{ "id": 3282548, "name": "EDWARD KOLAKOWSKI et al., Plaintiffs-Appellants, v. DR. DAVID C. VORIS et al., Defendants-Appellees", "name_abbreviation": "Kolakowski v. Voris", "decision_date": "1979-06-22", "docket_number": "Nos. 77-420, 77-565 cons.", "first_page": "453", "last_page": "459", "citations": [ { "type": "official", "cite": "76 Ill. App. 3d 453" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "251 N.E.2d 105", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "112 Ill. App. 2d 234", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1590967 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/112/0234-01" ] }, { "cite": "86 S. Ct. 1204", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "16 L. Ed. 2d 209", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": 0 }, { "cite": "383 U.S. 946", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6248097, 6249605, 6248393, 6248718, 6250351, 6249968 ], "opinion_index": 0, "case_paths": [ "/us/383/0946-01", "/us/383/0946-04", "/us/383/0946-02", "/us/383/0946-03", "/us/383/0946-06", "/us/383/0946-05" ] }, { "cite": "211 N.E.2d 253", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1966, "opinion_index": 0 }, { "cite": "33 Ill. 2d 326", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2886822 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/ill-2d/33/0326-01" ] }, { "cite": "381 N.E.2d 689", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "72 Ill. 2d 495", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5443031 ], "opinion_index": 0, "case_paths": [ "/ill-2d/72/0495-01" ] }, { "cite": "207 N.E.2d 305", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "32 Ill. 2d 446", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2840887 ], "opinion_index": 0, "case_paths": [ "/ill-2d/32/0446-01" ] }, { "cite": "232 N.E.2d 7", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "88 Ill. App. 2d 399", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 8499481 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/88/0399-01" ] }, { "cite": "243 N.E.2d 40", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1967, "pin_cites": [ { "page": "44-45" } ], "opinion_index": 0 }, { "cite": "104 Ill. App. 2d 80", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1601115 ], "year": 1967, "pin_cites": [ { "page": "87" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/104/0080-01" ] }, { "cite": "63 N.E.2d 617", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "327 Ill. App. 206", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3419478, 3420143 ], "opinion_index": 0, "case_paths": [ "/ill-app/327/0206-01", "/ill-app/327/0206-02" ] }, { "cite": "113 N.E.2d 178", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1945, "opinion_index": 0 }, { "cite": "350 Ill. App. 504", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5105553, 5108469 ], "year": 1945, "opinion_index": 0, "case_paths": [ "/ill-app/350/0504-02", "/ill-app/350/0504-01" ] }, { "cite": "126 N.E.2d 836", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1953, "opinion_index": 0 }, { "cite": "5 Ill. 2d 614", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2703925 ], "year": 1953, "opinion_index": 0, "case_paths": [ "/ill-2d/5/0614-01" ] }, { "cite": "373 N.E.2d 413", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "57 Ill. App. 3d 524", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3423211 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/57/0524-01" ] }, { "cite": "361 N.E.2d 1100", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "66 Ill. 2d 119", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5463533 ], "opinion_index": 0, "case_paths": [ "/ill-2d/66/0119-01" ] }, { "cite": "329 N.E.2d 543", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "28 Ill. App. 3d 917", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5410841 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/ill-app-3d/28/0917-01" ] }, { "cite": "240 N.E.2d 699", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "99 Ill. App. 2d 146", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5323744 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/99/0146-01" ] } ], "analysis": { "cardinality": 765, "char_count": 13256, "ocr_confidence": 0.904, "pagerank": { "raw": 3.7637723025227584e-07, "percentile": 0.8958053152905826 }, "sha256": "dd03f9704fff48fb74f821df04f22494fbae05c46b7a17161bbff2042986ff3b", "simhash": "1:6f3a8cd016bdf609", "word_count": 2160 }, "last_updated": "2023-07-14T15:19:59.772889+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "EDWARD KOLAKOWSKI et al., Plaintiffs-Appellants, v. DR. DAVID C. VORIS et al., Defendants-Appellees." ], "opinions": [ { "text": "Mr. JUSTICE LORENZ\ndelivered the opinion of the court:\nPlaintiffs filed their complaint seeking damages for injuries following an operation performed by Doctors Voris, Parameswar and Smith on the premises of defendant Mercy Hospital & Medical Center. Following an answer and the submission of interrogatories, depositions and affidavits, Mercy Hospital\u2019s motion for summary judgment in its behalf was granted. On appeal, plaintiffs contend that the trial court\u2019s granting of summary judgment to Mercy Hospital was erroneous.