Guebard v. Jabaay

• Decision Date: 03 August 1983
• Docket Number: No. 82-371,82-371
• Citation: 72 Ill.Dec. 498,452 N.E.2d 751,117 Ill.App.3d 1
• Court: United States Appellate Court of Illinois
• Parties: , 72 Ill.Dec. 498 Jane GUEBARD, Plaintiff-Appellant, v. Gerald A. JABAAY, M.D. and Glen Ellyn Clinic, S.C., an Illinois Corporation, a/k/a Glen Ellyn Clinic, Defendants-Appellees.

Page 751

452 N.E.2d 751

117 Ill.App.3d 1, 72 Ill.Dec. 498

Jane GUEBARD, Plaintiff-Appellant, v. Gerald A. JABAAY, M.D. and Glen Ellyn Clinic, S.C., an

Illinois Corporation, a/k/a Glen Ellyn Clinic,

Defendants-Appellees.

No. 82-371.

Appellate Court of Illinois,

Second District.

Aug. 3, 1983.

James A. Geraghty, Wheaton, Doss, Puchalski, Keenan & Bargiel, Ltd., Paul J. Bargiel, Chicago, for plaintiff-appellant.

Gates W. Clancy, James S. Mills, Geneva, for defendants-appellees.

SEIDENFELD, Presiding Justice:

The plaintiff, Jane Guebard, appeals from a judgment entered on a jury verdict in favor of defendants, Gerald A. Jabaay M.D., and Glen Ellyn Clinic, in a medical malpractice action.

Plaintiff originally filed her complaint on August 16, 1972, against the defendants. She alleged that in January 1971 she had injured her right knee in a down-hill skiing accident and thereafter came under the care of Dr. Jabaay, an orthopedic surgeon employed by the Glen Ellyn Clinic. When conservative treatment failed to alleviate her condition, Dr. Jabaay recommended surgery involving a Hauser procedure, which was performed at Loyola University Hospital in Maywood, Illinois, on June 22, 1971. When this surgery did not yield the desired improvement, Dr. Jabaay performed a second Hauser procedure on plaintiff's right knee at the Central DuPage Hospital on October 6, 1971. This second surgery was also unsuccessful and she alleged her knee was left in worse condition than it had been before the operations. Plaintiff alleged that defendants had negligently treated her and sought $500,000 in damages for her resulting condition, which required surgery a third time.

Subsequently, plaintiff learned that the first Hauser procedure had been substantially performed by Dr. Angell, then a first-year resident at Loyola University Hospital. Dr. Angell and Loyola were joined as defendants, and counts were later added alleging that Dr. Angell had performed the first Hauser procedure without plaintiff's knowledge or consent while she was unconscious, as breach of contract, battery and res ipsa loquitur. In a prior appeal, Guebard v. Jabaay, 65 Ill.App.3d 255, 259-60, 21 Ill.Dec. 620, 381 N.E.2d 1164 (1978), this court held that plaintiff's fourth amended complaint against Dr. Angell and Loyola Hospital was barred by the applicable two-year statute of limitations, because they were not joined as party-defendants until some two and one-half years after plaintiff should reasonably have discovered that she had a cause of action against Dr. Angell and his hospital employer.

On remand, the case against Dr. Jabaay and the Glen Ellyn Clinic was submitted to the jury on two theories: (1) The absence of informed consent to the first Hauser procedure performed essentially by Dr. Angell, then a first-year resident; and (2) the absence of informed consent to the second Hauser procedure performed by Dr. Jabaay. Plaintiff withdrew counts alleging breach of contract and battery.

Prior to verdict the plaintiff filed a fifth amended complaint in three counts; the first count essentially alleging that before the first Hauser operation defendants failed to inform plaintiff that Dr. Angell, a first-year resident, would perform the surgery; and that before the second surgery defendants failed to inform plaintiff of the risks of the proposed treatment and alternatives to re-doing the Hauser procedure. The second count charged defendants with willful and wanton misconduct. The third count was based on proof of the defendants' liability under a theory of res ipsa loquitur for negligence in the performance of the first operation. The court refused to instruct the jury on res ipsa.

The jury returned a verdict for the defendants and against the plaintiff. The plaintiff's post-trial motion for a judgment n.o.v. or a new trial was denied, and she appeals.

The First Surgery

Plaintiff initially contends that she did not give her informed consent to having Dr. Angell perform the first Hauser procedure, under Dr. Jabaay's guidance, to correct the lateral dislocation of her patella in Loyola University Hospital on June 22, 1971. A written consent to operate was apparently executed by Jane Guebard in the presence of Dr. Angell, the first-year resident, at 5:48 p.m. on June 21, 1971. She testified that she read the form and understood it before signing it. The signed form authorized Drs. Main, Blair, Jabaay, Huncke, "and such assistants as are assigned to the case to perform a Hauser procedure, right knee * * * " (emphasis added).

Relying on the opinion testimony of her expert, Dr. Compere, and an A.M.A. article from August 1969, she argues that her surgeon, Dr. Jabaay, was ethically and legally bound to inform her of the substitution of a first-year resident for a board-certified orthopedic surgeon. Dr. Angell was in the first of a four-year residency and had not previously performed the Hauser procedure. Plaintiff further contends that the resulting medial dislocation of the patella was proximately caused by Dr. Jabaay's failure to inform plaintiff of the risks involved in having the relatively inexperienced Dr. Angell perform the Hauser procedure.

