Schuchman v. Stackable, 5-88-0562

• Decision Date: 09 May 1990
• Docket Number: No. 5-88-0562,5-88-0562
• Parties: , 144 Ill.Dec. 493 Arnold SCHUCHMAN, Jr., Plaintiff-Appellant, v. W.R. STACKABLE, M.D., Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 1012

555 N.E.2d 1012

198 Ill.App.3d 209, 144 Ill.Dec. 493

Arnold SCHUCHMAN, Jr., Plaintiff-Appellant, v. W.R. STACKABLE, M.D., Defendant-Appellee.

No. 5-88-0562.

Appellate Court of Illinois Fifth District.

May 9, 1990.

Rehearing Denied June 19, 1990.

Alexandra de Saint PHalle, Londrigan, Potter & Randle, P.C., Springfield, for plaintiff-appellant.

Jonathan Ries, Shepherd, Sandberg & Phoenix, P.C., St. Louis, for defendant-appellee.

Presiding Justice LEWIS delivered the opinion of the court:

The plaintiff, Arnold Schuchman, Jr., brought suit against the defendant, W.R. Stackable, M.D., for damages alleged to have been caused by the defendant's surgical treatment of him after an injury. Following a jury trial, judgment was entered in favor of the defendant, and this appeal followed. Plaintiff presents 14 issues for review. He contends that the trial court erred in failing to grant a judgment n.o.v. or a new trial "with regard to the defendant's inexperience and consequent damage to the plaintiff," he raises several issues concerning the trial court's giving of or refusal to give numerous jury instructions, and he presents a number of issues related to evidentiary and other matters. We turn first to plaintiff's contention concerning the trial court's failure to grant his motion for judgment n.o.v. or a new trial.

At trial the evidence showed that on August 17, 1984, while working as a logger, the plaintiff was injured when the upper part of a tree fell a distance of approximately 60 feet, striking his shoulder and the back of his neck. As a result, the plaintiff suffered a "burst" fracture of his second lumbar vertebra, which splintered or burst into several pieces with some of its fragments being retropulsed into his spinal canal, obliterating it in part and exerting pressure upon the contents of the canal. Immediately after injury, the plaintiff was referred to the care of the defendant, a board-certified orthopedic surgeon, at St. Mary's Hospital in Centralia, Illinois. On August 31, 1984, defendant performed lumbar laminectomy upon him, intending to insert Harrington rods and to perform spinal fusion during the procedure in order to stabilize plaintiff's back but finding, according to defendant, that he could not continue the operation long enough to do so because of excessive bleeding. On September 6, 1984, while the defendant was out of town, one of the doctors caring for him in defendant's absence, namely, Dr. R. Chandra, since deceased, had him transferred to Barnes Hospital in St. Louis, Missouri, where on September 8, 1984, Dr. William Strecker inserted Harrington rods and performed posterior spinal fusion. Later, on September 18, 1984, Dr. Strecker removed a retropulsed fragment from the spinal canal and performed an anterior fusion. In January of 1986 Dr. Strecker removed the Harrington rods, which provided stability to the spine until the fusion was solid. The plaintiff, who now walks using forearm crutches, has been unable to return to his occupation as a logger or to any work involving physical labor.

The plaintiff called as his expert witness Dr. Robert Tatkow, a board-certified orthopedic surgeon, who testified that he was of the opinion that the form of treatment employed by the defendant did not meet any of the minimum standards usually used by orthopedic surgeons in the community, stating that

"[w]hat was done in this case was to further destabilize an unstable spine by removing the last vestige of possible stability, in other words, removing the bone in the back of the spine, the third column posterior column. This was the last vestige of stability that Mr. Schuchman had left so that by removal of this he totally destabilized the spine, caused the spine to shift one and a half centimeters, approximately half an inch with further damage to the nerves."

He said that "destabilization of the spine" meant that "it allows the remaining bony elements to abnormally move on each other and thereupon can damage the nerve structures within the spine." The witness testified that

"[w]e do not do laminectomies in the presence of this type of injury, and I don't think anybody has in many, many years. The literature goes back at least fifteen years or more don't do laminectomies on this type of an injury. It makes people worse. Harrington instruments, of course, are the gold standard of treatment but not combined with laminectomies."

