Johnson v. Armstrong

Citation2022 IL 127942
Decision Date24 June 2022
Docket Number127942,127944
PartiesWILLIAM "WES" JOHNSON, Appellee, v. LUCAS ARMSTRONG et al, Appellants.
CourtSupreme Court of Illinois

2022 IL 127942

WILLIAM "WES" JOHNSON, Appellee,
v.

LUCAS ARMSTRONG et al, Appellants.

Nos. 127942, 127944

Supreme Court of Illinois

June 24, 2022


Chief Justice Anne M. Burke and Justices Theis, Neville, Michael J. Burke, Overstreet, and Carter concurred in the judgment and opinion.

OPINION

GARMAN, JUSTICE.

¶ 1 Plaintiff suffers from severe and permanent nerve damage in his leg, which he alleges was caused by a negligently performed hip replacement surgery. He brought a claim of negligence against his surgeon expressed in two separate counts: one based on specific negligence and one based on the doctrine of res ipsa loquitur. He also brought a claim of negligence based on res ipsa loquitur against a surgical technician who participated in the surgery. Plaintiff provided only one expert witness, also a surgeon, to establish the elements of res ipsa loquitur. The McLean

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County circuit court granted summary judgment to the surgical technician because (1) plaintiff had failed to present an expert witness to establish the standard of care for a surgical technician, (2) the control element of res ipsa loquitur was not met, and (3) there was no evidence of negligence on the surgical technician's part. As a result, the surgical technician was completely dismissed from the case. The circuit court subsequently granted summary judgment in favor of the surgeon on the res ipsa loquitur count, leaving the count of specific negligence against the surgeon remaining in the circuit court. The appellate court reversed both judgments.

¶ 2 In this case, we review whether the elements of res ipsa loquitur have been met and whether any additional expert testimony was required for the doctrine to apply under these facts. Initially, however, we review a jurisdictional issue related to whether a Rule 304(a) interlocutory appeal of a count of negligence based on res ipsa loquitur is proper where there remains a pending count of specific negligence against the same defendant in the circuit court. Ill. S.Ct. R. 304(a) (eff. Mar. 8, 2016).

¶ 3 BACKGROUND

¶ 4 Dr. Lucas Armstrong, with assistance from two surgical technicians, Sarah Harden and Pamela Rolf, performed a left, total hip arthroplasty, commonly known as a hip replacement, on plaintiff, William "Wes" Johnson. After the surgery, plaintiff suffered from femoral nerve palsy. Electromyography (EMG) readings demonstrated a severe left femoral neuropathy "specific to the branches to vastus lateralis and rectus femoris muscles."

¶ 5 Plaintiff brought a professional medical negligence suit in four counts. Count I alleged specific negligence against Dr. Armstrong in that he (1) failed to identify, preserve, and protect plaintiffs femoral nerve; (2) improperly retracted plaintiffs femoral nerve or improperly directed the placement of the retractors; or (3) directly traumatized plaintiffs femoral nerve. Count II alleged that McLean County Orthopedics, Ltd. (McLean County Orthopedics), was vicariously liable for this negligence as Dr. Armstrong's employer under the doctrine of respondeat superior.

6 Count III alleged negligence against Dr. Armstrong, Harden, and Rolf based on the doctrine of res ipsa loquitur in that (1) the injury to his femoral nerve occurred

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"while the retractors, scalpel, electrocautery device and other surgical instruments were under the control of ARMSTRONG, HARDEN and ROLF" and (2) that, in the ordinary course of events, plaintiffs injury "would not have occurred if ARMSTRONG, HARDEN, and ROLF had used a reasonable standard of professional care while the retractors, scalpel, electrocautery device and other surgical instruments were under their control." Count IV alleged that Advocate Health and Hospitals Corporation, doing business as Advocate BroMenn Medical Center (Advocate BroMenn), was vicariously liable for this negligence as the employer of Harden and Rolf under the doctrine of respondeat superior.

¶ 7 Dr. Armstrong, Harden, and Rolf were all deposed and generally testified to the following. 2021 IL App (4th) 210038, ¶¶ 12-21. Dr. Armstrong was the only one authorized to position and move any instrument in contact with plaintiffs body, and Dr. Armstrong was the only one to have done so. As the "first scrub," Rolfs primary function was to hand surgical instruments and material to Dr. Armstrong. As the "second scrub," Harden's function was to do whatever Dr. Armstrong told her to do. That included holding certain instruments, such as a retractor, while the instrument was in contract with the plaintiffs body. As she said, "I don't use anything-I hold things," and, "I hold what I'm told to hold-whatever the doctor tells me to do, I do." Rolf also indicated that the second scrub might handle other instruments apart from a retractor, such as a Kocher clamp, and would be responsible for suction. In light of the above, Rolf was voluntarily dismissed without prejudice.

