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Appellate Court Date: 2022.02.02
14:11:30 -06'00'
Johnson v. Armstrong, 2021 IL App (4th) 210038
Appellate Court WILLIAM “WES” JOHNSON, Plaintiff-Appellant, v. LUCAS
Caption ARMSTRONG; McLEAN COUNTY ORTHOPEDICS, LTD.;
SARAH HARDEN; and ADVOCATE HEALTH AND HOSPITALS
CORPORATION, d/b/a Advocate BroMenn Medical Center,
Defendants-Appellees.
District & No. Fourth District
No. 4-21-0038
Filed October 28, 2021
Decision Under Appeal from the Circuit Court of McLean County, No. 18-L-126; the
Review Hon. Rebecca S. Foley, Judge, presiding.
Judgment Reversed and remanded.
Counsel on James P. Ginzkey, of Ginzkey Law Office, of Bloomington, for
Appeal appellant.
Peter W. Brandt and Kevin M. Toth, of Livingston, Barger, Brandt &
Schroeder, LLP, of Bloomington, for appellee Lucas Armstrong.
Stacy K. Shelly, Troy A. Lundquist, and Scott A. Schoen, of
Langhenry, Gillen, Lundquist & Johnson, LLC, of Princeton, for
appellees Advocate Health and Hospitals Corporation and Sarah
Harden.
Panel JUSTICE STEIGMANN delivered the judgment of the court, with
opinion.
Justices DeArmond and Cavanagh concurred in the judgment and
opinion.
OPINION
¶1 In September 2018, plaintiff, William “Wes” Johnson, filed a complaint alleging
defendants, Lucas Armstrong, McLean County Orthopedics, Ltd. (McLean County
Orthopedics), Sarah Harden, and Advocate Health and Hospitals Corporation, d/b/a Advocate
BroMenn Medical Center (Advocate BroMenn), negligently performed a hip replacement
surgery that resulted in Johnson’s suffering permanent nerve damage. Johnson advanced two
legal theories of recovery: ordinary negligence and res ipsa loquitur. Johnson sought to hold
Armstrong and Harden directly liable and McLean County Orthopedics and Advocate
BroMenn indirectly liable under the doctrine of respondeat superior.
¶2 In August 2020, defendants Advocate BroMenn and Harden (collectively referred to as
Advocate) filed a motion for summary judgment, arguing that Johnson had failed to
(1) establish the standard of care for Harden or that she deviated from the standard of care and
(2) demonstrate that he met the requirements to invoke the doctrine of res ipsa loquitur. In
October 2020, the trial court conducted a hearing on Advocate’s motion and granted summary
judgment in its favor.
¶3 In December 2020, Armstrong made an oral motion for summary judgment on the
remaining res ipsa count, which the trial court granted. The court subsequently entered written
orders, entering judgment in the defendants’ favor on the res ipsa counts and making a finding
that the orders were final and appealable pursuant to Illinois Supreme Court Rule 304(a) (eff.
Mar. 8, 2016).
¶4 Johnson appeals, arguing that the trial court erred by entering summary judgment against
him because (1) he made a prima facie showing of the elements of res ipsa loquitur and (2) his
expert was qualified to testify to the applicable standard of care for Harden. We agree and
reverse.
¶5 I. BACKGROUND
¶6 A. The Complaint
¶7 In September 2018, Johnson filed a four-count complaint alleging defendants negligently
injured him during a left, total hip arthroplasty (THA) performed by Armstrong and assisted
by Harden. The complaint alleged that the surgery was performed at Advocate BroMenn in
October 2016. Following surgery, Johnson had femoral nerve palsy, and subsequent testing
revealed he had “severe left femoral neuropathy that is specific to the branches to the vastus
lateralis and rectus femoris muscles.” (We note that these are two of the muscles that comprise
a person’s quadriceps.) Johnson alleged, “The lesion appears complete with no evidence of
voluntary motor unit potential activation.”
