*1 con- the judgments and therefore imposed sentences modify the and the sentences and escape of armed robbery for the crimes viction are as a result thereof imposed affirmed. affirmed.
Judgments ALLOY,
STOUDER, concur. J., J., P. Community Plaintiff-Appellant, Ohligschlager, Mildred v. Proctor Hospital Defendants-Appellees. al., et 70-208;
(No. Third 1972. May District *3 STOUDER, J., dissenting. P. Koos, Peoria,
Elmo E. of for appellant. Lyle Peoria, Allen and Nicoll, appellees. David both of for Mr. of the court: SCOTT delivered opinion JUSTICE sustained Suit was for brought by injuries defendants plaintiff against her care while under the she was the Proctor patient Hospital the defendant, of Dr. plaintiff, Cannon. In September, Joe fifty-five year woman, Hospital, old obese admitted the Proctor defendant, arrangements for her having admittance been made Dr. caus- Cannon for condition Cannon. Dr. had been her treating Joe ing ill vomiting diarrhea since 1966. She was quite September not but comotose into the upon admission. She checked about 4:40 and at into P.M. 6:30 inserted a needle Cannon appeared plaintiff’s arm and were commenced Certain feeding. liquids intravenous intravenously fed for the condition dehydrated of purpose correcting of the plaintiff and as was added eventually a substance known Sparine is to feedings. drug vomiting. The stop purpose Directions by the manufacturer cautioned that care should be exercised during intravenous administration not to allow extrav- perivascular also asation the chemical be irritation severe. instruction cautions that care should be taken to the concentrate from prevent getting on the skin or who clothing handling nurses or others are patients, and that be preparation injections Sparine made only vessels previously or trauma. undamaged by injections multiple drug considered to be an irritant there is little that the question defendants dangerous were aware drug properties event infiltration. testified that he had knowledge dangerous
Cannon properties *4 did to the anyone but he not tell this at or to the Sparine hospital 50 He ordered added to the milligrams Sparine plaintiff. needed, at 6:40 and horns thereafter as testi-
feeding P.M. six but every that he had if the was He personal knowledge fied no administered. drug no additional instructions giving had because any recollection at indicated that 10:40 was additive. chart the hospital
85 the fluid assumed testified that he Cannon again given Sparine. intravenous feeding injured plaintiff. elbow, little at her
Plaintiff the inner aspects sustained to injury per- to same, subsequently above and the and it was below necessary was injury that the form a on record disclosed skin the area. The graft i.e., intravenously getting extravasation, caused fed being the fluid in that vein, flesh into the flesh area and and destroying outside of the such cause area. The drug Sparine indicated that 6:30 after is sometime injury. injury an It conceded that the occurred on 13 the following day. P.M. to 7:00 A.M. September prior had rested Plaintiff’s and after she consisted of four counts complaint counts. The her case she was to and did file additional granted leave two prior trial court dismissed the first counts of plaintiffs complaint two trial and at close of in favor of both case directed a verdict defendants as to the four counts. remaining
Plaintiff contends that the trial court erred in defendant sustaining I, Proctor which count Community motion to dismiss Count Hospital’s II, was based on the of res Count theory ipsa loquitur, dismissing for charged defendant lack in- with based on hospital negligence formed consent.
In Graham v. St. Luke’s Hospital, 46 N.E.2d Ill.App.2d 355, the court stated: * * case, order to recover in a must [I]n malpractice
show by
first,
affirmative
that defendant
unskilful or
evidence:
negligent; and, second, that his
skill
caused
want of
or care
If
plaintiff.
either element is
in her
she has
lacking
proof,
pre-
sented no case for consideration of
jury.”
Count I fails to
charge
defendant
negligent
with
unskilled or
and that this lack of skill and
negligence caused the
law
injury.
requires that there be
of lack
proof
of skill or
and the com
negligence
must
plaint
therefore be drafted
Bollenbach
requirement.
meet
Bloomenthal,
341 Ill.
Count II of the complaint alleges substantially the same facts as Count I with the added charge that the defendant failed to obtain the informed consent of the for plaintiff before the needle inserting intravenous feeding and failed to inform the attendant risk and dangers of such medical procedure.
