Willis v. Morales

Decision Date15 June 2020
Docket NumberNo. 1-18-0718,1-18-0718
Citation2020 IL App (1st) 180718,169 N.E.3d 74,446 Ill.Dec. 13
Parties Alma WILLIS, Plaintiff-Appellant, v. Mauricio MORALES, M.D.; Ching-Chong Huang, M.D.; Jeffery Flagg, D.D.S., M.D.; David McCormick; Paul Kowalczyk; Kim Price ; and Sisters of St. Francis Health Services, Inc., d/b/a St. James Hospital and Health Centers, Chicago Heights, Illinois, and d/b/a St. James Anesthesia, Defendants-Appellees.
CourtUnited States Appellate Court of Illinois

JUSTICE WALKER delivered the judgment of the court, with opinion.

¶ 1 Alma Willis sued a surgeon, two anesthesiologists, and three nurse anesthetists, claiming that their negligence during surgery injured her. A jury returned a verdict in favor of all defendants. Willis argues on appeal that the trial court erred (1) by granting a motion in limine barring all evidence related to her claim based on res ipsa loquitur , (2) by refusing a missing witness instruction, (3) by permitting a defense expert to testify to an opinion not expressed in his deposition, and (4) by restricting the testimony of her experts. We find that Willis presented sufficient evidence to permit a jury to decide whether she proved that defendants controlled the instrumentalities that caused her injury and that the injuries would not have occurred without negligence. We reverse and remand for a new trial at which the court must permit Willis to present evidence and arguments related to her theory of res ipsa loquitur .

¶ 2 I. BACKGROUND

¶ 3 Willis suffered from back problems. Her doctor referred her to Dr. Jeffery Flagg, a plastic surgeon, for treatment. Dr. Flagg scheduled a reconstruction of Willis's right breast, a reduction of her left breast, and a revision of her abdomen, planning to complete all three procedures in a single surgery. Dr. Flagg told Willis the surgery would take about five hours.

¶ 4 Dr. Flagg performed the surgery, which took 12 hours, on May 21, 2008. When Willis came to the recovery room, nurses noted on the chart that Willis had very swollen arms. The nurses charted Willis's pain on May 22 at 12:15 a.m., 1:15 a.m., 2:15 a.m., 3:15 a.m., and 4:15 a.m. Each time they recorded her pain as 4 out of 10. The hospital sent Willis home on May 22, 2008.

¶ 5 On May 25, 2008, Willis's daughter brought Willis back to the hospital because Willis had become disoriented. Medical technicians at the hospital inserted an IV line. Doctors found that Willis had suffered pulmonary embolisms—blood clots—in both lungs after the May 21 operation. They successfully treated the embolisms. On May 30, while Willis remained hospitalized for the treatment, nurses recorded that Willis had pain, especially in her right thumb, right index finger, and right middle finger since the surgery on May 21, and, according to the notes, "doctors were aware of this complaint." Willis again returned home.

¶ 6 Pain in Willis's arm persisted. A neurologist who performed an EMG (electromyography test) on June 17, 2008, found that Willis's median nerve in her right arm had sustained an injury near the elbow, and the median nerves in both arms showed damage in the carpal tunnel. Dr. Robert Coats performed surgery on August 5, 2008, to release the pressure on the nerves in the carpal tunnels. The surgery improved Willis's condition, but she continued to experience pain and a limited range of motion.

¶ 7 In May 2010, Willis filed a medical malpractice complaint naming as defendants the hospital, Dr. Flagg, and the two anesthesiologists and three nurse anesthetists who participated in the surgery. The hospital reached a settlement with Willis before trial. In count I of the amended complaint, Willis alleged that she suffered injuries to her nerves in the course of the surgery on May 21, and the injuries she sustained do not occur absent negligence. In a separate count, she alleged that Dr. Flagg negligently prolonged the surgery, failed to provide treatment that could have prevented her from developing the pulmonary embolisms, and failed to position her arms properly for the surgery. In further counts, she alleged that both anesthesiologists and all three nurse anesthetists failed to protect Willis's arms during the surgery.

¶ 8 After the parties completed discovery, defense counsel informed Willis that defendants intended to present a surveillance video showing Willis using her arms and hands. Willis's attorneys showed the video to Willis's expert witnesses, and all said that the video did not change their opinions about Willis's injuries. Willis's attorneys updated their discovery responses with the opinions. Defense counsel chose not to re-depose the experts.

¶ 9 The circuit court scheduled the trial to start on June 22, 2017. On June 20, 2017, the court heard numerous defense motions, including one styled as a motion in limine to bar all evidence related to the count seeking recovery on a theory of res ipsa loquitur . The trial court granted the motion and barred all of Willis's experts from testifying that the injury to the median nerves would not have occurred without negligence.