¶8 Count I alleged ordinary negligence against Armstrong and specifically claimed that
Armstrong (1) failed to protect Johnson’s femoral nerve, (2) improperly “retract[ed]”
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Johnson’s femoral nerve, or (3) directly injured Johnson’s femoral nerve. Count II alleged
McLean County Orthopedics was vicariously liable under the doctrine of respondeat superior.
¶9 Count III alleged that Armstrong and Harden were negligent pursuant to the doctrine of
res ipsa loquitur. More specifically, Johnson asserted that (1) Armstrong was assisted by
Harden, (2) the injury to Johnson’s femoral nerve occurred while the retractors and other
surgical instruments were under Armstrong and Harden’s control, and (3) Johnson’s injuries
ordinarily would not have occurred if the standard of care was met. Count IV asserted the same
claim against Advocate BroMenn on the basis that Advocate BroMenn employed Harden.
¶ 10 B. Advocate’s Motion for Summary Judgment
¶ 11 In August 2020, Advocate filed a motion for summary judgment in which it argued the
following. First, Advocate claimed Johnson had not disclosed any expert to testify as to the
standard of care for nurse Harden or that she breached her standard of care. Second, Advocate
asserted that Johnson’s disclosed expert was not qualified to give an opinion on the nursing
standard of care and did not offer one at his deposition. Third, Advocate contended that
Johnson had not made a prima facie case that he was entitled to rely on the doctrine of
res ipsa loquitur as to Harden because (1) the undisputed facts showed Harden did not have
control over the instrumentality of the injury and (2) Johnson’s expert did not testify at his
deposition that Harden acted negligently. In support of its motion, Advocate attached the
depositions of Harden, Pamela Rolf, Armstrong, and Sonny Bal, Johnson’s expert.
¶ 12 1. Deposition of Sarah Harden
¶ 13 Harden testified that she was a surgical technician, commonly called a “scrub tech.” She
described her duties as follows: “A second scrub will hold a retractor wherever it is placed by
the doctor, and that is pretty much it.” “I don’t use anything. I hold things.” “I hold what I’m
told to hold—whatever the doctor tells me to do, I do.” Harden repeatedly stated it was not her
responsibility to, nor did she ever, place, reposition, move, or otherwise use any instrument
during surgery, including retractors. Those actions were always performed by the surgeon, and
the surgeon was responsible for the instruments at all times. Harden testified that she had no
independent recollection of the surgery but, based on her review of the medical records, she
complied with the standard of care.
¶ 14 2. Deposition of Lucas Armstrong
¶ 15 At his deposition, Armstrong agreed Johnson did not have femoral nerve palsy before the
THA surgery and did have it afterwards. Armstrong stated he placed and moved the retractors
and Harden would have done nothing more than hold them. Armstrong further stated that,
although he had no independent recollection of the surgery, if Harden would have done
something abnormal while holding the retractor, such as moving it, he would have noted that
in the records. Armstrong testified that he complied with the standard of care and disagreed
that the type of injury Johnson sustained would not ordinarily occur absent negligence.
¶ 16 3. Deposition of Sonny Bal
¶ 17 Sonny Bal testified as an expert witness for Johnson. Bal, a retired orthopedic surgeon,
stated that before he retired, he performed between 100 and 200 THAs per year on average and
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most commonly used the anterior approach, which was the same approach used by Armstrong
in this case. Bal agreed that, “as a general proposition,” “nerve palsies are a recognized
complication of hip replacement surgery.” Bal also agreed that, in general, merely because a
femoral nerve injury occurs does not mean there is a breach in the standard of care (“I would
need more data.”). In his career, Bal had two patients develop femoral nerve palsies after
THAs. One was caused by internal bleeding putting pressure on the nerve, and the other had
an unknown cause. Bal agreed that the cause of femoral nerve palsies was often unknown.
¶ 18 Bal testified, “There’s evidence of direct injury to the [femoral] nerve based on the EMG
findings.” Bal believed the injury was caused by a retractor, an instrument used to hold tissue
to allow the surgeon to see the surgical site. Regarding the cause of Johnson’s injury, Bal
testified as follows:
“The documents I reviewed show misplacement too far medial of the incision, and then
twice in the operative record, the doctor documents the placement of the anterior
retractor. While documentation does not say that the retractor was up against the
femoral nerve, that is my opinion ….
