Willaby v. Bendersky

891 N.E.2d 509, 383 Ill. App. 3d 853
Appellate Court of Illinois·Decided June 25, 2008·No. 1-04-1311·Published·Cited by 24 cases

Opinion

JUSTICE GARCIA

delivered the opinion of the court:

Mary Willaby filed suit against Dr. Clara Bendersky, Dr. Hasmukh Patel, and Westlake Community Hospital, alleging medical negligence. A laparotomy sponge was left in Willaby’s abdomen following surgery to repair an evisceration that occurred subsequent to a hysterectomy. The matter proceeded to a jury trial. At the close of all of the evidence, the trial court granted Westlake’s motion for a directed verdict, and the jury subsequently returned a verdict in favor of Drs. Bendersky and Patel. Willaby raises several issues on appeal, including (1) Dr. Patel’s closing argument denied her a fair trial, (2) the trial court erred in striking the testimony of her nursing expert and granting West-lake’s motion for a directed verdict, and (3) the jury’s verdict is against the manifest weight of the evidence. For the reasons that follow, we affirm in part, reverse in part, and remand the matter to the circuit court for a new trial against Westlake only.

BACKGROUND

In 1997, Mary Willaby began experiencing abdominal pain. Willaby, who was 50 years old and obese, saw her doctor, Dr. Miller, who diagnosed her with having fibroid tumors in her uterus. Dr. Miller referred Willaby to the defendant Dr. Bendersky, a board-certified gynecologist and obstetrician. Dr. Bendersky recommended a total abdominal hysterectomy and bilateral salpingo-oopherectomy, the removal of both of Willaby’s fallopian tubes and her uterus.

Dr. Bendersky performed the hysterectomy on June 16, 1997, at Westlake. When Dr. Bendersky closed Willaby’s abdomen, she did not notice any “intestinal adhesions” — portions of Willaby’s bowels that were stuck together. Willaby stayed at Westlake for several days recovering. During this time, Willaby’s white blood cell count rose and she had a fever. She also experienced serosanguinous drainage, a drainage consisting of blood mixed with peritoneal fluid, from the surgery wound site. Willaby was discharged from Westlake on June 20.

Following her discharge, Willaby experienced abdominal pain and bouts of projectile vomiting. She called Dr. Bendersky, who advised her to go to the Westlake emergency room. On June 21, 1997, Willaby was readmitted to Westlake and was referred to the defendant Dr. Patel, a board-certified general surgeon. Dr. Patel believed Willaby was suffering from either a bowel obstruction or a paralytic ileus, a condition commonly seen following hysterectomies where movements in the bowel slow.

Although Dr. Patel considered operating on Willaby, he opted not to because her condition appeared to be resolving. Dr. Bendersky ordered a cystogram to determine whether Willaby’s bladder had been injured during the hysterectomy. The cystogram came back negative. A nursing note in Willaby’s chart indicated the presence of serosanguinous drainage from the surgical wound and questioned whether Willaby’s wound had become infected.

On June 30, 1997, Dr. Miller discharged Willaby. Before she left Westlake, Dr. Bendersky removed the skin staples from Willaby’s hysterectomy wound and covered the wound with a bandage. Shortly after her staples were removed, and before she left Westlake, Willaby suffered a wound dehiscence, meaning the layers of her abdominal wall at the surgical site separated. Willaby then suffered an evisceration, a dangerous condition where her intestines emerged outside of her abdominal cavity through the wound dehiscence. Willaby was able to catch her intestines before they spilled onto the floor. She called for help and several nurses and a doctor responded. The doctor, who is unidentified in the record, was able to massage Willaby’s intestines back into her abdomen. The doctor then applied an abdominal binder. Willaby was rushed to surgery with Dr. Patel.

When Dr. Patel opened Willaby’s abdomen, he noticed she had several adhesions — areas where her intestine was either stuck together or stuck to another organ. Dr. Patel also noticed that an internal suture from her hysterectomy wound was “stuck” to the peritoneum, the inner lining of Willaby’s abdominal wall. Dr. Patel cut the suture to release it from the abdominal wall and freed the intestine from the stitch. Dr. Patel then brought out all of Willaby’s intestines to examine them. A 12-inch portion of Willaby’s small intestine was twisted and was not receiving blood. Dr. Patel removed this portion of the intestine and reconnected the healthy portions of the bowel. Because Willaby’s appendix looked abnormal, Dr. Patel removed it. Subsequent pathological testing, however, revealed that Willaby’s appendix was normal.

Before Dr. Patel closed Willaby’s abdomen, he was assured by the nurses in the operating room that all laparotomy sponges and other instruments used in the surgery were accounted for. Dr. Patel closed Willaby’s abdomen. However, unbeknownst to Dr. Patel, a 12-inch by 12-inch laparotomy sponge remained in Willaby’s abdominal wall.

