Benison v. Silverman

Decision Date04 August 1992
Docket NumberNo. 1-90-3476,1-90-3476
Citation175 Ill.Dec. 87,599 N.E.2d 1101,233 Ill.App.3d 689
Parties, 175 Ill.Dec. 87 Emma J. BENISON, Plaintiff-Appellant, v. Leonard SILVERMAN, M.D., Defendant-Appellee.
CourtUnited States Appellate Court of Illinois

Bickley and Bickley, Chicago (John H. Bickley, Jr., of counsel), for plaintiff-appellant.

Baker & McKenzie, Chicago (Francis D. Morrissey, Mark L. Karasik, Michael A. Pollard, Mary K. McMahon Dudley, of counsel), for defendant-appellee.

Justice SCARIANO delivered the opinion of the court:

Plaintiff Emma J. Benison appeals from the order of the circuit court granting summary judgment in favor of defendant Dr. Leonard Silverman in her medical malpractice case against him.

On September 11, 1984, Benison, who was in her early 70s, sought treatment from Dr. Silverman for an injury to her right foot, which she sustained five days earlier as a result of someone stepping on her foot during a trip to Washington, D.C. Dr. Silverman, who had treated Benison in the past for diabetes, congestive heart failure and anemia, stated that his examination of her right foot indicated that it was swollen and tender and that the fourth and fifth toes were painful and bruised. He also stated that he ordered x rays, advised her to avoid bearing weight on her foot, prescribed Tylenol, and asked her to come back the next morning for a blood test and the x-ray results. Benison claims, however, that Dr. Silverman reviewed the x rays with her on September 11th and told her it was only a bruise; she denies that he told her to come back the next day for a blood test and the x-ray results.

One week later, on September 17, 1984, Benison returned to Dr. Silverman, who reports that he reviewed her x rays with her, that the x rays were negative, but that she had soft tissue swelling, increased pain and bruising. In addition, by palpating the dorsal pedis, a pulse in the foot, Dr. Silverman concluded that the peripheral circulation of her fourth and fifth toes was compromised. Dr. Silverman noted that he urged Benison to be admitted to the hospital because of her diabetes and because he wanted her to be evaluated by a vascular surgeon. He claims Benison was upset, undecided and would let him know whether she was going to go to the hospital. However, Benison claims that Dr. Silverman only looked at her foot, but did not feel it, and that he told her to soak it in hot water and elevate it; she denies that he suggested she be hospitalized for the problem because of her history of diabetes or that he referred her to a vascular surgeon. Benison also denies that she told Dr. Silverman that she would consider his suggestion that she be hospitalized; she claims that he told her to return three days later. On September 20, 1984, Benison was admitted to Little Company of Mary Hospital where she was treated in the emergency room by Dr. Martin Phee, who diagnosed her as suffering from gaseous gangrene. Her right foot was subsequently amputated below the knee.

On March 7, 1985, Benison filed a complaint against Dr. Silverman to recover for personal injuries sustained as a result of his alleged malpractice. In an amended motion for summary judgment, Dr. Silverman argued that Benison had failed to comply with the court's May 4, 1989 order to disclose and present her experts and that she therefore had no expert testimony establishing that he had deviated from the standard of care. He argued further that neither Dr. Phee nor Dr. Perez-Sanz, her treating physicians, had been identified as experts. In any event, he asserted, neither one of them had reviewed his records or had given an opinion that he had deviated from the standard of care. Accordingly, Dr. Silverman claimed Benison could not establish the applicable standard of care or that he deviated from it, two requirements of a prima facie case of medical negligence, and therefore she had failed to present a factual basis that would entitle her to judgment on that theory. In support of his motion, Dr. Silverman submitted the affidavit of Dr. Schwer, in which Schwer, a family practitioner who had reviewed his records, stated that Silverman had not deviated from the applicable standard of care. In response, Benison argued that Dr. Phee established that Dr. Silverman's treatment did not meet the applicable standard of care. Dr. Silverman replied that Dr. Phee's answer to a hypothetical question was insufficient to create a question of fact as to whether Dr. Silverman deviated from the required standard of care.

On February 23, 1990, the circuit court granted Dr. Silverman's motion, and on November 2, 1990, it denied Benison's motion to reconsider, stating:

"Plaintiff must establish by expert testimony the standard of care by which defendant's conduct was to be measured; that the defendant was unskillful or negligent in light of such standard; and that his want of skill or care caused injury.

* * * * * *

As to Dr. Phee, he did not review the records of Dr. Silverman, he didn't read Dr. Silverman's deposition--

* * * * * *

and the gist of his testimony was that the care could have been more aggressive.