¶ 8 Plaintiff presented a single expert witness, Dr. Sonny Bal. Dr. Bal testified that he had performed hundreds of hip replacement surgeries using the same method that Dr. Armstrong had used. Dr. Bal testified that nerve palsies are a recognized complication of hip replacement surgery and that the fact of a femoral nerve injury does not indicate, per se, a breach in the standard of care. Dr. Bal specifically testified, however, that this plaintiffs injury is of a type that does not normally occur in the absence of negligence. Dr. Bal believed that the injury was most likely caused by the improper use of a retractor. Despite this belief, he testified that, according to the surgical records, Dr. Armstrong did not deviate from the standard of care in making the incision and management of the retractor. Dr. Bal did not purport to offer any standard of care for Harden. He did, however, testify that, from

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all the surgical records, it appeared that Harden did only as instructed by Dr. Armstrong throughout the procedure.

¶ 9 Harden and Advocate BroMenn moved for summary judgment on the res ipsa loquitur and respondeat superior counts. The circuit court granted the motion at a hearing on October 30, 2020, on the grounds that (1) no qualified expert had established the standard of care for Harden, (2) there was no evidence of negligence on the part of Harden, and (3) Harden did not control the retractor for purposes of res ipsa loquitur. After the court orally rendered this judgment, defense counsel requested permission to submit a written order to reflect the court's ruling. The court agreed. The record sheet reflects the following: "Defendant Advocate and Harden's Motion for Summary Judgment argued and granted. Request for Rule 304(a) finding granted. [Defense counsel] to submit written order."

¶ 10 On December 15, 2020, the circuit court granted Dr. Armstrong's oral motion for summary judgment on the res ipsa loquitur count. No record of this proceeding appears in the record. The record sheet reflects the following:

"Defendant Armstrong's oral Motion for Summary Judgment as to Count III (res ipsa loquitur) granted over objection. Pursuant to Supreme Court Rule 304(a), the court finds there is no just reason for delaying appeal as to the res ipsa loquitur counts. Remaining counts of negligence against Defendant Armstrong and McLean County Orthopedics stayed, pending appeal of the res ipsa loquitur and discovery issues. Counsel to submit written orders."

¶ 11 On December 22, 2020, the circuit court filed a written order entering summary judgment in Dr. Armstrong's favor and found no just reason for delaying enforcement or appeal of that order pursuant to Rule 304(a). The court stayed any pending litigation on the remaining counts against Armstrong and McLean County Orthopedics (counts I and II) "pending resolution of the issues going up on appeal." The record sheet reflects: "Order re: Defendant Armstrong['s] Motion for Summary Judgment entered. See Order."

¶ 12 On January 5, 2021, the circuit court filed a written order granting summary judgment in favor of Harden and Advocate BroMenn finding no just reason for delaying the appeal of its order pursuant to Rule 304(a). The record sheet reflects:

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"Order re: Advocate and Harden's Motion for Summary Judgment entered. See Order."

¶ 13 Plaintiff filed a notice of appeal on January 6, 2021, pursuant to Rule 304(a), seeking to appeal both the December 22, 2020, order and the January 5, 2021, order entering summary judgment for defendants on the res ipsa loquitur counts.

¶ 14 The appellate court reversed, holding that res ipsa loquitur applied against both Dr. Armstrong and Harden. In doing so, the court held that Harden had control over the retractor. The court further held that no additional expert testimony was needed to establish Harden's standard of care, saying: "In essence, the control element of the res ipsa doctrine is sufficient to establish a duty of care." (Emphasis in original.) 2021 IL App (4th) 210038, ¶ 68. In so holding, the court declined to follow its own decision in Taylor v. City of Beardstown, 142 Ill.App.3d 584 (1986). 2021 IL App (4th) 210038, ¶ 69.

¶ 15 Harden, Advocate BroMenn, and Dr. Armstrong appealed to this court pursuant to Rule 315 in two separate cases raising distinct yet related issues. Those petitions were allowed and consolidated by this court. Ill. S.Ct. R. 315 (eff. Oct. 1, 2021). We also allowed the Illinois Trial Lawyers Association to file an amicus curiae brief. Ill. S.Ct. R. 345 (eff. Sept. 20, 2010).

¶ 16 ANALYSIS

¶ 17 Jurisdiction

¶ 18 Before proceeding to the merits, this court has an independent duty to ensure that jurisdiction is proper, regardless of whether the parties have raised any jurisdictional challenge. Vasquez Gonzalez v. Union Health Service, Inc., 2018 IL 123025, ¶ 8 (citing Clemons v. Mechanical Devices Co., 202 Ill.2d 344, 349 (2002)).

¶ 19 Article VI, section 6, of the Illinois...

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