{ "id": 5343985, "name": "W. Eugene Dorris, Administrator of the Estate of George Rapach, Deceased, Claimant, vs. State of Illinois, Respondent", "name_abbreviation": "Dorris v. State", "decision_date": "1956-11-13", "docket_number": "No. 4624", "first_page": "405", "last_page": "410", "citations": [ { "type": "official", "cite": "22 Ill. Ct. Cl. 405" } ], "court": { "name_abbreviation": "Ill. Ct. Cl.", "id": 8793, "name": "Illinois Court of Claims" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "46 A.L.R. 1447", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 0 }, { "cite": "209 N.W. 440", "category": "reporters:state_regional", "reporter": "N.W.", "opinion_index": 0 }, { "cite": "202 Iowa 109", "category": "reporters:state", "reporter": "Iowa", "case_ids": [ 8644645 ], "opinion_index": 0, "case_paths": [ "/iowa/202/0109-01" ] }, { "cite": "149 Ill. App. 440", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2642862 ], "opinion_index": 0, "case_paths": [ "/ill-app/149/0440-01" ] }, { "cite": "212 Ill. 506", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3312025 ], "opinion_index": 0, "case_paths": [ "/ill/212/0506-01" ] }, { "cite": "151 N.E. 22", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "159 N.E. 451", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "262 Mass. 54", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 3823017 ], "opinion_index": 0, "case_paths": [ "/mass/262/0054-01" ] }, { "cite": "189 Ill. App. 544", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2904620 ], "opinion_index": 0, "case_paths": [ "/ill-app/189/0544-01" ] }, { "cite": "229 Ill. App. 365", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3079835 ], "opinion_index": 0, "case_paths": [ "/ill-app/229/0365-01" ] }, { "cite": "181 Ill. App. 274", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 880228 ], "opinion_index": 0, "case_paths": [ "/ill-app/181/0274-01" ] }, { "cite": "41 Ill. App. 284", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5027727 ], "opinion_index": 0, "case_paths": [ "/ill-app/41/0284-01" ] }, { "cite": "244 Ill. App. 320", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3341734 ], "opinion_index": 0, "case_paths": [ "/ill-app/244/0320-01" ] }, { "cite": "180 Ill. App. 334", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2822913 ], "opinion_index": 0, "case_paths": [ "/ill-app/180/0334-01" ] }, { "cite": "78 Fed. 442", "category": "reporters:federal", "reporter": "F.", "case_ids": [ 6725735 ], "opinion_index": 0, "case_paths": [ "/f/78/0442-01" ] }, { "cite": "98 Ill. App. 36", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5303167 ], "opinion_index": 0, "case_paths": [ "/ill-app/98/0036-01" ] }, { "cite": "130 Ill. App. 624", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2528137 ], "pin_cites": [ { "page": "631" } ], "opinion_index": 0, "case_paths": [ "/ill-app/130/0000-01" ] }, { "cite": "133 Ill. App. 301", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2475109 ], "opinion_index": 0, "case_paths": [ "/ill-app/133/0301-01" ] }, { "cite": "94 Ill. App. 147", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5291883 ], "opinion_index": 0, "case_paths": [ "/ill-app/94/0147-01" ] }, { "cite": "118 Ill. 534", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5381466 ], "opinion_index": 0, "case_paths": [ "/ill/118/0534-01" ] }, { "cite": "268 Ill. App. 89", "category": "reporters:state", "reporter": "Ill. App.", "opinion_index": 0 } ], "analysis": { "cardinality": 643, "char_count": 10153, "ocr_confidence": 0.628, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.15819995683146007 }, "sha256": "c0407475f932ac8aa426122f37bb86ce451d163d369f0b134d9b76d72bdeaa5e", "simhash": "1:52e8b1ce9044b921", "word_count": 1702 }, "last_updated": "2023-07-14T19:46:44.818806+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "W. Eugene Dorris, Administrator of the Estate of George Rapach, Deceased, Claimant, vs. State of Illinois, Respondent." ], "opinions": [ { "text": "Tolson, C. J.\nW. Eugene Dorris, Administrator of the Estate of George Rapach, deceased, filed his complaint against respondent for the alleged wrongful death of claimant\u2019s intestate.\nThe record consists of the following :\n1. Complaint.\n2. Departmental Report.\n3. Reply to Departmental Report.\n4. Transcript of evidence.\n5. Abstract of evidence.\n6. Statement, brief and argument of claimant.\n7. Statement, brief and argument of respondent.\n8. Reply brief of claimant.\nRespondent did not file an answer to the complaint, hence, under Rule 11 of the Court of Claims, a general traverse shall be considered as filed.\nThe complaint consists of Three Counts:\n(a) Count One alleges that respondent failed to provide suitable care and supervision of another patient, which resulted in injury and death to the intestate.