…
… [Armstrong] does mention placing the retractor up against the rectus femoris
muscle, which is where it should be placed, and then moving it to an intracapsular
location when he repositioned it once during the operation.”
Bal agreed that “[a]s it’s stated, [there was] nothing inappropriate about that.” Bal agreed that
Armstrong’s incision, though too far medial, was still within the standard of care.
¶ 19 Bal clarified his testimony that femoral nerve palsies can occur in the absence of negligence
and stated the following:
“There are two distinct types of femoral nerve neuropathies, and I want to make
sure we’re clear on the distinction.
Transient femoral neuropathy injury, neuropraxia palsy, as referred to in this paper
… occurs in the absence of negligence. It is transient; it has a good prognosis; strength
returns, and the patient goes on with a temporary time period during which there is a
deficit that improves rapidly, and those are what I’ve encountered in my practice. That
palsy can occur and does occur in the absence of negligence from a variety of factors.
My testimony here is a complete injury to the femoral nerve, as occurred here,
verified by repeat EMG and subsequent treatment by a nerve specialist like Dr. Tung,
does not occur absent negligence.”
¶ 20 Bal supported his opinions by stating as follows:
“The medial placement of the incision; the fact that the retractor was moved during
surgery; the fact that the two branches that suffered complete injury are to the vastus
lateralis and the intermedius, and those would be closer to the retractor than the branch
to the medialis, which is further medial; and the fact that the article [presented to Bal
by defense counsel during the deposition] clearly states a retractor tip is strikingly close
to the femoral nerve when placed near the anterior rim of acetabulum, and one study
demonstrated alarmingly high pressures around the nerve during retractor placement.”
¶ 21 Throughout the deposition, Bal indicated that, based on his experience and literature he
reviewed, only transient femoral nerve palsies were known complications and outcomes that
occurred in the absence of negligence. Bal testified that Johnson suffered a complete injury to
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two branches of his femoral nerve and the loss of muscle function and other symptoms he
experienced were permanent. In sum, Bal indicated his opinion was that the permanent injury
suffered did not occur in the absence of negligence.
¶ 22 C. The Hearing on Advocate’s Motion for Summary Judgment
¶ 23 In October 2020, the trial court conducted a hearing on Advocate’s motion for summary
judgment. Advocate argued that Johnson had not disclosed a nursing expert and Bal was not
qualified to give an opinion as to the standard of care for a surgical technician. Advocate further
argued that Johnson had not demonstrated that Harden exercised any control over the retractor
that allegedly caused the injury; Armstrong placed and moved the retractor, and Harden merely
held it in place. Harden had no part in deciding where to place the retractor or whether to move
it.
¶ 24 Johnson acknowledged, “with reference to the fact that we don’t have a nursing expert,
that’s absolutely correct, but that’s because a nursing expert cannot render an opinion on what
is or is not appropriate with respect to an orthopedic surgical procedure.” Johnson maintained,
“As a matter of law, it has to be testimony from an orthopedic surgeon, and we have that here.”
Bal opined the injury was caused by a retractor and the undisputed facts showed that Harden
held the retractor. (“I think the evidence at trial will be that she held the retractors only after
they were placed or moved by Dr. Armstrong, but that doesn’t affect the fact that she’s the one
holding the retractors and that’s when the damage occurred.”) Johnson further noted that Bal
unequivocally stated that the type of injury sustained, complete denervation of two quadriceps,
does not occur in the absence of negligence.
¶ 25 Advocate noted that “all the testimony says that [Harden] did exactly what was expected.”
Advocate maintained that Johnson had to show Harden performed a negligent act and he had
failed to do so.
¶ 26 The trial court agreed with Advocate. The court explained that Johnson was still required
to show the standard of care and a breach of that standard. “Plaintiff has disclosed only one
expert, Dr. Sonny Bal.” The court ruled that Bal was not qualified to give an opinion relative
to the nursing standard of care because “he does not practice within the same school of
medicine as Nurse Harden, namely nursing.” The court further noted that the record did not
contain any evidence that Harden committed a negligent act or omission.
