Jackson v. Graham

• Decision Date: 13 July 2001
• Docket Number: No. 4-00-0826.,4-00-0826.
• Citation: 753 N.E.2d 525,257 Ill.Dec. 330,323 Ill. App.3d 766
• Parties: Lynne K. JACKSON, Personal Representative of the Estate of Curtis W. Jackson, Deceased, Plaintiff-Appellant, v. David L. GRAHAM, M.D., Defendant-Appellee.
• Court: United States Appellate Court of Illinois

753 N.E.2d 525

323 Ill. App.3d 766

257 Ill.Dec. 330

Lynne K. JACKSON, Personal Representative of the Estate of Curtis W. Jackson, Deceased, Plaintiff-Appellant, v. David L. GRAHAM, M.D., Defendant-Appellee.

No. 4-00-0826.

Appellate Court of Illinois, Fourth District.

Argued June 13, 2001.

Decided July 13, 2001.

Stephen L. Williams (argued), Mann Law Firm, Terre Haute, IN, for Lynne K. Jackson.

Karen L. Kendall (argued), Heyl, Royster, Voelker & Allen, Peoria, Edward M. Wagner, Heyl, Royster, Voelker & Allen, Urbana, for David L. Graham M.D.

Rhonda K. Jenkins, Hopkins Goldenberg, P.C., Edwardsville, for Trial Lawyers Association, Amicus Curiae.

Presiding Justice STEIGMANN delivered the opinion of the court:

In December 1997, plaintiff, Lynne K. Jackson (Jackson), personal representative of the estate of Curtis W. Jackson (Curtis), filed an amended complaint against defendant, David L. Graham, M.D., for medical malpractice, alleging that Graham failed to diagnose and treat Curtis' deep vein thrombophlebitis and thrombosis. In November 1999, Graham filed a motion for summary judgment. In December 1999, Jackson filed a response to that motion, attaching the affidavits of two physicians. In January 2000, Graham filed a motion to strike those affidavits, and in August 2000, the trial court granted Graham's motion to strike as well as his motion for summary judgment.

Jackson appeals, arguing that the trial court erred by (1) striking the affidavits and (2) granting Graham's motion for summary judgment. We reverse and remand for further proceedings.

I. BACKGROUND

The following facts appear from the complaint, affidavits, attached documents, and depositions. On July 19, 1995, Jackson brought her husband, Curtis to Carle Clinic in Urbana, to see Graham, who was Curtis' primary care physician and was board certified in internal medicine. Curtis told Graham that his right calf was swollen and had been painful for a couple of days. In addition, Jackson asked Graham to check Curtis' ears because she thought he might have an ear infection. Graham examined Curtis' leg and noted on Curtis' medical chart that (1) Curtis' right calf was larger than his left calf, (2) Curtis was experiencing some tenderness in his right calf, and (3) his "gait and ambulation" were different than usual. Graham then sent Curtis for an ultrasound doppler test on his right leg.

Later on July 19, 1995, Dr. Robert Twohey, a cardiologist, read the ultrasound test results as showing "[n]o evidence of deep or superficial venous thrombosis" and "no ancillary soft[-]tissue pathology." Graham did not schedule Curtis for a follow-up appointment, leaving further evaluation of Curtis' calf to Dr. Kenneth S. Aronson, who was then treating Curtis for a seizure disorder. (Curtis had an August 3, 1995, appointment scheduled with Aronson.) Graham also diagnosed Curtis as having otitis media (inflammation of the middle ear) and prescribed an antibiotic.

On July 26, 1995, Jackson called Aronson's office because Curtis' symptoms worsened. At around 6 a.m. the next day, Curtis was taken by ambulance to the emergency room at Union Hospital in Terre Haute, Indiana. He died about an hour later. Later that day, Dr. Roland Kohr conducted an autopsy, which showed the following: (1) Curtis had a large saddle embolus in his pulmonary artery and additional thrombi within his inferior vena cava; and (2) the cause of his death was "acute pulmonary embolization."

In December 1997, Jackson filed an amended complaint against Graham, alleging that Graham was negligent in that he (1) failed to diagnose and treat the deep vein thrombophlebitis and thrombosis in Curtis' inferior vena cava and lower right leg, (2) misdiagnosed Curtis' medical condition as otitis media, (3) failed to properly monitor Curtis' medical condition, (4) failed to conduct or order proper diagnostic tests, (5) failed to provide an appropriate follow-up evaluation of Curtis, and (6) failed to provide any diagnosis and treatment of the medical condition Curtis complained of on July 19, 1995.

