Carter v. Dunlop

• Decision Date: 25 October 1985
• Docket Number: No. 2-84-0821,2-84-0821
• Citation: 92 Ill.Dec. 418,138 Ill.App.3d 58,484 N.E.2d 1273
• Parties: , 92 Ill.Dec. 418 Diane CARTER, Plaintiff-Appellant, v. John T. DUNLOP, M.D., Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 1273

484 N.E.2d 1273

138 Ill.App.3d 58, 92 Ill.Dec. 418

Diane CARTER, Plaintiff-Appellant, v. John T. DUNLOP, M.D., Defendant-Appellee.

No. 2-84-0821.

Appellate Court of Illinois Second District.

Oct. 25, 1985.

Robert G. Peterson & Associates, Michael R. Alberts, Chicago, for plaintiff-appellant.

Wildman Harrold Allen & Dixon, Lawrence J. Helms, James A. Christman, Chicago, for defendant-appellee.

UNVERZAGT, Justice:

Plaintiff, Diane Carter, appeals from summary judgment entered in defendant's favor by the circuit court of Lake County. The plaintiff had refiled suit for medical malpractice against the defendant on August 19, 1983, after a voluntary dismissal of her earlier-filed action based upon the same allegations. In essence, plaintiff alleged defendant failed to prescribe proper and sufficient dosages of medication and to provide an adequate course of treatment for her.

Defendant's first effort to depose plaintiff's expert witness, Doctor McNabola, in January 1984, was unsuccessful. By agreed order in March, trial of the cause was set for July 2, 1984. Subsequent numerous efforts by defendant to depose Doctor McNabola were unsuccessful, and defendant moved to bar expert testimony at trial.

The trial court's order entered after hearing on the motion on June 14, 1984, barred McNabola from testifying, and compelled disclosure by plaintiff within 14 days of any expert witnesses she intended to call, or such witnesses would be barred from testifying. The trial date was continued to August 6 on the court's own motion.

No disclosure was made by plaintiff by June 28, and defendant moved on July 5 for summary judgment, based on plaintiff's inability to establish a prima facie case in medical malpractice due to lack of any expert witnesses. The court granted plaintiff leave to respond to the motion and to defendant to reply. Plaintiff contended in her response filed July 23, 1984, that the testimony of a medical expert was not needed since ordinary laymen would be able to understand the evidence in the case, and render a verdict. In the alternative, plaintiff stated she "adopts Dr. Schimel as her expert." Doctor Schimel was the physician who treated the plaintiff subsequent to the defendant. Doctor Schimel was deposed upon plaintiff's subpoena in June of 1983 during the pendency of the cause after its original filing.

After defendant's reply and a hearing on the motion, the court granted summary judgment in defendant's favor on August 9, 1984.

Plaintiff on appeal presents three issues for review: (1) whether the trial court erred in granting summary judgment when statements by a subsequent treating physician gave rise to questions of fact, despite the fact no expert witness to testify at trial was disclosed; (2) whether the trial court erred in barring plaintiff from disclosing further expert witnesses; and (3) whether the trial court erred in requiring an expert witness on behalf of the plaintiff.

Preliminarily, defendant contends that the second issue was waived due to plaintiff's failure to raise the issue below. We agree.

It is well settled that issues not raised in the trial court are generally considered waived on appeal. (Western Casualty & Surety Co. v. Brochu (1985), 105 Ill.2d 486, 500, 86 Ill.Dec. 493, 475 N.E.2d 872.) The reasoning underlying this general precept is that the appellate court should not consider different theories or new questions on appeal, if proof might have been offered to refute or overcome them had they been presented below. Skokie Gold Standard Liquors, Inc. v. Joseph E. Seagram & Sons, Inc. (1983), 116 Ill.App.3d 1043, 1052, 72 Ill.Dec. 551, 452 N.E.2d 804.

Although plaintiff argues the question of whether the court could bar her from disclosing further expert witnesses was presented below at the June 14, 1984 hearing on the defendant's motion to bar expert testimony, there is no support in the record for her argument, since no report of proceedings of that hearing has been provided this court. The June 14 order reset the cause for trial from July 2 to August 6, and provided that:

"[P]laintiff's declared expert William McNabola is barred from testifying at the trial of this cause and plaintiff is compelled to disclose any expert witness to be called by plaintiff within 14 days or be barred from calling any experts at trial. Plaintiff is also required to answer defendant's outstanding discovery requests within 14 days."

Plaintiff filed no motion to reconsider, and her subsequent memorandum opposing summary judgment does not include any argument to the effect that the court's order was improper; rather, plaintiff's alternate contentions were that either no expert testimony was needed, or that she would adopt Doctor Schimel as her expert witness. Accordingly, the issue of the propriety of the court's order has been waived.