\nThe facts pertinent to the disposition of this appeal are as follows.\nPlaintiff Edward Kolakowski had an extensive medical history of injuries and pain suffered in his back, right shoulder, and lower extremities. Included in this history was a diagnosis made in 1958 that he had a severe degenerative disease of a lumbar disc of his spine. He underwent a laminectomy and fusion operation, followed by out-patient treatment. His back trouble continued through July of 1972, when his back was re-injured in an automobile accident. In July of 1973 Kolakowski, complaining of pains in his neck and left shoulder, visited his family doctor, Dr. Caser\u00eda, who prescribed heat therapy. This did not relieve his pain and on July 17, he was admitted to Mercy Hospital. There he was examined by Dr. David Voris, a neurologist who had been called in by Dr. Caserta. Dr. Voris suggested heat therapy and other treatments to relieve the pain and advised that he avoid further surgery. Kolakowski was discharged from Mercy Hospital on July 27.\nAlthough he continued with heat therapy as Dr. Voris prescribed, Kolakowski\u2019s pain continued until it became unbearable. On August 11, he was readmitted to Mercy Hospital and his neck was placed in traction. When this also proved ineffective, Dr. Voris decided to perform a \u201cmyelographic study,\u201d which is an X-ray of the spinal cord after a contrast medium is injected. Assisted by Dr. Parameswar, Dr. Voris performed this study on August 16. Afterwards, Dr. Voris told Kolakowski that the myelogram had shown a significant defect and \u201ca chance of spinal cord involvement as well as nerve root.\u201d Dr. Voris stated that he recommended an interior interbody discectomy and fusion surgery, and explained that the complications from this operation could include infection, quadriplegia or quadriparesis.\nThe operation was performed on August 24, 1973. Dr. Voris was assisted by Drs. Parameswar and Leonard Smith, an orthopedic surgeon. Also present was a Dr. Searle, the anesthesiologist, and nurses Beverly Hopson and Mary E. Melancom, employees of Mercy Hospital. During the operation, the defective disc was removed from Kolakowski\u2019s spine, and the space was \u201cplugged\u201d with a piece of bone from his right iliac crest. Kolakowski was then lifted off of the operating table, placed on a cart, and taken first to the recovery room and then to his own room. At 6 p.m. he was visited by a nurse who noted his complaint of inability to bend his left leg, and weakness and numbness on his right side. It was noted at 7:30 and 8:45 p.m. that he couldn\u2019t move his legs and complained of stiffness. At 10:15 a notation recorded that he could move his right leg slightly, could not move his left leg at all, and had a higher than normal temperature of 102 degrees. Although Dr. Voris admitted that these symptoms were unusual and demanded attention, the hospital personnel did not contact him. A notation indicates that he was called, but could not be found. It appears that no attempt was made to contact Dr. Parameswar or any other neurosurgeon.\nVoris examined Kolakowski on August 25 and found that he had poor hand, wrist and leg movement, impaired sensation and hyperactive reflexes. He diagnosed Kolakowski\u2019s condition as spastic quadriparesis. This could have been caused by either spinal cord compression or spinal cord edema, which is the swelling of tissue due to an accumulation of fluid. Although compression should be surgically reduced as soon as possible for the best chance of recovery, Voris\u2019 opinion was that the condition was edema and could be corrected without surgery. Voris admitted that the two factors which caused edema, trauma and impaired circulation, did not appear to be present. He nevertheless prescribed a drug to reduce the swelling. Subsequent examinations showed there was no change in Kolakowski\u2019s condition. Voris and Parameswar performed another myelogram on August 27, and when a blockage was indicated, performed a laminectomy. Certain ligaments and muscles were dissected and stripped, and extruded bits of disc were removed. The postoperative report recorded that no evidence of spinal cord compression or edema was found. The report also stated that \u201c[i]t is not felt that an adequate explanation for this patient\u2019s difficulty with leg movement has been found.