Nordness v. Mitek Corp. Surgical Products, Inc.

                                        THIRD DIVISION
                                        FEBRUARY 19, 1997


1-94-4383

MICHAEL NORDNESS,                  )    Appeal from
                                   )    the Circuit Court
     Plaintiff-Appellant,          )    Cook County
                                   )
     v.                            )    
                                   )
MITEK CORPORATION SURGICAL         )    
PRODUCTS, INC., a corporation,     )    The Honorable
                                   )    Kathy M. Flanagan,
     Defendant-Appellee.           )    Judge Presiding.


     JUSTICE LEAVITT delivered the opinion of the court:
     The plaintiff, Michael Nordness, brought this action against
the defendant, Mitek Corporation Surgical Products, Inc., seeking
damages for injuries he suffered when a drill bit it manufactured
broke and became embedded in his shoulder during reconstructive
surgery.  The trial judge entered summary judgment in favor of
the defendant because she concluded that there was no evidence
tending to show that the presence of the drill bit had caused the
plaintiff an injury.  We reverse. 
     We review orders granting summary judgment de novo.  Delaney
v. McDonald's Corp., 158 Ill. 2d 465, 467, 634 N.E.2d 749,
(1994).  Summary judgment should be granted only where "the
pleadings, depositions, and admissions on file, together with the
affidavits, if any, show 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 1994).  We
consider the pleadings, depositions, and any affidavits, drawing
all reasonable inferences from them in a light most favorable to
the non-moving party.  First State Insurance Co. v. Montgomery
Ward & Co., 267 Ill. App. 3d 851, 855, 642 N.E.2d 715 (1994). 
Although a plaintiff need not prove his entire case at the
summary judgment stage, he must introduce evidence that would
support a finding in his favor.  Payne v. Mroz, 259 Ill. App. 3d
399, 403, 631 N.E.2d 337 (1994). 
      The record establishes that on June 18, 1990, Dr. John Brna
performed reconstructive surgery on the plaintiff's right
shoulder.  The plaintiff had a history of dislocating his
shoulder and had, as a result, undergone previous surgeries on
the same shoulder.  At the time of the surgery, the ligaments
that attached the ball of the plaintiff's humerus to his shoulder
socket had been stripped from the socket.  To reattach those
ligaments, Dr. Brna planned to drill a hole and insert small
barbs into the glenoid bone.  When inserted into the hole, the
barbs expand and lock in place.  The bone then heals around them,
and they serve as anchors, holding the shoulder together by
clamping the ligaments to the shoulder socket.    
     Mitek does not dispute that it manufactured the drill bit
that Dr. Brna used to drill into the plaintiff's shoulder.  While
Dr. Brna was drilling the plaintiff's glenoid bone, the tip of
the drill bit broke off and lodged in the bone.  Dr. Brna did not
remove the broken bit, which measured one and one half
centimeters in length, because he did not believe that a
reasonable surgical procedure to so do existed.  Instead, he
"overdrilled" the hole with a larger drill bit and inserted the
barb.  The broken drill bit remains encased in the plaintiff's
glenoid bone.       
     The plaintiff initially brought suit against various medical
providers, including Dr. Brna, but he voluntarily dismissed the
action.  In his second amended complaint, the plaintiff sued the
defendant and alleged three theories of recovery:  negligence,
strict liability, and implied warranty of merchantability.       
     In its motion for summary judgment, the defendant contended
that the "plaintiff has suffered no injury or damages proximately
caused from the drill bit breaking and plaintiff is at no risk
from future injuries from the drill bit being left in his
shoulder."  In support of its motion, the defendant submitted the
deposition of Dr. Brna, in which he stated that there was no risk
in leaving the drill bit embedded in the bone.  Dr. Brna
acknowledged that when he informed the plaintiff about the drill
bit the plaintiff expressed concern.  Nonetheless, Dr. Brna
maintained that the drill bit neither delayed the plaintiff's
recovery nor caused any discomfort or pain.  Furthermore, the
drill bit would not cause future discomfort, disability or
disfigurement.  Dr. Brna also stated that the plaintiff had not
