Johnson v. Armstrong

2022 IL 127942

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

(Docket Nos. 127942, 127944 cons.)

WILLIAM “WES” JOHNSON, Appellee, v. LUCAS ARMSTRONG et al., Appellants.

Opinion filed June 24, 2022.

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

Chief Justice Anne M. Burke and Justices Theis, Neville, Michael J. Burke,

Overstreet, and Carter concurred in the judgment and opinion.

OPINION

¶1 Plaintiff suffers from severe and permanent nerve damage in his leg, which he

alleges was caused by a negligently performed hip replacement surgery. He brought

a claim of negligence against his surgeon expressed in two separate counts: one

based on specific negligence and one based on the doctrine of res ipsa loquitur. He

also brought a claim of negligence based on res ipsa loquitur against a surgical

technician who participated in the surgery. Plaintiff provided only one expert

witness, also a surgeon, to establish the elements of res ipsa loquitur. The McLean

County circuit court granted summary judgment to the surgical technician because

(1) plaintiff had failed to present an expert witness to establish the standard of care

for a surgical technician, (2) the control element of res ipsa loquitur was not met,

and (3) there was no evidence of negligence on the surgical technician’s part. As a

result, the surgical technician was completely dismissed from the case. The circuit

court subsequently granted summary judgment in favor of the surgeon on the res

ipsa loquitur count, leaving the count of specific negligence against the surgeon

remaining in the circuit court. The appellate court reversed both judgments.

¶2 In this case, we review whether the elements of res ipsa loquitur have been met

and whether any additional expert testimony was required for the doctrine to apply

under these facts. Initially, however, we review a jurisdictional issue related to

whether a Rule 304(a) interlocutory appeal of a count of negligence based on res

ipsa loquitur is proper where there remains a pending count of specific negligence

against the same defendant in the circuit court. Ill. S. Ct. R. 304(a) (eff. Mar. 8,

2016).

¶3 BACKGROUND

¶4 Dr. Lucas Armstrong, with assistance from two surgical technicians, Sarah

Harden and Pamela Rolf, performed a left, total hip arthroplasty, commonly known

as a hip replacement, on plaintiff, William “Wes” Johnson. After the surgery,

plaintiff suffered from femoral nerve palsy. Electromyography (EMG) readings

demonstrated a severe left femoral neuropathy “specific to the branches to vastus

lateralis and rectus femoris muscles.”

¶5 Plaintiff brought a professional medical negligence suit in four counts. Count I

alleged specific negligence against Dr. Armstrong in that he (1) failed to identify,

preserve, and protect plaintiff’s femoral nerve; (2) improperly retracted plaintiff’s

femoral nerve or improperly directed the placement of the retractors; or (3) directly

traumatized plaintiff’s femoral nerve. Count II alleged that McLean County

Orthopedics, Ltd. (McLean County Orthopedics), was vicariously liable for this

negligence as Dr. Armstrong’s employer under the doctrine of respondeat superior.

¶6 Count III alleged negligence against Dr. Armstrong, Harden, and Rolf based on

the doctrine of res ipsa loquitur in that (1) the injury to his femoral nerve occurred

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“while the retractors, scalpel, electrocautery device and other surgical instruments

were under the control of ARMSTRONG, HARDEN and ROLF” and (2) that, in

the ordinary course of events, plaintiff’s injury “would not have occurred if

ARMSTRONG, HARDEN, and ROLF had used a reasonable standard of

professional care while the retractors, scalpel, electrocautery device and other

surgical instruments were under their control.” Count IV alleged that Advocate

Health and Hospitals Corporation, doing business as Advocate BroMenn Medical

Center (Advocate BroMenn), was vicariously liable for this negligence as the

employer of Harden and Rolf under the doctrine of respondeat superior.

¶7 Dr. Armstrong, Harden, and Rolf were all deposed and generally testified to the

following. 2021 IL App (4th) 210038, ¶¶ 12-21. Dr. Armstrong was the only one

authorized to position and move any instrument in contact with plaintiff’s body,

and Dr. Armstrong was the only one to have done so. As the “first scrub,” Rolf’s

primary function was to hand surgical instruments and material to Dr. Armstrong.

As the “second scrub,” Harden’s function was to do whatever Dr. Armstrong told

her to do. That included holding certain instruments, such as a retractor, while the

instrument was in contract with the plaintiff’s body. As she said, “I don’t use

anything—I hold things,” and, “I hold what I’m told to hold—whatever the doctor

tells me to do, I do.” Rolf also indicated that the second scrub might handle other

instruments apart from a retractor, such as a Kocher clamp, and would be

responsible for suction. In light of the above, Rolf was voluntarily dismissed

without prejudice.

¶8 Plaintiff presented a single expert witness, Dr. Sonny Bal. Dr. Bal testified that

he had performed hundreds of hip replacement surgeries using the same method

that Dr. Armstrong had used. Dr. Bal testified that nerve palsies are a recognized

complication of hip replacement surgery and that the fact of a femoral nerve injury

does not indicate, per se, a breach in the standard of care. Dr. Bal specifically

testified, however, that this plaintiff’s injury is of a type that does not normally

occur in the absence of negligence. Dr. Bal believed that the injury was most likely

caused by the improper use of a retractor. Despite this belief, he testified that,

according to the surgical records, Dr. Armstrong did not deviate from the standard

of care in making the incision and management of the retractor. Dr. Bal did not

purport to offer any standard of care for Harden. He did, however, testify that, from

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all the surgical records, it appeared that Harden did only as instructed by Dr.

