Willaby v. Bendersky

FIRST DIVISION
June 25, 2008

No. 1-04-1311

MARY WILLABY, ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) Cook County.
)
v. )
) No. 99 l 6981
CLARA BENDERSKY, HASMUKH PATEL, )
and WESTLAKE COMMUNITY HOSPITAL, )
) The Honorable
Defendants-Appellants. ) John E. Morrissey,
) Judge Presiding.

JUSTICE GARCIA delivered the opinion of the court.

Mary Willaby, filed suit against Dr. Clara Bendersky, Dr.

Hasmukh Patel, and Westlake Community Hospital, alleging medical

negligence. A laparotomy sponge was left in Willaby's abdomen

following surgery to repair an evisceration that occurred

subsequent to a hysterectomy. The matter proceeded to a jury

trial. At the close of all of the evidence, the trial court

granted Westlake's motion for a directed verdict, and the jury

subsequently returned a verdict in favor of Drs. Bendersky and

Patel. Willaby raises several issues on appeal, including (1) Dr.
No. 1-04-1311

Patel's closing argument denied her a fair trial, (2) the trial

court erred in striking the testimony of her nursing expert and

granting Westlake's motion for a directed verdict, and (3) the

jury's verdict is against the manifest weight of the evidence. For

the reasons that follow, we affirm in part, reverse in part, and

remand the matter to the circuit court for a new trial against

Westlake only.

BACKGROUND

In 1997, Mary Willaby began experiencing abdominal pain.

Willaby, who was 50 years old and obese, saw her doctor, Dr.

Miller, who diagnosed her with having fibroid tumors in her uterus.

Dr. Miller referred Willaby to the defendant Dr. Bendersky, a

board-certified gynecologist and obstetrician. Dr. Bendersky

recommended a total abdominal hysterectomy and bilateral salpingo-

oopherectomy , the removal of both of Willaby's fallopian tubes and

her uterus.

Dr. Bendersky performed the hysterectomy on June 16, 1997, at

Westlake. When Dr. Bendersky closed Willaby's abdomen, she did not

notice any "intestinal adhesions"--portions of Willaby's bowels

that were stuck together. Willaby stayed at Westlake for several

days recovering. During this time, Willaby's white blood cell

count rose and she had a fever. She also experienced

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No. 1-04-1311

serosanguinous drainage, a drainage consisting of blood mixed with

peritoneal fluid, from the surgery wound site. Willaby was

discharged from Westlake on June 20.

Following her discharge, Willaby experienced abdominal pain

and bouts of projectile vomiting. She called Dr. Bendersky, who

advised her to go to the Westlake emergency room. On June 21,

1997, Willaby was readmitted to Westlake and was referred to the

defendant Dr. Patel, a board-certified general surgeon. Dr. Patel

believed Willaby was suffering from either a bowel obstruction or

a paralytic ileus, a condition commonly seen following

hysterectomies where movements in the bowel slow.

Although Dr. Patel considered operating on Willaby, he opted

not to because her condition appeared to be resolving. Dr.

Bendersky ordered a cystogram to determine whether Willaby's

bladder had been injured during the hysterectomy. The cystogram

came back negative. A nursing note in Willaby's chart indicated

the presence of serosanguinous drainage from the surgical wound and

questioned whether Willaby's wound had become infected.

On June 30, 1997, Dr. Miller discharged Willaby. Before she

left Westlake, Dr. Bendersky removed the skin staples from

Willaby's hysterectomy wound and covered the wound with a bandage.

Shortly after her staples were removed, and before she left

Westlake, Willaby suffered a wound dehiscence, meaning the layers

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No. 1-04-1311

of her abdominal wall at the surgical site separated. Willaby then

suffered an evisceration, a dangerous condition where her

intestines emerged outside of her abdominal cavity through the

wound dehiscence. Willaby was able to catch her intestines before

they spilled onto the floor. She called for help and several

nurses and a doctor responded. The doctor, who is unidentified in

the record, was able to massage Willaby's intestines back into her

abdomen. The doctor then applied an abdominal binder. Willaby was

rushed to surgery with Dr. Patel.

