Samansky v. Rush-Presbyterian-St. Luke's Medical Center

567 N.E.2d 386, 208 Ill. App. 3d 377, 153 Ill. Dec. 428, 1990 Ill. App. LEXIS 1940
CourtAppellate Court of Illinois
DecidedDecember 27, 1990
Docket1-89-0195
StatusPublished
Cited by24 cases

This text of 567 N.E.2d 386 (Samansky v. Rush-Presbyterian-St. Luke's Medical Center) 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
Samansky v. Rush-Presbyterian-St. Luke's Medical Center, 567 N.E.2d 386, 208 Ill. App. 3d 377, 153 Ill. Dec. 428, 1990 Ill. App. LEXIS 1940 (Ill. Ct. App. 1990).

Opinion

PRESIDING JUSTICE McMORROW

delivered the opinion of the court:

Plaintiff Thomas Samansky appeals from the trial court’s dismissal with prejudice of his complaint against Rush-Presbyterian-St. Luke’s Medical Center (hereinafter defendant Rush), several physicians who are members of a professional corporation (hereinafter collectively referred to as defendant physicians) and Deseret Medical, Inc. (hereinafter defendant Deseret). Plaintiffs complaint sought damages for injuries associated with the surgical removal of a central venous pressure catheter (hereinafter CVP line) that had fractured and remained in plaintiffs body following coronary bypass surgery. The coronary bypass surgery, the surgical removal of the remnant CVP line, and the post-operative care associated with these surgical procedures were undertaken by defendant physicians with the assistance of agents or employees of defendant Rush. The CVP line was manufactured by defendant Deseret and sold by defendant Deseret to defendant Rush. Plaintiffs pleading relied upon negligence and the doctrine of res ipsa loquitur with respect to all defendants. An additional count, directed solely against defendant Deseret, relied upon principles of strict product liability and also sought the application of res ipsa loquitur to that count. Construing the defendants’ pleadings as motions to dismiss based on affirmative matter (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619(a)(9)), the trial court dismissed the complaint on the ground that res ipsa loquitur was not applicable to plaintiff’s claims.

Based upon our review of the record, we conclude that plaintiff presented sufficient evidence to create a triable issue of fact, under the principles of res ipsa loquitur, with respect to whether any of the defendants exercised negligent control over the instrumentality that proximately caused the injuries for which plaintiff seeks compensation. We further conclude that plaintiff produced sufficient circumstantial evidence in proof of his strict product liability claim to overcome defendant Deseret’s motion to dismiss. Accordingly, we reverse the trial court’s dismissal of the counts of plaintiff’s complaint directed against defendant Deseret (counts I and IV), defendant physicians (count II) and defendant Rush (count III), and remand the matter for further proceedings consistent herewith.

The following factual allegations of plaintiff’s complaint, as ultimately amended, are accepted as true for the purpose of reviewing the trial court’s dismissal with prejudice. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619(a)(9); see, e.g., Longust v. Peabody Coal Co. (1986), 151 Ill. App. 3d 754, 502 N.E.2d 1096.) Defendant physicians performed coronary bypass surgery on plaintiff with the assistance of agents or employees of defendant Rush on October 30, 1980. In the course of this surgery, defendant physicians placed a CVP line in a vein of the plaintiff’s heart. A few days after the surgery, on November 3, the defendant physicians directed that the CVP line be removed. The CVP line fractured during this attempted removal, and a portion thereof remained in plaintiff’s body. On November 4, 1980, defendant physicians performed a surgical procedure to remove the remnant fragment of the CVP line. The CVP line had been manufactured by defendant Deseret, who sold the item to defendant Rush.

In count I of his complaint, as ultimately amended, plaintiff alleged that defendant Deseret had manufactured and sold a defective CVP line and that the CVP line had been unreasonably dangerous for its intended use. Count IV of plaintiff’s amended complaint alleged that defendant Deseret had been negligent in its design, manufacture, and failure to warn of the dangers of the CVP line. Plaintiff alleged his reliance on the doctrine of res ipsa loquitur to prove both of these claims against defendant Deseret.

In count II of his amended complaint, plaintiff alleged that defendant physicians had negligently performed acts unknown to the plaintiff in the placement and removal of the CVP line while plaintiff was under defendant physicians’ care and treatment. Plaintiff alleged reliance on the doctrine of res ipsa loquitur. Count III of plaintiff’s amended complaint made similar allegations with respect to the care and treatment he received from agents or employees of defendant Rush.

Defendant Deseret and defendant physicians filed motions for summary judgment and supported these motions with deposition testimony given by two of the defendant physicians, Drs. Javid and Goldin. Dr. Javid performed the coronary bypass surgery on October 30, 1980, and placed the CVP line in plaintiff during the course of this surgery. Dr. Goldin performed the follow-up surgery on November 4 to remove the fractured CVP line. The remaining physicians who are named as defendants are members of the professional corporation of which Drs. Javid and Goldin are shareholders.

Dr. Javid testified in his deposition that the CVP line is a 12-inch-long, hollow plastic tube whose function is to monitor venous pressure of the heart after surgery and to facilitate post-operative intravenous administration of fluids and medications. Dr. Javid stated that toward the end of the plaintiff’s bypass surgery, the tip of the CVP line was inserted through a puncture hole in the neck, threaded through fatty tissue around the sternum, and placed in the left innominate vein of the heart. A few inches of the CVP line remained outside plaintiff’s neck at the end of this procedure. After the CVP line was put in place, Dr. Javid closed the sternum and completed the surgery.

Dr. Javid stated that the CVP line had no “obvious defect” before it was inserted during plaintiff’s bypass surgery, although he did not inspect it closely at that time. He explained that because of plaintiff’s excessive weight, there was considerable fatty .tissue in the chest area, and that, “chances are something must have been difficult at the -time of closure that had caused such an occurrence [i.e., fracture of the CVP line],” Dr. Javid also stated that it was “possible” that when he “closed the sternum, [he] closed it on the [CVP line].”

Dr. Javid also explained in his deposition that a few days after the coronary bypass surgery, directions were given that the CVP line be removed. He stated that this instruction could have been given by him, or by Dr. Goldin, who was.director of the intensive care unit at defendant Rush and thus had the authority to give such instructions. Dr. Javid stated that the CVP line would have been removed by a nurse, resident, or intern, that removal is not usually performed under the direct supervision of a physician, that an instruction to remove the CVP line is generally not given in writing but is usually given verbally, and that plaintiff’s records did not show who removed the CVP line or that a written instruction for removal had been given. Dr. Javid testified that a CVP line is removed by gently pulling on the portion extending from the patient’s body.

Dr. Goldin’s deposition testimony was substantially similar to that given by Dr. Javid with respect to the nature, function, placement, and removal of a CVP line. Dr. Goldin detailed'the surgical procedure he followed to remove the fractured CVP line from plaintiff’s body on November 4, 1980.

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Bluebook (online)
567 N.E.2d 386, 208 Ill. App. 3d 377, 153 Ill. Dec. 428, 1990 Ill. App. LEXIS 1940, Counsel Stack Legal Research, https://law.counselstack.com/opinion/samansky-v-rush-presbyterian-st-lukes-medical-center-illappct-1990.