Armstrong throughout the procedure.

¶9 Harden and Advocate BroMenn moved for summary judgment on the res ipsa

loquitur and respondeat superior counts. The circuit court granted the motion at a

hearing on October 30, 2020, on the grounds that (1) no qualified expert had

established the standard of care for Harden, (2) there was no evidence of negligence

on the part of Harden, and (3) Harden did not control the retractor for purposes of

res ipsa loquitur. After the court orally rendered this judgment, defense counsel

requested permission to submit a written order to reflect the court’s ruling. The

court agreed. The record sheet reflects the following: “Defendant Advocate and

Harden’s Motion for Summary Judgment argued and granted. Request for Rule

304(a) finding granted. [Defense counsel] to submit written order.”

¶ 10 On December 15, 2020, the circuit court granted Dr. Armstrong’s oral motion

for summary judgment on the res ipsa loquitur count. No record of this proceeding

appears in the record. The record sheet reflects the following:

“Defendant Armstrong’s oral Motion for Summary Judgment as to Count III

(res ipsa loquitur) granted over objection. Pursuant to Supreme Court Rule

304(a), the court finds there is no just reason for delaying appeal as to the res

ipsa loquitur counts. Remaining counts of negligence against Defendant

Armstrong and McLean County Orthopedics stayed, pending appeal of the res

ipsa loquitur and discovery issues. Counsel to submit written orders.”

¶ 11 On December 22, 2020, the circuit court filed a written order entering summary

judgment in Dr. Armstrong’s favor and found no just reason for delaying

enforcement or appeal of that order pursuant to Rule 304(a). The court stayed any

pending litigation on the remaining counts against Armstrong and McLean County

Orthopedics (counts I and II) “pending resolution of the issues going up on appeal.”

The record sheet reflects: “Order re: Defendant Armstrong[’s] Motion for Summary

Judgment entered. See Order.”

¶ 12 On January 5, 2021, the circuit court filed a written order granting summary

judgment in favor of Harden and Advocate BroMenn finding no just reason for

delaying the appeal of its order pursuant to Rule 304(a). The record sheet reflects:

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“Order re: Advocate and Harden’s Motion for Summary Judgment entered. See

Order.”

¶ 13 Plaintiff filed a notice of appeal on January 6, 2021, pursuant to Rule 304(a),

seeking to appeal both the December 22, 2020, order and the January 5, 2021, order

entering summary judgment for defendants on the res ipsa loquitur counts.

¶ 14 The appellate court reversed, holding that res ipsa loquitur applied against both

Dr. Armstrong and Harden. In doing so, the court held that Harden had control over

the retractor. The court further held that no additional expert testimony was needed

to establish Harden’s standard of care, saying: “In essence, the control element of

the res ipsa doctrine is sufficient to establish a duty of care.” (Emphasis in original.)

2021 IL App (4th) 210038, ¶ 68. In so holding, the court declined to follow its own

decision in Taylor v. City of Beardstown, 142 Ill. App. 3d 584 (1986). 2021 IL App

(4th) 210038, ¶ 69.

¶ 15 Harden, Advocate BroMenn, and Dr. Armstrong appealed to this court pursuant

to Rule 315 in two separate cases raising distinct yet related issues. Those petitions

were allowed and consolidated by this court. Ill. S. Ct. R. 315 (eff. Oct. 1, 2021).

We also allowed the Illinois Trial Lawyers Association to file an amicus curiae

brief. Ill. S. Ct. R. 345 (eff. Sept. 20, 2010).

¶ 16 ANALYSIS

¶ 17 Jurisdiction

¶ 18 Before proceeding to the merits, this court has an independent duty to ensure

that jurisdiction is proper, regardless of whether the parties have raised any

jurisdictional challenge. Vasquez Gonzalez v. Union Health Service, Inc., 2018 IL

123025, ¶ 8 (citing Clemons v. Mechanical Devices Co., 202 Ill. 2d 344, 349

(2002)).

¶ 19 Article VI, section 6, of the Illinois Constitution of 1970 confers upon the

appellate court jurisdiction to hear appeals from final judgments entered in the

circuit court. Ill. Const. 1970, art. VI, § 6. It also grants this court the power to

“provide by rule for appeals to the Appellate Court from other than final judgments

of Circuit Courts.” Id. “ ‘Accordingly, absent a supreme court rule, the appellate

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court is without jurisdiction to review judgments, orders, or decrees that are not

final.’ ” Armstead v. National Freight, Inc., 2021 IL 126730, ¶ 20 (quoting

Blumenthal v. Brewer, 2016 IL 118781, ¶ 22).

¶ 20 Here, both orders for summary judgment were brought to the appellate court

pursuant to Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016). Rule 304(a)

provides that “an appeal may be taken from a final judgment as to one or more but

fewer than all of the parties or claims only if the trial court has made an express

written finding that there is no just reason for delaying either enforcement or appeal

or both.” Id. “By its terms, Rule 304(a) applies only to final judgments or orders.”

