Jack v. Pugeda

• Decision Date: 07 June 1989
• Docket Number: No. 5-87-0551,5-87-0551
• Citation: 539 N.E.2d 1328,184 Ill.App.3d 66
• Parties: , 132 Ill.Dec. 522 Patsy JACK, Plaintiff-Appellant, v. Faustino V. PUGEDA, M.D., Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 1328

539 N.E.2d 1328

184 Ill.App.3d 66, 132 Ill.Dec. 522

Patsy JACK, Plaintiff-Appellant, v. Faustino V. PUGEDA, M.D., Defendant-Appellee.

No. 5-87-0551.

Appellate Court of Illinois Fifth District.

June 7, 1989.

Harold B. Culley, Jr., Raleigh, for plaintiff-appellant.

Wm. Kent Brandon, Mitchell, Brandon & Schmidt, Carbondale, for defendant-appellee.

Justice CHAPMAN delivered the opinion of the court:

The questions before this Court are relatively simple ones:

Did the trial court err in refusing the plaintiffs' motion for continuance and did it err in denying the plaintiffs' post-trial motion based upon its refusal to allow the continuance?

While the questions are simple, their resolution requires this court to balance the supreme court's interests in the prompt disposition of cases with its equal interest in ensuring that the ends of justice are attained. In view of the circumstances presented in this appeal we reluctantly reverse and remand for a new trial. The use of the word reluctantly in the preceding sentence does not mean that this court is unsure of the rightness of its ruling. It does mean that this court is cognizant of both the intent of Supreme Court Rule 231(a) (107 Ill.2d R. 231(a)) and of the difficulties inherent in implementing that rule under certain circumstances.

The intent of Supreme Court Rule 231(a) is to require the moving party to furnish the trial judge with adequate information upon which to make a reasonable decision. Courts are cautioned against granting continuances at the last minute, particularly after a case has been called for trial or after the trial is actually underway. Waltz v. Schlattman (1980), 81 Ill.App.3d 971, 36 Ill.Dec. 856, 401 N.E.2d 994; Montgomery v. Terminal R.R. Association (1979), 73 Ill.App.3d 650, 29 Ill.Dec. 520, 392 N.E.2d 77.

What facts then justify our reversal of the trial court's decision, reluctant though the reversal might be?

This is a medical malpractice suit brought against the defendant doctor, Faustino V. Pugeda, in which the plaintiff claimed that the sterilization procedure performed upon her was negligently done and that as a result she suffered an unwanted pregnancy. During the original sterilization procedure of January 12, 1983, the defendant made a small incision in the abdomen, inserted a laparoscope and visualized the Fallopian tubes. He then inserted an additional instrument, grasped the tube, made a loop in the tube approximately one and a half to two centimeters long and placed a ring around this loop and tightened it. This procedure was performed upon both the right and left Fallopian tubes. The theory behind this type of procedure is that within a few days or weeks the portions of the Fallopian tubes enclosed in the ring will become necrotic and they will fall apart rendering the patient sterile.

The plaintiff became pregnant following this procedure and on February 17, 1984, gave birth to a son. The next day the defendant performed a second and different type of sterilization procedure. The question of whether the defendant removed all or only a small portion of the Fallopian tubes during this second procedure was to become the subject of significant controversy at trial and indeed is the underlying basis for this appeal. Therefore the testimony concerning this procedure and the timing of that testimony will be discussed in some detail.

The first reference to the second surgery was contained in the defendant's operative notes which described it as a bilateral salpingectomy, or removal of the entire right and left Fallopian tubes. Dr. Katubig, the pathologist who examined the sections of the tubes shortly after their removal, also described the procedure as a bilateral salpingectomy. In addition, Dr. Katubig's original notes indicated that the portion of the right tube that was submitted to him measured one centimeter in length while the left tube specimen was seven centimeters long. His original notes also indicated that no scarring or other abnormality was observed on either specimen.

The lack of scarring and the seven centimeter length of the left tube formed the basis of the plaintiff's expert's opinion of malpractice; that is since the Fallopian tube is seven to ten centimeters long in its entirety, and since the seven centimeter section of the left tube was described by Dr. Katubig as without scars or other abnormalities, the ring could not have been properly applied in the original surgery for if it had been there would have been scarring somewhere in the seven centimeter section.

