Scardina v. Colletti
| Decision Date | 14 October 1965 |
| Docket Number | Gen. No. 49659 |
| Citation | 211 N.E.2d 762,63 Ill.App.2d 481 |
| Parties | Pater SCARDINA, Administrator of the Estate of Joseph Scardina, Deceased, Plaintiff-Appellant, v. Dr. Michael J. COLLETTI, Defendant-Appellee, and Norwegian American Hospital, a hospital corporation, Defendant-Appellee. |
| Court | United States Appellate Court of Illinois |
James A. Thompson, Chicago, for appellant.
Kirkland, Ellis, Hodson, Chaffetz & Masters, for appellee Dr. Michael J. Colletti.
Lord, Bissell & Brook, Chicago, for appellee Norwegian American Hospital.
The plaintiff, Peter Scardina, administrator of the estate of Joseph Scardina, deceased, brings this appeal from the judgment entered on the court-directed verdict finding the defendants 'not guilty' at the close of the plaintiff's evidence.
Two issues are presented to this court by this appeal: whether the motion for a directed verdict was properly granted, and whether error was committed in refusing to allow the plaintiff to amend his complaint.
The complaint charged Michael J. Colletti, a doctor, with negligently operating on Joseph Scardina in that the doctor failed to ligate a severed blood vessel which resulted in profuse internal bleeding and required a re-operation by another physician. The Norwegian American Hospital was charged with negligently failing to provide adequate lighting facilities and proper equipment in its operating room.
At the trial four witnesses testified: Peter Scardina, the deceased's son; Doctor Colletti, the defendant; Doctor Lichtenstein, who re-operated on the patient, and a woman who took care of him after he came home from the hospital.
Peter Scardina testified that on March 5, 1959, he took his 50 year old father to the Norwegian American Hospital for a hernia operation. At about 7:00 or 8:00 P.M. on March 6, 1959, he received a call from a nurse summoning him to the hospital. Upon entering a room he saw Doctor Colletti and Doctor Lichtenstein conversing. He heard Lichtenstein ask: 'What happened,' and Colletti answer:
Doctor Colletti was called as a witness under section 60 of the Civil Practice Act. He testified that he had operated on Joseph Scardina in 1952 for a right inguinal hernia and that his condition following the operation was very good. In February 1959 he examined Joseph who complained of a swelling bulge in his left inguinal region. Doctor Colletti had him admitted to the Norwegian American Hospital on March 5th and operated on him the next morning.
Doctor Colletti denied making the remark related by Peter Scardina. He testified that the operating room was like any other operating room with adequate lights, 'an overhead light with a strong beam that hits into the operative field,' plus any number of lights which could be spotted in different directions as needed. An intern assisted in the operation. He was under Doctor Colletti's direction and control at all times. During the operation blood vessels were cut, as is always done in surgery. Any vessel that was cut was clamped and then ligated. If a cut blood vessel faced Colletti, he tied it; if one faced the intern, he tied it, but under Colletti's supervision. After correcting the hernia and determining that the surgical field was dry, the doctor closed the wound. The plaintiff's attorney examined the doctor on those points:
'Q [Y]ou have the final determination as to whether all of these [blood vessels] are actually tied off before you close the wound?
A That's right.
Q And in your opinion this wound was dry indicating no bleeding out of any of these veins before you closed the wound?
A That's right, sir.
Q Is it possible, Doctor, that one of these veins was cut and not tied off?
A No, sir.'
Later on that day the doctor received a call from the hospital which indicated that the patient had gone into shock. He went to the hospital and found that the patient's pulse was rapid and he had a swelling in his left flank; his blood pressure was down considerably and he had perspired quite a bit and lost a lot of fluids. Prior to the doctor's return to the hospital the intern had been notified about the patient's condition and 300 c.c. of plasma was given.
Colletti called a Doctor Triolo and Doctor Lichtenstein into consultation. Doctor Lichtenstein thought that the patient's low blood pressure and loss of blood might be caused by a blood vessel leaking in the original incision. It was decided to re-operate. After the initial 300 c.c. of plasma and prior to the re-operation, approximately two and a half quarts of blood were given to the patient. Doctor Colletti said that even though these amounts were given this did not mean that the patient had lost that much blood. He explained that much of it was absorbed into the circulatory system; that when in shock a patient's veins dilate and hold more blood than when he is normal.
Both Doctor Colletti and Doctor Lichtenstein testified about the second operation which was performed by Lichtenstein with Colletti assisting him. Lichtenstein said the lighting in the operating room was adequate. The stitches were cut and the wound reopened. Nothing in particular was found in the area of the left side where the operation had taken place; there was some blood but not fresh blood. The abdomen was then opened and explored and a large blood clot evacuated. A blood vessel 1/25th of an inch in diameter was found which had been bleeding; it started to bleed again when the clot was removed. The vessel was in a loop of the bowel that had been related to the hernia and which had been returned to the abdomen. Lichtenstein clamped it, put on a ligature and closed the incision.
Doctor Colletti said it was most likely that the blood vessel had been cut but he didn't think that he or the intern had missed seeing it; that all precautions are taken in dissection and all bleeding points are clamped and the severed blood vessels are then ligated at both ends. He testified it was not usual to find internal bleeding after a herniorrhaphy, but that it was one of the complications of surgery. He said he had performed 300 hernia operations and this was the first time post-operative bleeding had occurred.
Doctor Lichtenstein said he could not tell whether the bleeding vessel had been torn or cut but the presumption was that it must have been cut. He stated that he had performed 'tens of hundreds' of hernia operations and that what had happened was one of the complications of a hernia operation. It had happened to him a few times in 35 years of surgery. He went on to say that He stated that a bleeding vessel 1/25th of an inch in size is easily visible, however, whether the vessel in question would have been visible during the course of the original operation, Doctor Lichtenstein answered: He stated that a ligature could be properly applied to a vessel and that it could bleed later--that the vessel might contract and slip out of the 'noose' or ligature.
The test by which a plaintiff's evidence is judged when subjected to a motion for a directed verdict is whether there is any evidence or reasonable inference arising from the evidence, tending to prove the cause of action alleged in the complaint. The court must decide if the evidence fails as a matter of law to support the complaint. It becomes such a question of law only where the evidence is such that all reasonable men would reach the same conclusion or where there is a total failure to prove one or more of the elements necessary to the cause of action. When the evidence is considered in its most favorable aspect to the plaintiff and there is a total failure to prove a necessary element of his case, the motion for a directed verdict should be...
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