A physician has a duty to inform patients of the foreseeable risks and results of a given surgical procedure, and the reasonable alternatives to such procedure. (Magana v. Elie, 108 Ill.App.3d 1028, 1031, 64 Ill.Dec. 511, 439 N.E.2d 1319 (1982); Taber v. Riordan, 83 Ill.App.3d 900, 904, 38 Ill.Dec. 745, 403 N.E.2d 1349 (1980); Green v. Hussey, 127 Ill.App.2d 174, 183, 262 N.E.2d 156 (1970).) The physician has a duty to disclose to the patient those risks, results or alternatives that a reasonable medical practitioner of the same school, in the same or similar circumstances, would have disclosed. (Magana v. Elie, 108 Ill.App.3d 1028, 1032, 64 Ill.Dec. 511, 439 N.E.2d 1319; Miceikis v. Field, 37 Ill.App.3d 763, 767, 347 N.E.2d 320 (1976).) The failure of the physician to conform to the professional standard of disclosure must be proved by expert medical evidence and failure to disclose must proximately cause plaintiff's injury. Magana v. Elie, 108 Ill.App.3d 1028, 1032, 64 Ill.Dec. 511, 439 N.E.2d 1319; Ziegert v. S. Chicago Community Hosp., 99 Ill.App.3d 83, 92, 54 Ill.Dec. 585, 425 N.E.2d 450 (1981); Taber v. Riordan, 83 Ill.App.3d 900, 904, 38 Ill.Dec. 745, 403 N.E.2d 1349.

In a number of decisions, whether a signed form constituted effective consent to treatment has been held to present a proper question of fact for the jury. See Cross v. Trapp, 294 S.E.2d 446, 460 (W.Va.1982); Garone v. Roberts' Technical & Trade School, 47 A.D.2d 306, 366 N.Y.S.2d 129, 133 (1975) (quoting Moore v. London, 29 A.D.2d 666, 286 N.Y.S.2d 319, 320 (1968)); Rainer v. Buena Community Memorial Hospital, 18 Cal.App.3d 240, 257, 95 Cal.Rptr. 901, 911 (1971); Annot., 89 A.L.R.3d 32, 48 (1979). See also Carman v. Dippold, 63 Ill.App.3d 419, 426, 20 Ill.Dec. 297, 379 N.E.2d 1365 (1978).

If Dr. Angell was simply an "assistant" he did not need to obtain plaintiff's consent to operate. (See Harnish v. Children's Hosp. Med. Center, 387 Mass. 152, 439 N.E.2d 240, 245 (1982).) Dr. Jabaay testified that to him "assistant" meant "helper."

It is difficult to conclude that there was a question of fact for the jury to decide whether Dr. Angell acted as an "assistant." The report of the operation in handwritten notes that the surgery was done by the resident, Dr. Angell, with other typewritten references indicated Dr. Jabaay was the "assistant." The record reveals that Dr. Angell performed many of the steps detailed in the report of the operation. There is evidence in the testimony of Dr. Jabaay, however, that Dr. Jabaay participated in various ways, that he went over the procedure with Dr. Angell prior to the operation; he and Dr. Angell agreed on the transfer site for reattachment of the tubercle; he helped to test the site by manipulation while Dr. Angell held the tubercle in place at the site, and he felt and tested the tracking of the patella while Dr. Angell held and manipulated the leg. Further, he manipulated the leg while Dr. Angell placed stitches in the medial side of the retinaculum and Dr. Jabaay sutured the skin with subcataneous stitches. He also observed and supervised the entire procedure.

There was additional testimony that a "one man operation" would be "rather dangerous."

It appears from the evidence that Dr. Angell was the primary performer of the surgery, albeit under direction and supervision at a "teaching hospital." The consent could be said to contemplate that someone other than Dr. Jabaay would principally perform the surgery since other doctors were named even prior to his name on the consent form. It would not appear, however, that the jury could properly decide that plaintiff had been informed and consented to the extent of Dr. Angell's participation.

The doctrine of informed consent has been held not to apply, however, where, as here, the patient has given informed consent to surgical procedure which is performed by a surgeon other than the surgeon specifically authorized to operate. (Perna v. Pirozzi, 182 N.J.Super. 510, 442 A.2d 1016, 1019 (1982). See also Zimmerman v. New York City Health & Hospitals Corp., 91 A.D.2d 290, 458 N.Y.S.2d 552, 554 (1983).) The authorities appear uniformly to agree that where an unauthorized surgeon operates, he commits a technical trespass to the patient resulting in the intentional tort of battery. (Pratt v. Davis, 224 Ill. 300, 305, 79 N.E. 562 (1906); Perna v. Pirozzi, 182 N.J.Super. 510, 442 A.2d 1016, 1019, citing Louisell and Williams, Medical Malpractice section 8.09, at 220 (1974); 61 Am.Jur.2d, Physicians, Surgeons, and Other Healers section 197, at 329-30 (1981); L. Riskin, "Informed Consent; Looking for the Action," 1975 U.Ill.L.F. 580, 582.) Even the opinion relied on by plaintiff, Buie v. Reynolds, 571 P.2d 1230, 1236 (Okl.App.1977) (Brightmire P.J., specially...