complained that he was feeling pain in the shoulder.  The
plaintiff had incurred no additional expenses with Dr. Brna as a
result of the embedded drill bit.  Dr. Brna asserted that he had
performed this surgery numerous times and that he had done
nothing unusual during surgery to cause the drill bit to break. 
Following surgery, he examined the drill.  He noted that "there
may have been some sort of defect in the bit where it wasn't
manufactured properly or it had been damaged in some way." 
     On September 22, 1994, in response to the defendant's
motion, the plaintiff swore an affidavit stating that he
experienced pain, stiffness, and a popping noise in his right
shoulder.  Also, he no longer can touch the back of his neck with
the affected arm, and he cannot bend his arm behind his back. 
None of these conditions existed before his surgery.  The record
also establishes that the plaintiff has not returned to see Dr.
Brna since April 2, 1991.  The plaintiff contended that the
doctor, therefore, did not possess sufficient information from
which to form an opinion as to the plaintiff's current condition. 
     The only issue raised by the defendant in its motion for
summary judgment was that the plaintiff suffered no injury as a
result of the embedded drill bit.  Furthermore, that is the only
issue addressed in the parties' briefs.  Therefore, we assume,
for purposes of our discussion, that the plaintiff can prove that
the defendant breached some duty owed him which resulted in the
breaking of the drill bit during surgery.  Our decision is
limited to the narrow question of whether the plaintiff has
raised a genuine issue of material fact as to whether the
presence of the unwanted object in one's body, without more,
constitutes, a compensable injury.
     In entering judgment for the defendant, the trial judge
assumed that the facts averred in the plaintiff's affidavit were
true and concluded that the plaintiff had presented no evidence
that raised a genuine issue of material fact demonstrating that
the symptoms of which he complained were caused by the continued
presence of the drill bit in his shoulder.  The judge concluded
that the plaintiff's affidavit, standing alone, did not create a
genuine issue of material fact regarding Dr. Brna's opinion
regarding "lack of injury, lack of damage, lack of permanency."  
However, given the facts in this case, we do not believe the
plaintiff need counter the doctor's opinions as to lack of injury
or damage to recover.  In this regard, we distinguish among the
terms, injury, damage and damages: "'Injury is the illegal
invasion of a legal right; damage is the loss, hurt, or harm
which results from the injury; and damages are the recompense or
compensation awarded for the damage suffered.'"  Giammanco v.
Giammanco, 253 Ill. App. 3d 750, 758, 625 N.E.2d 990 (1993).  See
Matusak v. Chicago Transit Authority, 165 Ill. App. 3d 1032,
1037, 520 N.E.2d 925 (1988) (defining injury).  A party who
proves the right to damages but "fails to provide a proper basis
for computing those damages" may still recover nominal in
damages.  Giammanco, 253 Ill. App. 3d at 758.
     As our supreme court stressed over one hundred years ago:
          "'Surely *** every injury imports damage, though
     it does not cost the party one farthing, and it is
     impossible to prove the contrary; for a damage is not
     merely pecuniary, but an injury imports a damage when a
     man is thereby hindered in his right. *** So, if a man
     gives another a cuff on the ear, though it cost him
     nothing *** yet he shall have his action, for it is a
     personal injury.'" (citation omitted.)  Brent v.
     Kimball, 60 Ill. 211, 214-215, 14 A.R. 35 (1871). 
In this case, we believe that the presence of the drill bit, in
and of itself, constitutes a compensable injury.  As a result of
the breaking of the drill bit, the plaintiff is required to
continue his life with a piece of metal embedded in his shoulder,
which he neither sought nor invited.  The plaintiff's person was,
hence, violated and a legally protected interest was invaded when
the drill bit broke off and became lodged in his bone.  We leave
the jury to determine the character and value of the plaintiff's
injury.
     Accordingly, the order granting the defendant's motion for
summary judgment is reversed, and the cause is remanded for
further proceedings.
     Reversed and remanded.   
     Gordon, J., concurs.
     Cousins, P.J., dissents.