Blumenthal, 2016 IL 118781, ¶ 24. “The special finding contemplated by the rule

will make a final order appealable, but it can have no effect on a nonfinal order.”

Id. “If the order is in fact not final, inclusion of the special finding in the trial court’s

order cannot confer appellate jurisdiction.” Id. Both orders included the Rule 304(a)

finding language; thus, the question becomes whether each order constitutes a final

judgment.

¶ 21 “[T]o be considered final and appealable for purposes of Rule 304(a), a

judgment or order must terminate the litigation between the parties on the merits of

the cause, so that, if affirmed, the trial court only has to proceed with execution of

the judgment.” Id. ¶ 25. Although the order need not dispose of all claims presented

by the pleadings, “it must be final in the sense that it disposes of the rights of the

parties, either upon the entire controversy or upon some definite and separate part

thereof.” Id. “Where an order disposes only of certain issues relating to the same

basic claim, such a ruling is not subject to review under Rule 304(a).” Armstead,

2021 IL 126730, ¶ 24 (citing In re Marriage of Leopando, 96 Ill. 2d 114, 119-20

(1983)).

¶ 22 In Armstead, we reiterated the distinction between orders that dispose of

separate, unrelated claims—which are appealable pursuant to Rule 304(a)—and

orders that dispose only of separate issues relating to the same claim—which are

not. Id. ¶ 25. In that case, we determined that the order appealed from disposed only

of an issue: whether plaintiff was precluded from asserting certain injuries as part

of his negligence case. Because that order only resolved one issue related to the

surviving negligence claim, that order was not appealable under Rule 304(a). Id.

¶¶ 27-29.

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¶ 23 Here, the order granting summary judgment to Harden and Advocate BroMenn

is final as to them because it terminates the litigation as to them. The order granting

summary judgment to Dr. Armstrong, however, is not a final judgment because res

ipsa loquitur is not a claim in and of itself; rather, it is an evidentiary doctrine that

allows a plaintiff to prove negligence under a unique set of proofs. Heastie v.

Roberts, 226 Ill. 2d 515, 531 (2007); Imig v. Beck, 115 Ill. 2d 18, 26-27 (1986).

Although plaintiff expressed his negligence claim against Dr. Armstrong in two

counts, these are but alternative theories for proving Dr. Armstrong’s liability for

negligence. The fact that plaintiffs in Illinois are required to specifically plead res

ipsa loquitur does not itself transform this evidentiary doctrine into a stand-alone

claim. Our appellate court has dismissed appeals on these very grounds. Russell v.

Good Shepherd Hospital, 222 Ill. App. 3d 140, 144-45 (1991) (“where a party states

one claim alternatively in several counts, the dismissal of fewer than all such counts

is not a final judgment as to fewer than all of the party’s claims as required by

Supreme Court Rule 304(a)” (emphasis in original), and res ipsa loquitur is “ ‘a

rule of evidence and not a separate theory of recovery’ ” (quoting Prado, 72 Ill.

App. 3d at 625)).

¶ 24 Thus, the operative effect of the summary judgment in favor of Dr. Armstrong

is to preclude plaintiff from proving that Dr. Armstrong was negligent under the

unique proofs of res ipsa loquitur, but plaintiff’s claim for negligence against Dr.

Armstrong remains outstanding. Consequently, the order granting summary

judgment to Dr. Armstrong was not a final judgment, and the appellate court lacked

jurisdiction under Rule 304(a) to review that order. The appeal of that order is

dismissed, and those portions of the appellate opinion addressing that order are

vacated.

¶ 25 Effect of Dismissal of Dr. Armstrong

¶ 26 We observe that the dismissal of Dr. Armstrong leaves this case in a curious

position. Although summary judgment in favor of Harden was orally pronounced

in October 2020, the order granting that summary judgment was filed, and therefore

became final, in January 2021. See Ill. S. Ct. R. 272 (eff. Jan. 1, 2018) (“If at the

time of announcing final judgment the judge requires the submission of a form of

written judgment to be signed by the judge ***, the clerk shall make a notation to

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that effect and the judgment becomes final only when the signed judgment is

filed.”); Williams v. BNSF Ry. Co., 2015 IL 117444, ¶ 37 (explaining the conditions

under which a circuit court’s oral ruling may constitute an entry of judgment).

However, Dr. Armstrong was dismissed from the res ipsa loquitur count in

December 2020.

¶ 27 What we are left with, then, is a negligence claim based on res ipsa loquitur

against Harden alone. The question arises, can the unique proofs of res ipsa

loquitur, which generally require exclusive control on the part of those against

whom the proofs are being applied, be applied solely to Harden in a situation such

as this where she was exercising joint control? Drewick v. Interstate Terminals,

Inc., 42 Ill. 2d 345, 348 (1969) (“The purpose of [the control element] is, of course,

to limit the application of the doctrine to those cases where the negligence, if any,

must reasonably have been that of the defendant.”); Prosser and Keeton on the Law

of Torts § 39, at 248 (W. Page Keeton et al. eds., 5th ed. 1984) (“The injury must

either be traced to a specific instrumentality or cause for which the defendant was

responsible, or it must be shown that the plaintiff was responsible for all reasonably

probable causes to which the accident could be attributed.”); Restatement (Second)

of Torts § 328D cmt. g (1965) (by establishing exclusive control by defendant, “the

responsibility of the defendant is proved by eliminating that of any other person”).

