Gatlin v. Ruder

• Decision Date: 23 May 1990
• Docket Number: No. 68358,68358
• Citation: 137 Ill.2d 284,148 Ill.Dec. 188,560 N.E.2d 586
• Parties: , 148 Ill.Dec. 188 Benjamin GATLIN, by his Mother and Next Friend, Marla Gatlin, Appellant, v. Bernard RUDER, M.D., et al. (Bernard Ruder, M.D., Appellee).
• Court: Illinois Supreme Court

Page 586

560 N.E.2d 586

137 Ill.2d 284, 148 Ill.Dec. 188

Benjamin GATLIN, by his Mother and Next Friend, Marla Gatlin, Appellant, v. Bernard RUDER, M.D., et al. (Bernard Ruder, M.D., Appellee).

No. 68358.

Supreme Court of Illinois.

May 23, 1990.

Rehearing Denied Oct. 1, 1990.

Leonard M. Ring & Associates, Chicago, and Stephen Masters & Associates, Joliet (Leonard M. Ring and Margaret A. McGuire of counsel), for appellant.

Robert W. Boyd and J. Dennis Marek, of Ackman, Marek, Boyd & Simutis, Ltd., Kankakee, for appellee.

Justice CALVO delivered the opinion of the court:

Marla Gatlin filed a medical malpractice action on behalf of her son, Benjamin Gatlin (Gatlin), against Bernard Ruder, M.D. (Ruder), an obstetrician, and Riverside Medical Center (Riverside). Gatlin alleged that during and/or immediately after his birth, he sustained injuries as a result of the negligence of Ruder and Riverside. Gatlin later amended his complaint to add counts of negligence based on the doctrine of res ipsa loquitur (Ill.Rev.Stat.1987, ch. 110, par. 2-1113). The circuit court of Kankakee County determined that no evidence indicated Ruder acted negligently, and therefore no issue of fact existed with regard to Ruder's negligence; thus, the court granted Ruder's motion for summary judgment (Ill.Rev.Stat.1987, ch. 110, par. 2-1005).

During subsequent discovery, Kenneth Niswander, M.D., a professor at the University of California at Davis medical school, was deposed. Based on Niswander's deposition, Gatlin filed a motion to vacate the summary judgment. The circuit court held that, even in light of Gatlin's new evidence, the record did not contain any evidence of wrongdoing by Ruder. Consequently, the circuit court denied Gatlin's motion. The appellate court affirmed the circuit court's order (178 Ill.App.3d 1059, 128 Ill.Dec. 157, 534 N.E.2d 177), and we allowed Gatlin's petition for leave to appeal (107 Ill.2d R. 315). Riverside is not involved in this appeal.

The issue before us is whether Gatlin presented enough evidence of Ruder's negligence to succeed in vacating the circuit court's order for summary judgment in Ruder's favor. Because Gatlin also based his complaint on the doctrine of res ipsa loquitur, our analysis must address those principles.

During Gatlin's birth, Ruder elected to perform a Caesarean section. Ruder based his decision, in part, on Gatlin's breech position in the womb. Gatlin was immediately admitted to the nursery after the delivery. Approximately three hours following the birth, a notation was made in Gatlin's medical chart that he had several large scratches and a bruise on the top of his head. Later that day and for each of the next five days, a note was made in Gatlin's chart that his color was dusky. On the fifth day after Gatlin's birth, a small abrasion was found on his right ear. A skull X ray taken three days after the birth revealed a possible small, nondisplaced fracture in the right parietal region. Gatlin now has cerebral palsy which, according to the affidavit of Anthony Raimondi, M.D., resulted from the skull fracture. Gatlin could not determine how he obtained the skull fracture and other injuries; he sued Ruder for negligence occurring during the delivery and Riverside for negligence occurring after the delivery.

All of the evidence gathered prior to the entry of summary judgment indicated Gatlin's injuries did not occur during the delivery. Ruder filed an affidavit in which he stated the treatment he provided to Gatlin did not fall below the requisite standard of care. Ruder asserted that Gatlin was in excellent health at the time of the birth. Ruder also filed an affidavit by Anthony Raimondi, M.D., a pediatric neurosurgeon. Raimondi stated Gatlin suffered from a skull fracture which did not spontaneously occur in nature. Raimondi opined that Gatlin's injuries must have occurred within the hospital setting, not during the birth process. Ruder's and Raimondi's depositions confirmed their respective affidavits. Consequently, because the affidavits eliminated Ruder's actions as a cause of Gatlin's injuries, the trial court entered summary judgment in favor of Ruder.

Gatlin later moved to vacate the summary judgment, claiming new evidence, the deposition testimony of Niswander, indicated Ruder could have caused Gatlin's injuries during the delivery. The most crucial part of Niswander's testimony concerned his opinion as to the cause of Gatlin's skull fracture:

"Q. Do you have an--assuming that Benjamin Gatlin did suffer a non-displaced skull fracture, do you have an opinion as to a reasonable degree of medical and surgical certainty, as to what caused the skull fracture?