\u201d Kolakowski\u2019s condition was diagnosed as \u201ccervical myelopathy,\u201d which is an impaired function of the cervical spinal cord. He has lost the use of his limbs and is in effect a quadriplegic.\nPlaintiffs filed their complaint on August 9, 1974. Counts II and IV of the complaint were brought against Mercy Hospital under a res ipsa loquitur theory, and sought, respectively, $5 million for Edward\u2019s pain and injuries, and $5 million for Clara\u2019s loss of her husband\u2019s consortium and services. After evidentiary depositions and affidavits were submitted, Mercy Hospital filed its motion for summary judgment. A hearing was held, the trial court granted the motion, and plaintiffs then filed this appeal.\nOpinion\nPlaintiffs contend that the granting of Mercy Hospital\u2019s motion for summary judgment was erroneous. Under section 57 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 57), a motion for summary judgment should only be granted where \u201cthe pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.\u201d A triable issue precluding summary judgment exists where there is a dispute as to material facts or where, the material facts being undisputed, reasonable persons might draw different inferences from the facts. (Ruby v. Wayman (1968), 99 Ill. App. 2d 146, 240 N.E.2d 699.) In determining whether a genuine issue as to any material fact exists, the court must construe the pleadings, depositions and affidavits most strictly against the movant and most liberally in favor of the opponent. (Baier v. State Farm Insurance Co. (1975), 28 Ill. App. 3d 917, 329 N.E.2d 543, affd (1977), 66 Ill. 2d 119, 361 N.E.2d 1100.) Summary judgment provides a means of disposing of cases with dispatch, but it is a drastic method and should only be allowed when the right of the party to invoke that drastic method is free from doubt. (Interlake, Inc. v. Harris Trust & Savings Bank (1978), 57 Ill. App. 3d 524, 373 N.E.2d 413.) It is clear that the issue of negligence is ordinarily and pre-eminently a question of fact for the jury to decide. (Kahn v. James Burton Co. (1955), 5 Ill. 2d 614, 126 N.E.2d 836; Hays v. Place (1953), 350 Ill. App. 504,113 N.E.2d 178; Bartels v. McGarvey (1945), 327 Ill. App. 206,63 N.E.2d 617.) Summary judgment is therefore \u201ca remedy to be awarded with some caution so as not to preempt the right to a trial by jury or the right to fully present the factual basis for a case where a material dispute may exist.\u201d (Lumbermens Mutual Casualty Co. v. Poths (1968), 104 Ill. App. 2d 80, 87, 243 N.E.2d 40, 44-45.) Accordingly, the right to summary judgment must be clear beyond question. Patterson v. Stern (1967), 88 Ill. App. 2d 399, 232 N.E.2d 7.\nPlaintiffs\u2019 complaint against Mercy Hospital was brought under the doctrine of res ipsa loquitur. This doctrine allows the proof of negligence through circumstantial evidence which shows that a thing which caused the injury was under the control or management of the party charged with negligence, and the occurrence is such as in the ordinary course of things would not have happened if the person charged had used proper care. (Metz v. Central Illinois Electric & Gas Co. (1965), 32 Ill. 2d 446,207 N.E.2d 305.) Our supreme court has held that although only ultimate facts, and not conclusions or inferences, are ordinarily to be pleaded, in the pleading of a cause of action in a medical malpractice case under the doctrine of res ipsa loquitur, reliance on the doctrine should be alleged. (Walker v. Burner (1978), 72 Ill. 2d 495, 381 N.E.2d 689.) A review of the record and plaintiffs\u2019 complaint indicates that their reliance on res ipsa loquitur was sufficiently alleged, and that it is applicable to the disposition of this case. Mercy Hospital contends, however, that all of the pleadings, depositions and affidavits filed show that there is no issue as to whether anything under its control, or any failure on its part to use proper care, could have caused Kolakowski\u2019s condition. It accordingly argues that its motion for summary judgment was properly granted, and that the trial court\u2019s order should be affirmed.