Plaintiff himself essentially argued in the circuit and appellate courts that res ipsa

loquitur could only be applied here if both Harden and Dr. Armstrong were

included within its proofs. Consequently, the point in time at which we analyze the

summary judgment in favor of Harden—whether as the case stood in October 2020

or January 2021—will affect the outcome.

¶ 28 After due consideration, we believe that the use of our supervisory authority is

warranted in this case to review summary judgment as the case stood in October

2020. “Our supervisory authority extends to ‘the adjudication and application of

law and the procedural administration of the courts.’ ” City of Urbana v. Andrew

N.B., 211 Ill. 2d 456, 470 (2004) (quoting Kunkel v. Walton, 179 Ill. 2d 519, 528

(1997)). “Even when a circuit court’s ruling does not satisfy the normal finality

requirements, this court may elect to exercise its supervisory authority to

intercede.” Vasquez Gonzalez, 2018 IL 123025, ¶ 16 (citing People v. Heddins, 66

Ill. 2d 404, 406-07 (1977) (dismissing the appeal but entering a supervisory order

to direct the circuit court to vacate a clearly erroneous interlocutory order)).

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¶ 29 Per the normal appellate process, we would review whether summary judgment

in favor of Harden was proper at a time when Dr. Armstrong had been dismissed

from the res ipsa loquitur proofs. In doing so, we would have to determine whether

res ipsa loquitur can be applied to Harden in the absence of Dr. Armstrong. This is

an issue that has not been raised, briefed, or argued before this court, and although

plaintiff raised arguments related to this issue below, neither of the courts below

appear to have squarely addressed this question. Were we to find that res ipsa

loquitur could not be applied to Harden without including Dr. Armstrong, plaintiff

would be precluded from obtaining meaningful relief. Furthermore, the only reason

this conundrum is presented is because the written order for summary judgment in

favor of Harden was delayed for months after its oral pronouncement, while the

written order in Dr. Armstrong’s favor was filed days after its oral pronouncement.

Accordingly, in the exercise of our supervisory authority we will review the

summary judgment in favor of Harden as of the date it was pronounced.

¶ 30 Summary Judgment

¶ 31 We now turn to the order granting summary judgment to Harden and Advocate

BroMenn. Summary judgment is appropriate when “the pleadings, depositions, and

admissions on file, together with the affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving party is entitled to a judgment as

a matter of law.” 735 ILCS 5/2-1005(c) (West 2018). “A genuine issue of material

fact precluding summary judgment exists where the material facts are disputed, or,

if the material facts are undisputed, reasonable persons might draw different

inferences from the undisputed facts.” (Internal quotation marks omitted.) Monson

v. City of Danville, 2018 IL 122486, ¶ 12. When examining whether a genuine issue

of material fact exists, a court construes the evidence in the light most favorable to

the nonmoving party and strictly against the moving party. Beaman v. Freesmeyer,

2019 IL 122654, ¶ 22. Summary judgment is a drastic means of disposing of

litigation and “should be allowed only when the right of the moving party is clear

and free from doubt.” (Internal quotation marks omitted.) Id. A circuit court’s entry

of summary judgment is reviewed de novo. Id.

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¶ 32 Res Ipsa Loquitur

¶ 33 We described the nature and purpose of res ipsa loquitur, “the thing speaks for

itself,” in Metz v. Central Illinois Electric & Gas Co., 32 Ill. 2d 446, 448-49 (1965):

“When a thing which caused the injury is shown to be under the control or

management of the party charged with negligence and the occurrence is such as

in the ordinary course of things would not have happened if the person so

charged had used proper care, the accident itself affords reasonable evidence,

in the absence of an explanation by the party charged, that it arose from want

of proper care. [Citations.] This in essence is the doctrine of res ipsa loquitur,

and its purpose is to allow proof of negligence by circumstantial evidence when

the direct evidence concerning cause of injury is primarily within the

knowledge and control of the defendant.”

¶ 34 If res ipsa loquitur applies, the factfinder is permitted to infer negligence from

a set of facts that “speaks for itself.” Imig, 115 Ill. 2d at 26-27. The defendant may

then offer evidence tending to disprove negligence, but the inference of negligence

does not simply vanish or disappear when contrary evidence appears. Id. at 26-28.

Rather, the inference arising from res ipsa loquitur, along with the evidence

provided by the defendant, is weighed by the factfinder. Id. at 27. “The inference

may be strong, requiring substantial proof to overcome it, or it may be weak,

requiring little or no evidence to refute it.” Id. In the end, the trier of fact is free to

accept or reject the inference.