¶ 27 The trial court stated as follows: “All witnesses testified that Defendant Armstrong, as the
surgeon, placed the retractor. While Defendant Harden may have physically held the retractor
upon placement, it was only at the direction of Defendant Armstrong. She did not exercise any
independent control over any surgical tools, according to the testimony.” “Furthermore, the
witnesses agree she only acted as directed, and she did not take any actions other than those
directed by Dr. Armstrong. Accordingly, the retractor was never under the exclusive control
of Nurse Harden.” The trial court granted summary judgment to Harden and to Advocate
BroMenn because Advocate BroMenn was named as a defendant solely under respondeat
superior.
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¶ 28 D. Subsequent Proceedings
¶ 29 In November 2020, Johnson filed a motion to reconsider the trial court’s granting of
Advocate’s motion for summary judgment. In December 2020, the trial court conducted a
hearing on that motion and denied it.
¶ 30 Later in December 2020, at a hearing on a discovery matter, Armstrong orally moved for
summary judgment, and the trial court granted his oral motion. On December 22, 2020, the
trial court entered a written order entering summary judgment in favor of Armstrong on count
III and finding no just reason for delaying enforcement or appeal of that order pursuant to Rule
304(a). The trial court stayed any pending litigation on the remaining counts against Armstrong
and McLean County Orthopedics.
¶ 31 In January 2021, the trial court entered a written order (1) granting summary judgment in
favor of Advocate and (2) finding no just reason for delaying the appeal of its order.
¶ 32 This appeal followed.
¶ 33 II. ANALYSIS
¶ 34 Johnson appeals, arguing that the trial court erred by entering summary judgment against
him because (1) he made a prima facie showing of the elements of res ipsa loquitur and (2) he
did not need a nursing expert to testify to the applicable standard of care for Harden. We agree
and reverse.
¶ 35 As an initial matter, the defendants make several arguments that Johnson has, for various
reasons, forfeited his ability to challenge the trial court’s judgment. We disagree with these
assertions and address this case.
¶ 36 A. The Applicable Law
¶ 37 1. Summary Judgment
¶ 38 Summary judgment is appropriate when “the pleadings, depositions, 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.” 735 ILCS 5/2-
1005(c) (West 2018). “A genuine issue of material fact precluding summary judgment exists
where the material facts are disputed, or, if the material facts are undisputed, reasonable
persons might draw different inferences from the undisputed facts.” (Internal quotation marks
omitted.) Monson v. City of Danville, 2018 IL 122486, ¶ 12,
115 N.E.3d 81. When examining
whether a genuine issue of material fact exists, a court construes the evidence in the light most
favorable to the nonmoving party and strictly against the moving party. Beaman v. Freesmeyer,
2019 IL 122654, ¶ 22,
131 N.E.3d 488.
¶ 39 Summary judgment is a drastic means of disposing of litigation and “should be allowed
only when the right of the moving party is clear and free from doubt.” (Internal quotation marks
omitted.) Id. A trial court’s entry of summary judgment is reviewed de novo.
Id.
¶ 40 2. Res Ipsa Loquitur
¶ 41 “The doctrine of res ipsa loquitur allows the trier of fact to draw an inference of negligence
from circumstantial evidence when direct evidence of the cause of the injury is primarily within
the knowledge and control of the defendant. [Citation.] [T]he doctrine is not a separate theory
of liability [but] a type of circumstantial evidence which permits the trier of fact to infer
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negligence when the precise cause of injury is not known by the plaintiff.” (Internal quotation
marks omitted.) Poole v. University of Chicago, 186 Ill. App. 3d 554, 558,
542 N.E.2d 746,
748-49 (1989).
