{ "id": 5662163, "name": "JESSIE M. ST. GEMME, Plaintiff-Appellant, v. ROGER L. TOMLIN, Defendant-Appellee", "name_abbreviation": "St. Gemme v. Tomlin", "decision_date": "1983-10-27", "docket_number": "No. 4\u201483\u20140218", "first_page": "766", "last_page": "772", "citations": [ { "type": "official", "cite": "118 Ill. App. 3d 766" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "401 N.E.2d 1196", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "81 Ill. App. 3d 894", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3226954 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/81/0894-01" ] }, { "cite": "347 N.E.2d 320", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "37 Ill. App. 3d 763", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2717353 ], "pin_cites": [ { "page": "768" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/37/0763-01" ] }, { "cite": "388 N.E.2d 770", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "70 Ill. App. 3d 1009", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5579526 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/70/1009-01" ] }, { "cite": "440 N.E.2d 1248", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "91 Ill. 2d 536", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3091828 ], "opinion_index": 0, "case_paths": [ "/ill-2d/91/0536-01" ] }, { "cite": "424 N.E.2d 1337", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "98 Ill. App. 3d 1034", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8500448 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/98/1034-01" ] }, { "cite": "399 N.E.2d 238", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "80 Ill. App. 3d 98", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3235076 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/80/0098-01" ] }, { "cite": "104 Cal. Rptr. 505", "category": "reporters:state", "reporter": "Cal. Rptr.", "pin_cites": [ { "page": "515" } ], "opinion_index": 0 }, { "cite": "502 P.2d 1", "category": "reporters:state_regional", "reporter": "P.2d", "pin_cites": [ { "page": "11-12" } ], "opinion_index": 0 }, { "cite": "8 Cal. 3d 229", "category": "reporters:state", "reporter": "Cal. 3d", "case_ids": [ 2321912 ], "pin_cites": [ { "page": "245" } ], "opinion_index": 0, "case_paths": [ "/cal-3d/8/0229-01" ] }, { "cite": "262 N.E.2d 156", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "127 Ill. App. 2d 174", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2474038 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/127/0174-01" ] }, { "cite": "379 N.E.2d 306", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "62 Ill. App. 3d 299", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5619827 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/62/0299-01" ] }, { "cite": "233 N.E.2d 443", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "445" } ], "opinion_index": 0 }, { "cite": "91 Ill. App. 2d 56", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2820662 ], "pin_cites": [ { "page": "60" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/91/0056-01" ] } ], "analysis": { "cardinality": 724, "char_count": 12654, "ocr_confidence": 0.748, "pagerank": { "raw": 3.1960495860075946e-07, "percentile": 0.8655637838345015 }, "sha256": "0dcdb3baaac06ce4085154a04c9279e65693663b259f5d84f964b1992ffaa321", "simhash": "1:2b75e21117f32d4a", "word_count": 2084 }, "last_updated": "2023-07-14T15:55:29.032579+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "JESSIE M. ST. GEMME, Plaintiff-Appellant, v. ROGER L. TOMLIN, Defendant-Appellee." ], "opinions": [ { "text": "PRESIDING JUSTICE WEBBER\ndelivered the opinion of the court:\nPlaintiff brought suit against the defendant in the circuit court of Coles County alleging dental malpractice. A jury returned a verdict in favor of the defendant, plaintiff\u2019s post-trial motion was denied, and this appeal followed.\nFour issues are raised: (1) manifest weight of the evidence; (2) error by the trial court in refusing admission of deposition testimony of plaintiff\u2019s expert; (3) error in the instructions; and (4) error in defendant\u2019s closing argument.\nThe basic facts are not controverted. Defendant practices general dentistry in Mattoon and was consulted by plaintiff for a general examination after her former dentist had died. She had not seen a dentist for several years prior to this first consultation. Defendant advised plaintiff that the third mandibular molar should be extracted. The tooth was tissue-impacted and extensively decayed. A preoperative X ray indicated that the apex of the root tip was close to, and possibly protruding into, the mandibular canal which contains the mandibular nerve. It also indicated that the tooth was probably ankylosed, that is, fused to the jaw bone, in certain areas. Left untreated in its condition, the tooth would have become infected and would pose a life-threatening situation. The only remedy was extraction, a difficult and complicated procedure.\nOne consequence of the operation is paresthesia, a change or loss of sensation in the lip. It occurs to some degree in 1% to 5% of the cases of extraction of all third molars and as high as 10 or 15% of the cases involving a tooth in the condition found here.\nDefendant did not warn plaintiff of the potential paresthesia. It did ensue after the extraction, which occurred on April 25, 1978. Defendant left a portion of the root tip in place believing that it would be likely to cause less damage than that which might be caused by attempting to remove it. In September 1978 plaintiff consulted oral surgeons at the Christie Clinic in Champaign concerning her paresthesia. They reopened the surgical site and removed a calcified body which was probably the remnant of the root left by the defendant. The second procedure did not relieve the paresthesia, which is probably permanent.