¶ 35 For res ipsa loquitur to apply, the plaintiff must plead and prove that he was

injured (1) in an occurrence that ordinarily does not happen in the absence of

negligence (the probability element) (2) by an agency or instrumentality within the

defendant’s exclusive control (the control element). Heastie, 226 Ill. 2d at 531-32;

Gatlin v. Ruder, 137 Ill. 2d 284, 296-97 (1990). Whether res ipsa loquitur applies

is a question of law to be decided in the first instance by the trial court. Imig, 115

Ill. 2d at 27; 735 ILCS 5/2-1113 (West 2020). “In making that determination, the

court shall rely upon either the common knowledge of laymen, if it determines that

to be adequate, or upon expert medical testimony, that the medical result

complained of would not have ordinarily occurred in the absence of negligence on

the part of the defendant.” 735 ILCS 5/2-1113 (West 2020). “Proof of an unusual,

unexpected or untoward medical result which ordinarily does not occur in the

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absence of negligence will suffice in the application of the doctrine.” Id.

¶ 36 Res Ipsa Loquitur—Probability

¶ 37 We first examine whether plaintiff has presented sufficient evidence to survive

a motion for summary judgment on the first element: that the severe and permanent

nerve damage suffered here is an injury that ordinarily does not happen in the

absence of negligence.

¶ 38 Given that severe femoral neuropathy specific to the branches of vastus lateralis

and rectus femoris muscles, presenting after a total hip arthroplasty, is of a type that

is outside the common knowledge of laymen, expert testimony was required to

determine whether such an injury would ordinarily occur absent negligence.

Unequivocal testimony to this effect will directly establish plaintiff’s initial burden

on the probability component of res ipsa loquitur, although it will not constitute

proof that the injury would never happen without negligence. Spidle v. Steward, 79

Ill. 2d 1, 8-9 (1980) (directed verdict against res ipsa loquitur counts improper

where expert gave equivocal testimony in response to question on probability

because that testimony, when considered with the entire record, established the

probability element).

¶ 39 Here, plaintiff presented sufficient evidence to satisfy the probability element.

Plaintiff presented Dr. Bal, a retired orthopedic surgeon, who testified that he had

performed between 100 and 200 total hip arthroplasty procedures per year on

average. Dr. Bal confirmed that he most commonly used the anterior approach,

which was the same approach used by Dr. Armstrong here. Dr. Bal testified that,

as a general proposition, nerve palsies are a recognized complication of hip

replacement surgery. He also testified that the mere fact of a nerve injury does not

establish a breach in the standard of care. In fact, Dr. Bal had two patients, in the

entirety of his career, who developed femoral nerve palsies after a hip replacement

surgery. One was caused by bleeding, which put pressure on the nerve, and the

other had an unknown cause. He agreed that the cause of femoral nerve palsies is

often unknown. However, he specifically distinguished between different forms of

femoral nerve neuropathies:

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“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.”

¶ 40 Dr. Bal supported this unequivocal testimony with repeated reference to his

experience, his review of the literature, and the postoperative EMG readings. From

all this, plaintiff established that nerve damage like the kind he suffered does not

ordinarily occur after a hip replacement surgery absent negligence. Consequently,

the first element of res ipsa loquitur was satisfied for purposes of summary

judgment.

¶ 41 Res Ipsa Loquitur—Control

¶ 42 The second element of res ipsa loquitur is that the plaintiff was injured by an

agency or instrumentality within the defendant’s exclusive control. As we said in

Heastie, “some authorities speak of ‘management and control’ rather than

‘exclusive control,’ but the terms have come to be viewed as interchangeable.”

Heastie, 226 Ill. 2d at 532. Regardless, “the requisite control is not a rigid standard,

but a flexible one in which the key question is whether the probable cause of the

plaintiff’s injury was one which the defendant was under a duty to the plaintiff to

anticipate or guard against.” Id. Indeed, the word “control” may itself be

misleading, as the fact of a defendant’s literal control over the occurrence may be

nonexistent, yet the defendant may nevertheless be responsible for the occurrence.

Restatement (Second) of Torts § 328D cmt. g (1965) (“The essential question

becomes one of whether the probable cause is one which the defendant was under

a duty to the plaintiff to anticipate or guard against.”); Prosser and Keeton on the

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Law of Torts § 39, at 250-51 (W. Page Keeton et al. eds., 5th ed. 1984) (suggesting

that it “would be far better, and much confusion would be avoided, if the rigid

‘control’ test were discarded altogether, and we were to require instead that the

apparent negligent cause of the accident be such that the defendant would more

likely than not be responsible for it”).

¶ 43 Generally speaking, the plaintiff must identify the instrumentality of his injury,

as well as everyone who was in control of that instrumentality. However,

“while reliance on the res ipsa doctrine may normally require that the injury

can be traced to a specific cause for which the defendant is responsible, Illinois

law also authorizes use of the doctrine where it can be shown that the defendant

was responsible for all reasonable causes to which the accident could be

attributed.” Heastie, 226 Ill. 2d at 538 (citing Napoli v. Hinsdale Hospital, 213

Ill. App. 3d 382, 388 (1991), and Prosser and Keeton on the Law of Torts § 39,

at 248 (W. Page Keeton et al. eds., 5th ed. 1984)).