Now I do not believe that a statement that the care could have been more aggressive establishes a standard of care and a deviation from that standard, Counsel; it's as simple as that."

Benison appeals from the court's February 23, 1990 order granting summary judgment in favor of Dr. Silverman and from its November 2, 1990 order denying her motion to reconsider.

Our sole function in reviewing the trial court's granting of summary judgment is to determine whether it correctly ruled that there was no genuine issue of material fact. (Blankenship v. Dialist International Corp. (1991), 209 Ill.App.3d 920, 923, 154 Ill.Dec. 503, 568 N.E.2d 503.) Summary judgment should be entered only when the pleadings, depositions, affidavits, and admissions on file present no genuine issue of material fact and the movant is entitled to judgment as a matter of law. (Ill.Rev.Stat.1985, ch. 110, par. 2-1005.) However, summary judgment is not designed to try issues of fact, but rather, to identify whether they exist. (Pyne v. Witmer (1989), 129 Ill.2d 351, 357-58, 135 Ill.Dec. 557, 543 N.E.2d 1304; Purtill v. Hess (1986), 111 Ill.2d 229, 240, 95 Ill.Dec. 305, 489 N.E.2d 867.) Moreover, it is well-established that the pleadings, depositions, admissions, and affidavits in support of a motion for summary judgment are to be construed most strictly against the moving party and liberally in favor of the opponent. (Pyne, 129 Ill.2d at 358, 135 Ill.Dec. 557, 543 N.E.2d 1304; Purtill, 111 Ill.2d at 240, 95 Ill.Dec. 305, 489 N.E.2d 867.) Although summary judgment is to be encouraged in the interest of prompt disposition of lawsuits, because it is a drastic means of disposing of litigation it should be allowed only when the right of the moving party is clear and free from doubt. Pyne, 129 Ill.2d at 358, 135 Ill.Dec. 557, 543 N.E.2d 1304; Purtill, 111 Ill.2d at 240, 95 Ill.Dec. 305, 489 N.E.2d 867.

"The elements necessary to establish a negligence case for medical malpractice are the same as in other negligence actions. The plaintiff must prove that the medical professional owed him or her a duty, that the person failed to exercise the skill and care of a reasonable professional, and that damages were proximately caused by the breach of the standard of reasonable care. The crucial difference between medical malpractice and other negligence actions is the necessity of expert testimony to establish the standard of care and that its breach was the cause of plaintiff's injury." (M. Polelle & B. Ottley, Illinois Tort Law, 435-36 (1985); see also Walski v. Tiesenga (1978), 72 Ill.2d 249, 256, 21 Ill.Dec. 201, 381 N.E.2d 279.) "Generally, expert testimony is needed to support a charge of malpractice 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, 72 Ill.2d at 256, 21 Ill.Dec. 201, 381 N.E.2d 279.) Although no expert testimony is necessary in situations in which the physician's conduct is so grossly negligent or the treatment is so common that a layman could readily appraise it, such as when sponges or instruments are left in the abdomen after surgery (Walski, 72 Ill.2d at 256-57, 21 Ill.Dec. 201, 381 N.E.2d 279), because Benison sought the benefit of this exception for the first time at oral argument before this court, we hold that she has waived her right to assert it. 134 Ill.2d R. 341(e)(7).

Nevertheless, in support of her contention that the circuit court erred in granting summary judgment in favor of Dr. Silverman, Benison argues on the authority of Beiermann v. Edwards (1990), 193 Ill.App.3d 968, 140 Ill.Dec. 702, 550 N.E.2d 587, appeal denied (1990), 132 Ill.2d 543, 144 Ill.Dec. 255, 555 N.E.2d 374, that although she was barred from using expert testimony by virtue of her failure to comply with the disclosure requirement of Supreme Court Rule 220 (134 Ill.2d R. 220), she did not have to disclose Dr. Phee as an expert under that rule because he was a treating physician.

In Beiermann, the defendant maintained that the trial court was correct in refusing to exclude the testimony of Dr. Traycoff under Rule 220 because he was not retained by the defendant for the purpose of rendering an opinion at trial. The court reasoned that "Rule 220 governs only those expert witnesses whose relationship with the party arose solely because a party retained the physician to render an opinion at trial; the physician's relationship to the case, not the substance of his testimony qualifies him as a Rule 220 expert. (Dugan v. Weber (1988), 175 Ill.App.3d 1088, 1093, 125 Ill.Dec. 598, 530 N.E.2d 1007.)" Accordingly, the court found it evident that Dr. Traycoff was not hired to render an opinion at trial, and the fact that he gave his opinion of...

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