The Illinois Supreme Court issued a unanimous opinion allowing a McLean County man to continue his personal injury lawsuit blaming medical professionals for nerve damage he said he suffered under their care.
William “Wes” Johnson said he developed femoral nerve palsy after Dr. Lucas Armstrong and two surgical technicians, identified as Sarah Harden and Pamela Rolf, replaced his left hip. He filed a specific negligence lawsuit against Armstrong with counts of vicarious liability leveled against his employer, McLean County Orthopedics, and Advocate BroMenn Medical Center, which employed the technicians.
The complaint also alleged negligence on the part of Armstrong, Harden and Rolf based on the legal doctrine of res ipsa loquitur — loosely translated as “the thing speaks for itself” — essentially claiming Johnson’s injury resulted from the professionals’ failure to use a reasonable standard of professional care, but without pointing to a specific action that directly caused the nerve damage.
Rita B. Garman
| illinoiscourts.gov
Although a circuit court judge repeatedly granted summary judgment to the defendants, a Fourth District Appellate Court panel reversed the rulings, finding res ipsa loquitur applied to Armstrong and Harden, the latter of whom had control of a nerve retractor used during the hip replacement. After Harden, Advocate BroMenn and Armstrong appealed, the Supreme Court allowed the Illinois Trial Lawyers Association to file an amicus brief.
Justice Rita Garman wrote the 7-0 opinion, issued June 24.
Before evaluating the issue on appeal, the Supreme Court first explained the circuit court order of summary judgment against Harden and the hospital was final, and subject to the appellate court. But summary judgment for Armstrong was not subject to appeal because res ipsa loquitur isn’t a claim, but “an evidentiary doctrine that allows a plaintiff to prove negligence under a unique set of proofs,” Garman wrote.
That finding means the appellate court lacked jurisdiction to consider the appeal of summary judgment for Armstrong, so the Supreme Court dismissed the appeal and vacated the related portions of the appellate opinion.
“Armstrong was dismissed from the res ipsa loquitur count in December 2020,” Garman wrote. “What we are left with, then, is a negligence claim based on res ipsa loquitur against Harden alone.”
Since proving blame under the theory requires showing a defendant was in control of a medical situation, the issue is further complicated because as a technician, Harden was exercising joint control with the surgeon. Garman explained the court reviewed summary judgment based on the case as it existed in October 2020, when Harden won summary judgment.
Garman wrote that Johnson “presented sufficient evidence to satisfy” an obligation to allege his injury ordinarily doesn’t happen during hip replacements but for medical negligence and further that “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.”
Harden argued the control argument should fail because a retractor caused the nerve damage and she was only holding it in place, whereas only a surgeon is authorized to place or move a retractor. But the Supreme Court said Johnson’s claim doesn’t have or need that degree of specificity. He also listed other instruments, such as a scalpel and electric cauterizer, and alleged Harden handled those devices, as well.
“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,” Garman wrote. “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.”
The Supreme Court also rejected Harden’s contention that Johnson failed to establish the required care standard for a surgical technician. While such evidence is required in a more specific professional negligence lawsuit, Garman explained, Johnson’s allegations of general negligence apply broadly to the entirely of his hip replacement.
Ultimately the Supreme Court affirmed the appellate court’s reversal of the Jab. 6 summary judgment and remanded that portion of the complaint to circuit court. And given that the summary judgment for Armstrong came after an oral dismissal of Harden from the res ipsa loquitur count, Garman said, the circuit court is directed to reconsider that ruling, as well.
The defendants, except for Armstrong, were represented by attorneys Stacy K. Shelly, Troy A. Lundquist and Scott A. Schoen, of the firm of Langhenry, Gillen, Lundquist & Johnson, of Princeton.
Armstrong is represented by attorneys Peter W. Brandt and Kevin M. Toth, of the firm of Livingston, Barger, Brandt & Schroeder, of Joliet.
Johnson is represented by attorney James P. Ginzkey, of Bloomington.