Knauerhaze v. Nelson
| Decision Date | 19 September 2005 |
| Docket Number | No. 1-03-3370.,1-03-3370. |
| Citation | 836 N.E.2d 640 |
| Parties | Mark KNAUERHAZE, Plaintiff-Appellee and Cross-Appellant, v. Oliver NELSON, Special Representative of George W. Allen, M.D., Deceased, and George W. Allen, M.D., S.C., an Illinois Corporation, Defendants-Appellants and Cross-Appellees. |
| Court | Illinois Supreme Court |
John McGarry, Pamela Davis Gorcowski, Dykema Gossett Rooks Pitts PLLC, Chicago, for Appellant.
Edward J. Walsh, Walsh, Knippen, Knight & Diamond, Chartered, Chicago, for Appellee.
Plaintiff, Mark Knauerhaze, brought suit against defendants George W. Allen, M.D. (hereinafter Dr. Allen), and George W. Allen, M.D., S.C., an Illinois corporation (hereinafter Allen Corporation), alleging that Dr. Allen negligently performed surgery on his ear that resulted in permanent injuries. Dr. Allen died during trial, and on Knauerhaze's motion, the trial court appointed Oliver Nelson special representative pursuant to section 2-1008 of the Code of Civil Procedure (735 ILCS 5/2-1008 (West 2004)). On May 22, 2003, a jury found for plaintiff and awarded damages of $2,484,702. The trial court entered judgment on the verdict the same day. Defendants brought a motion for judgment notwithstanding the verdict or, alternatively, a motion for a new trial, arguing that Knauerhaze failed to provide evidence of causation. Defendants further argue that the judgment against Allen Corporation cannot stand because Knauerhaze never proved that Dr. Allen was acting as an agent of the corporation at the time of the surgery such that it could be held vicariously liable. Knauerhaze cross-appeals, alleging that the trial court improperly limited his award through a misinterpretation of section 2-1008. For the reasons that follow, we reverse.
In September of 1998, Knauerhaze, an otherwise healthy man in his forties, sought treatment from Dr. Allen for hearing problems with his left ear. Knauerhaze had otosclerosis, a condition where the stapes bone of the middle ear becomes stiff and stops vibrating properly. The middle ear is comprised of three small bones, the malleus, the incus and the stapes. These bones work together to send vibrations to the inner ear where nerves then send signals to the brain. Knauerhaze had lost approximately 50% of his hearing due to the stiffening of his stapes bone.
Dr. Allen recommended a stapedotomy, a surgery where part of the stapes bone is removed and replaced by a prosthesis which is hooked onto the incus bone with a wire hook. A successful stapedotomy reestablishes the correct interplay of the middle ear bones and can lead to immediate improvement in hearing. A stapedotomy is performed with the surgeon looking into the ear through a microscope at various magnifications. A stapedotomy entails injecting an aesthetic and a blood constricting medication into the ear canal. An incision is then made and the eardrum is moved forward. The bones of the inner ear are then gently pushed to see if they are moving, or are, in fact, showing signs of otosclerosis. If the surgeon verifies that the stapes bone is not moving as it should, a cut is then made between the incus and the stapes with a tiny knife, and the incus is lifted off the top of the stapes. The loop of the prosthesis is then put over the incus bone and the prosthesis is set in place.
Knauerhaze's surgery was scheduled for September 11, 1998, as a day surgery, meaning that Knauerhaze would arrive in the morning, have the procedure, remain in the hospital for a matter of hours for rest and observation, and then return home the same day.
Knauerhaze had diminished hearing before the surgery; however, he was still able to work, drive, walk, run and otherwise participate in normal activities. After the surgery, Knauerhaze lost all hearing in his left ear. The hearing loss resulted in ongoing balance problems and vertigo, which, in turn, led to fatigue from compensating for the loss of balance. He has not been able to return to work, or drive, and is no longer able to walk with ease due to disequilibrium.
On September 8, 2000, Knauerhaze brought suit against Dr. Allen and Allen Corporation alleging that he sustained injuries due to the medical negligence of Dr. Allen. Dr. Allen was the sole stockholder of Allen Corporation, and both Dr. Allen and Allen Corporation were insured by the Illinois State Medical Inter-insurance Exchange for the total sum of $1 million.