\nWe disagree with this argument. A review of the facts adduced at this stage of the proceedings indicates that the cause and party responsible for Edward Kolakowski\u2019s condition remains unknown. It is clear that on August 24, throughout the evening following his operation, Kolakowski had serious symptoms which Dr. Voris conceded were unusual and demanded attention. Although the symptoms were noted, neither Dr. Voris, Dr. Parameswar, nor any other neurosurgeon was contacted by the hospital personnel in charge. A verdict against Mercy Hospital could ultimately be based upon a failure by its nurses or other employees to recognize the seriousness of Kolakowski\u2019s condition and promptly inform a physician. (See Darling v. Charleston Community Memorial Hospital (1965), 33 Ill. 2d 326, 211 N.E.2d 253, cert, denied (1966), 383 U.S. 946,16 L. Ed. 2d 209, 86 S. Ct. 1204.) Mercy Hospital points out that when Dr. Voris did examine his patient on August 25 he concluded that immediate action was not warranted and that they would wait and see if Kolakowski\u2019s condition improved with time and medication. Arguing in support of its motion for summary judgment, Mercy Hospital reasons that because no immediate action was taken by Voris when he examined Kolakowski on the 25th, the failure of the hospital personnel to contact a neurosurgeon on the 24th \u201ccould not be the proximate cause of Kolakowski\u2019s injuries.\u201d We disagree. Whether Voris\u2019 decision not to take action was correct, and whether he or other neurosurgeons would have decided differently if they had examined Kolakowski on the 24th are questions of fact which are subject to proof and the trier of fact\u2019s ultimate determination. We note that plaintiffs\u2019 attorney stated in an affidavit that a doctor who would be called as an expert witness would testify that in light of Kolakowski\u2019s symptoms, a neurosurgeon should have been reached and an immediate decompression operation should have been performed. Mercy Hospital\u2019s argument to the contrary indicates that a material dispute does exist, and the imposition of summary judgment to dispose of the case was improper. See Sanders v. Frost (1969), 112 Ill. App. 2d 234, 251 N.E.2d 105.\nFurther review of the record reveals that Kolakowski, his son David and a friend who was visiting in his room, all testified in their depositions that Dr. Voris told them that Kolakowski\u2019s right leg or foot was dropped off of the operating table. In their depositions, Dr. Voris denied making such a statement, and Dr. Parameswar denied that such an event occurred. Whether the statement was made and the event occurred are also questions which the trier of fact may properly resolve. Mercy Hospital argues that even if the event did occur, \u201cthe record is bare as to any involvement of hospital agents in such an alleged occurrence.\u201d It admits, however, that according to Dr. Parameswar, the hospital\u2019s nurses would \u201csometimes\u201d assist in moving a patient from the operating table to a cart \u201cby holding the legs.\u201d We agree with Mercy Hospital that the record at present does not establish whether nurses or other hospital personnel were involved in the alleged dropping of Kolakowski\u2019s leg. It is precisely because that factual issue remains unresolved that proof should be adduced at trial and summary judgment for Mercy Hospital should not have been granted.\nBased on all of the above, we conclude that this case poses questions of fact for a jury\u2019s determination at trial, and that summary judgment for Mercy Hospital was improperly awarded. Accordingly, the judgment of the circuit court is reversed and the cause is remanded for proceedings not inconsistent with this opinion.\nReversed and remanded.\nMEJDA and WILSON, JJ., concur.", "type": "majority", "author": "Mr. JUSTICE LORENZ" } ], "attorneys": [ "Walter T. Ketchum, of Chicago (William J. Harte, of counsel), for appellants.", "Baker & McKenzie, of Chicago (Francis D. Morrissey, Harry J. O\u2019Kane, and Daniel J. O\u2019Connor, of counsel), for appellees." ], "corrections": "", "head_matter": "EDWARD KOLAKOWSKI et al., Plaintiffs-Appellants, v. DR. DAVID C. VORIS et al., Defendants-Appellees.\nFirst District (5th Division)\nNos. 77-420, 77-565 cons.\nOpinion filed June 22, 1979.\n\u2014 Rehearing denied October 11, 1979.\nWalter T. Ketchum, of Chicago (William J. Harte, of counsel), for appellants.\nBaker & McKenzie, of Chicago (Francis D. Morrissey, Harry J. O\u2019Kane, and Daniel J. O\u2019Connor, of counsel), for appellees." }, "file_name": "0453-01", "first_page_order": 475, "last_page_order": 481 }