Buck v. Alton Memorial Hospital, 79-116

• Citation: 407 N.E.2d 1067,41 Ill.Dec. 569,86 Ill.App.3d 347
• Decision Date: 09 July 1980
• Docket Number: No. 79-116,79-116
• Parties: , 41 Ill.Dec. 569 Charles Robert BUCK, a minor, by his father and next friend, Timothy C. Buck, Plaintiff-Appellant, v. ALTON MEMORIAL HOSPITAL, a Corporation, and Donald E. Hardbeck and Frank A. Morrison, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 1067

407 N.E.2d 1067

86 Ill.App.3d 347, 41 Ill.Dec. 569

Charles Robert BUCK, a minor, by his father and next friend Timothy C. Buck, Plaintiff-Appellant, v. ALTON MEMORIAL HOSPITAL, a Corporation, and Donald E Hardbeck and Frank A. Morrison, Defendants-Appellees.

No. 79-116.

Appellate Court of Illinois, Fifth District.

July 9, 1980.

A. Alan Hart, Alton, for plaintiff-appellant.

Michael B. Constance, Donovan, Hatch & Constance, Belleville, for Donald E. Hardbeck and Frank A. Morrison, defendants-appellees.

JONES, Presiding Justice:

Plaintiff Charles Robert Buck, by his father and next friend, Timothy C. Buck, appeals from summary judgment in the circuit court of Madison County in favor of defendants, Doctors Donald E. Hardbeck and Frank A. Morrison and Alton Memorial Hospital in accordance with section 57 of the Civil Practice Act (Ill.Rev.Stat.1977, ch. 110, par. 57). Alton Memorial Hospital is not involved in this appeal. The issues on appeal are whether summary judgment was improper because: (1) the motion therefor was not accompanied by affidavit; (2) the doctrine of res ipsa loquitur applies and precludes summary judgment; (3) the deposition testimony of plaintiff's medical expert established a genuine triable issue of fact regarding whether defendant doctors were negligent in their treatment of plaintiff and his mother prior to plaintiff's birth by cesarean section.

Plaintiff filed his initial complaint on July 9, 1973, alleging that he was born by cesarean section on June 27, 1969, approximately 17 hours after his mother entered Alton Memorial Hospital, in labor and passing a meconium (yellow)-stained amniotic fluid from her vagina. Plaintiff alleged that the defendant physicians were negligent in failing to come to the mother's aid at the hospital until just prior to surgery, though the doctors were apprised of her situation by telephone by the nurses monitoring her. Plaintiff sought damages for chronic neurological disabilities and other injuries proximately caused by the alleged negligent conduct. These allegations were carried forward in plaintiff's final amended complaint which was ultimately filed on January 13, 1976 after several dismissals of the complaint.

On November 15, 1976, defendants filed a supplemental interrogatory requesting that plaintiff identify any expert witnesses he had retained to review the medical records in the case. Plaintiff responded on February 17, 1977, that he had not yet retained any such witnesses but planned to in the near future and would promptly notify defendants of their names. Upon defendants' motion, the trial court ordered plaintiff to reveal the names of his expert witnesses to defendants on or before May 2, 1977, or face dismissal of his complaint. On May 19, 1977, plaintiff named Doctors Dodge, Pretsky, and DeVivo as his expert witnesses.

A discovery deposition of Dr. DeVivo was taken on October 12, 1977. Based upon clinical examination, Dr. DeVivo testified that plaintiff had suffered a chronic neurological disability, manifesting itself as weakness in his right arm and leg, a mild reduction in the awareness of vision in his right eye, a structural or anatomical defect on the left side of his brain, and a reduction in plaintiff's general fund of knowledge and intellect. This was all due, in Dr. DeVivo's opinion, to an episode of paranatal distress (distress "(i) mmediately surrounding the event of birth"), and more particularly a weak fetal heartbeat which resulted in an inadequate supply of blood and oxygen to plaintiff's body. However, because Dr. DeVivo had not reviewed any of the hospital records concerning plaintiff's birth, he was unable to render an opinion as to whether defendant doctors' failure to examine the mother more promptly was unreasonable. Dr. DeVivo also questioned his own qualifications to render an opinion as to management of the mother and infant during that time because obstetrics was not his "sub-specialty."