\n(b) Count Two alleges that respondent, by its agents and servants, negligently treated the intestate\u2019s injuries, which resulted in his subsequent death.\n(c) Count Three is in the alternate alleging that, if he is not entitled to recover under Count Two, he is then entitled to recover for funeral expenses, probate fees and attorney\u2019s fees.\nUpon oral arguments, counsel for claimant conceded that the evidence would not support Count One, and, as to Count Two, the pecuniary loss consisted of the balance of a government check in the amount of $6.00 per month projected for the life of the intestate according to the usual mortality tables.\nThe facts of the case are as follows:\nGeorge Eapach was admitted to Lincoln State School on July 19, 1949, and was a patient in said institution until the time of his death on September 16, 1953. He was a severe Parkinsonian, which affected his speech, and limited his mobility. Because of the numerous falls he had suffered,- a special gear was provided to protect his head.\nOn September 14, 1953, at about 3:30 P.M., he went to the wash room with John Sparazinski, a fellow patient. Trouble developed between them, and John either hit or kicked him in the abdomen. George was put to bed, and at about 4:00 P.M. Dr. Azubalis made his initial examination.\nDr. Azubalis testified that he was unable to understand George\u2019s account of the injury, because of the speech impediment. He stated the pulse was normal, temperature was normal, and breathing was normal. George would state that the area of injury hurt, and then he would say it did not hurt. There was also a report that George had vomited.\nBecause of previous falls, he had numerous yellow patches on his body of a similar nature. (Deposition, Page 25).\nDr. Azubalis ordered a routine blood count \u2014 sedimentation rate, ice packs and penicillin, but at this time he was unable to make a diagnosis.\nOn September 15, at 9:00 A.M., Dr. Azubalis made his round of the ward. He examined George, and found that his temperature had risen to 101, and pulse 128. He stated that he examined the blood picture, and found a slight elevation of the white count, but the sedimentation rate was normal. The injured area was examined, but there was no tenseness of the muscles. He further stated that he found a subcutaneous blood suffusion in his scrotum. At this time, Dr. Azubalis suspected internal bleeding. (Deposition, Page 35).\nHe then ordered hot and cold packs, and about 1:00 P.M. conferred with Dr. Albaum, the Staff Surgeon. There is some conflict in the testimony as to the nature of this conference, as Dr. Azubalis stated that he believed he suggested an exploratory. Dr. Albaum denies that an exploratory was recommended. He further stated that the decision to operate was his responsibility, and that he did not believe that the medical history warranted an exploratory, because of the danger connected with the operation. He, therefore, ordered a further blood count and conservative treatment.\nIt appears from the evidence that, if the suspicion of internal bleeding was correct, an X-Ray would not have disclosed this fact. However, it appears that an X-Ray might have disclosed a collection of gas in the bowel, indicating a rupture of the intestine.\nThe record also shows that the patient was examined by Drs. Vladimir Magier and Thinathin Alschibaja, who recorded their findings on the hospital chart, but did not confer or make any recommendations for treatment.\nDr. Albaum testified that he examined the patient at 1:00 P.M. on September 15. He considered either internal bleeding or a ruptured bladder as a possible diagnosis, but felt that the evidence was incomplete to make a definite diagnosis, and ordered conservative treatment.\nHe stated that he again examined the patient at 6:00 P.M. and at 9:10 P.M., and at the latter time the patient was in shock, the abdomen was rigid and distended, and it would have been impossible to operate.\nThe patient died at 7:00 AM. on the 16th of September, and an autopsy disclosed a rupture of the small intestine, resulting in peritonitis.\nThe degree of care required by a physician and surgeon is set forth in Olander vs. Johnson, 268 Ill. App. 89 at page 95:\n\u201cThe duty which a physician and surgeon owes his patient is to bring to the case at hand that degree of knowledge, skill, and care, which a good physician and surgeon would bring to a similiar case under like circumstances. While this nile, on the one hand, does not exact the highest degree of skill and proficiency- attainable in the profession, it does not contemplate merely average merit. (Holtzman vs. Hoy, 118 Ill. 534; 21 R.C.L. Physicians and Surgeons, Sec. 27.)