“Similarly, Illinois law does not require a plaintiff to show the actual force which

initiated the motion or set the instrumentality in operation in order to rely on the

res ipsa doctrine.” Id. at 539. “To the contrary, if the specific and actual force which

initiated the motion or set the instrumentality in operation were known

unequivocally, leaving no reason for inference that some other unknown negligent

act or force was responsible, the res ipsa doctrine could not even be invoked.” Id.

¶ 44 As for identifying the defendant or defendants, “plaintiff is not required to show

that his injuries were more likely caused by any particular one of the defendants in

order to proceed with his res ipsa claim, nor must he eliminate all causes of his

injuries other than the negligence of one or more of the defendants.” Id. at 534

(citing Collins v. Superior Air-Ground Ambulance Service, Inc., 338 Ill. App. 3d

812, 822-23 (2003)). However, in a multiple-defendant situation, the plaintiff must

ensure that all defendants who could have been at fault are included. See Smith v.

Eli Lilly & Co., 137 Ill. 2d 222, 257 (1990) (“In res ipsa loquitur and alternative

liability situations, all parties who could have been the cause of the plaintiff’s

injuries are joined as defendants.”).

¶ 45 Here, plaintiff was committed to the care of, and subjected to surgery by, Dr.

Armstrong and Harden. Consequently, plaintiff is not required to identify the

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precise instrumentality that caused his nerve damage—the fact that he was under

defendants’ care during surgery sufficiently establishes, for purposes of res ipsa

loquitur, that whatever caused plaintiff’s nerve damage during the surgery was

under defendants’ control. Kolakowski v. Voris, 83 Ill. 2d 388, 396 (1980) (“a

plaintiff’s only recourse is to rely on the doctrine of res ipsa loquitur” where he is

placed in the care and custody of defendants during surgery); id. (“ ‘The control, at

one time or another, of one or more of the various agencies or instrumentalities

which might have harmed the plaintiff was in the hands of every defendant or of

his employees or temporary servants. This, we think, places upon them the burden

of initial explanation.’ ” (quoting Ybarra v. Spangard, 154 P.2d 687, 689-90 (Cal.

1944))). Likewise, plaintiff is not required under these circumstances to identify

precisely who caused his nerve damage. What plaintiff must establish here is that

all parties who were responsible for all reasonable causes of plaintiff’s nerve

damage are identified. Plaintiff has done so, and consequently, the control element

is met.

¶ 46 Harden (joined in her arguments by Advocate BroMenn) argues that the control

element has not been met as to her. She specifically identifies the instrumentality

of injury in this case to be the retractor, and she argues that she did not control the

retractor because her only function was to hold it in place. She points to Dr. Bal,

who confirmed that Dr. Armstrong was the only one authorized to place or move

the retractor during surgery and that the surgical technician’s only retractor-related

job is to hold it in place.

¶ 47 There are two problems with this argument. First, this argument is predicated

upon the mistaken belief that plaintiff must identify the instrumentality of his injury

in order to raise res ipsa loquitur. As we have already explained, while this is

generally true, it is not true where, as here, plaintiff can show that defendants were

responsible for all reasonable causes to which the injury could be attributed. It also

rests on the mistaken belief that plaintiff has expressly identified the retractor as the

instrumentality of his injury. On the contrary, plaintiff’s argument, supported by

the evidence, is that he underwent surgery and suffered a severe and permanent

injury. The instrumentality of his injury remains unknown and unidentified in his

res ipsa loquitur count. In that count, plaintiff alleged that his injuries occurred

“while the retractors, scalpel, electrocautery device and other surgical instruments

were under the control of ARMSTRONG, HARDEN, and ROLF.” Indeed, there is

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evidence supporting the allegation that other instruments, apart from the retractor,

were handled by Harden during the procedure.

¶ 48 The second problem with this argument is more basic. The control element is a

“flexible one in which the key question is whether the probable cause of the

plaintiff’s injury was one which the defendant was under a duty to the plaintiff to

anticipate or guard against.” Heastie, 226 Ill. 2d at 532. Assuming that the retractor

was, in fact, the instrumentality of the injury, Harden was literally holding it while

it was inside plaintiff’s body. Control, whether joint or individual, by Harden over

the retractor could not be any clearer. It is of no consequence that Harden had no

independent authority to place or move the retractor because she had independent

capability of doing so. If she did move or mismanage the retractor while she was

only supposed to be holding it still, then she would or could have been the negligent

party at fault.

¶ 49 Standard of Care

¶ 50 Harden argues that, because plaintiff here did not present competent testimony

as to the standard of care for a surgical technician, summary judgment in her favor

was proper. Harden relies on Taylor, 142 Ill. App. 3d 584, for the proposition that

a standard of care is required in addition to, or in order to satisfy, the elements of

res ipsa loquitur in a medical professional negligence case; and she relies on

Sullivan v. Edward Hospital, 209 Ill. 2d 100 (2004), for the proposition that a

surgeon is not competent to testify as to the standard of care for a surgical

technician. Plaintiff takes the opposite position.

¶ 51 A brief comparison of negligence and res ipsa loquitur principles is warranted.

“The elements of a negligence cause of action are a duty owed by the defendant to

the plaintiff, a breach of that duty, and an injury proximately caused by the breach.”

