August 1, 2020

The Appellate Court of Illinois First District First Division (“Illinois Appellate Court”) held in its opinion dated June 15, 2020, “We find that Willis [the plaintiff] presented sufficient evidence to permit a jury to decide whether she proved that defendants controlled the instrumentalities that caused her injury and that the injuries would not have occurred without negligence. We reverse and remand for a new trial at which the court must permit Willis to present evidence and arguments related to her theory of res ipsa loquitur.”

The Underlying Facts

The plaintiff, Alma Willis, filed an Illinois medical malpractice lawsuit against a surgeon, two anesthesiologists, and three nurse anesthetists, claiming that their medical negligence during surgery injured her. She alleged that the defendant plastic surgeon performed multiple procedures on her on May 21, 2008 (reconstruction of her right breast, reduction of her left breast, and a revision of her abdomen), which was supposed to take five hours but instead took twelve hours.

When she awoke from surgery, the plaintiff had painful and very swollen arms. She was discharged home the day after surgery. Three days after discharge from the hospital, she was brought back to the hospital where she was diagnosed as suffering from pulmonary embolisms in both lungs. Five days later, while still hospitalized, the plaintiff was documented as having pain, especially in her right thumb, right index finger, and right middle finger, since the surgery.

A neurologist who performed an EMG (electromyography) on June 17, 2008 determined that the plaintiff’s median nerve in her right arm had sustained an injury near the elbow, and the median nerves in both arms showed damage in the carpal tunnel. The plaintiff had surgery on August 5, 2008 to release the pressure on the nerves in the carpal tunnels, which improved her condition, but she continued to experience pain and a limited range of motion.

The plaintiff alleged in her Illinois medical malpractice lawsuit that she suffered injuries to her nerves in the course of the surgery, and the injuries she sustained do not occur absent negligence. In a separate count, she alleged that the defendant plastic surgeon negligently prolonged the surgery, failed to provide treatment that could have prevented her from developing the pulmonary embolisms, and failed to position her arms properly for the surgery. In other counts, the plaintiff alleged that both anesthesiologists and all three nurse anesthetists failed to protect her arms during the surgery.

The trial court granted the defendants’ motion in limine to bar all evidence related to the count seeking recovery on a theory of res ipsa loquitur, and barred all of the plaintiff’s experts from testifying that the injury to the median nerves would not have occurred without negligence. The Illinois medical malpractice jury subsequently returned a verdict in favor of all defendants. The plaintiff appealed.

Illinois Appellate Court Opinion

The Illinois Appellate Court stated: “Here, the trial court’s ruling prevented the jury from considering whether to hold defendants liable under the res ipsa loquitur theory. The general verdict in favor of the defendants relates only to the claims presented, for allegations of specific negligent acts, and proves only that the jury found unproven either the specified acts or the alleged specific causal connections between those acts and Willis’s injuries. We cannot infer from the verdict that the jurors would not have found the elements of res ipsa loquitur if the court had allowed them to consider the relevant evidence with applicable instructions.”

Res Ipsa Loquitur Doctrine

Under Illinois law, a plaintiff seeking to rely on the res ipsa loquitur 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. The Illinois Appellate Court stated, “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 presented enough evidence to raise a question for the jury as to whether defendants had exclusive control over the instrumentality that caused the injury.”

The Illinois Appellate Court further stated, “Willis’s experts also testified in their depositions that the injury to the median nerve ordinarily would not occur without negligence. None of defendants’ experts disputed this conclusion.”

The trial court disallowed the evidence on grounds that Willis’s experts testified that they knew “the specific and actual force” that caused the injuries. The Illinois Appellate Court stated, “The experts testified that they could not determine from the medical records which of the possible sources of pressure caused the injuries … Because the experts here could not conclusively establish the cause of Willis’s injury, she could rely on circumstantial evidence to establish her claim. The trial court erred by precluding Willis’s experts from testifying that the injury to Willis’s median nerve would not have occurred absent negligence and by refusing to instruct the jurors on res ipsa loquitur,” explaining, “Willis’s experts explained how the medical records supported their conclusion that the injury must have occurred during the surgery on May 21, 2008, when the defendants had complete control over Willis.”

The Illinois Appellate Court held: “The trial court erred when it disallowed this testimony and when it failed to instruct the jury on the issue of res ipsa loquitur.”

Source Willis v. Morales, 2020 IL App (1st) 180718.

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