Returning to a chronological review of the references to the length of the removed tubes, the record reveals that the defendant's deposition of October 17, 1985, implied that the tubes were removed in their entirety. In December of 1986, Dr. Katubig did indicate that his pathology report was in error and that only zero point seven (0.7) centimeters were submitted to him rather than the seven centimeters stated in his original report. However, following Dr. Katubig's deposition in December of 1986 came the defendant's expert's discovery deposition in January of 1987 in which he stated that Dr. Pugeda had removed the entire tubes and formulated his opinion based on the removal of the entire tubes.

A summary of the pretrial information on the second surgery discloses the following:

1. Defendant's operative notes of 2/18/84--bilateral salpingectomy, i.e., total removal of tubes.

2. Dr. Katubig's pathology report approximately February 18, 1984--removal of both tubes, one centimeter of the right, seven centimeters of the left.

3. Defendant's deposition, 10/17/85--implies total removal of both tubes.

4. Dr. Katubig's deposition of December, 1986--removal of one centimeter of right tube and zero point seven (0.7) centimeters of left tube.

5. Dr. Fischer (defendant's expert) deposition of January 28, 1987--relies upon total removal of tubes in formulating his opinion.

With this background we turn to the testimony at trial. On March 9, 1987, the first day of trial, the defendant was called under Section 2-1102 as the plaintiff's first witness. He testified: "I removed the tubes on both sides, left and right side." This statement was essentially a reiteration of his earlier operative notes and of his testimony at the time of his deposition. The plaintiff's expert then testified and relied upon the February 18, 1984, removal of an unscarred seven centimeter section of the left Fallopian tube in formulating his opinion. That concluded the first day of trial.

On the next day the plaintiff testified on her own behalf and then rested her case. The defendant was then called in his own case and testified as follows:

"Q. How much of the tubes did you remove?

A. About a centimeter.

Q. On each side?

A. On the right side and I believe about a centimeter on the left side."

On cross examination the defendant acknowledged that bilateral salpingectomy meant the removal of the entire tubes, but explained the use of that term in his operative notes as a misnomer.

On the third and last day of trial the defendant's expert, Dr. Fischer, testified and indicated that from reading Dr. Pugeda's report you would think that he had taken out the entire tube, but that the pathology report revealed that he took out only a segment of the tube. Dr. Fischer admitted that he had known at the time of his deposition in January 1987 that Dr. Katubig had changed the seven centimeter measurement of his report to zero point seven centimeters so that the change in the pathology report was not the basis of the change in his opinion. Rather Dr. Fischer's opinion changed because of the information furnished by defendant's counsel to him the evening before: that is that Dr. Pugeda had changed his testimony as to what portion of the tubes had been removed during the course of trial.

Immediately following the testimony of Dr. Fischer, the plaintiff's counsel requested a continuance, "hopefully until tomorrow." The motion was denied and there was a verdict for the defendant.

Plaintiff's post-trial motion was accompanied by affidavits and a medical report which indicated that both of the plaintiff's Fallopian tubes were absent in their entirety when her abdomen was examined in a subsequent unrelated surgery and that the plaintiff had undergone no surgeries in that area other than the February 18, 1984, surgery which was the subject of the changed testimony. The trial court indicated that if the additional information that was presented in the post-trial motion had been available to him at the time that the motion for a continuance was made, he might have allowed it, but under the circumstances he felt that the motion for a continuance had been too vague and was therefore properly denied and he consequently denied the post-trial motion. This appeal followed.

Supreme Court Rule 231(a) (107 Ill.2d R. 231(a)) requires an affidavit in support of a motion for continuance and that the affidavit set forth certain information:

"Absence of Material Evidence. If either party applies for a continuance of a cause on account of the absence of material evidence, the motion shall be supported by the affidavit of the party so applying or his authorized agent. The affidavit shall show (1) that due diligence has been used to obtain the evidence, or the want of time to obtain it; (2) of what particular fact or facts the evidence consists; (3) if the evidence consists of the testimony of a witness, his place of residence, or if his place of residence is not known, that due diligence has been used to ascertain it; and (4) that if further time is given the evidence can be procured."

The defendant originally contends that the denial of a motion for continuance cannot be regarded as an abuse of discretion when the affidavit requirement of Supreme Court Rule 231(a) has not been met. (Mikarovski v. Wesson (1986), 142 Ill.App.3d 193, 96 Ill.Dec. 585, 491 N.E.2d 864.) The...