Concerning the defendant's intention to undertake the placement of Harrington rods in the plaintiff, when the defendant had never performed such a procedure, the witness expressed the following opinion:

"This is such a very demanding procedure with so many ramifications in the use of the instrumentation that it would be absolutely impossible for an individual who had not even seen a procedure in many years to go ahead and attempt to do one on such a complex patient as Mr. Schuchman was."

The witness indicated that he had reviewed the plaintiff's records made upon his arrival at Barnes Hospital from St. Mary's Hospital and expressed his opinion with regard to plaintiff's neurological status upon arrival at Barnes Hospital as follows:

"I reviewed the emergency room records, the treating physician's records, and the resident's records right after he was transferred to Barnes' Hospital. These records all demonstrate a marked neurological deterioration by the time he was transferred to Barnes' Hospital compared to his initial status after the injury and before he was operated on at St. Mary's Hospital."

He indicated that at that time "[h]is quadraceps [sic] were not functioning at all. They were zero, paralyzed." The witness testified further that X rays taken on September 5, 1984, following surgery by defendant on August 31, 1984, demonstrated

"a very marked change in the alignment of the vertebral bodies. The entire upper part of his spine from the first lumbar vertebra, up the entire spine has shifted backwards on the second lumbar vertebra approximately one and a half centimeters, a half inch, more or less. This is the major change that is noted in this film."

The witness described the significance of such a shift in the vertebral bodies at the level of L1-L2:

"That is a tremendous change because it infers that the nerve structures within the spinal canal at that level must be stretched one and a half centimeters in the spine, is a tremendous difference. And, in order for the spine to shift, it must stretch nerves within the spinal canal. One can't happen without the other."

He stated that by performing laminectomy upon the plaintiff the defendant further destabilized plaintiff's spine and caused the upper part of his spine to shift about a half an inch onto the lower part, thereby "definitely caus[ing] nerve damage in this man as was substantiated by the records that I reviewed from Barnes' Hospital."

The witness expressed the further opinion that the delay between the time of injury and the time of surgery by defendant was "very inordinate," stating that "[t]here's a much higher success rate if it's done earlier," that is, within "the first few days" following injury. He indicated that the form of treatment that he believed should have been used was the insertion of Harrington rods shortly after the injury occurred without performing laminectomy; in about "40 or 50 per cent of cases," he said, the rods "reduce the fragment or get it out of the spinal canal" without the need to remove the fragment later surgically as was done here. The procedure the witness advocated must be performed before any healing occurs: "If you do it after a week or ten days, after healing has started, the chances of getting that fragment out of the canal rapidly become much smaller or impossible without doing another staged operation." He said that

"[t]he delay in the operative procedure then demanded that a second stage would have to be performed in order to get that piece of bone out of his spinal canal because if you try to do something to somebody's back after two weeks the bones become sticky and you can't move them around as well as if you did it fresh."

As to whether defendant's treatment of plaintiff contributed to "the neurological residuals" exhibited by plaintiff, the witness expressed this opinion:

"It's difficult to answer with any definite certainty as to, as to how much neurological deficit Mr. Schuchman would have at this time if he was treated properly in the beginning. We do know that there was neurological damage as a result of the surgery that was performed and the destabilization of the spine, therefore, I have to assume within a reasonable degree of certainty that the surgery that was performed contributed to the neurological deficit that Mr. Schuchman now has."

He indicated that plaintiff's neurological impairment had increased as a result of defendant's treatment and that "therefore, his residual impairment is probably greater."

As to whether plaintiff had experienced increased hospitalization and pain as a result of defendant's conduct, the witness testified:

"Hospitalization was grossly prolonged at St. Mary's Hospital by the two-week delay between the admission and the surgery performed and because of the gross neurological deficit present by the time he was transferred to Barnes' the period of his rehabilitation time at Jewish Hospital [in St. Louis where he was transferred from Barnes Hospital] and thereafter was, also, prolonged. I don't know exactly how many days or weeks but the more severely injured an individual is the longer his hospitalization stay is when treatment is delayed."

Asked on direct examination "the typical length of a hospitalization for a patient who has suffered injuries similar to those Arnold Schuchman demonstrated on August 17th, 1984, who were given appropriate care?" the witness answered, "The last four of these that I did this year, the people went home in a month or less."

On cross-examination the following...