¶ 42 “The trial court must decide whether the doctrine applies as a question of law, subject to
de novo review.” Willis v. Morales, 2020 IL App (1st) 180718, ¶ 36,
169 N.E.3d 74. “[A]
plaintiff seeking to rely on the res ipsa doctrine must plead and prove that he or she was injured
(1) in an occurrence that ordinarily does not happen in the absence of negligence, (2) by an
agency or instrumentality within the defendant’s exclusive control.” Heastie v. Roberts, 226
Ill. 2d 515, 531-32,
877 N.E.2d 1064, 1076 (2007).
¶ 43 “If the plaintiff was unconscious at the time of the injury, and under the defendants’ control,
then the plaintiff has adequately shown the control element for res ipsa loquitur, even if she
cannot establish the exact instrumentality that caused the injury.” Willis, 2020 IL App (1st)
180718, ¶ 37. Further, “if [the plaintiff] can convince a finder of fact that the injury occurred
during the surgery, ‘it can be inferred … that the instrumentality of the injury was the
handling’ of [the plaintiff] by defendants.” Id. (quoting Collins v. Superior Air-Ground
Ambulance Service, Inc., 338 Ill. App. 3d 812, 820,
789 N.E.2d 394, 401 (2003)).
¶ 44 “[U]nder Illinois precedent, [a] plaintiff is not required to show that his injuries were more
likely caused by any particular one of the defendants in order to proceed with his res ipsa
claim, nor must he eliminate all causes of his injuries other than the negligence of one or more
of the defendants.” Heastie, 226 Ill. 2d at 533-34. “In order to show the first element of
res ipsa loquitur, an occurrence that ordinarily does not happen in the absence of negligence,
a plaintiff is not required to show that the injury in question never happens without negligence,
only that it does not ordinarily happen without negligence.” Adams v. Family Planning
Associates Medical Group, Inc., 315 Ill. App. 3d 533, 545,
733 N.E.2d 766, 775-76 (2000).
¶ 45 “A plaintiff need not conclusively prove all the elements of res ipsa loquitur in order to
invoke the doctrine. He need only present evidence reasonably showing that elements exist
that allow an inference that the occurrence is one that ordinarily does not occur without
negligence.” Dyback v. Weber, 114 Ill. 2d 232, 242,
500 N.E.2d 8, 12 (1986).
“Illinois law does not require a plaintiff to show the actual force which initiated the
motion or set the instrumentality in operation in order to rely on the res ipsa doctrine.
To the contrary, if the specific and actual force which initiated the motion or set the
instrumentality in operation were known unequivocally, leaving no reason for
inference that some other unknown negligent act or force was responsible, the res ipsa
doctrine could not even be invoked.” Heastie, 226 Ill. 2d at 539.
¶ 46 B. Johnson Made a Prima Facie Showing of the Elements of Res Ipsa Loquitur
¶ 47 1. The Injury Was One That Ordinarily Does Not Occur Absent Negligence
¶ 48 Bal’s testimony indicated that he had performed hundreds of hip replacements and had not
encountered an injury such as the one Johnson had. Bal further stated that his review of the
literature regarding injuries to the femoral nerve during a total hip replacement showed that
the injuries experienced were transient or temporary and, to the extent such injuries continued,
they were not anywhere near as severe as those Johnson experienced. Bal’s deposition
testimony adequately set forth his opinion that a severe and permanent injury to the femoral
nerve does not occur in the absence of negligence and the factual bases therefor.
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¶ 49 In Spidle v. Steward, 79 Ill. 2d 1, 8,
402 N.E.2d 216, 219 (1980), the Illinois Supreme Court
acknowledged that had the expert in that case testified that the injury would not have occurred
ordinarily in the absence of negligence, such testimony “would have established directly
plaintiff[’s] initial burden with respect to the probability component.” “Such a direct answer
… would be sufficient initially even though it would not have constituted proof that [the
injury at issue] never happen[s] without negligence.” Id. at 9.
¶ 50 In Poole, the plaintiff’s expert testified that although vocal cord paralysis was a known risk
of a subtotal thyroidectomy, “bilateral vocal cord paralysis ordinarily would not have occurred
in the absence of a deviation from the standard of care.” (Emphasis in original.) Poole, 186 Ill.
App. 3d at 556. The appellate court held that the jury should have been given the
res ipsa loquitur instruction even though (1) the defense expert testified that the bilateral injury
was a known complication and (2) the plaintiff’s evidence “did not conclusively prove how or
why the nerves [responsible for the injury] were damaged.” Id. at 559-60.