¶ 10 Dr. Mauricio Morales, the anesthesiologist who supervised Willis's initial positioning for the surgery, admitted that he did not remember the surgery. Based on Dr. Morales's usual practice, he asserted that he, Dr. Flagg, and the initial nurse anesthetist, David McCormick, would have decided how to position Willis. They would have placed soft restraints on her arms between the wrists and the elbows. The standard of care required rechecking Willis's positioning every other hour or so to ensure no problems had arisen. The surgical team likely repositioned Willis during the surgery because a position for abdominal revisions is different from the position used for breast surgery.

¶ 11 Dr. Ching-Chong Huang, who relieved Dr. Morales as the anesthesiologist for Willis's surgery after the first six hours of surgery, also had no recollection of the surgery. He agreed that the standard of care required rechecking Willis's positioning periodically.

¶ 12 David McCormick, the first nurse anesthetist to work on Willis's surgery, testified that he helped to position Willis and monitored her blood pressure and blood loss to ensure sufficient replacement fluids throughout the surgery. He testified to the amount of fluids Willis took in during the surgery and to the amount of fluids, including blood and urine, Willis egested.

¶ 13 Kim Price, the nurse anesthetist who relieved McCormick, testified that she checked the straps holding Willis's arms, and they remained appropriately loose. She too testified about the amounts of fluid given to Willis.

¶ 14 Paul Kowalczyk, the nurse anesthetist who relieved Price, testified that he did not remember the surgery. Based on his usual practice, he said he used drugs to rouse Willis after the surgery. He recorded that Willis, drowsy, did not complain of pain immediately after the surgery. He gave her morphine. Although the nurses' notes indicate that Willis had limited movement of her extremities, Kowalczyk set up a pump Willis could operate by hand to administer to herself more morphine. She used only 29.6 milligrams of morphine, although the pump would have allowed her to use 45 milligrams. He admitted that surgeons lean on patients "all the time." If a nurse anesthetist saw such leaning, the anesthetist should tell the surgeon immediately, and the surgeon should immediately move away. Kowalczyk added, "It's not something we would document on a regular basis."

¶ 15 Dr. Flagg testified that during the surgery, "We were surprised by a golf ball size mass on the chest wall." It "changed the operation completely." Dr. Flagg admitted that after the operation Willis suffered a deep vein thrombosis (DVT)—a large blood clot—that moved to her lungs and became the pulmonary embolisms requiring hospitalization on May 25, 2008. He admitted that lengthy surgeries increase the risk of DVT. He did not prescribe anticoagulants for Willis. He agreed that anticoagulants might have prevented the thrombosis and consequent pulmonary embolisms. He testified, "The way you help alleviate DVT's postoperatively is to ambulate the patient and that is one of the orders that we put in as one of our postoperative orders." He admitted that the written discharge order did not mention ambulation. On June 25, 2008, Dr. Flagg filled out a form in which he said Willis suffered "Postop right-hand neuropathy and pulmonary embolus." According to the form Dr. Flagg signed, Willis's consequent disability began on May 21, 2008.

¶ 16 Willis testified that before the surgery she had not experienced significant problems with her arms or hands. During recovery from surgery, Willis told the nurse her arms hurt. Later on May 22, she complained of pain in both arms. She could not move her hands or her arms. Her arms remained severely swollen for several days after the surgery. She described her continuing treatments and her continuing difficulties with her arms and hands.

¶ 17 Dr. Coats testified that in July 2008 Willis told him she began to have problems with her arms after the surgery on May 21. The EMG dated June 17, 2008, showed damage to the median nerve near the right elbow and at both wrists. For the damage near the wrists, Dr. Coats explained, "[t]he root cause is there's either swelling, fluid, or other things that fill up the carpal tunnel. And once you start filling up the space of the carpal tunnel, that takes away space from the median nerve." When he performed the carpal tunnel surgery, he found the median nerve flattened, proving "there was pressure on the nerve."

¶ 18 Karol Corey, Willis's occupational therapist, testified about Willis's limited progress in improving her range of motion. Willis told Corey that the problem with her arms started after the surgery on May 21, 2008.

¶ 19 Charles Barton, a nurse anesthetist, testified as an expert that the nurse anesthetists violated the standard of care by infusing far too much fluid and by...

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2 cases
  • Johnson v. Armstrong
    • United States
    • United States Appellate Court of Illinois
    • October 28, 2021
    ...whether the doctrine applies as a question of law, subject to de novo review." Willis v. Morales , 2020 IL App (1st) 180718, ¶ 36, 446 Ill.Dec. 13, 169 N.E.3d 74. "[A] plaintiff seeking to rely on the res ipsa doctrine must plead and prove that he or she was injured (1) in an occurrence tha......
  • Johnson v. Armstrong
    • United States
    • United States Appellate Court of Illinois
    • October 28, 2021
    ...decide whether the doctrine applies as a question of law, subject to de novo review." Willis v. Morales, 2020 IL App (1st) 180718, ¶ 36, 169 N.E.3d 74. "[A] plaintiff seeking to rely on the res ipsa doctrine must plead and prove that he or she was injured (1) in an occurrence that ordinaril......

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