Johnson v. Armstrong
184 N.E.3d 608
Ill. App. Ct.2021Background
- In October 2016 William “Wes” Johnson underwent a left total hip arthroplasty and thereafter suffered permanent femoral nerve palsy affecting branches to the vastus lateralis and rectus femoris.
- Johnson sued surgeon Dr. Lucas Armstrong, scrub tech Sarah Harden, McLean County Orthopedics, and Advocate BroMenn, alleging ordinary negligence and a res ipsa loquitur theory; vicarious liability was pled against the employer defendants.
- Defense depositions: Harden (scrub tech) said she only held retractors as directed; Armstrong said he placed and moved retractors; neither recalled negligence in the record.
- Johnson’s expert (retired orthopedic surgeon Sonny Bal) testified that (1) the EMG showed direct femoral nerve injury, (2) the injury was caused by a retractor, and (3) the permanent severity of the injury would not ordinarily occur absent negligence.
- Advocate moved for summary judgment arguing Johnson lacked a nursing expert to establish Harden’s standard of care and that Harden lacked exclusive control of the instrumentality; the trial court granted summary judgment for Advocate and Harden and later for Armstrong.
- The appellate court reversed, holding Johnson made a prima facie showing under res ipsa loquitur and did not need a separate nursing expert to proceed to trial on the res ipsa theory.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Johnson made a prima facie showing under res ipsa loquitur (injury that ordinarily does not occur absent negligence and instrumentality within defendant's control) | Bal’s testimony: permanent femoral nerve denervation is not an ordinary, non-negligent outcome; the retractor caused the injury; Harden was holding the retractor when injury occurred | Retractor was placed and moved by Armstrong; Harden merely held it at his direction and thus lacked exclusive control and any shown breach | Appellate court: Bal’s testimony created a genuine issue that this severe injury ordinarily does not occur absent negligence and Harden’s physical control of the retractor satisfies the control element for res ipsa; res ipsa could go to the jury (reversed summary judgment) |
| Whether a nursing expert was required to establish Harden’s standard of care/breach | Res ipsa is an alternative method of proof; once plaintiff’s expert shows the injury is not ordinarily occurring absent negligence, no separate nursing‑standard testimony is required to invoke res ipsa | Advocate: Bal is not qualified to testify to a nursing standard and plaintiff therefore failed to show Harden breached any standard of care | Appellate court: Plaintiff did not need a nursing expert to invoke res ipsa; expert proof that the injury ordinarily does not occur without negligence suffices to let jury infer negligence and decide factual weight |
Key Cases Cited
- Heastie v. Roberts, 226 Ill. 2d 515 (sets Illinois elements for res ipsa loquitur)
- Poole v. University of Chicago, 186 Ill. App. 3d 554 (res ipsa as circumstantial evidence allowing inference of negligence when cause is within defendant control)
- Spidle v. Steward, 79 Ill. 2d 1 (expert testimony that an injury ordinarily would not occur absent negligence satisfies the probability element)
- Kolakowski v. Voris, 83 Ill. 2d 388 (endorses Ybarra principle that control of instrumentalities by multiple medical personnel shifts initial explanatory burden to defendants)
- McMillen v. Carlinville Area Hospital, 114 Ill. App. 3d 732 (a mere scintilla of evidence is insufficient to invoke res ipsa)
- Willis v. Morales, 169 N.E.3d 74 (trial court decides applicability of res ipsa as a question of law; discusses control and timing elements)
- Adams v. Family Planning Associates Medical Group, Inc., 315 Ill. App. 3d 533 (injury need not never occur without negligence—only that it ordinarily does not)