A. [NISWANDER]: I think it most likely would have resulted from squeezing of the baby's head in the pelvis.

Q. That would be by the obstetrician?

A. No. By the natural forces of the labor.

Q. You believe that that is sufficient to cause an undisplaced skull fracture?

A. Certainly have seen it. Yes. Indeed I do think. It could also, of course, result from the obstetrician trying to displace the head." (Emphasis added.)

Ruder, in his deposition, admitted he attempted to rotate Gatlin with his hand because of Gatlin's breech position:

"Q. Did you try other artificial means to rotate the baby?

A. [RUDER]: Only on my examinations sometimes I did try to rotate the baby with my hand, but this is a very--this will rarely, you know, help anything.

You sometimes can try to help it and encourage it to rotate, but I did not use any instruments to rotate it if that is what you are questioning.

* * * * * *

Q. Now you say that you did digitally try to turn the baby's head in the labor room?

A. I think I did.

* * * * * *

Q. Would that require draping?

A. No. No, that is just in the course of an ordinary vaginal exam. You try to just see if the baby's head won't rotate a little bit."

According to Gatlin, the testimony by Niswander emphasized above, combined with Ruder's admission that he attempted to turn Gatlin's head with his hand, provided enough evidence of Ruder's negligence to vacate the motion for summary judgment.

Ruder, however, submitted an affidavit by Niswander in which Niswander stated:

"3. The Affiant has been informed that Plaintiff now alleges in a Motion to Vacate Summary Judgment, that he is quoted as saying that the injuries suffered by BENJAMIN GATLIN could have been caused by the actions of Defendant, BERNARD RUDER, M.D.

4. That at no place in the deposition have I indicated that DR. RUDER, in any way, practiced medicine below the standard of care required of an obstetrician. My testimony * * * should not and cannot be taken as a criticism of DR. RUDER. Quite the opposite, it would be my testimony at trial that, in my opinion, DR. RUDER was well within the area of the standard of care and that nothing that he would have done prior to handing the child to the anesthesiologist would have been below the required standard of care. The anesthesiologist received the child in excellent condition, according to the medical records and at that point, DR. RUDER's duties with regard to the birth of BENJAMIN GATLIN would have been completed.

5. To interpret my testimony or my opinions in any way other than that DR. RUDER performed his duties as an obstetrician within the standard of care required of such obstetricians under these facts and circumstances would be an outright misquote or misinterpretation of my opinions."

Using this affidavit, Ruder contended Niswander's testimony did not provide any evidence of Ruder's negligence; Gatlin merely misinterpreted Niswander's deposition. The circuit court agreed with Ruder and ruled that Gatlin's additional evidence, namely Niswander's deposition, did not raise an issue of fact with regard to Ruder's negligence.

The appellate court concurred with the circuit court. The appellate court held:

"There is lack of evidence as to the abrogation of Dr. Ruder's duty to provide competent medical services. Dr. Niswander's statements fail to raise an issue of material fact regarding the necessary elements required to maintain a malpractice cause against Dr. Ruder. In a medical malpractice case, the plaintiff must prove that it is more probably true than not true that the defendant's negligence was a proximate cause of the plaintiff's injury. (Russell v. Subbiah (1986), 149 Ill.App.3d 268, 102 Ill.Dec. 516, 500 N.E.2d 138.) The proffered testimony lacks evidentiary value to sufficiently support a vacatur order.

The plaintiff next asserts that his complaint pled that the injury gave rise to an inference of negligence on Dr. Ruder's part pursuant to the doctrine of res ipsa loquitur. [Citation.] He asserts that the summary judgment order should have been barred by the inference of negligence suggested under the doctrine.

Res ipsa loquitur is applicable in medical malpractice cases where the conduct of the doctor is grossly remiss or so contrary to acceptable and customary medical practices and standards shown of record that results or injuries complained of would not have occurred but for negligence. Estell v. Barringer (1972), 3 Ill.App.3d 455, 278 N.E.2d 424.

The doctrine of res ipsa loquitur is a rule of evidence. It is not to be invoked to overcome evidence, but is to be applied in its absence. The doctrine is an exception to the general rule that negligence is not to be presumed, but must be affirmatively proved.

The plaintiff has failed to establish that it is more probable that Dr. Ruder caused his injuries, and not the hospital personnel. The application of the doctrine has been foreclosed regarding the instant defendant and summary judgment was properly extended." 178 Ill.App.3d at 1060-61, 128 Ill.Dec. 157, 534 N.E.2d 177.

Our first concern is with the standard the appellate court applied in reviewing the motion to vacate summary judgment. The appellate court, citing Russell, held: "[T]he plaintiff must prove that it is more probably true...