The sponge, like all laparotomy sponges, contained a radiopaque tail making it detectable by X ray. Dr. Patel ordered an X ray of Willaby on July 6, 1997, “to see how the intestines were looking.” The X ray indicated the presence of a foreign object, which was determined to be a surgical drain. Dr. Patel was aware a surgical drain had not been placed in Willaby’s abdomen. However, he did not see the X ray report until November 1997. By that time, Willaby had returned to Dr. Miller complaining of nausea and leakage from her navel. Dr. Miller ordered a CAT scan, which indicated the presence of a foreign object. On December 1, 1997, Dr. Patel performed exploratory surgery on Willaby and discovered the laparotomy sponge.

Willaby filed a medical negligence suit against Dr. Bendersky, Dr. Patel, and Westlake. On November 6, 2003, the date trial was set to commence, Willaby filed a motion for summary judgment, claiming there was no factual dispute that (1) Dr. Bendersky placed a suture through Willaby’s bowel, (2) Dr. Patel allowed a sponge to remain in Willaby’s abdomen, and (3) Westlake failed to comply with its procedures and protocols to ensure a proper sponge count was achieved and failed to conduct a sponge count after the June 30, 1997, surgery. Willaby also filed a “Motion for Ruling on Res [Ipsa] Loquitur,” in which she asked the court “for a ruling granting the applicability of the doctrine of res ipsa loquitur” in regard to Dr. Bendersky, Dr. Patel, and Westlake.

The trial court denied Willaby’s summary judgment motion, finding it untimely. No ruling on the res ipsa loquitur motion appears in the record. The trial court also granted several motions in limine, including one filed by Dr. Patel seeking to bar any reference to the parties’ finances. On November 14, 2003, a jury trial began.

I. Dr. Bendersky

Willaby sought to prove at trial that Dr. Bendersky, when performing the hysterectomy, negligently placed a suture through her bowel, which became infected and led to the wound dehiscence and evisceration. According to this theory, Dr. Bendersky and Dr. Patel should have recognized the rise in her white blood cell count, her fever, and the serosanguinous drainage as signs of an infection and a pending wound dehiscence and evisceration. Willaby claimed, however, they negligently failed to respond to those signs.

Free access — add to your briefcase to read the full text and ask questions with AI

Willaby v. Bendersky, 891 N.E.2d 509, 383 Ill. App. 3d 853 (Ill. Ct. App. 2008).

891 N.E.2d 509 (Willaby v. Bendersky) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Jetz Service Co., Inc. v. Jay & Harry Corp.
2025 IL App (1st) 242446-U (Appellate Court of Illinois, 2025)
Walsh v. Sklar
2025 IL App (1st) 231830-U (Appellate Court of Illinois, 2025)
Thompson v. LaSpisa
2023 IL App (1st) 211448 (Appellate Court of Illinois, 2023)
McCarthy v. Union Pacific R.R. Co.
2022 IL App (5th) 200377 (Appellate Court of Illinois, 2022)
Blockmon v. McClellan
2019 IL App (1st) 180420 (Appellate Court of Illinois, 2019)
Russo v. Corey Steel Co.
2018 IL App (1st) 180467 (Appellate Court of Illinois, 2019)
Gapinski v. Gujrati
2017 IL App (3d) 150502 (Appellate Court of Illinois, 2017)
Gulino v. Zurawski
2015 IL App (1st) 131587 (Appellate Court of Illinois, 2015)
McHale v. W.D. Trucking, Inc.
2015 IL App (1st) 132625 (Appellate Court of Illinois, 2015)
Perkey v. Portes-Jorol
2013 IL App (2d) 120470 (Appellate Court of Illinois, 2014)
Stevens v. Village of Oak Brook
2013 IL App (2d) 120456 (Appellate Court of Illinois, 2013)
Zickuhr v. Ericsson, Inc.
962 N.E.2d 974 (Appellate Court of Illinois, 2011)
Zickuhr v. Ericsson
2011 IL App (1st) 103430 (Appellate Court of Illinois, 2011)
U.S. Bank v. Lindsey
Appellate Court of Illinois, 2009
Forsberg v. Edward Hospital & Health Services
906 N.E.2d 729 (Appellate Court of Illinois, 2009)
Doe v. Hinsdale Township High School District 86
388 Ill. App. 3d 995 (Appellate Court of Illinois, 2009)
Doe v. HINSDALE TWP. HIGH SCHOOL DIST. 86
905 N.E.2d 343 (Appellate Court of Illinois, 2009)