Verdict for Illinois Southwest Orthopedics upheld at the Fifth District

By Kelly Holleran | Nov 3, 2011


The Fifth District Appellate Court has upheld a Madison County verdict that went in favor of Illinois Southwest Orthopedics, which had been accused of negligence in treating a body builder's 2003 knee injury.

Body builder Kevin Kahrig had originally filed his complaint on April 16, 2004, against ISW Orthopedics after he says one of its doctors, Timothy Penn, performed an unnecessary surgery known as a lateral release on his knee, causing further damage to it.

Kahrig had sought treatment from ISW Orthopedics after experiencing pain and weakness in both knees, especially his left knee, according to his testimony. However, following the March 1, 2003, surgery, Kahrig testified that he was in intense pain and noticed only a minor difference in the movement and pain of his knee.

Kahrig was represented at trial by Thomas Q. Keefe, Jr. of Belleville.

Following what he considered insufficient progress, Kahrig sought a second opinion. A different doctor performed a second surgery, which Kahrig says allowed him to regain a majority of the function he had lost after the first surgery.

However, the defense argued that Penn performed the proper surgery, which released pressure on the knee and slowed the progression of Kahrig's pain and other symptoms.

Chuck Pierce of Belleville represented the defendant at trial.

The Madison County jury found in favor of ISW Orthopedics in January 2009. Kahrig appealed the decision, saying Penn performed the surgery without proper examination beforehand. In addition, Kahrig argued that Penn should never have used a tourniquet during an arthroscopy and that Penn severed Kahrig's tendon and muscle during the procedure.

The appellate court disagreed with Kahrig's arguments.

Before the surgery in question, Penn did perform a number of pre-operative procedures, including a physical examination, an EMG and an MRI, the justices found.

"There was ample evidence from which the jury could determine that Penn acted within the appropriate standard of care in his treatment of Kahrig leading up to his surgery," Justice Bruce Stewart wrote in the court's opinion.

Kahrig's argument that Penn's use of a tourniquet during the surgery was below the applicable standard of care also did not sway appellate court justices. After reviewing testimony, the justices agreed with experts who argued that the tourniquet would not have affected the positive result that caused Penn to decide to perform the lateral release surgery.

Finally, Kahrig argued that during the lateral release surgery, Penn performed further damage to Kahrig's leg by cutting into his muscle and tendon. On the other hand, during testimony, Penn contended that he did not cut into Kahrig's muscle.

"As the jury had conflicting evidence on the issue of whether Penn improperly cut Kahrig's muscle during the lateral release, we find that its verdict in favor of Penn was not against the manifest weight of the evidence," Stewart wrote.

Justices Stephen Spomer and Richard Goldenhersh concurred.

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