We believe the law in as Hussey, Illinois stated in Green v. 127 Ill. 174, App.2d N.E.2d The court there stated: applicable. “We conclude that to establish failure to defendants’ in- liability form foreseeable risks or results X-ray involved alternatives, cobalt therapy available if had any, plaintiff *5 86 the reasonable that evidence by
burden of medical proving expert circum- school, same or similar of the same medical practitioner risks, disclosures that stances, or the told the of such patient would have a reason- standard of what the as the did not meet by made defendants or under the same have disclosed able medical would practitioner * * * of burden Also, had the plaintiff similar circumstances. was the proxi- that such failure testimony medical by expert proving her cause of damage.” mate the the failure to obtain to merely allege is not sufficient for plaintiff
It the defendant on the part and the failure allege informed consent to the II of damages. complaint risks and Count to tell the attendant facts sufficient ultimate allege it fails to is insufficient for the reason that a cause to state of action. a verdict directing next that the court erred
Plaintiff contends that a are in accord for defendant on counts. The remaining parties the for the defendant when the evidence viewed verdict should be directed favors the to so overwhelmingly in its most favorable the aspects based that evidence contrary upon defendant that no verdict Railroad Company, v. Peoria and Eastern 37 Ill.2d (Pedrick ever stand. verdict, trial court N.E.2d motion to direct “On 504.) if, is an examination of the record there overrule motion upon that tends any plaintiff’s evidence fairly prove allegations in its most favorable When the evidence is considered complaint. aspect necessary there is a total failure to element prove any case, her motion for a directed verdict should be sustained. evidence not be and all evidence weighed, or ex contradictory circumstances must be Luke’s rejected.” Hospital, Graham St. planatory supra.
Plaintiff her proved proved she injury injured defendant while under the care of defendant Cannon. or whether not she question proved competent expert was caused defen- by the of either both of the negligence dants. III,
Plaintiff in Count that defendant Proctor complaint, charges Hospital:
“[Negligently did or more of the carelessly following; one a. inform and advise of the nature of the Failed to proposed success, medical alternate methods of procedure, probability treatment, conditions and the risks and unforeseen within body. Plaintiff, in the treatment Mildred Ohlig-
b. Failed associate internal medicine. schlager, specialists reasonable and make investigation c. make reasonable Failed to profes- the medical done customarily usually efforts which were Plaintiff, whether to determine ordinary sion in care exercising procedure the medical could tolerate Mildred Ohligschlager, treated intravenously. and examina- history way investigation
d. Failed to make an physical the Plaintiff’s determine tion its control to under exclusive Plaintiff’s needle insertion condition after the immediately medical reasonable arm, based upon and to form right judgment members, Cannon, M.D., of its staff one certainty in the absence of Joe nurses, as to whether but in its employees other presence *6 inser- or the traumatic effects not the Plaintiff could withstand arm, not- right tion of musculature of her intravenous fluids into the risks of which she was never informed. withstanding numerous and standards customary e. Failed to the usual and procedure follow in and the medical performing procedure prepara- out carrying fluids intravenously insertion of needle for the of tory administering into Plaintiff’s arm. right suffering
f. Failed to heed her of and the during complaints pain night right after the of the needle into arm.” inserting her In Count IV the the defendant plaintiff charges against made same Cannon, in with the the terms varied of While exception f. paragraph Joe IV, allegations in same. Count the substance of is the charge Cannon and the defendant the defendant jointly charges Count VII of certain intravenous charge in of the administration with additives, Chloride and Sparine, and Potassium injection namely or in the charged of and further that knew plaintiff they bloodstream the and have of complaints of care should known ordinary plaintiff’s exercise the intravenous and could developed during which feeding the condition taken alternative measures alleviating said or feeding terminated have the lack adequate but “due in whole or in to of part and precautions hospital, contrary and of said Defendant maintenance facilities personnel, 111½, 147 and Illinois of Sections Revised Chapter to the provisions Statutes, failed to attend and render needed medical care and properly and and caused serious and directly proximately attention to Plaintiff” further charges to her. The count that both defendants permanent injuries to “pursuant became to Section responsible plaintiff Chapter 6— Statutes, Illinois 1965.” Revised charge both The sub- against also a defendants. joint Count VIII defendants had the is that the sole and ex- jointly of stance Count VIII administration and control of the intravenous care, custody clusive if complications the intravenous solu- potential fluids, knew they into the perivascular tion with the infiltrate together additives were to pain tissue of That of severe complained arm. plaintiffs com- heed in arm and that defendants failed to swelling injec- and further failed said intravenous to plaints, properly supervise tion and of those feeding fluids additives. IV,
As to is devoid a. Counts III and the record subparagraph medical evidence that any expert a reasonable medical practitioner told school or circumstances would have same same similar medi of such risks or that the what reasonable failure to disclose cal circum practitioners would have done under the same similar stances. case was (Green Hussey, supra.) only testimony to the effect that it was or be patient not the custom the practice told of the has failed possibility of infiltration Plaintiff or extravasation. to establish duty medical evidence that defendants had expert advise the plaintiff of the methods of success and alternate probabilities treatment. same is true b. and c. of said Counts III paragraphs and IV. There is no or be evidence from which it can even testimony inferred that the defendants had a duty to consult with specialists intenal medicine and the is that there are only the record testimony no known tests to determine if extravasation will nor is it in degree occur predictable.