\nPlaintiff filed a two-count complaint; count I alleged conventional malpractice under a theory of res ipsa loquitur; count II alleged failure to obtain an informed consent. At the conclusion of all the evidence plaintiff confessed a motion for directed verdict on count I and the case was submitted to the jury on count II.\nThe weight of the evidence issue resolves itself, as it nearly always does in these cases, into a duel of the experts with the jury electing to award the trophy to one of them. Plaintiffs expert was Dr. Richard Bianco, one of the treating oral surgeons from Christie Clinic. On the failure to warn question, he testified that the standard of care for a dentist about to perform the type of surgery here involved would require disclosure of the risk of post-operative paresthesia. Defendant\u2019s expert was Dr. Zellers, a practicing dentist in Mattoon. It was established that he was a friend of the defendant and associated with him in a business venture. He stated that the prevailing practice in Mattoon in 1978 was not to warn of the possibility of paresthesia, although since then the practice had been changed, largely because of the instant suit and others like it. He was cross-examined from treatises which stated that where a molar is in close proximity to the mandibular nerve, the patient should be warned of paresthesia. He responded that other treatises have taken the opposite view. Thus was framed a question which a jury is mandated to answer: which one is to be credited with the weightier opinion. The answer here was in favor of the defendant. \u201c '*** A verdict based on conflicting evidence and approved by the trial judge should not be disturbed on appeal unless contrary to the manifest weight of the evidence; that is, an opposite conclusion must be clearly evident. ***\u2019 \u201d (Cochran v. Parker (1968), 91 Ill. App. 2d 56, 60, 233 N.E.2d 443, 445.) We cannot say here that the opposite conclusion is clearly evident.\nThe question of proximate cause may be more easily answered. In all but the most gross malpractice cases there must be expert evidence not only as to the negligence of the defendant but also as to a proximate causal connection between the negligence and the injury suffered by the plaintiff. (Eckley v. St. Therese Hospital (1978), 62 Ill. App. 3d 299, 379 N.E.2d 306.) This principle is applicable to failure-to-warn cases. (Green v. Hussey (1970), 127 Ill. App. 2d 174, 262 N.E.2d 156.) In the instant case the only evidence on this matter favorable to the plaintiff came from the plaintiff herself who testified that if she had known of the risk, she would not have submitted to the procedure. All of the expert evidence, both plaintiff\u2019s expert and defendant\u2019s experts, was to the contrary.\nAll of the experts testified that there was no reasonable alternative. Dr. Cooper, called as a defendant\u2019s witness and who, with Dr. Bianco had treated plaintiff at Christie Clinic, testified that no reasonable person would refuse the treatment given. All agreed that within a short time the tooth would become abscessed and hence life-threatening.\nWe agree with the statement made by the Supreme Court of California:\n\u201cThe patient-plaintiff may testify on this subject but the issue extends beyond his credibility. Since at the time of trial the uncommunicated hazard has materialized, it would be surprising if the patient-plaintiff did not claim that had he been informed of the dangers he would have declined treatment. Subjectively he may believe so, with the 20/20 vision of hindsight, but we doubt that justice will be served by placing the physician in jeopardy of the patient\u2019s bitterness and disillusionment. Thus an objective test if preferable: i.e., what would a prudent person in the patient\u2019s position have decided if adequately informed of all significant perils.\u201d Cobbs v. Grant (1972), 8 Cal. 3d 229, 245, 502 P.2d 1, 11-12, 104 Cal. Rptr. 505, 515.\nThe plaintiff failed to meet her burden of proof on the question of proximate cause.\nPlaintiff\u2019s next issue concerns the exclusion of certain testimony given by deposition by Dr. Bianco. Plaintiff\u2019s counsel was developing the standard of care in the context of failure to warn and an objection was lodged by defense counsel based, inter alia, on the locality rule. Plaintiff\u2019s counsel then reframed his question, indicating that the locality should be assumed to be the States of Illinois and Indiana. The trial court excluded this portion of the deposition on the ground that the locality here was the Mattoon area. Plaintiff argues in this court that the locality rule, as followed by the trial court and as it exists in this State now, has become parochial in view of the development of medicine and surgery into international disciplines. There is authority for that proposition. (Compare Chamness v. Odum (1979), 80 Ill. App. 3d 98, 399 N.E.2d 238.) However much or little we may agree philosophically, we need not pursue the doctrine in this case.\nDr. Bianco\u2019s further testimony, which was heard by the jury, was forceful and pointed. He stated that there should be a warning concerning possible post-operative paresthesia and this testimony was directed at the specific surgery here involved. The excluded testimony dealt with the extraction of third molars in general, and at best was cumulative. Error in the admission or exclusion of evidence is harmless if the facts involved are strongly established by other competent evidence. People v. Duckworth (1981), 98 Ill. App. 3d 1034, 424 N.E.2d 1337.