Johnson v. Armstrong

2021 IL App (4th) 210038

184 N.E.3d 608

451 Ill.Dec. 1021

William "Wes" JOHNSON, Plaintiff-Appellant,

v.Lucas ARMSTRONG; McLean County Orthopedics, Ltd.; Sarah Harden ; and Advocate Health and Hospitals Corporation, d/b/a Advocate BroMenn Medical Center, Defendants-Appellees.

NO. 4-21-0038

Appellate Court of Illinois, Fourth District.

FILED October 28, 2021

James P. Ginzkey, of Ginzkey Law Office, of Bloomington, for appellant.

Peter W. Brandt and Kevin M. Toth, of Livingston, Barger, Brandt & Schroeder, LLP, of Bloomington, for appellee Lucas Armstrong.

Stacy K. Shelly, Troy A. Lundquist, and Scott A. Schoen, of Langhenry, Gillen, Lundquist & Johnson, LLC, of Princeton, for appellees Advocate Health and Hospitals Corporation and Sarah Harden.

JUSTICE STEIGMANN delivered the judgment of the court, with opinion.

¶ 1 In September 2018, plaintiff, William "Wes" Johnson, filed a complaint alleging defendants, Lucas Armstrong, McLean County Orthopedics, Ltd. (McLean County Orthopedics), Sarah Harden, and Advocate Health and Hospitals Corporation, d/b/a Advocate BroMenn Medical Center (Advocate BroMenn), negligently performed a hip replacement surgery that resulted in Johnson's suffering permanent nerve damage. Johnson advanced two legal theories of recovery: ordinary negligence and res ipsa loquitur. Johnson sought to hold Armstrong and Harden directly liable and McLean County Orthopedics and Advocate BroMenn indirectly liable under the doctrine of respondeat superior.

¶ 2 In August 2020, defendants Advocate BroMenn and Harden (collectively referred to as Advocate) filed a motion for summary judgment, arguing that Johnson had failed to (1) establish the standard of care for Harden or that she deviated from the standard of care and (2) demonstrate that he met the requirements to invoke the doctrine of res ipsa loquitur. In October 2020, the trial court conducted a hearing on Advocate's motion and granted summary judgment in its favor.

¶ 3 In December 2020, Armstrong made an oral motion for summary judgment on the remaining res ipsa count, which the trial court granted. The court subsequently entered written orders, entering judgment in the defendants’ favor on the res ipsa counts and making a finding that the orders were final and appealable pursuant to Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016).

¶ 4 Johnson appeals, arguing that the trial court erred by entering summary judgment against him because (1) he made a prima facie showing of the elements of res ipsa loquitur and (2) his expert was qualified to testify to the applicable standard of care for Harden. We agree and reverse.

¶ 5 I. BACKGROUND

¶ 6 A. The Complaint

¶ 7 In September 2018, Johnson filed a four-count complaint alleging defendants negligently injured him during a left, total hip arthroplasty (THA) performed by Armstrong and assisted by Harden. The complaint alleged that the surgery was performed at Advocate BroMenn in October 2016. Following surgery, Johnson had femoral nerve palsy, and subsequent testing revealed he had "severe left femoral neuropathy that is specific to the branches to the vastus lateralis and rectus femoris muscles." (We note that these are two of the muscles that comprise a person's quadriceps.) Johnson alleged, "The lesion appears complete with no evidence of voluntary motor unit potential activation."

¶ 8 Count I alleged ordinary negligence against Armstrong and specifically claimed that Armstrong (1) failed to protect Johnson's femoral nerve, (2) improperly "retract[ed]" Johnson's femoral nerve, or (3) directly injured Johnson's femoral nerve. Count II alleged McLean County Orthopedics was vicariously liable under the doctrine of respondeat superior.

¶ 9 Count III alleged that Armstrong and Harden were negligent pursuant to the doctrine of res ipsa loquitur. More specifically, Johnson asserted that (1) Armstrong was assisted by Harden, (2) the injury to Johnson's femoral nerve occurred while the retractors and other surgical instruments were under Armstrong and Harden's control, and (3) Johnson's injuries ordinarily would not have occurred if the standard of care was met. Count IV asserted the same claim against Advocate BroMenn on the basis that Advocate BroMenn employed Harden.