When Dr. Patel opened Willaby's abdomen, he noticed she had

several adhesions--areas where her intestine was either stuck

together or stuck to another organ. Dr. Patel also noticed that an

internal suture from her hysterectomy wound was "stuck" to the

peritoneum, the inner lining of Willaby's abdominal wall. Dr.

Patel cut the suture to release it from the abdominal wall and

freed the intestine from the stitch. Dr. Patel then brought out

all of Willaby's intestines to examine them. A 12-inch portion of

Willaby's small intestine was twisted and was not receiving blood.

Dr. Patel removed this portion of the intestine and reconnected the

healthy portions of the bowel. Because Willaby's appendix looked

abnormal, Dr. Patel removed it. Subsequent pathological testing,

however, revealed that Willaby's appendix was normal.

Before Dr. Patel closed Willaby's abdomen, he was assured by

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No. 1-04-1311

the nurses in the operating room that all laparotomy sponges and

other instruments used in the surgery were accounted for. Dr.

Patel closed Willaby's abdomen. However, unbeknownst to Dr. Patel,

a 12-inch by 12-inch laparotomy sponge remained in Willaby's

abdominal wall.

The sponge, like all laparotomy sponges, contained a

radiopaque tail making it detectable by X-ray. Dr. Patel ordered

an X-ray of Willaby on July 6, 1997, "to see how the intestines

were looking." The X-ray indicated the presence of a foreign

object, which was determined to be a surgical drain. Dr. Patel was

aware a surgical drain had not been placed in Willaby's abdomen.

However, he did not see the X-ray report until November 1997. By

that time, Willaby had returned to Dr. Miller complaining of nausea

and leakage from her navel. Dr. Miller ordered a CAT scan, which

indicated the presence of a foreign object. On December 1, 1997,

Dr. Patel performed exploratory surgery on Willaby and discovered

the laparotomy sponge.

Willaby filed a medical negligence suit against Dr. Bendersky,

Dr. Patel, and Westlake. On November 6, 2003, the date trial was

set to commence, Willaby filed a motion for summary judgment,

claiming there was no factual dispute that (1) Dr. Bendersky placed

a suture through Willaby's bowel, (2) Dr. Patel allowed a sponge to

remain in Willaby's abdomen, and (3) Westlake failed to comply with

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No. 1-04-1311

its procedures and protocols to ensure a proper sponge count was

achieved and failed to conduct a sponge count after the June 30,

1997, surgery. Willaby also filed a "Motion for Ruling on Res

[Ipsa] Loquitur," in which she asked the court "for a ruling

granting the applicability of the doctrine of res ipsa loquitur" in

regard to Dr. Bendersky, Dr. Patel, and Westlake.

The trial court denied Willaby's summary judgment motion,

finding it untimely. No ruling on the res ipsa loquitur motion

appears in the record. The trial court also granted several

motions in limine, including one filed by Dr. Patel seeking to bar

any reference to the parties' finances. On November 14, 2003, a

jury trial began.

I. Dr. Bendersky

Willaby sought to prove at trial that Dr. Bendersky, when

performing the hysterectomy, negligently placed a suture through

her bowel, which became infected and led to the wound dehiscence

and evisceration. According to this theory, Dr. Bendersky and Dr.

Patel should have recognized the rise in her white blood cell

count, her fever, and the serosanguinous drainage as signs of an

infection and a pending wound dehiscence and evisceration. Willaby

claimed, however, they negligently failed to respond to those

signs.

To support this theory, Willaby called Dr. Bendersky to

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No. 1-04-1311

testify as an adverse witness. Dr. Bendersky acknowledged the rise

in white blood cell count and temperature, but testified she was

not concerned because they normally rise following surgery. Dr.

Bendersky was not concerned with the serosanguinous drainage

because its appearance was not purulent, or pus-like. Dr.

Bendersky also testified that she did not place a stitch through

Willaby's bowel during the hysterectomy.

Willaby also called Dr. Patel to testify as an adverse

witness. According to Dr. Patel, Willaby did not exhibit any signs

of a wound dehiscence, such as a wound infection or increased

abdominal pressure. Dr. Patel was not concerned with the

serosanguinous drainage because it commonly occurs in obese

patients as fat drains out of the wound. Dr. Patel testified that

the wound dehiscence and evisceration were likely caused by

coughing. According to Dr. Patel, a nurse told him Willaby sat up

in bed and coughed prior to the wound dehiscence and evisceration.

