Delzell v. Moore

587 N.E.2d 1131, 224 Ill. App. 3d 808, 167 Ill. Dec. 516
CourtAppellate Court of Illinois
DecidedFebruary 3, 1992
Docket5-90-0690
StatusPublished
Cited by7 cases

This text of 587 N.E.2d 1131 (Delzell v. Moore) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Delzell v. Moore, 587 N.E.2d 1131, 224 Ill. App. 3d 808, 167 Ill. Dec. 516 (Ill. Ct. App. 1992).

Opinion

JUSTICE HARRISON

delivered the opinion of the court:

Plaintiff, Betty Delzell, brought an action for damages in the circuit court of Richland County alleging that a popliteal bypass graft was negligently performed on her right leg, as a result of which the leg ultimately had to be amputated above the knee. Named as defendants were Dr. J.D. Moore, the surgeon, and Weber Medical Clinic, the facility where Moore was employed. Following a jury trial, a verdict was returned in favor of defendants and against plaintiff. Plaintiff’s post-trial motion was denied, and she now appeals. The central question before us is whether the circuit court abused its discretion when it denied plaintiff’s motion to amend her pleadings pursuant to section 2 — 616 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2—616) to include additional allegations of negligence which came to light for the first time during the testimony of one of defendants’ expert medical witnesses. For the reasons which follow, we hold that the denial of plaintiff’s motion to amend did constitute an abuse of discretion. We therefore reverse and remand for a new trial.

In 1981, plaintiff sought treatment from Dr. Max Hammer of the Weber Medical Clinic because £he was experiencing claudication in her left leg. Claudication is a symptom exhibited by patients with peripheral vascular disease when the blood flow to their lower extremities is restricted. It manifests itself as a cramping in the extremity which is typically brought on by walking or exercise. Dr. Hammer treated this disorder by performing a popliteal bypass graft on her left femoral artery to improve her circulation.

The surgery was successful. Approximately two years later, however, plaintiff began experiencing similar claudication problems in her right leg, and she returned to the Weber Medical Clinic for further treatment. By this time Dr. Hammer had left the facility, and plaintiff was seen by defendant Dr. Moore. After examining plaintiff and reviewing her history, Dr. Moore performed a popliteal bypass on the femoral artery in her right leg. The material he used for the bypass was a section of plaintiff’s saphenous vein. Although there were no immediate complications from the surgery, the bypass ultimately failed, and plaintiff’s claudication problems persisted. She eventually sought out Dr. Hammer at his new place of employment at the Memorial Medical Center in Springfield. Dr. Hammer attempted to repair the failed bypass graft surgically using a synthetic patching material known as Gore-Tex. The Gore-Tex patch did not work at all. Within days, it was blocked by blood clots.

Dr. Hammer immediately performed additional surgery to remove the clots and, thereafter, administered anticoagulants to her. When that did not solve the problem, plaintiff was returned to surgery. This time, Dr. Hammer did not try another patch. Instead, he redid the entire bypass graft originally performed by Dr. Moore, replacing the saphenous vein with a new graft made of Gore-Tex. The new Gore-Tex graft worked no better than the Gore-Tex patch. Despite repeated procedures to keep the graft open, it kept becoming blocked by blood clots. The resulting impairment of blood flow eventually caused plaintiff’s right leg to degenerate to the point that it had to be amputated above the knee.

Following the amputation, plaintiff brought this medical malpractice action against Dr. Moore and the Weber Medical Clinic. In her complaint, plaintiff sought to hold these defendants liable for the amputation and the attendant damages she sustained on the theory that the amputation would not have been necessary but for the negligent treatment she received from Dr. Moore when he performed the first popliteal bypass graft on her right femoral artery at the Weber Medical Clinic. Specifically, plaintiff alleged that defendants were negligent in that Moore had failed to warn her to refrain from smoking following the bypass graft, that he had used a vein graft which was too small to adequately provide blood supply to plaintiff’s leg, that he had failed to perform proper diagnostic procedures on her, and that he had failed to adequately monitor her progress following surgery.

At trial, defendants presented expert testimony which indicated that Dr. Moore had met the applicable standards of medical care with respect to each of these matters. On both direct and cross-examination, however, one of defendants’ experts, a physician named Hoover, opined that plaintiff’s condition had not been so serious that surgery on her right leg was mandatory. In his view, other, more conservative, alternatives were available, and the surgery should have been regarded merely as one therapeutic option. According to Dr. Hoover, it would have been a deviation from the standard of medical care if Dr. Moore had failed to apprise plaintiff that these alternatives were available and that the surgery was merely one optional course of treatment.

Other evidence was presented which substantiated that plaintiff had never been told by Dr. Moore that the surgery was anything other than mandatory if she wanted relief from her claudication problem. Based on this evidence, and the testimony of Dr. Hoover, plaintiff sought leave to amend her complaint to conform to the evidence to include as an additional basis for holding Dr. Moore negligent that he had “[flailed to advise the plaintiff that the femoral-popliteal bypass surgery was elective in nature and surgery would not of itself prevent future claudication,” and that he “[flailed to advise the plaintiff of the option of conservative treatment through diet, exercise, quitting smoking and medication to stop leg claudication.”

Plaintiff’s motion was denied, and the circuit court subsequently refused a jury instruction tendered by plaintiff which would have included these additional theories of liability. As we indicated at the outset of this opinion, the jury ultimately returned a verdict in favor of both defendants and against plaintiff. Judgment was entered on that verdict, and plaintiff’s post-trial motion was denied. Plaintiff now appeals arguing, inter alia, that she is entitled to a new trial because the circuit court erred in denying her motion to amend her complaint to include the additional allegations of negligence revealed by Dr. Hoover’s testimony. We agree.

Section 2 — 616(a) of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2—616(a)) provides that

“[a]t anytime before final judgment amendments may be allowed on just and reasonable terms, *** changing the cause of • action or defense or adding new causes of action or defenses, and in any matter, either of form or substance, in any process, pleading, bill of particulars or proceedings, which may enable the plaintiff to sustain the claim for which it was intended to be brought or the defendant to make a defense or assert a cross claim.”

In addition, subsection (c) of the statute provides that “[a] pleading may be amended at any time, before or after judgment, to conform the pleadings to the proofs, upon terms as to costs and continuance that may be just.” (Ill. Rev. Stat. 1989, ch. 110, par. 2—616(c).) This statute is to be liberally construed to allow cases to be decided on their merits rather than on technicalities. Lawry’s Prime Rib, Inc. v. Metropolitan Sanitary District (1990), 205 Ill. App.

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Cite This Page — Counsel Stack

Bluebook (online)
587 N.E.2d 1131, 224 Ill. App. 3d 808, 167 Ill. Dec. 516, Counsel Stack Legal Research, https://law.counselstack.com/opinion/delzell-v-moore-illappct-1992.