Jones v. Chicago HMO Ltd. of Illinois, 191 Ill. 2d 278, 294 (2000) (citing Cunis v.

Brennan, 56 Ill. 2d 372, 374 (1974)). “The standard of care, also known as the

standard of conduct, falls within the duty element.” Id.; Prosser and Keeton on the

Law of Torts § 30, at 164 (W. Page Keeton et al. eds., 5th ed. 1984) (describing the

duty element as: “A duty, or obligation, recognized by the law, requiring the person

to conform to a certain standard of conduct, for the protection of others against

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unreasonable risks.”). Thus, in every cause of action for negligence, the plaintiff

must establish that a duty exists and must also identify what the duty is.

¶ 52 The standard of care in a medical professional negligence case is to act as would

an “ ‘ “ordinarily careful professional.” ’ ” Jones, 191 Ill. 2d at 295 (quoting

Advincula v. United Blood Services, 176 Ill. 2d 1, 23 (1996), quoting Cunis, 56 Ill.

2d at 376). We have consistently held that the burden of establishing the standard

of care—that is, what an ordinarily careful professional would do—in a medical

professional negligence case is on the plaintiff. Sullivan, 209 Ill. 2d at 112 (citing

Purtill v. Hess, 111 Ill. 2d 229, 241-42 (1986)). Generally speaking, expert

testimony is required to establish what an ordinarily careful professional would do

in a given situation “because jurors are not skilled in the practice of medicine and

would find it difficult without the help of medical evidence to determine any lack

of necessary scientific skill on the part of the physician.” Walski v. Tiesenga, 72 Ill.

2d 249, 256 (1978). However, where defendant’s conduct is so grossly negligent or

the treatment so common that a layman could readily appraise it, no expert

testimony is necessary. Id.

¶ 53 Once the standard of care is established in a negligence cause of action, the

plaintiff “must then prove that, judged in the light of these standards, the doctor

was unskillful or negligent and that his want of skill or care caused the injury to the

plaintiff.” Id. Again, expert testimony is generally required to establish that the

defendant physician deviated from the standard of care unless the common

understanding exception applies. Jones, 191 Ill. 2d at 295. In other words, the

plaintiff must show, usually with expert testimony, a breach of the defendant’s duty.

Finally, the plaintiff must prove that he was injured and that the injury was

proximately caused by the defendant’s breach of duty.

¶ 54 At this point, it is important to note that the word “negligence” is often used

interchangeably throughout the law to mean either (1) the cause of action/theory of

liability comprising all of the elements above or (2) the breach of a duty. E.g., Jahn

v. Troy Fire Protection District, 163 Ill. 2d 275, 280 (1994) (“Negligence is defined

as the failure to use such care as a reasonably prudent and careful person would use

under similar circumstances. Black’s Law Dictionary 1032 (6th ed. 1990).”);

Restatement (Second) of Torts § 282 (1965) (“negligence is conduct which falls

below the standard established by law for the protection of others against

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unreasonable risk of harm”); Restatement (Second) of Torts § 282 cmt. b (1965)

(“negligent conduct subjects the actor to liability only if the [elements of a

negligence cause of action] exist”).

¶ 55 Res ipsa loquitur (“the thing speaks for itself”), on the other hand, is not an

alternate theory of liability in Illinois—the theory of liability remains “negligence”

in the first sense of the word—rather, it is a species of circumstantial evidence that

allows the trier of fact to draw an inference of “negligence” in the second sense of

the word. Heastie, 226 Ill. 2d at 542; Imig, 115 Ill. 2d at 25-26. This is evident

because the two elements of res ipsa loquitur (probability and control) are not

sufficient in and of themselves to prove a negligence cause of action. For instance,

the existence of a duty must be proved apart from the two elements of res ipsa

loquitur. Spidle, 79 Ill. 2d at 7 (res ipsa loquitur “will not apply unless a duty of

care is owed by the defendant to the plaintiff”). Likewise, the causation element

must still be proven apart from the res ipsa loquitur elements. Edgar County Bank

& Trust Co. v. Paris Hospital, Inc., 57 Ill. 2d 298, 304 (1974), overruled on other

grounds by Gilbert v. Sycamore Municipal Hospital, 156 Ill. 2d 511 (1993). We

have explained that “the application of the doctrine of res ipsa loquitur does not

affect the necessity or manner of proof of proximate cause and that it is relevant

only to the nature of the proof from which the trier of fact may draw an inference

of negligence.” Id.

¶ 56 Thus, by saying that res ipsa loquitur “is relevant only to the nature of the proof

from which the trier of fact may draw an inference of negligence,” we mean that

the application of res ipsa loquitur relates to the nature of proof required to show a

breach of duty. Restatement (Second) of Torts § 328D (1965) (under res ipsa

loquitur, “[i]t may be inferred that harm suffered by the plaintiff is caused by

negligence,” where negligence is defined in section 282 (id. § 282) as “conduct

which falls below the standard established by law for the protection of others

against unreasonable risk of harm”). The issue in this case may therefore be

reframed as whether the standard of care portion of the duty element of negligence

has been satisfied where the two elements of res ipsa loquitur have been satisfied.