The same can be said of relat d. The subparagraph only ing to the examination made of plaintiff feeding prior to the customary practice in the examinations to intravenous making prior feeding testimony on examination and these cross tests relate the condition for which was confined *7 no bearing upon the infiltration or that extravasation caused plaintiff’s injuries. As previously noted, the testimony indicates there are no known tests to determine the tolerance of a feeding. intravenous patient
The record establishes that the defendant Cannon did the inser tion of the into needle arm and Proctor plaintiff’s not the defendant Hospital. Further the record Dr. devoid of evidence that totally any Cannon improperly inserted the into at needle arm no tempt at any showing as to the to be followed. From proper procedure all that of appears record the vein a the needle was inserted into in competent manner. No evidence was to establish by presented any to damage her arm that would cause of the fluids the by infiltration employees Proctor when the Hospital to insert needle they attempted to prior the defendant Cannon’s arrival.
It is doctors, in testimony to note that the four num- necessary the ber Cannon, including the defendant was effect that infiltration of the any following intravenous been caused in fluid needle; needle when the (b) insertion of the ways: the (a) by improper vein; finally withdrawn; the walls through was (c) by seepage Palmer, Dr. wall. thrombosis or a breakdown of the blood vessel (d) the blood called on that a breakdown behalf the testified plaintiff, to cor- a little time does and it takes vessel wall not happen immediately time would rode the The amount of inside of the wall of the vessel. the blood on the different solutions depend concentration of the and the individ- vessel and it anatomy would the individual depend upon a risk ual that this was reaction to the He further testified medication. that the in- assumed in the shows testimony use of any medication. filtration occurs in feeding, five to ten of the cases of intravenous percent but not all the infiltrations treatment. require arm, Richardson,
Dr. testified who plastic surgeon repaired plaintiff’s that the ulcerated condition caused the arm could have been infiltration of blood from the own vascular or the system by patient’s itself, intravenous fluid or had been added to the by some drug intravenous fluids.
The record does not establish that was reason injured by of the additive or the Potassium Chloride the Sparine fluid. Her claim tends to favor the the theory that additive was Sparine in this culprit, yet only record tends to establish that testimony if a hazardous amount of Sparine were outside injected patient the blood vessel the reaction be would immediate causing severe burn described some as a ing Plaintiff in her pain. testimony made no mention receiving additive testified as to Sparine. She seeing defendant Cannon at 6:30 when he approximately inserted the needle for the intravenous and that her feeding husband sister stayed until after hours. hospital visiting That after the visiting hours the turned lights were off. She then testified that after the lights were turned off her arm was paining She did not terribly. know how long after the lights were turned off that she experienced nor did she note pain, From her time. it is impossible ascertain if the she pain result of experienced Sparine additive some other cause. it can From the he seen that has failed foregoing to sustain her burden of on proof establishing negligence part the defen- or the defendant dant Cannon the manner hospital required by law in this cases of f. Subparagraph charges kind. with negligence its administer over the properly failure plaintiff after the intra- short, venous had commenced. In injections that defendant Proctor Hos- extravasation, aware of pital, being fully possible failed to adequately *8 plaintiff. care for the
The record clearly indicates that the followed procedure by the 90 usually than procedure Cannon was no different
hospital Dr. to be charge under these consider the followed circumstances. If we that both inferred then from the evidence adequate presented it must be of extrav- of the fully possibility doctor and the were aware in fact sustained. and that she might asation sustain the 326, 33 Ill.2d Hospital, v. Charleston Memorial Darling In Community 211 N.E.2d the court had this to say: “* # » same, to cases, is con [j]n negligence duty always form in the legal light standard of reasonable conduct do, do, a What the defendant must or must not is apparent ques risk. on satisfy duty. (Prosser tion the standard of conduct required ed., American Torts, 3rd at of modern 331). ‘By great weight a is generally custom either to take or to authority precaution omit is under the circum admissible as on what conduct bearing proper stances, but it is not The Law of (2 conclusive.’ & Harper James, 17.3, Torts, determining Custom is relevant in 977-978). sec. feasible, standard of care because it illustrates what is it suggests aware, it body knowledge of which the defendant should be warns of if a stand farreaching the possibility consequences higher Rev., ard is Custom and 42 required. (Morris, Colum. Negligence, L. Evidence, 2 ed., 1147 3rd But (1942); Wigmore, 461.) secs. said, custom should never be As Learned Hand conclusive. Judge are, doubt, There no cases where courts seem to the general make the standard practice calling we in proper diligence; * * * deed some given currency to the notion ourselves. Indeed in most cases reasonable is in fact common but prudence prudence; measure; is it never its strictly may whole calling have unduly lagged of new and adoption available devices. It never set tests, however, its own be its persuasive useages. Courts must in the end is say what there are so required; precautions imperative their even universal will not excuse their disregard omission.’ The T. cir. (2d F.2d Hooper 1932), 740.” J. court then on went to say: standards, case the regulations,
“In the present bylaws which the evidence, introduced much the same performed function This of custom. evidence aided the as did evidence jury deciding the defendant feasible what knew or should what was have known. determine the standard of conclusively did not care and the It jury that it did.” not instructed in this record insufficient evidence establish that
There cases feeding makes of extravasation necessary incident *9 upon to impose this court high of care degree plaintiff requests lessened case Darling think the We do not Hospital. defendant Proctor allegedly of conduct the standard that plaintiff requirement prove had de- that Plaintiff contends Hospital. violated defendant Proctor not she would have in the needle time fendant Proctor removed Hospital not true, permit does but the record been This we is injured. assume know when in fact have did inference that Proctor or Hospital that extrav- surmise can only that time had arrived. this record we From unpredictable. asation is in cases this sort causing injury completely instan- We occurred cannot from this record ascertain if plaintiffs short, experienced or if the was slow. In when taneously process plaintiff been pain, done, spared was the or could she have damage already the moment in had at injury, or if been extracted totally part, the needle of pain. than do little more complaint repeat and VIII of
Counts VII however, filed, both initially I as joining, of Counts and II allegations a that the were embarked on parties count on the basis in each parties relating has in this Counts What been stated joint opinion venture. These Counts and VIII. counts and force to VII equal III with applies IV and indeed this loquitur res doctrine upon ipsa to be a appear predicated at her we must therefore word Taking plaintiff contention. a in state cause of action Counts VII that failed to conclude sustain the burden of proof required and and most failed to certainly VIII cases of this nature. matter to be decided is remaining whether not the only court notice erred in its failure take of certain judicial statutes regula- tions. Haley, nursing supervisor Freda the defendant hospital, called as witness under Section 60 of the by plaintiff Practice Act. Dur- the examination counsel for asked if ing she knew if the defen- a Hill-Burton Hospital dant Proctor received time grant at the of the construction of the new An hospital. objection question to that was sus- lower tained court. Plaintiff contends that foundation was question laid said and if the hospital did in fact receive such the court would then be grant required to take judicial notice of U.S.C.A., 42, Welfare, Public Title Health & Sec. Chap. 291(d), sub- She contends that the act section minimum provided 7. standards for facilities operation the maintenance providing in-patient care. also the court to requested Counsel take judicial notice of the of Act the State of Illinois Licensing and the Hospital regulations of Public Health of the Illinois, State of Department specifically sec- Personnel, (b), Nursing tions section and section 4—141. Plaintiff 4— contends that these omitted, were v. Charleston citing Darling improperly Community Hospital, supra, contends the trial ruled on this judge exclusion under the so-called medical expert testimony rule. out,
Plaintiff’s argument on this is scant and set she does not point brief, either abstract or of the or the portion Regulations U.S.C.A. Department Public Health relied She only that upon. argues the code and regulations would have established the standard of care required defendant Com hospital, citing Darling Charleston 33 Ill.2d munity Hospital, N.E.2d 253. Court Supreme there said: standards,
“In the present case the regulations, which bylaws tire evidence, introduced much the same performed as function did evidence of This custom. evidence aided the jury what deciding was feasible and what the defendant knew or should It did known. not conclusively determine standard of care *10 and the jury was not instructed that it did.”
It is noted that the
in that
pleadings
case
v.
(see Darling Charles
ton Community
253,
Memorial
50
Hospital,
Ill.App.2d
For the reasons stated herein the court is of the lower judgment affirmed. affirmed.