¶ 10 B. Advocate's Motion for Summary Judgment

¶ 11 In August 2020, Advocate filed a motion for summary judgment in which it argued the following. First, Advocate claimed Johnson had not disclosed any expert to testify as to the standard of care for nurse Harden or that she breached her standard of care. Second, Advocate asserted that Johnson's disclosed expert was not qualified to give an opinion on the nursing standard of care and did not offer one at his deposition. Third, Advocate contended that Johnson had not made a prima facie case that he was entitled to rely on the doctrine of res ipsa loquitur as to Harden because (1) the undisputed facts showed Harden did not have control over the instrumentality of the injury and (2) Johnson's expert did not testify at his deposition that Harden acted negligently. In support of its motion, Advocate attached the depositions of Harden, Pamela Rolf, Armstrong, and Sonny Bal, Johnson's expert.

¶ 12 1. Deposition of Sarah Harden

¶ 13 Harden testified that she was a surgical technician, commonly called a "scrub tech." She described her duties as follows: "A second scrub will hold a retractor wherever it is placed by the doctor, and that is pretty much it." "I don't use anything. I hold things." "I hold what I'm told to hold—whatever the doctor tells me to do, I do." Harden repeatedly stated it was not her responsibility to, nor did she ever, place, reposition, move, or otherwise use any instrument during surgery, including retractors. Those actions were always performed by the surgeon, and the surgeon was responsible for the instruments at all times. Harden testified that she had no independent recollection of the surgery but, based on her review of the medical records, she complied with the standard of care.

¶ 14 2. Deposition of Lucas Armstrong

¶ 15 At his deposition, Armstrong agreed Johnson did not have femoral nerve palsy before the THA surgery and did have it afterwards. Armstrong stated he placed and moved the retractors and Harden would have done nothing more than hold them. Armstrong further stated that, although he had no independent recollection of the surgery, if Harden would have done something abnormal while holding the retractor, such as moving it, he would have noted that in the records. Armstrong testified that he complied with the standard of care and disagreed that the type of injury Johnson sustained would not ordinarily occur absent negligence.

¶ 16 3. Deposition of Sonny Bal

¶ 17 Sonny Bal testified as an expert witness for Johnson. Bal, a retired orthopedic surgeon, stated that before he retired, he performed between 100 and 200 THAs per year on average and most commonly used the anterior approach, which was the same approach used by Armstrong in this case. Bal agreed that, "as a general proposition," "nerve palsies are a recognized complication of hip replacement surgery." Bal also agreed that, in general, merely because a femoral nerve injury occurs does not mean there is a breach in the standard of care ("I would need more data."). In his career, Bal had two patients develop femoral nerve palsies after THAs. One was caused by internal bleeding putting pressure on the nerve, and the other had an unknown cause. Bal agreed that the cause of femoral nerve palsies was often unknown.

¶ 18 Bal testified, "There's evidence of direct injury to the [femoral] nerve based on the EMG findings." Bal believed the injury was caused by a retractor, an instrument used to hold tissue to allow the surgeon to see the surgical site. Regarding the cause of Johnson's injury, Bal testified as follows:

"The documents I reviewed show misplacement too far medial of the incision, and then twice in the operative record, the doctor documents the placement of the anterior retractor. While documentation does not say that the retractor was up against the femoral nerve, that is my opinion ***.

* * *

*** [Armstrong] does mention placing the retractor up against the rectus femoris muscle, which is where it should be placed, and then moving it to an intracapsular location when he repositioned it once during the operation."

Bal agreed that "[a]s it's stated, [there was] nothing inappropriate about that." Bal agreed that Armstrong's incision, though too far medial, was still within the standard of care.

¶ 19 Bal clarified his testimony that femoral nerve palsies can occur in the absence of negligence and stated the following:

"There are two distinct types of femoral nerve neuropathies, and I want to make sure we're clear on the distinction.

Transient femoral neuropathy injury, neuropraxia palsy, as referred to in this paper *** occurs in the absence of negligence. It is transient; it has a good prognosis; strength returns, and the patient goes on with a temporary time period during which there is a deficit that improves rapidly, and those are what I've encountered in my practice. That palsy can occur and does occur in the absence of negligence from a variety of factors.

My testimony here is a complete injury to the femoral nerve, as occurred here, verified by repeat EMG and subsequent treatment by a nerve specialist like Dr. Tung, does not occur absent negligence."

¶ 20 Bal supported his opinions by stating as follows:

"The medial placement of the incision; the fact that the retractor was moved during surgery; the fact that the two branches that suffered complete injury are to the vastus lateralis and the intermedius, and those would be closer to the retractor than the branch to the medialis, which is further medial; and the fact that the article [presented to Bal by defense counsel during the deposition] clearly states a retractor tip is strikingly close to the femoral nerve when placed near the anterior rim of acetabulum, and one study

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