¶ 57 The reason that the standard of care is necessary in a regular professional

negligence cause of action is because there must be a standard by which to judge

the performance of the defendant physician. Purtill, 111 Ill. 2d at 241-42; Walski,

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72 Ill. 2d at 255-56. Without a standard of care by which to judge the physician,

there would be no way to determine whether any deviation or breach has occurred.

Thus, in cases of specific negligence, where the plaintiff has alleged some specific

course of conduct on the part of the defendant that breached the defendant’s duty,

it must be shown what each defendant’s standard of care was in relation to that

course of conduct.

¶ 58 In this case, however, the precise course of individual conduct that led to

plaintiff’s injury is unknown. All plaintiff knows is that he was injured while under

the care of multiple defendants. Plaintiff cannot establish an individual standard of

care for either Dr. Armstrong or Harden that is independent of the injury itself

because he does not know what individual standard Dr. Armstrong or Harden has

deviated from. But by establishing that his injury is one that ordinarily does not

occur absent negligence and that all of the instrumentalities that could have caused

the injury were in the control of the defendant, plaintiff has provided the legally

applicable standard of care from which negligence may be found: that under normal

circumstances, a hip replacement does not result in severe and permanent nerve

damage. Consequently, no additional testimony related to Harden’s standard of care

was necessary here. We need not go further to determine which of the two res ipsa

loquitur elements, taken alone, might satisfy the standard of care requirement

because both elements are satisfied here.

¶ 59 In coming to this conclusion, we agree with the appellate court’s decision not

to follow Taylor, 142 Ill. App. 3d 584. 2021 IL App (4th) 210038, ¶ 69. Although

we agree with the judgment of Taylor, we do not approve of its reasoning. We also

agree with the appellate court here that Taylor is an outlier in its explicit

pronouncement regarding the requirement of establishing a standard of care. Id.

Given this, we believe discussion of defendant’s argument based on Sullivan to be

unnecessary.

¶ 60 Other Arguments

¶ 61 Harden makes two final arguments. First, she argues that, because plaintiff has

suggested and/or provided evidence that the instrumentality of the injury was the

retractor, plaintiff is barred from relying on res ipsa loquitur. She relies on the

principle that, “if the specific and actual force which initiated the motion or set the

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instrumentality in operation were known unequivocally, leaving no reason for

inference that some other unknown negligent act or force was responsible, the res

ipsa doctrine could not even be invoked.” Heastie, 226 Ill. 2d at 539.

¶ 62 As we explained in Kolakowski, 83 Ill. 2d at 397, this “would be accurate if the

evidence introduced by plaintiff conclusively established the exact cause of his

injuries.” But where plaintiff’s expert merely opines upon some cause of the injury,

rather than conclusively establishes it, the opinion is “ ‘opinion only.’ ” Id. (quoting

Clifford-Jacobs Forging Co. v. Industrial Comm’n, 19 Ill. 2d 236, 243 (1960)). We

reaffirmed this principle from Kolakowski in Gatlin, 137 Ill. 2d at 298-99. Here,

Dr. Bal’s testimony did not conclusively establish that the retractor caused

plaintiff’s nerve damage. Rather, it was his “opinion only” as to what caused the

nerve damage. Therefore, plaintiff is not barred from raising res ipsa loquitur

merely because his expert has an opinion on the most likely cause of his injury.

¶ 63 Lastly, Harden argues that there is no evidence in this case that she deviated

from any standard of care in any way. The evidence to which she refers is the

testimony of each defendant, the defendants’ surgical records, and the testimony of

Dr. Bal, all of which attest to the fact that Harden acted appropriately. Of course,

the most important bit of evidence in a res ipsa loquitur case is the injury or

occurrence itself. The fact of plaintiff’s severe and permanent nerve damage is itself

evidence of negligence given that the elements of res ipsa loquitur are satisfied.

The situation wherein there is no other evidence of negligence, apart from the

injury, is precisely the type of situation for which res ipsa loquitur is designed.

¶ 64 CONCLUSION

¶ 65 The appellate court lacked jurisdiction under Rule 304(a) to hear the appeal

from the December 22, 2020, order granting summary judgment to Dr. Armstrong

because that order disposed of an issue rather than a claim. The appeal from that

interlocutory order is therefore dismissed, and those portions of the appellate

opinion addressing that order are vacated.

¶ 66 We exercise our supervisory authority to review the summary judgment in favor

of Harden and Advocate BroMenn as it was pronounced in October 2020 and

conclude that it was granted in error because the elements of res ipsa loquitur were

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met at that time, and because no further expert testimony on the standard of care

was required. We therefore affirm the appellate court’s judgment reversing the

circuit court’s January 6, 2021, order, and we remand the case to the circuit court.

Given that the summary judgment in favor of Dr. Armstrong was pronounced after

Harden had been orally dismissed from the res ipsa loquitur count, we also direct

the circuit court to reconsider the December 22, 2020, order granting summary

judgment in light of this opinion.

¶ 67 No. 127944, Appeal dismissed.

¶ 68 No. 127942, Appellate court judgment affirmed in part and vacated in part.

¶ 69 Circuit court judgment reversed.

¶ 70 Remanded with directions.

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