Plaintiff next argues that even if the court's disclosure order is upheld, its subsequent grant of summary judgment was improper either (1) because the instant cause falls within one of the exceptions to the expert testimony rule or (2) the deposition testimony of Doctor Schimel gave rise to questions of fact, thereby precluding summary judgment.

Relying on the facts and admissions contained in the depositions of the defendant and Doctor Schimel, plaintiff contends it is evident that the applicable standard of care and breach of said standard in this case falls within the common knowledge of jurors exception to the expert testimony rule.

It is well established that in order to prove medical malpractice, a party must establish by expert medical testimony the standard of care by which defendant's conduct is to be measured, that the defendant was unskillful or negligent in light of this standard, and that his want of skill or care caused the injury to the plaintiff. (Walski v. Tiesenga (1978), 72 Ill.2d 249, 21 Ill.Dec. 201, 381 N.E.2d 279.) One exception to this rule is found where the physician's conduct is so grossly negligent or the treatment so common that laymen could readily appraise it, and this common knowledge exception permits the jury to determine on the basis of its own experience, whether the medical act or omission was negligent. (Metz v. Fairbury Hospital (1983), 118 Ill.App.3d 1093, 1098, 74 Ill.Dec. 472, 455 N.E.2d 1096.) Examples of negligent acts within a jury's common knowledge and actionable without expert medical testimony include sponges left in the abdomen, an instrument left behind after surgery, and X-ray burns. Comte v. O'Neil (1970), 125 Ill.App.2d 450, 454, 261 N.E.2d 21.

Plaintiff's claim that her case falls within the common knowledge exception cannot be accepted. Her complaint alleged the defendant failed to prescribe proper and sufficient dosages of medication for her, and failed to provide an adequate course of treatment. As defendant points out, it is unlikely that a layman would know what hyperthyroidism is, what its symptoms and effects are, how it can be controlled, the time it takes for medication to create a response, or what effect the lack of medication would have. Clearly, expert testimony would be required to establish the standard of care which plaintiff required, before any assessment could be made of whether the defendant's acts or omissions constituted a breach of that standard.

Plaintiff's remaining contention is that, notwithstanding her failure to disclose an expert witness to testify at trial, the deposition testimony of Doctor Schimel gave rise to questions of fact which made the court's grant of summary judgment in defendant's favor improper.

Defendant argues that summary judgment was proper in view of the fact expert testimony was unquestionably required in this case, and the fact plaintiff foreclosed herself from presenting such testimony by failing to disclose her expert in compliance with the trial court's order of June 14.

Plaintiff acknowledges, but attempts to distinguish, two cases which "seem to state" that failure to disclose an expert witness is a basis for granting summary judgment. In Stevenson v. Nauton (1979), 71 Ill.App.3d 831, 28 Ill.Dec. 71, 390 N.E.2d 53, the court approved the grant of summary judgment in defendant's favor in a medical malpractice case. The court concluded there:

"Where the plaintiff has failed to indicate that she has an expert medical opinion to sustain allegations or would be able to obtain such opinion in the future and was given numerous opportunities to secure such testimony summary judgment in favor of the defendant is proper." 71 Ill.App.3d 831, 835, 28 Ill.Dec. 71, 390 N.E.2d 53.

A grant of summary judgment was similarly approved in Hill v. Lutheran Hospital (1978), 58 Ill.App.3d 1003, 16 Ill.Dec. 372, 374 N.E.2d 1147, where the plaintiff was given numerous continuances and every opportunity to obtain expert medical testimony, but failed to do so or to indicate that he would be able to obtain it. Plaintiff here contends these cases are distinguishable because she demonstrated the ability to produce an expert witness, Doctor Schimel. As defendant notes, however, plaintiff was given the opportunity to disclose Doctor Schimel, but she let it pass, and offered no justifiable excuse for not disclosing him within the time allotted by the trial court. As defendant further notes, the record contains no indication that plaintiff could, in fact, produce Doctor Schimel to testify at trial, or had even approached him to ascertain his willingness to so testify.

Without expert testimony, plaintiff could not establish a prima facie case in medical malpractice, and the court's grant of summary judgment was appropriate.

Even assuming, ad arguendo, the deposition of Doctor Schimel was considered, the record shows there is no genuine issue of material fact, and the court's grant of summary judgment in defendant's favor was proper.

Section 2-1005(c) of the Civil Practice Law (Ill.Rev.Stat.1983, ch. 110, par. 2-1005(c)) provides that...