\nTo this extent he is liable and no further. He is not required to possess the highest, but reasonable skill. The burden of proof is upon the plaintiff in an action for malpractice to show the want of such care, skill and diligence, and also to show that the injury complained of resulted from failure to exercise these requisites. (McKee vs. Allen, 94 Ill. App. 147; Goodman vs. Bigler, 133 Ill. App. 301; 21 R.C.L. Physicians and Surgeons, Sec. 49.)\nNegligence is always a question of fact that must be alleged and proved as averred. It cannot be supported by a mere conjecture or surmise, but must be made referable to some specific cause or defect. (McCormick Harvesting Machine Co. vs. Gabris, 130 Ill. App. 624, 631; Pioneer Fire Proof Construction Co. vs. Sandberg, 98 Ill. App. 36.)\nBefore a plaintiff can recover in a malpractice case, it must be shown by affirmative evidence, first, that defendant was unskilful and negligent, and second, that his want of skill and care caused injury to the plaintiff. If either element is lacking in the proof, no case is presented for the consideration of a jury. (Ewing vs. Goode, 78 Fed. 442; Moline vs. Christie, 180 Ill. App. 334; Wallace vs. Yudelson, 244 Ill. App. 320; Sims vs. Parker, 41 Ill. App. 284; McKee vs. Allen, supra; Phebus vs. Mather, 181 Ill. App. 274; Graiziger vs. Henssler, 229 Ill. App. 365.)\nMere conjecture or supposition should not be sufficient to overcome the presumption in favor of the attending physician. Alleged negligence and resulting injury must be proved as averred. A physician is not an insurer. (Goodman vs. Bigler, supra; Sims vs. Parker, supra; Blodgett vs. Nevius, 189 Ill. App. 544; Wallace vs. Yudelson, supra; Graiziger vs. Henssler, supra.) Proof of a bad result or of a mishap is of itself no evidence of negligence or lack of skill. (Sims vs. Parker, supra; Moline vs. Christie, supra; Blodgett vs. Nevius, supra.)\nThe doctrine of res ipsa loquitur is not applicable to situations like the case at bar, (Guell vs. Tenney, 262 Mass. 54, 159 N.E. 451; Funk vs. Bonham (Ind. Appr.), 151 N.E. 22; Goodman vs. Bigler, supra; Graiziger vs. Henssler, supra), for, unless the accident or injury sustained by the plaintiff bespeaks the defendant\u2019s wrong, there, is no proof of culpable negligence. (Chicago & E. I. R. Co. vs. Reilly, 212 Ill. 506.)\nAs a general rule, there must be expert testimony to show that a bad result was caused by the alleged unskilful or negligent act. (Moline vs. Christie, supra; Goodman vs. Bigler, supra; Kruger vs. McGaughey, 149 Ill. App. 440; Nelson vs. Sandell, 202 Iowa 109, 209 N.W. 440; 46 A.L.R. 1447.)\u201d\nClaimant has alleged negligence in Counts Two and Three of the complaint. However, there is no direct expert testimony to show that a bad result was caused by an alleged unskillful or negligent act.\nTaking the evidence most favorable to claimant, it appears that there was evidence of vomiting, an increase of pulse and temperature as the case progressed, and a statement by one of the doctors that, if the diagnosis of a ruptured intestine had been made at an earlier stage, an exploratory would have revealed the condition, and there would have been a fair chance of saving the patient.\nCounsel also argues plausibly that, since George Rapach was un\u00e1ble to talk adequately to disclose subjective symptoms, the medical staff should have ordered X-Rays in the hope that something would have been revealed.\nRespondent argues with equal force that the speech impediment prevented the staff from determining subjective symptoms, and that the discolored area was simply one of a dozen such discolorations appearing on the patient\u2019s body.\nRespondent finally urges that the patient received the best of hospital care. In a period of forty hours, four doctors and a staff of nurses made every reasonable effort to diagnose the nature of the trouble, and all standard procedures were followed. Until the patient went into shock, it could not have been said with medical certainty that the patient suffered from peritonitis.\nProm a reading of the record, we believe that respondent made a genuine effort to diagnose and treat the patient. There is no evidence of neglect, despite the bad result. We do not believe that claimant has met the burden of proof required in a malpractice case; therefore, an award is denied.", "type": "majority", "author": "Tolson, C. J." } ], "attorneys": [ "G. William Horsley and W. G. Eovaldi, Attorneys for Claimant.", "Latham Castle, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent." ], "corrections": "", "head_matter": "(No. 4624\nW. Eugene Dorris, Administrator of the Estate of George Rapach, Deceased, Claimant, vs. State of Illinois, Respondent.\nOpinion filed November 13, 1956.\nG. William Horsley and W. G. Eovaldi, Attorneys for Claimant.\nLatham Castle, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent." }, "file_name": "0405-01", "first_page_order": 441, "last_page_order": 446 }