Dr. Patel acknowledged that during the evisceration repair

surgery, he noticed that Willaby's bowel had several adhesions.

Although adhesions can be an indication of an infection, they are

commonly seen after surgery and can occur for unknown reasons. In

Dr. Patel's opinion, Willaby did not have any kind of wound or

abdominal infection during her entire hospitalization.

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No. 1-04-1311

Willaby presented expert testimony from Dr. Melvin Gerbie, a

board-certified obstetrician-gynecologist, and Dr. Rogelio Riera,

a retired general surgeon. Dr. Gerbie testified Dr. Bendersky

failed to identify and act upon Willaby's symptoms, especially the

serosanguinous drainage, indicating a pending wound dehiscence and

evisceration. Dr. Riera testified that both Dr. Bendersky and Dr.

Patel deviated from the standard of care when they failed to

"explore" Willaby's surgical wound by opening it and draining it

prior to the evisceration. It was the opinion of Dr. Gerbie and

Dr. Riera that an errant stitch through Willaby's bowel caused an

infection that ultimately caused the wound dehiscence and

evisceration. Dr. Gerbie did not believe the wound dehiscence and

evisceration was caused by coughing.

Dr. Gerbie acknowledged that wound dehiscence is often

associated with obesity, in part because of the increased intra-

abdominal pressure put on the incision. He also testified that

suturing a bowel was not necessarily a deviation of the standard of

care.

Dr. Bendersky presented expert testimony from Dr. Lance

Mercer, a board-certified obstetrician-gynecologist. It was Dr.

Mercer's opinion that Dr. Bendersky did not place a stitch through

Willaby's bowel. However, even if she did place such a stitch, it

would not be a deviation of the standard of care.

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No. 1-04-1311

Dr. Mercer also explained that pus, not serosanguinous

drainage, is indicative of an infection. Serosanguinous drainage

could be indicative of a wound dehiscence and evisceration if it is

"copious," meaning it continues to pour out of the patient. In his

view, Willaby's drainage was not copious. Rather, some amount of

drainage would be expected in an overweight patient with a long

incision. Dr. Mercer disagreed with Dr. Gerbie's opinion that the

presence of serosanguinous drainage required an exploration of the

wound.

Dr. Mercer did not know what caused Willaby's wound dehiscence

and evisceration, but opined Willaby's obesity was a factor. He

did not believe an infection was the cause. He also did not

believe the removal of Willaby's staples played any role in the

wound dehiscence and evisceration.

Dr. Richard Jorgenson, a board-certified general surgeon, gave

expert testimony on behalf of Dr. Patel. Dr. Jorgenson explained

that an evisceration is "a sudden monumental event" that cannot be

anticipated. Dr. Jorgenson did not find the serosanguinous

drainage, the elevated white blood cell count or the fever to

indicate a pending wound dehiscence and evisceration. A fever and

an elevated white blood cell count are both nonspecific findings.

Further, instances of serosanguinous drainage will usually heal

themselves. Dr. Jorgenson also testified that exploring the wound

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No. 1-04-1311

prior to June 30, 1997, would not have prevented the wound

dehiscence and evisceration and could have possibly exposed the

wound to an infection. In Dr. Jorgenson's opinion, Willaby's wound

dehiscence and evisceration occurred because she had weak tissue.

Her obesity was also a contributing factor, as obesity leads to

healing difficulties. According to Dr. Jorgenson, Dr. Patel's

treatment before and after the wound dehiscence and evisceration

complied with the standard of care.

II. Dr. Patel

Willaby sought to prove at trial that Dr. Patel, as the

surgeon in charge of the evisceration repair, was responsible for

the sponge being left in her abdomen and that he acted negligently

when he removed Willaby's normal appendix.

Dr. Patel testified it was his responsibility as a surgeon to

make sure that all sponges are removed from a patient's body before

closing the patient. He also admitted that only he had the ability

to put a sponge in a patient and remove it. Dr. Patel was not

concerned that a sponge had been left in Willaby because the nurses

reported the sponge count as correct.

