Background Facts
The plaintiff suffers from severe and permanent nerve damage in his leg, which he alleges was caused by a negligently performed hip replacement surgery. He brought a claim of negligence against his surgeon stated in two separate counts: one based on specific negligence and one based on the doctrine of res ipsa loquitur. He also brought a claim of negligence based on res ipsa loquitur against a surgical technician who participated in the surgery. Plaintiff provided only one expert witness, also a surgeon, to establish the elements of res ipsa loquitur. Plaintiff’s expert (Dr. Bal) specifically testified that this plaintiff’s injury is of a type that does not normally occur in the absence of negligence. Dr. Bal believed that the injury was most likely caused by the improper use of a retractor. Despite this belief, he testified that, according to the surgical records, the defendant surgeon did not deviate from the standard of care in making the incision and management of the retractor. He further testified that based on the surgical records, it appeared that the surgical technician did only as instructed by the defendant surgeon.
The McLean County circuit court granted summary judgment to the surgical technician because (1) plaintiff had failed to present an expert witness to establish the standard of care for a surgical technician, (2) the control element of res ipsa loquitur was not met, and (3) there was no evidence of negligence on the surgical technician’s part. As a result, the surgical technician was completely dismissed from the case. The circuit court subsequently granted summary judgment in favor of the surgeon on the res ipsa loquitur count, leaving the count of specific negligence against the surgeon remaining in the circuit court.
The appellate court reversed both judgments. The Illinois Supreme Court then took up the matter.
As an initial matter, the Illinois Supreme Court stated: “the operative effect of the summary judgment in favor of Dr. Armstrong [the defendant surgeon] is to preclude plaintiff from proving that Dr. Armstrong was negligent under the unique proofs of res ipsa loquitur, but plaintiff’s claim for negligence against Dr. Armstrong remains outstanding. Consequently, the order granting summary judgment to Dr. Armstrong was not a final judgment, and the appellate court lacked jurisdiction under Rule 304(a) to review that order. The appeal of that order is dismissed, and those portions of the appellate opinion addressing that order are vacated.”
Res Ipsa Loquitur
For res ipsa loquitur to apply, the plaintiff must plead and prove that he was injured (1) in an occurrence that ordinarily does not happen in the absence of negligence (the probability element) (2) by an agency or instrumentality within the defendant’s exclusive control (the control element). In the case it was deciding, the Illinois Supreme Court stated, “Here, plaintiff presented sufficient evidence to satisfy the probability element … Dr. Bal supported this unequivocal testimony with repeated reference to his experience, his review of the literature, and the postoperative EMG readings. From all this, plaintiff established that nerve damage like the kind he suffered does not ordinarily occur after a hip replacement surgery absent negligence. Consequently, the first element of res ipsa loquitur was satisfied for purposes of summary judgment.”
With regard to the control element, the Illinois Supreme Court stated, “Here, plaintiff was committed to the care of, and subjected to surgery by, Dr. Armstrong and Harden. Consequently, plaintiff is not required to identify the precise instrumentality that caused his nerve damage—the fact that he was under defendants’ care during surgery sufficiently establishes, for purposes of res ipsa loquitur, that whatever caused plaintiff’s nerve damage during the surgery was under defendants’ control.” With regard to the defendant surgical technician, the Illinois Supreme Court stated, “Assuming that the retractor was, in fact, the instrumentality of the injury, Harden was literally holding it while it was inside plaintiff’s body. Control, whether joint or individual, by Harden over the retractor could not be any clearer. It is of no consequence that Harden had no independent authority to place or move the retractor because she had independent capability of doing so. If she did move or mismanage the retractor while she was only supposed to be holding it still, then she would or could have been the negligent party at fault.”
“Res ipsa loquitur (“the thing speaks for itself”), on the other hand, is not an alternate theory of liability in Illinois—the theory of liability remains “negligence” in the first sense of the word—rather, it is a species of circumstantial evidence that allows the trier of fact to draw an inference of “negligence” in the second sense of the word … by saying that res ipsa loquitur “is relevant only to the nature of the proof from which the trier of fact may draw an inference of negligence,” we mean that the application of res ipsa loquitur relates to the nature of proof required to show a breach of duty.”
The Illinois Supreme Court held: “In this case, however, the precise course of individual conduct that led to plaintiff’s injury is unknown. All plaintiff knows is that he was injured while under the care of multiple defendants. Plaintiff cannot establish an individual standard of care for either Dr. Armstrong or Harden that is independent of the injury itself because he does not know what individual standard Dr. Armstrong or Harden has deviated from. But by establishing that his injury is one that ordinarily does not occur absent negligence and that all of the instrumentalities that could have caused the injury were in the control of the defendant, plaintiff has provided the legally applicable standard of care from which negligence may be found: that under normal circumstances, a hip replacement does not result in severe and permanent nerve damage. Consequently, no additional testimony related to Harden’s standard of care was necessary here. We need not go further to determine which of the two res ipsa loquitur elements, taken alone, might satisfy the standard of care requirement because both elements are satisfied here … Here, Dr. Bal’s testimony did not conclusively establish that the retractor caused plaintiff’s nerve damage. Rather, it was his “opinion only” as to what caused the nerve damage. Therefore, plaintiff is not barred from raising res ipsa loquitur merely because his expert has an opinion on the most likely cause of his injury.”
Source Johnson v. Armstrong, 2022 IL 127942.
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