¶ 51 Bal opined that a retractor caused the injury. His opinion was based on the medial location
of the incision, which would have increased the proximity of the retractor to the branches of
the femoral nerve that were ultimately permanently injured and increased the risk of damage.
Bal acknowledged that the location of the incision was not a violation of the standard of care
despite the increased risk of nerve damage.
¶ 52 Although Bal agreed that femoral nerve injuries were a known risk of total hip replacement
surgery, he clarified that the type and degree of such injuries were limited to transient
symptoms that eventually resolved or to mild symptoms that were generally tolerable. Bal
unequivocally stated that Johnson’s injury, a permanent denervation of multiple branches of
the femoral nerve resulting in the inability to use two of his quadricep muscles, was not the
type of injury that would have occurred in the absence of negligence.
¶ 53 Almost 40 years ago, this court examined whether the plaintiff in a medical malpractice
case presented sufficient evidence in her case in chief to invoke the res ipsa doctrine and
withstand a directed verdict. See McMillen v. Carlinville Area Hospital, 114 Ill. App. 3d 732,
737-38,
450 N.E.2d 5, 10 (1983). In affirming the directed verdict in the defendant’s favor, we
noted that the expert testified merely that the plaintiff’s reaction was unexpected and the doctor
“ ‘couldn’t rule it out completely’ ” that the injection caused the injury. Id. at 738. We then
concluded, “It is thus apparent that while plaintiff might have had a scintilla of evidence in
support of her elements, that is insufficient ….” Id. By contrast, Bal testified the retractor
caused the injury and explained that the injury was not merely unexpected, but instead was so
severe that it would not have occurred absent negligence.
¶ 54 Bal’s deposition testimony was sufficient to establish a genuine issue of material fact
regarding the cause of Johnson’s injury. Johnson was not required to eliminate all possible
causes of the injury, nor was he required to show that the injury could only be the result of
negligence. The plain language of the res ipsa statute is clear: “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.” (Emphases added.) 735 ILCS 5/2-1113 (West 2018).
Bal’s testimony went much further, opining that he had never seen nor read about such an
injury occurring in the absence of negligence. Although defendants are correct that an
unexpected result is not enough on its own to invoke the res ipsa doctrine, such a result is
sufficient when coupled with expert testimony that the result does not ordinarily occur in the
absence of negligence. Spidle, 79 Ill. 2d at 9.
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¶ 55 2. Harden Had Control of the Retractor for Res Ipsa Purposes
¶ 56 Advocate contends Johnson failed to establish that the instrumentality of the injury—the
retractor—was within the control of Harden or other agents of Advocate BroMenn. In fact,
Advocate argues, the deposition testimony unequivocally shows that Armstrong had exclusive
control over the retractors because each occurrence witness testified to the same. We disagree.
As we explain, Advocate misconstrues the showing necessary to establish control.
¶ 57 “In res ipsa loquitur and alternative liability situations, all parties who could have been the
cause of the plaintiff’s injuries are joined as defendants.” Smith v. Eli Lilly & Co., 137 Ill. 2d
222, 257,
560 N.E.2d 324, 339-40 (1990). “A plaintiff’s failure to name as defendants all of
the entities who might have caused his injuries is fatal to the action since the plaintiff must
eliminate the possibility that the accident was caused by someone other than any defendant.”
(Internal quotation marks omitted.) Raleigh v. Alcon Laboratories, Inc., 403 Ill. App. 3d 863,
869,
934 N.E.2d 530, 536 (2010).
¶ 58 Advocate is correct that Harden, Armstrong, and even Bal testified at their depositions that
Armstrong was the only person to place, reposition, or otherwise move the retractor. They all
similarly testified that although Harden physically held the retractor, she did so only as
instructed by Armstrong. In other words, Armstrong was responsible for the retractor at all
times.