Dr. Gerbie acknowledged that in some situations, such as in an

emergency, a sponge may be left in a patient without any negligence

on the part of healthcare providers. However, in this case,

Willaby's wound dehiscence and evisceration ceased to be an

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No. 1-04-1311

emergency once her bowel was resected. Dr. Gerbie and Dr. Riera

both testified Dr. Patel deviated from the standard of care in

leaving the sponge behind. Dr. Riera, however, agreed that it was

within the standard of care for Dr. Patel to rely on a sponge count

as communicated by the nurses. Dr. Riera also testified it was

improper for a doctor to remove a healthy organ without the

patient's consent.

According to Dr. Jorgenson, leaving the sponge behind was not

a deviation of the standard of care because the evisceration repair

surgery was an emergency. He also testified that it was within the

standard of care for Dr. Patel to rely on the sponge count as

communicated by the nurses. Dr. Jorgenson also explained that the

appendix serves no purpose in the body. He testified it was common

practice to remove an abnormal looking appendix because leaving it

in can be fatal. He also explained there is no way to perform a

biopsy on an appendix during an operation.

III. Westlake

The theory Willaby sought to prove against Westlake was that

the nurses were negligent in failing to perform an accurate sponge

count.

Testimony from Westlake nurses Mary George, Donna Leder, and

Mercedes Fitzgerald established that except in emergency cases,

Westlake's nursing policy requires nurses to count all sponges at

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No. 1-04-1311

least three times: an initial count taken prior to the surgery; a

first count taken during surgery when the first layer of the

abdominal wall is closed; a final count taken when the final layer

of the abdominal wall is closed. An interim count is required to

be taken when a nursing shift change occurs during surgery. This

count is not necessarily accurate because sponges may have placed

in the patient's body and the surgeon cannot be expected to remove

them so they can be counted.

Each count of the sponges involves two nurses. For the

initial count, the "scrub nurse" unwraps each sponge from its

packaging and counts each aloud. The scrub nurse also checks that

each sponge has a radiopaque tail. The "circulating nurse" records

the number of sponges unwrapped on a "count sheet." The count

totals from the subsequent counts are then matched against the

initial count.

The count sheet, however, is only "temporary," meaning it does

not become part of the patient's medical chart. An "intraoperative

report," which contains the nurses' signatures indicating the

counts taken are correct, is kept in a patient's chart. The

intraoperative report, however, does not indicate the actual number

of sponges used.

Nurse George was the scrub nurse for Willaby's hysterectomy

surgery. At trial, Nurse George identified the intraoperative

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No. 1-04-1311

report from that surgery. The report was signed, indicating the

first and final counts matched the initial count.

Nurse Leder was a scrub nurse for Willaby's evisceration

repair surgery. At trial, Nurse Leder identified the

intraoperative report from that surgery, which indicated the counts

were done and were accurate. She also testified she was relieved

by Nurse Mercedes Fitzgerald in the middle of the surgery.

Nurse Fitzgerald testified she followed Westlake's sponge-

counting procedures during Willaby's evisceration repair surgery.

Fitzgerald also identified Willaby's intraoperative report where

her signature indicated the first and final counts were taken, and

that they matched the initial count. According to Fitzgerald, her

count was correct.

Willaby also presented expert testimony from Nurse Lutricia

Cloud, who testified the Westlake nurses deviated from the standard

of care by failing to maintain an accurate sponge count, by failing

to follow nursing and hospital protocol regarding counting sponges,

and by failing to advise Dr. Patel they did not have an accurate

sponge count. Nurse Cloud defined the standard of care as "the

best possible care for patients which prevents or avoids causing

them any harm."

Westlake presented expert testimony from Nurse William Culver.

Nurse Culver testified that Westlake's sponge-counting policy

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No. 1-04-1311

complied with the standard of care and that the nurses complied

with the policy during Willaby's evisceration repair surgery.

Nurse Culver defined the standard of care as "what a reasonably

qualified registered nurse would do in the same or similar

situation."

After the presentation of evidence concluded, Willaby sought

leave to file a first-amended complaint to conform the pleadings to

the proofs and to add a res ipsa loquitur count against Dr. Patel.