\nPlaintiff next complains about the use of Illinois Pattern Jury Instructions (IPI), Civil, Nos. 105.01, 105.05 (2d ed. 1971). Both were given by the trial court over objection by the plaintiff.\nAs to IPI Civil 105.01, plaintiff\u2019s objection is to the use of the opening phrase, \u201cIn operating upon a patient ***.\u201d She maintains that since the only issue which ultimately went to the jury was that of informed consent, this phrase should not have been used since it applies only to general negligence or res ipsa loquitur. We disagree.\nThe phrase may be read broadly enough to include both preoperative and post-operative procedures and should be so used. The balance of the instruction refers to \u201cskill and care\u201d on the part of the doctor which would necessarily include preoperative and post-operative procedures. Plaintiff\u2019s attempt to place such a narrow focus on the language is ill-advised and carried to its logical extreme would require a plethora of instructions to the jury covering each and every step and phase of treatment individually.\nIn addition, as has been indicated, the trial proceeded on both res ipsa loquitur and informed consent. It was not until all the evidence had been heard that the res ipsa was taken out. The jury had heard a great deal of evidence concerning the operation and the skill and care of the dentist. Plaintiffs counsel also questioned that skill in closing argument. In view of that record, the jury could have been left to wonder what had happened. Even though the instruction was less than helpful, we fail to see how plaintiff has been prejudiced by it.\nPlaintiff next complains about IPI Civil No. 105.05, which the trial court gave in a slightly modified form as follows: \u201cA surgeon must obtain the consent of a patient before operating on her.\u201d Plaintiff submitted, and was refused, the following: \u201cA dentist must obtain the informed consent of a patient before operating on him.\u201d In our opinion each of these is subject to the same quantum of vagueness and abstraction.\nPlaintiff argues that there are four elements in an informed consent action which should be proved. Without passing on the validity of these elements, we observe that if plaintiff were so convinced at the time of trial, she should have submitted an instruction delineating that theory. If she did not, she cannot now be heard to complain that such an instruction was not given. People v. Huckstead (1982), 91 Ill. 2d 536, 440 N.E.2d 1248.\nIn our opinion the jury would not have been any more enlightened with plaintiff\u2019s tendered instruction than with defendant\u2019s given instruction.\nPlaintiff\u2019s final complaints relate to the defendant\u2019s closing argument. Defense counsel argued to the jury that if the tooth had not been removed, it would have become infected and would then pose a life-threatening situation. Plaintiff\u2019s counsel objected and was overruled and now argues that there was no evidence of infection; hence, it is claimed, the argument is not based on the evidence. While it is true that there was no evidence of infection at the time of surgery, all three experts were in agreement that it would shortly have ensued if the surgery had not been performed. Defense counsel\u2019s argument was a fair inference from the evidence. Kyowski v. Burns (1979), 70 Ill. App. 3d 1009, 388 N.E.2d 770.\nPlaintiff also complains that in a portion of defense counsel\u2019s argument he misstated the law by suggesting that the defendant would have been negligent if, because of his warning, plaintiff would have elected not to have the surgery. We disagree.\nA definitive statement as to how much a doctor should disclose to his patient is found in Miceikis v. Field (1976), 37 Ill. App. 3d 763, 768, 347 N.E.2d 320:\n\u201cA doctor has a special relationship with his patient. [Citation.] This relationship not only vests the doctor with the responsibility of disclosure, but also requires the doctor to exercise discretion in prudently disclosing information in accordance with his patient\u2019s best interests. To disclose more than that which is material would run counter to the responsibility assumed through the doctor-patient relationship.\u201d\nDefense counsel\u2019s argument found its predicate in this principle. We also note in passing that the argument was not objected to at the time. See Grabner v. American Airlines, Inc. (1980), 81 Ill. App. 3d 894, 401 N.E.2d 1196.\nThe judgment of the circuit court of Coles County is therefore affirmed.\nAffirmed.\nMILLS and GREEN, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE WEBBER" } ], "attorneys": [ "Robert D. Owen and Leslie L. Veon, both of Owen, Roberts, Susler & Murphy, EC., of Decatur, for appellant.", "Richard F. Record, Jr., and Paul R. Lynch, both of Craig & Craig, of Mattoon, for appellee." ], "corrections": "", "head_matter": "JESSIE M. ST. GEMME, Plaintiff-Appellant, v. ROGER L. TOMLIN, Defendant-Appellee.\nFourth District\nNo. 4\u201483\u20140218\nOpinion filed October 27, 1983.\nRehearing denied November 14, 1983.\nRobert D. Owen and Leslie L. Veon, both of Owen, Roberts, Susler & Murphy, EC., of Decatur, for appellant.\nRichard F. Record, Jr., and Paul R. Lynch, both of Craig & Craig, of Mattoon, for appellee." }, "file_name": "0766-01", "first_page_order": 788, "last_page_order": 794 }