¶ 59 However, this testimony establishes precisely why Harden was in control of the retractors
in the sense necessary to support the elements of res ipsa loquitur. As explained,
res ipsa loquitur is a form of proof available when the plaintiff can establish that an injury
would not have occurred in the absence of negligence but cannot conclusively establish the
precise cause of the injury. Poole, 186 Ill. App. 3d at 558. Harden testified that the job of a
surgery technician is to follow the surgeon’s instructions precisely and not move or use (other
than by holding in place) any surgical instrument. Obviously, if a surgical technician did move
an instrument or hold that instrument incorrectly and an injury occurred as a result, the
technician would be liable.
¶ 60 The undisputed evidence shows that Harden held the retractor. Bal testified that, in his
opinion, the retractor caused the injury. Bal further testified that permanent and severe nerve
damage to the femoral nerve does not occur in the absence of negligence. Accordingly,
Johnson made a prima facie showing of the elements of res ipsa loquitur.
¶ 61 Although none of the people present during the surgery testified at their depositions that
Harden acted improperly, this is not unexpected. Even Bal agreed during his deposition that
from his review of the medical records, Armstrong complied with the standard of care. But
that is precisely why the res ipsa loquitur doctrine applies: the injury speaks for itself. Bal
explained that even though the documentation says all of the right things, in his opinion—
based on his education and experience—the outcome was one that would not have occurred in
the absence of negligence. That is, if the medical records and deposition testimony of the
occurrence witnesses accurately reflected what happened, then Johnson would not have
suffered permanent nerve damage.
¶ 62 In Willis, the experts testified that the plaintiff’s injuries could have occurred in any number
of ways caused by any number of people, such as a nurse placing too much pressure on a
particular area. Likewise, in this case, Harden could have accidentally or unknowingly held
the retractor in such a way as to cause the injury.
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¶ 63 It is important to note that the inference of negligence is not the same in every case or even
as to each defendant. Bal’s opinion was that Armstrong improperly placed the retractor so as
to damage the femoral nerve. At trial, even if Advocate did not present any evidence, the jury
would be free to reject the inference of negligence based on the mere fact that none of the
witnesses identified a single thing Harden did wrong. See Imig v. Beck, 115 Ill. 2d 18, 27, 29,
503 N.E.2d 324, 329 (1986) (“The inference may be strong, requiring substantial proof to
overcome it, or it may be weak, requiring little or no evidence to refute it. The weight or
strength of such inference will necessarily depend on the particular facts and circumstances of
each case and is normally a question of fact to be determined by the jury.” “Since the doctrine
gives rise only to a permissive inference, in most cases a directed verdict for the plaintiff will
not be appropriate, even where the defendant presents no explanation or rebuttal, because it
must be left to the jury whether to draw the inference of negligence from the circumstances of
the occurrence.”). But if Johnson did not include Harden as a defendant, Armstrong could,
quite rightly, argue to the trial court that the res ipsa doctrine was not appropriate because
Harden had physical control over the instrumentality of the injury during the surgery.
¶ 64 3. Johnson Did Not Need an Expert to Establish Harden’s Standard of Care
¶ 65 The whole point of the res ipsa doctrine is to provide an alternative method of proof when
the injury would be otherwise unexplainable. Once a plaintiff establishes, through sufficient
expert testimony, that the injury is one that would not ordinarily occur in the absence of
negligence, and res ipsa applies, all defendants alleged to be in control of the instrumentality
that allegedly caused the injury must be named defendants, and no further standard of care
testimony is required.
¶ 66 If Advocate were correct, the same argument could be made successfully in the
prototypical res ipsa case: a sponge left in a patient following surgery. Had this occurrence
happened to Johnson, it would be no defense for Harden or Armstrong to state that the
undisputed evidence shows that neither of them did anything wrong or that Johnson did not
present any testimony as to what a reasonably careful surgeon or surgical technician would
have done. The sponge was still left in the patient, and someone’s negligence during that
operation was responsible for that error.
¶ 67 The essence of res ipsa loquitur is that the injury speaks for itself. Were it otherwise, there
would be no need for the doctrine. Armstrong and Harden would be home free because Johnson
could never find an expert to suggest that either one did something specifically wrong because
all the records and testimony would point in the opposite direction.