The trial court allowed the motion.

The court next considered a motion filed by Westlake to strike

Nurse Cloud's testimony on the basis that she failed to properly

identify the standard of care. The trial court granted the motion,

stating,

"Looking at Nurse Cloud's testimony in

its best light, Nurse Cloud never stated that

she was familiar with the applicable standard

of care for nurses practicing in the

Chicagoland area.

* * *

Were I to allow her testimony to go to

the jury in the manner and form that it was

offered, the jury would be called upon to

apply an incorrect standard of care for nurses

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No. 1-04-1311

based solely on Cloud's testimony. And Cloud

is the only one called by the plaintiff who

directly criticizes the nurses."

Based on the striking of Nurse Cloud's testimony by the trial

court, Westlake filed a motion for a directed verdict. The trial

court granted the motion "due to the insufficiency of Nurse Cloud's

testimony as a matter of law."

IV. Verdict

The jury returned a verdict in favor of Drs. Patel and

Bendersky. Willaby's posttrial motion was denied, and this timely

appeal followed.

ANALYSIS

Before addressing the issues properly before us, we make two

observations. First, Willaby challenges several of the trial

court's rulings, including allowing certain testimony that amounted

to hearsay, allowing certain testimony that should have been barred

by Supreme Court Rule 213 (210 Ill. 2d R. 213), and rejecting a

certain jury instruction. With the exception of cases of limited

value which are neither explained nor analyzed, Willaby fails to

provide a reasoned basis for these contentions. " 'The appellate

court is not a depository in which the appellant may dump the

burden of argument and research.' " In re Marriage of Auriemma,

271 Ill. App. 3d 68, 72, 648 N.E.2d 118 (1994), quoting Thrall Car

15
No. 1-04-1311

Manufacturing Co. v. Lindquist, 145 Ill. App. 3d 712, 719, 495

N.E.2d 1132 (1986). Supreme Court Rule 341(h)(7) (210 Ill. 2d R.

341(h)(7)) requires the appellant to clearly set out the issues

raised, supported by relevant authority. Because Willaby has

failed to do this, these arguments are waived. Universal Casualty

Co. v. Lopez, 376 Ill. App. 3d 459, 465, 876 N.E.2d 273 (2007)

(arguments not supported by relevant authority are waived).

Second, Willaby appeals the trial court's denial of her motion

for summary judgment against Westlake. However, our supreme court

has explained that the denial of a motion for summary judgment is

not reviewable on appeal where the motion raises only factual

issues, like that filed by Willaby in this case, because "any error

is merged into the judgment entered at trial." Belleville Toyota,

Inc. v. Toyota Motor Sales, U.S.A., Inc., 199 Ill. 2d 325, 355, 770

N.E.2d 177 (2002). Accordingly, we do not consider this issue.

As to the issues properly before us, we first address

Willaby's contentions against Dr. Patel and Dr. Bendersky and then

her contentions against Westlake.

I. Dr. Patel and Dr. Bendersky

Willaby contends certain comments made by counsel for Dr.

Patel in his closing argument denied her a fair trial. She also

contends the jury's verdict in favor of Drs. Patel and Bendersky is

contrary to the manifest weight of the evidence.

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No. 1-04-1311

A. Closing Argument

In concluding his closing argument, counsel for Dr. Patel

stated, "The decision facing a doctor who is sued for malpractice

is a difficult one. Should he defend himself in court risking his

financial future?" Counsel for Willaby promptly objected. The

trial court sustained the objection and instructed the jury to

disregard the comment.

Willaby contends the reference to Dr. Patel's "financial

future" denied her a fair trial and constituted reversible error.

Willaby argues Dr. Patel's finances were not at issue in the case

and notes Dr. Patel himself filed a motion in limine seeking to bar

any reference to the parties' finances.

An improper comment that also violates a motion in limine does

not necessarily constitute reversible error. See Magna Trust Co.

v. Illinois Central R.R. Co., 313 Ill. App. 3d 375, 395, 728 N.E.2d

797 (2000) ("Violation of a motion in limine is not per se

reversible error"). To constitute reversible error, such a comment

must cause substantial prejudice, not cured by the trial court's

actions. "Improper comments generally do not constitute reversible

error unless the party has been substantially prejudiced." Magna

Trust Co., 313 Ill. App. 3d at 395. Where the trial court sustains

a timely objection and instructs the jury to disregard the improper

comment, the court sufficiently cures any prejudice. Magna Trust

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No. 1-04-1311

Co., 313 Ill. App. 3d at 395.

