractice jury returned its verdict in favor of the defendants, and the plaintiff appealed, arguing, in part, that the trial court abused its discretion in not granting him partial summary judgment on res ipsa locquitur.
Res Ipsa Locquitur
Res ipsa locquitur is a method to prove a defendant’s negligence in the limited circumstance where direct evidence of negligence is unavailable. To prevail on res ipsa locquitur, the plaintiff must establish that (1) the occurrence is one that ordinarily would not happen in the absence of negligence and (2) the defendant had exclusive control of the instrumentality that caused the event.
Section 2-1113 of the Code provides: “In all cases of alleged medical or dental malpractice, where the plaintiff relies upon the doctrine of res ipsa locquitur, the court shall determine whether that doctrine applies. In making that 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.” 735 ILCS 5/2-1113 (West 2018).
The Illinois Appellate Court held: “In this case, there was a dispute regarding whether defendant complied with the standard of care. Plaintiffs’ own expert, Gertzbein, and defendants’ experts agreed that not all wrong-level spine surgery violates the standard of care. We note that Jackson never addressed whether defendant complied with the standard of care. Thus, identifying the correct level for spine surgery is something that is outside the common knowledge of a layperson and the expert testimony did not support the res ipsa theory. Thus, we find that the trial court’s refusing the jury instruction was not an abuse of discretion.”
Source Pugh v. Advocate Health and Hospitals Corporation, 2019 IL App (2d) 180118.
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