Judgment
ALLOY, J., concurs.
Mr. PRESIDING STOUDER dissenting: JUSTICE I do not agree with the My majority disagreement court. limited to the majority’s affirmation of Count the trial court’s dismissal of 8.
Because the facts set forth in the are majority fairly adequate, opinion only additional facts which I necessary my shall recite are those conclusions.
The issue in this case is when the evidence is considered in its most favorable aspect there a total failure to prove any necessary element of her case? The evidence not be weighed, all evidence must be contradictory rejected. St. Luke’s Hos (Graham pital, 40 196 & Ill.App.2d N.E.2d 355 and Pedrick V Peoria RR. E.
93 Co., have not colleagues 37 my Ill.2d 229 I believe N.E.2d 504.) favorable to plaintiff’s Inferences consistently applied foregoing rule. claims been resolved have been inferences have ignored disputed favor of the defendants.
In acts of 6 and paragraphs alleged specific 7 Count 8 the plaintiff Para- negligence against the defendant Proctor Community Hospital. 6 of graph Count alleges potential that both defendants knew in- if complications solutions with additives were I.V. together filtrate into the perivascular right Paragraph tissue of the plaintiff’s arm. 7 alleges that defendants failed the I.V. feeding to properly supervise the plaintiff’s not heeded complaints severe were pain swelling either of the defendants.
The that, plaintiff testified after the on the night question shortly lights out, were turned she in her began right terrible suffering pain arm. A call for aide. help by turning on was answered a nurse’s light The aide do, informed her that she would see left and what she could never returned. plaintiff was not Although attended until A.M. the plaintiff did not note the time it seems that she laid in likely pain quite a while.
Frieda Haley, nursing at the defendant testified supervisor hospital, that it was the nurses duty to answer the She further patient’s lights. stated that it is the duty the nurse to make checks an periodic during I.V. injection and observe the area where the needle is in to see going that the fluid is running. “If a patient complains pain injection site, the I.V. feeding should be discontinued immediately”. Defendant Cannon testified that he was aware of the occurrence of extravasation during I.V. feedings and stated that the I.V. be term- immediately inated subsequent to a complaint pain. have been pain caused additive Sparine seeping through wall of the veins outside the blood vessels due to a breakdown in their walls. Two other doctors corroborated this testimony.
The testimony clearly shows that both defendants knew of the po- tential complications of administering I.V. solutions with additives and a certainly jury could a conclude lack of proper supervision from the plaintiff’s testimony.
In 6 and paragraphs 7 of Count 8 the acts of alleged specific negligence against defendant, Dr. I Cannon. believe that the plaintiff presented evidence enough in her case in chief in of the support allega- tions to a jury to return justify a verdict in her behalf.
Defendant Cannon testified that his familiarity with the additive and its Sparine side effects was limited in- basically cautionary structions the bottle: “Care should be exercised during accompaning since
intravenous administration allow extravastion not to perivascular under the circumstances chemical irritation be severe.” In spite the fact that intra- during he was aware extravasation has occurred venous instructions feedings, cautionary he did not anyone advise when he arm. The gave the order to inject Sparine requirements for defendant fulfilled when the testimony were expert Cannon testified to the evidence requirement expert instructions. is not limited certainly to oral instructions testimony. cautionary and the have alerted involved the defendant Cannon to the risks precautions to Dr. Palmer the importance take. corroborated instructions a by instructions to watch that he testifying gives usually patient more when solution. closely additives are I.V. present
Dr. Cannon by stated that the suffered pain been caused by the the walls of through additive Sparine seeping veins or outside the in their blood vessels due to breakdown walls. Dr. Palmer testified that cause a breakdown in the blood vessel Sparine might wall cause the vessel to leak into the The testi- surrounding tissue. of the two mony doctors is prima evidence that concerning leakage facie the plaintiff’s caused Sparine. Dr. who treated the Swearinger, physician subsequent testified it was his injmy, “that the medicine that was opinion in bottle infiltrated into the tissue the vein either surrounding needle not the vein or medication infiltrated the wall of through the vein.” and other evidence presented
Based on in favor directing trial court erred verdict of Count 8 the support in Count 8. defendants v. Louis Plaintiff-Appellee, Union, Danville Federal Credit Teachers al., Defendant-Appellant.) et (Louis Burrell, Burell Defendants — 11500;
(No. 12, 1972. Fourth District June 28, 1972. Rehearing July denied