In this case, there is no question that counsel's reference to

the doctor's financial future was improper. However, the trial

court immediately sustained Willaby's objection and instructed the

jury to disregard the offending comment. Willaby puts forth no

argument that substantial prejudice remained even after the trial

court took this prompt action. Accordingly, we reject Willaby's

claim of reversible error based on defense counsel's improper

comment.

B. The Sufficiency of the Evidence

Willaby contends the jury's verdict in favor of Dr. Bendersky

and Dr. Patel is against the manifest weight of the evidence.

In an appeal from a jury verdict, "a reviewing court may not

simply reweigh the evidence and substitute its judgment for that of

the jury." Snelson v. Kamm, 204 Ill. 2d 1, 35, 787 N.E.2d 796

(2003). Rather, a jury verdict may be reversed only where it is

against the manifest weight of the evidence. Snelson, 204 Ill. 2d

at 35. "A verdict is contrary to the manifest weight of the

evidence when the opposite conclusion is clearly evident or when

the jury's findings prove to be unreasonable, arbitrary and not

based upon any of the evidence." York v. Rush-Presbyterian-St.

Luke's Medical Center, 222 Ill. 2d 147, 179, 854 N.E.2d 635 (2006).

Willaby presented evidence at trial to show Dr. Bendersky

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No. 1-04-1311

deviated from the standard of care by placing a suture in her bowel

and by failing to detect an infection that led to the wound

dehiscence and evisceration. Willaby also presented evidence that

Dr. Patel failed to diagnose a pending wound dehiscence and

evisceration, left a sponge in her abdomen, and negligently removed

her healthy appendix. The defendant doctors, however, presented

evidence that Dr. Bendersky did not place a stitch through her

bowel and that the wound dehiscence and evisceration were not

caused by an infection but, rather, occurred because Willaby was

obese, because Willaby coughed, or because of unknown reasons. Dr.

Patel also presented evidence demonstrating that he acted within

the standard of care when he relied on the nurses' representation

that there was an accurate sponge count and when he removed an

abnormal looking appendix.

Willaby essentially argues on appeal that her theory of

liability against Dr. Bendersky and Dr. Patel should have been

accepted by the jury. However, where the parties present

conflicting evidence, we cannot say the jury's verdict is against

the manifest weight of the evidence. York, 222 Ill. 2d at 179.

Because the evidence was conflicting, we do not disturb the

jury's verdict in favor of Drs. Patel and Bendersky.

II. Westlake

Turning to the contentions against Westlake, Willaby argues

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No. 1-04-1311

the trial court erred when it struck the entirety of Nurse Cloud's

expert testimony and directed a verdict in Westlake's favor.

A plaintiff in a medical negligence case must plead and prove

three elements: (1) the proper standard of care against which the

defendant healthcare professional's conduct is measured; (2) a

deviation of that standard; and (3) an injury proximately caused by

that deviation. Purtill v. Hess, 111 Ill. 2d 229, 241-42, 489

N.E.2d 867 (1986). Generally, "expert testimony is necessary in

professional negligence cases to establish the standard of care and

that its breach was the proximate cause of the plaintiff's injury."

Snelson v. Kamm, 204 Ill. 2d 1, 43-44, 787 N.E.2d 796 (2003). In

this case, Willaby called Nurse Lutricia Cloud as her expert

witness.

