Kreisman Law Offices Professional Corporation
In November 2008, Anil R. Shah, a medical doctor who practices facial surgery and otolaryngology, performed several outpatient plastic surgery procedures for Daniel Green in the doctor’s Schaumburg, Ill., office. The procedures did not require general anesthesia and were performed under local anesthetic in Dr. Shah’s outpatient office.
Although Green was not given a general anesthetic, Dr. Shah gave him both Valium and Phenergan, medications designed to sedate a patient as well as prevent nausea.
Dr. Shah testified at trial that Green was lucid and talking throughout the operation. Dr. Shah also said Green was aware and able to understand instructions.
At some point “either during or just after the procedure,” Green attempted to stand up. Dr. Shah stopped him and instructed Green to remain seated. Green then remained seated.
When the procedure was completed, Dr. Shah left the surgical suite. Green was left in the company of two surgical technicians, Jessica Castillo and Todd Markus. Markus testified that he instructed Green to remain in the surgical chair and to recline.
While Markus and Castillo were in the suite, but not directly attending to Green, Green stood up and immediately fell to the floor where he tore his left rotator cuff. The shoulder injury required “extensive medical treatment and physical therapy.” Green filed a lawsuit against Dr. Shah’s practice claiming negligence and res ipsa loquitur against both Dr. Shah and his professional corporation. Res ipsa loquitur is Latin for “the thing speaks for itself.”
At the jury trial, Dr. Shah testified that the standard of care did not require him to remain in the surgical suite and that the surgical technicians were present to “monitor” the patient, but were not required to “hover over the patient or sit right beside him at all times.”
Dr. Helen Kraus testified that Dr. Shah had “fully complied with the standard of care in every respect.” Dr. Kraus specifically noted that with sedation, the post-operative evaluation and Dr. Shah’s decision to leave the room were in line with the standard of care.
Dr. Frank Madda, the medical expert testifying for Green, stated that Dr. Shah failed to ensure that Green was properly monitored post-surgery. The trial court found in favor of Dr. Shah, finding that Green had failed to prove negligence, and specifically noted that it fully rejected Dr. Madda’s testimony and opinions as “not believable.” Green appealed to the Illinois Appellate Court.
On appeal, Green argued that the trial court’s findings were against the manifest weight of the evidence. Green alleged that, even aside from his own expert, surgical technician Markus’s testimony had established that Dr. Shah had breached the standard of care and that his breach caused his injury.
Green, therefore, argued that the trial court erred in that it dismissed his negligence claim against the manifest weight of the evidence, and that his res ipsa loquitur claim had gone unrebutted.
The appeals panel noted that Markus, as a surgical technician, was not qualified to testify as an expert on the standard of care to which Dr. Shah must adhere. In addition, the appellate court stressed that it was not the function of the appellate court to weigh evidence and evaluate testimony and that the trial court had evaluated Markus’ testimony and concluded that it supported a finding in favor of Dr. Shah.
On the res ipsa loquitur claim, the appellate court concluded that Green must demonstrate both that the injury occurred in a way that “ordinarily does not happen in the absence of negligence, and by an agency of instrumentality within [Shah]’s direct control.”
The appellate court found that the trial court’s decision to reject Green’s res ipsa loquitur argument was not against the manifest weight of the evidence. Accordingly, the appellate court affirmed the trial court’s decision in its dismissal of this cause of action.
Daniel Green v. Anil R. Shah, P.C., et al., 2015 IL App (1st) 141512-U.
Kreisman Law Offices has been successfully handling medical malpractice cases, birth injury cases, birth trauma cases, traumatic brain injury cases, nursing home abuse cases and hospital negligence lawsuits for individuals and families who have been injured or killed by the negligence of a medical provider for more than 40 years, in and Chicago, Cook County and its surrounding areas including, Arlington Heights, Elk Grove Village, Buffalo Grove, Vernon Hills, Lake Forest, Lake Bluff, Round Lake, Western Springs, Fox River Grove, Des Plaines, Tinley Park, South Holland, South Barrington, Roselle, Rolling Meadows, Lyons, LaGrange Park, Lansing, Hazel Crest, Harwood Heights and Burr Ridge, Ill.
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