¶ 68 Here, Johnson needs an expert to explain to the jury whether or not the type of injury in
this case is the total-hip-replacement equivalent of leaving a sponge in a patient. However, the
circumstances of the injury themselves—i.e., going to a hospital, being rendered unconscious,
and having surgery performed—unquestionably establish that those in control of the patient
have a duty to exercise ordinary care and not injure the patient by violating that duty. In
essence, the control element of the res ipsa doctrine is sufficient to establish a duty of care.
Expert testimony is required to show that the injury is not one that would ordinarily occur
absent negligence. The jury must then decide whether the resulting inference of negligence is
sufficient to establish liability.
¶ 69 Advocate cites Taylor v. City of Beardstown, 142 Ill. App. 3d 584,
491 N.E.2d 803 (1986).
We acknowledge that 35 years ago, this court held in Taylor that testimony regarding the
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standard of care and deviation from that standard was required to invoke the res ipsa doctrine.
Id. at 593. We note that, as far as we can tell, the only other case to make such an explicit
statement or rely on Taylor for that same proposition is Smith v. South Shore Hospital, 187 Ill.
App. 3d 847, 857-58,
543 N.E.2d 868, 873 (1989), which itself has never been cited for that
proposition. Indeed, in Solon v. Godbole, 163 Ill. App. 3d 845, 850,
516 N.E.2d 1045, 1048
(1987) (quoting Plost v. Louis A. Weiss Memorial Hospital, 62 Ill. App. 3d 253, 258,
378
N.E.2d 1176, 1180 (1978)), the Third District noted, “[A] plaintiff may proceed to trial without
an expert ‘… where the theory is “res ipsa loquitur.” ’ ” We decline to follow Taylor.
¶ 70 Additionally, Illinois Supreme Court cases indicate that a plaintiff need demonstrate only
a prima facie case of the elements of res ipsa loquitur to be entitled to proceed to trial using
that method of proof. This reasoning makes sense because the plaintiff may have no idea how
the injury happened and, as in this case, the medical records may state that everything occurred
normally and the providers complied with the standard of care. Quoting a California case, the
Illinois Supreme Court wrote the following:
“ ‘The present case is of a type which comes within the reason and spirit of the
doctrine more fully perhaps than any other. … [I]t is difficult to see how the doctrine
can, with any justification, be so restricted in its statement as to become inapplicable
to a patient who submits himself to the care and custody of doctors and nurses, is
rendered unconscious, and receives some injury from instrumentalities used in his
treatment. Without the aid of the doctrine a patient who received permanent injuries of
a serious character, obviously the result of someone’s negligence, would be entirely
unable to recover unless the doctors and nurses in attendance voluntarily chose to
disclose the identity of the negligent person and the facts establishing liability.
…
… The control, at one time or another, of one or more of the various agencies or
instrumentalities which might have harmed the plaintiff was in the hands of every
defendant or of his employees or temporary servants. This, we think, places upon them
the burden of initial explanation.’ ” Kolakowski v. Voris, 83 Ill. 2d 388, 395-96,
415
N.E.2d 397, 400-01 (1980) (quoting Ybarra v. Spangard,
154 P.2d 687, 689-90 (Cal.
1944)).
¶ 71 The Illinois Supreme Court also wrote the following in Spidle:
“In addition, the [res ipsa] doctrine is useful in combatting the reluctance of medical
personnel to testify against one another. (Sanders v. Frost (1969), 112 Ill. App. 2d 234,
241; Prosser, Torts sec. 39, at 227 (4th ed. 1971).) Doctors, for example, ‘may be more
willing to testify that the injury was of a kind which would not ordinarily occur in the
exercise of due care than they would be to specify those acts which constituted
negligence.’ Note, The Application of Res Ipsa Loquitur in Medical Malpractice Cases,
60 Nw. U.L. Rev. 852, 865 (1966).” Spidle, 79 Ill. 2d at 6.
¶ 72 III. CONCLUSION
¶ 73 For the reasons stated, we reverse the trial court’s judgment and remand for further
proceedings.
¶ 74 Reversed and remanded.
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