In Illinois, two foundational requirements and a discretionary

requirement of competency must be established before a health care

professional may offer expert testimony regarding the standard of

care. Sullivan v. Edward Hospital, 209 Ill. 2d 100, 114-15, 806

N.E.2d 645 (2004); Purtill, 111 Ill. 2d at 243; Alm v. Loyola

University Medical Center, 373 Ill. App. 3d 1, 5, 866 N.E.2d 1243

(2007). Specifically, a trial court must determine (1) whether the

healthcare professional is a licensed member of the school of

medicine about which he or she proposes to testify, and (2) whether

the healthcare professional is familiar with the methods,

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No. 1-04-1311

procedures, and treatments ordinarily observed by other healthcare

providers in either the defendant's community or a similar

community. Sullivan, 209 Ill. 2d at 114-15; Purtill, 111 Ill. 2d

at 243. Once these foundational requirements are met, the trial

court has discretion to find the healthcare professional qualified

and competent to state his or her opinion regarding the standard of

care. Sullivan, 209 Ill. 2d at 115; Purtill, 111 Ill. 2d at 243.

Westlake does not argue Nurse Cloud was not qualified or

competent to state her opinion. Rather, Westlake's claim is that

Nurse Cloud's testimony did not accurately state the applicable

standard of care for the Westlake nurses. Based on her failure to

properly identify the standard of care, the trial court sustained

Westlake's motion to strike Nurse Cloud's testimony and directed a

verdict in Westlake's favor "due to the insufficiency of Nurse

Cloud's testimony as a matter of law."

The long-standing rule in Illinois is that "a verdict should

be directed only in those cases in which all of the evidence, when

viewed in its aspect most favorable to the opponent, so

overwhelmingly favors the movant that no contrary verdict based on

that evidence could ever stand." Heastie v. Roberts, 226 Ill. 2d

515, 544, 877 N.E.2d 1064 (2007), citing Pedrick v. Peoria &

Eastern R.R. Co., 37 Ill. 2d 494, 510, 229 N.E.2d 504 (1967). A

21
No. 1-04-1311

directed verdict is reviewed de novo. Schiff v. Friberg, 331 Ill.

App. 3d 643, 657, 771 N.E.2d 517 (2002).

Nurse Cloud testified the Westlake nurses failed to maintain

an accurate sponge count, failed to follow nursing and hospital

protocol regarding counting sponges, and failed to advise Dr. Patel

that they did not have an accurate sponge count. She defined the

standard of care as "the best possible care for patients which

prevents or avoids causing them any harm."

It is true that Nurse Cloud did not accurately describe the

standard of care applicable in an Illinois professional negligence

case. See, e.g., Advincula v. United Blood Services, 176 Ill. 2d

1, 23, 678 N.E.2d 1009 (1996) ("In Illinois, the established

standard of care for all professionals is stated as the use of the

same degree of knowledge, skill and ability as an ordinarily

careful professional would exercise under similar circumstances").

However, Nurse Culver's expert testimony accurately described the

standard of care as "what a reasonably qualified registered nurse

would do in the same or similar situation." While Nurse Culver

testified on behalf of the defense after the plaintiff rested her

case, we are obliged by Pedrick, 37 Ill. 2d at 510, to consider all

of the evidence when determining whether a directed verdict is

proper at the close of the case. Cf. Walski v. Tiesenga, 72 Ill.

2d 249, 252, 381 N.E.2d 279 (1978) (directed verdict at close of

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No. 1-04-1311

plaintiff's case proper where "plaintiff failed to establish the

requisite professional standard of care against which the

defendant's conduct was to be judged"). The record also contains

additional testimony regarding the standard of care provided by

Nurses George, Leder, and Fitzgerald, who described in detail

Westlake's sponge-counting procedures. Because evidence of the

applicable standard of care was before the jury, the trial court

erred in directing a verdict based on Nurse Cloud's inaccurate

testimony regarding the applicable standard of care.

It also not proper to strike all of Nurse Cloud's testimony

simply because she inaccurately stated the standard of care. Other

aspects of Nurse Cloud's testimony, including that the nurses

failed to maintain an accurate sponge count, deviated from

Westlake's sponge-counting procedures, and failed to notify Dr.

Patel of the inaccurate count, were properly before the jury.

When we consider all of the evidence in Willaby's favor, we

cannot say a verdict for Willaby on the issue of Westlake's

negligence could not stand. See Anderson v. Martzke, 131 Ill. App.

2d 61, 65, 266 N.E.2d 137 (1970) (trial court erred in directing a

verdict in favor of defendant doctor error where defendant doctor,

called as an adverse witness, gave expert testimony sufficient to

establish prima facie case).