Before the case proceeded to trial, Dr. Allen died on September 27, 2001. No letters of officer were issued and no probate estate was opened on his behalf. Rather, Knauerhaze opted to proceed with the litigation by bringing a motion pursuant to section 2-1008(b), which, as shall be set out later, allows a party to proceed with an action against an opponent who dies during litigation by having a special representative appointed to defend the action. 735 ILCS 5/2-1008(b) (West 2004). Section 2-1008(b) allows the party who invokes it to avoid the formalities of opening a probate estate, but it limits the amount recoverable to the liability insurance protecting the decedent's estate. 735 ILCS 5/2-1008(b) (West 2004). On January 18, 2002, the court granted Knauerhaze's section 2-1008(b) motion and appointed Oliver Nelson as special representative for Dr. Allen.
Dr. Allen's notes from the Knauerhaze surgery set forth certain facts of the surgery that are not in dispute. Dr. Allen noted that Knauerhaze's incus bone was much larger than normal. He then noted that in first attempting to put the wire loop of the prosthesis over the incus, the incus became subluxed, or dislocated, when the ligament supporting the incus was torn. Dr. Allen then made several more unsuccessful attempts to place the wire loop over the incus. After these attempts Dr. Allen noted that there was blood in the vestibule of Knauerhaze's ear. Also, after these several attempts, Dr. Allen noted that Knauerhaze began to retch, broke out into a cold dripping sweat, became nauseated and started to vomit on the operating table. At the same time, Knauerhaze's eyes began to rapidly flick from the left to right, a condition known as nystagmus. At that point, Dr. Allen terminated the surgery and packed Knauerhaze's ear with gel foam. In addition, Dr. Allen saw Knauerhaze a week after the surgery on September 27, 1999, for a follow-up appointment. Dr. Allen's notes from this appointment indicated that he removed the packing from Knauerhaze's ear and that he was still very dizzy. Dr. Allen also indicated that Knauerhaze's hearing was still very bad, that he had mild spontaneous nystagmus to the right, and there was a purulent discharge from the ear.
At trial, Knauerhaze called Dr. Ralph Nelson as an expert witness. Dr. Nelson looked at the operative report and notes of Dr. Allen as well as other medical records and a surveillance tape taken of the plaintiff to make his opinion. Dr. Nelson testified that Dr. Allen was negligent in not properly sizing the wire loop of the prosthesis to fit over Knuaerhaze's large incus bone. Dr. Nelson explained that a subluxed incus becomes totally flaccid and loose and it is significantly more difficult to place the prosthesis loop over a subluxed incus. In Dr. Nelson's opinion, a reasonably well-qualified ear surgeon would have terminated the surgery after subluxing the incus and would have allowed it to heal over a period of months before making any further attempts. According to Dr. Nelson, a prosthesis should not be attached to a subluxed incus because the prosthesis can then go too far into the inner ear and cause damage.
Dr. Nelson also testified that Dr. Allen was negligent in failing to initially open the prosthesis loop wider after noting the large size of Knauerhaze's incus. He further testified that if the prosthesis loop does not initially go over the incus with ease, it should be removed and resized to fit over the bone.
Dr. Nelson acknowledged that the act of subluxing the incus did not, in itself, cause any damage to the nerves of the inner ear. However, Dr. Nelson testified that the retching, sweating, nausea, vomiting, and nystagmus that occurred after Dr. Allen had made several unsuccessful attempts to place the prosthesis loop over the incus were signs of inner ear damage. Furthermore, in Dr. Nelson's opinion, if Dr. Allen had stopped the surgery immediately after subluxing the incus, Knauerhaze would not have had any further injury to his inner ear and no permanent problems.
The Defendant's expert, Dr. Thomas Haberkamp, based his testimony on the same documents as Dr. Nelson and, in addition, he examined Knauerhaze on February 27, 2002. Dr. Haberkamp testified that Dr. Allen complied with applicable the standard of care and was not negligent in operating on the plaintiff. According to Dr. Haberkamp, subluxing the incus is a known and accepted complication of the surgery and does not amount to negligence. Dr. Haberkamp further testified that although it is more difficult to place a prosthesis loop over a subluxed incus, it is not negligent to do so, and it is actually the best way to stabilize a flaccid incus. Additionally, according to Dr. Haberkamp, Dr. Allen's attempts to place the prosthesis loop over the subluxed incus did not cause the complications that followed. Rather, Dr. Haberkamp opined that Knauerhaze's complications where caused by labyrinthitis, which is an inflammation of the inner ear that can be caused by infection or through the introduction of blood into the inner ear. Dr. Haberkamp further testified that labyrinthitis can occur in the absence of negligence and that because blood is always incident to ear surgery, it is always possible for it to travel from the middle ear to the inner ear and cause irritation. Knauerhaze's...
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