Hundt v. Proctor Community Hospital

• Decision Date: 23 June 1972
• Docket Number: No. 71--52,71--52
• Citation: 284 N.E.2d 676,5 Ill.App.3d 987
• Parties: Donald Earl HUNDT, Administrator of Estate of Margaret L. Krus, Deceased, Plaintiff-Appellant, v. PROCTOR COMMUNITY HOSPITAL, a Corporation, Defendant and Third-Party Plaintiff, v. Robert L. BURHANS and Donald L. Burhans, Executors of the Estate of Ernest C. Burhans, Deceased, Third-Party Defendants, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 676

284 N.E.2d 676

5 Ill.App.3d 987

Donald Earl HUNDT, Administrator of Estate of Margaret L.

Krus, Deceased, Plaintiff-Appellant, v. PROCTOR COMMUNITY HOSPITAL, a Corporation, Defendant and Third-Party Plaintiff, v. Robert L. BURHANS and Donald L. Burhans, Executors of the

Estate of Ernest C. Burhans, Deceased, Third-Party

Defendants, Defendants-Appellees.

No. 71--52.

Appellate Court of Illinois, Third District.

June 23, 1972.

Elmo E. Koos, Peoria, for plaintiff-appellant.

William J. Voelker, Jr., Robert C. Strodel, Peoria, for defendants-appellees.

STOUDER, Presiding Justice.

Plaintiff-Appellant, Donald Hundt, Administrator of the estate of Margaret Krus, commenced this medical malpractice action in the Circuit Court of Peoria County against Proctor Community Hospital, Defendant-Appellee. The first count alleged general negligence-Res Ipsa Loquitur; the second, trespass-battery; and the last count was based on specific negligence. The first count was dismissed pursuant to defendant's motion prior to trial. After plaintiff had completed presentation of her evidence the court granted defendant's motion for directed verdicts in its favor on the second and third counts. Plaintiff has appealed from the court's rulings on each of the counts. Defendant, Proctor Community Hospital, also filed a third party action against Ernest Burhans, physician and surgeon, seeking indemnification for any damages which might be found due from the hospital to the plaintiff.

Margaret Krus, who shall be referred to as the plaintiff, had prior to August, 1965, been a patient in Proctor Hospital on a number of occasions. In January and June of 1964 the plaintiff had been a patient in the hospital and had undergone back surgery, the operations being performed by Ernest Burhans, a member of the active medical staff of Proctor Hospital. The operations were known as laminectomy and rhizotomy of the posterior sensory roots of the right and left thoracic vertebra. Plaintiff had no unsatisfactory aftereffects from either of the operations.

In August, 1965, the patient was again hospitalized in the Proctor Hospital complaining of severe pain. She was again treated by Ernest Burhans and after unsuccessful treatment with drugs it was determined that a spinal fusion should be undertaken. On the 16th day of September, 1965, at the request of the nurse on duty the plaintiff signed a consent for the operation which consent authorized 'administer such treatment as is necessary, and to perform the following operation, spinal fusion, and such additional operations or procedures as are considered therapeutically necessary . . .'. Plaintiff underwent surgery on September 17, 1965 but according to the hospital's medical and surgical records a spinal fusion was not performed. Instead the records indicate a rhizotomy of left thoracic vertebra apparently a repetition of the procedures undertaken in whole or in part during the previous two hospitalizations. After the surgery on September 17, 1965 plaintiff became totally paralyzed in her lower extremities.

On this appeal plaintiff argues that the first count of her complaint based on negligence arising from the application of the doctrine of Res Ipsa Loquitur stated a cause of action. With respect to the second and third counts plaintiff argues that her evidence presented a prima facie case and the court's conclusion to the contrary was erroneous. Plaintiff also argues the court erred in excluding evidence and restricting cross examination. Additionally plaintiff argues the court erred in refusing to permit her to file five additional counts by amending her complaint after she had presented her case.

The principal thrust of plaintiff's pleadings and evidence is that she was under anesthesia and unconscious on September 17, 1965 when she underwent an operation at the defendant hospital. According to the plaintiff the defendant hospital was in exclusive control of the operating facilities through its employees and agents. As a result of the misconduct of one of its agents namely the surgeon, plaintiff claims she was injured and paralyzed. So far as the Res Ipsa count is concerned the misconduct is unspecified. So far as the trespass and negligence counts are concerned the gist of the misconduct alleged is the failure of the surgeon to perform the spinal fusion. Instead he performed some other surgical procedure. In other words the surgeon either violated or exceeded the terms of the consent.

Common to each of plaintiff's theories of recovery is plaintiff's basic contention that defendant hospital is vicariously liable for the misconduct of the surgeon. Although the pleadings and plaintiff's arguments are somewhat ambiguous in this regard there is neither assertion or evidence of independent misconduct on the part of the hospital. Whatever derelictions of duty are referred to essentially spring from the basic charge that Dr. Burhans' did not perform a spinal fusion, the only operation he was authorized to...