Even if we were to find the testimony from Nurses Culver,

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George, Leder, and Fitzgerald insufficient to establish the

applicable standard of care as a matter of law, we are unconvinced

a directed verdict would be warranted.

It has been established that leaving a sponge in a patient's

body following surgery is prima facie evidence of medical

negligence. Piacentini v. Bonnefil, 69 Ill. App. 2d 433, 447, 217

N.E.2d 507 (1966) ("If a sponge was left in the plaintiff's body

she has established a prima facie case of negligence against the

doctor and the burden of coming forth with the evidence then shifts

to the defendant doctor"). Under similar facts here, Willaby was

not obligated to present an expert to establish the standard of

care and its breach. An expert witness is not required where the

defendant's actions are grossly apparent or where the treatment is

so common that a layperson would understand the conduct without the

necessity of an expert. See Heastie, 226 Ill. 2d at 554; Sullivan,

209 Ill. 2d at 112; Purtill, 111 Ill. 2d at 242.

Failing to keep an accurate count of sponges so that a sponge

is left in a patient's body following surgery is an example of such

a case. See Comte v. O'Neil, 125 Ill. App. 2d 450, 454, 261 N.E.2d

21 (1970) (leaving a sponge in the abdomen an example of the

"common knowledge" or "gross negligence" exception to expert

testimony); Restatement (Second) of Torts, § 328D, Comment d, at

158 (1965) ("there are other kinds of medical malpractice, as where

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No. 1-04-1311

a sponge is left in the plaintiff's abdomen after an operation,

where no expert is needed to tell the jury that such events do not

usually occur in the absence of negligence"). Based on the

presence of the sponge in Willaby's abdomen, she established a

prima facie case of medical negligence. The burden then shifted to

Westlake to explain that the failure of the nurses to keep an

accurate count such that a sponge was left in Willaby's abdomen was

the result of something other than its negligence. Piacentini, 69

Ill. App. 2d at 447.

For these reasons we cannot say the evidence so overwhelmingly

favored Westlake that a directed verdict in its favor was

warranted. Accordingly, the trial court erred in directing such a

verdict.

Willaby additionally raises the contention that the trial

court erred when it refused to allow her to amend her complaint to

include a negligence count based on res ipsa loquitur against

Westlake. In light of our determination that a remand for a new

trial against Westlake is in order, we do not decide this issue.

Rather, we leave the issue to the sound discretion of the trial

court upon remand.

CONCLUSION

For the reasons stated above, we affirm the circuit court's

entry of judgment in favor of Dr. Patel and Dr. Bendersky. We

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reverse the circuit court's grant of a directed verdict in favor of

Westlake and remand for a new trial as to Westlake only.

Affirmed in part and reversed in part; cause remanded.

WOLFSON and R. GORDON, JJ., concur.

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No. 1-04-1311

REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
_________________________________________________________________
MARY WILLABY,

Plaintiff-Appellant,

v.

CLARA BENDERSKY, HASMUKH PATEL,
and WESTLAKE COMMUNITY HOSPITAL,
Defendants-Appellants.
_______________________________________________________________

No. 1-04-1311

Appellate Court of Illinois
First District, First Division

Filed: June 25, 2008
_________________________________________________________________

JUSTICE GARCIA delivered the opinion of the court.

WOLFSON and R. GORDON, JJ., concur.
_________________________________________________________________

Appeal from the Circuit Court of Cook County
Honorable John E. Morrissey, Judge Presiding
_________________________________________________________________

For PLAINTIFF - Michael C. Goode
APPELLANT 11 S. LaSalle Street, Suite 2802
Chicago, Illinois 60603

For DEFENDANT - Edward M. Kay
APPELLEE, Richard L. Murphy
Hasmukh Patel, M.D. Paula M. Carstensen
Clausen Miller, P.C.
10 S. LaSalle Street
Chicago, Illinois 60603

27
No. 1-04-1311

For DEFENDANTS - Mark J. Lura
APPELLEES, Diane I. Jennings
Clara Bendersky, M.D. Anderson, Rasor & Partners, LLP
and Westlake 55 E. Monroe Street, Suite 3650
Community Hospital Chicago, Illinois 60603

28