After Dr. DeVivo examined the hospital records, he was deposed again on June 27, 1978. He reiterated his earlier findings. He explained that the paranatal distress was indicated by the meconium-stained fluid leaking from the mother as she entered the hospital, and the hospital record's description of the infant at the time of delivery as limp and without respiration. He emphasized that the record showed that the fetus maintained an "adequate" heart rate throughout. Following a detailed examination regarding the contents of the Alton Hospital record in question, Dr. DeVivo declined to criticize the care provided by the hospital nursing staff, the decision to perform the cesarean section, or the manner in which it was performed. Dr. DeVivo was equivocal as to whether the leaking of meconium-stained fluid from the mother required an immediate cesarean section. In his opinion such staining did not preclude the possibility of a natural childbirth. He testified that if the child were delivered by cesarean section, all subsequent deliveries would also have to be by cesarean section, and he noted this was the mother's first pregnancy. He recognized, in addition, that the cesarean section procedure had some potential for complication. Accordingly, one might postpone decision on whether to perform cesarean section where the fetus did not lose heartbeat or movement, to see whether the progress of labor was inadequate to allow delivery. Dr. DeVivo testified another reason for performing cesarean section was a prolonged labor, and he noted the mother had not been in prolonged labor when she arrived at Alton Memorial Hospital.

Dr. DeVivo testified further that based on the hospital record he found nothing wrong with the decision to perform the cesarean section or the procedure followed. He found nothing to indicate that the treatment of the mother and fetus by Doctors Hardbeck and Morrison was in any way less than adequate. He found no evidence that either doctor "may or could" have been guilty of any malpractice in this case. He was also of the opinion that the care provided by the hospital nurses and staff was acceptable.

Defendant Hospital moved for summary judgment on August 8, 1978. The defendant physicians moved for summary judgment on August 11, 1978, on the grounds that Dr. DeVivo's deposition testimony failed to disclose that defendants had in any way deviated from the acceptable medical standards in 1969, the year of plaintiff's birth. The doctors' motion was not supported by affidavit but it did contain portions of the deposition testimony. Both motions were granted on November 8, 1978. Plaintiff then filed a motion for reconsideration of the summary judgment in favor of defendant physicians, but not as to defendant hospital. Plaintiff's motion was denied and this appeal followed as to defendant physicians only.

Appellant first contends that summary judgment was improperly granted in favor of appellees because their motion was not supported by an affidavit. However, we find this claim to be without merit because of sections 57(2) and (3) of the Civil Practice Act (Ill.Rev.Stat.1977, ch. 110, pars. 57(2), (3)):

"(2) For defendant. A defendant may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part of the relief sought against him.

(3) Procedure. The opposite party may prior to or at the time of the hearing on the motion file counteraffidavits. The judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. " (Emphasis added.)

Moreover, Supreme Court Rule 212(a)(4) provides that a discovery deposition can be used "for any purpose for which an affidavit may be used." (Ill.Rev.Stat.1977, ch. 110A, par. 212(a)(4).) It is, therefore, settled that a motion for summary judgment can be supported solely by depositions. (Breault v. Feigenholtz (1973), 54 Ill.2d 173 296 N.E.2d 3; Gagliardo v. Vodica (2d Dist. 1978), 58 Ill.App.3d 1053, 1055, 16 Ill.Dec. 424, 374 N.E.2d 1302; People ex rel. Scott v. Continental Can Co., Inc. (1st Dist. 1975), 28 Ill.App.3d 1004, 1007, 329 N.E.2d 362.) There was accordingly no error in the trial court's summary judgment based on Dr. DeVivo's first deposition and his entire second deposition which appellees properly incorporated into their motion for summary judgment.

Appellant next argues that the doctrine of res ipsa loquitur applies to the case at bar and precludes summary judgment for defendants. We note that reliance on this doctrine was not pleaded in plaintiff's final complaint or any of his other complaints, nor was it mentioned in plaintiff's motion for reconsideration of summary judgment. It does not appear that this argument was raised at any time in the trial court. In general, a new point or theory cannot be raised for the first time in a court of review where it could have been raised in the trial court. (City of Chicago v. Wildman (1909), 240 Ill. 215, 88 N.E. 559; Consumers Petroleum Co. v. Flagler (1st Dist. 1941), 310 Ill.App. 241, 33 N.E.2d 751.) Had this contention been raised in the circuit court it could easily have been decided. Our supreme court has recently held that "in the pleading of a cause of action in medical malpractice cases under the doctrine of res ipsa loquitur, reliance on the doctrine should be alleged." (Walker v. Rumer (1978), 72 Ill.2d 495, 502, 21 Ill.Dec. 362, 364, 381 N.E.2d 689, 691-692.) Here, plaintiff did not even allege facts which would entitle plaintiff to recovery under a res ipsa loquitur theory. We do not reach the merits of plaintiff's res ipsa loquitur claim, and we find no error in the trial court's failure to withhold summary judgment on that basis.

We proceed to the crucial issue of this appeal. Plaintiff-appellant contends that Dr. DeVivo's deposition...