In November 1999, Graham filed a motion for summary judgment, arguing that Jackson could not establish medical negligence or proximate cause. Graham attached to the summary judgment motion his own affidavit, in which he averred as follows: (1) he is a physician licensed in Illinois; (2) he had reviewed his notes and medical records regarding Curtis; and (3) based on his experience, examination, and testing of Curtis on July 19, 1995, as well as his review of the notes and medical records pertaining to Curtis, (a) his care and treatment of Curtis were appropriate and within the standard of care, and (b) on July 19, 1995, no evidence existed that Curtis had deep vein thrombosis or thrombophlebitis. Graham also attached Kohr's affidavit, in which Kohr averred that, without speculating, he could not determine when the saddle embolus had developed.

In December 1999, Jackson filed a response to Graham's summary judgment motion, attaching the affidavits of two physicians, John T. Philbrick, M.D., and W. Welby Cox, M.D. In his affidavit, Philbrick averred, in pertinent part, as follows: (1) if called as a witness in the case, he could competently testify to the matters set forth in his affidavit; (2) he received his medical degree from Harvard Medical School; (3) he was a licensed physician in Virginia, was board certified in internal medicine, and devoted 60% of his internal medicine practice to treating patients; (3) since 1980, he had taught and supervised University of Virginia medical students and residents in the practice of internal medicine and treatment of patients (Philbrick also attached his curriculum vitae to his affidavit); (4) "the examination, diagnosis, care[,] and treatment of patients with a history and symptoms similar to [Curtis] when treated by [Graham] is a national standard for [b]oard[-][c]ertified [i]nternal [m]edicine physicians, such as [Graham]"; (5) he was "familiar with the standard of care exercised by [b]oard[-][c]ertified [internal [m]edicine [p]hysicians practicing in private physicians groups of more than 300 physicians in clinics in cities the size of Champaign-Urbana, Illinois, with populations of approximately 100,000, and Champaign County, Illinois, with populations of approximately 170,000, or in similar communities," during July 1995, when Graham treated Curtis; (6) he had reviewed medical records and other materials related to Curtis' treatment, including Curtis' medical records from Carle Clinic, the ultrasound test report, and the autopsy report; and (7) in Philbrick's opinion, to a reasonable degree of medical certainty, Graham's treatment and care of Curtis was "below, and did not conform with, the appropriate standard of care, and caused [Curtis'] death."

In his affidavit, Philbrick also set forth the specific ways in which Graham's care and treatment of Curtis fell below the appropriate standard of care, as follows: (a) on July 19, 1995, Curtis, who was at an increased risk for deep vein thrombosis due to his obesity, showed signs and symptoms consistent with deep vein thrombosis in his lower right leg; (b) in 1995, the minimum standard of care for patients like Curtis required that the treating physician reevaluate the patient "within several days of initial presentation," and Graham had failed to conduct a timely follow-up of Curtis; (c) in 1995, the minimum standard of care included instructing the patient that if his symptoms worsened or if he experienced symptoms of pulmonary embolism, he should seek immediate medical attention, and Graham failed to properly instruct Curtis regarding when to seek medical attention; and (d) Graham's failure to diagnose and treat Curtis' thromboembolism resulted in Curtis' death.

Philbrick's affidavit also set forth the following particular facts upon which his opinions were based: (1) Curtis was 39 years old and suffered from a seizure disorder and obesity; (2) during his July 19, 1995, appointment with Graham, Curtis complained of swelling and pain in his right calf, which had been present for several days; (3) Curtis had no history of similar complaints; (4) Graham's examination of Curtis revealed that Curtis' right calf was swollen and tender; (5) Curtis was at "increased risk for deep venous thrombosis due to his obesity"; (6) on July 19, 1995, Curtis showed signs and symptoms consistent with deep vein thrombosis of his right lower leg; (7) Graham scheduled an ultrasound test of Curtis' right calf but did not schedule a follow-up appointment for Curtis; (8) because an ultrasound of a patient's lower extremity "is limited in its ability to visualize deep veins of the calf," a negative ultrasound does not rule out deep vein thrombosis; (9) a "significant portion of calf[-]deep venous thrombosis (approximately 20%) extend to the thigh during the 10 to 14 days following presentation of a patient with this problem to a physician for evaluation"; and (10) once a thrombosis is in the deep veins of the thigh, a significant risk (approximately 50%) exists that it will embolize to the lungs.

In his affidavit, Cox averred, in pertinent part, as follows: (1) if called as a witness in the case, he could competently testify to the matters set forth in his affidavit; (2) he received his medical degree from the University of Missouri Medical School and completed both his internship and residency in internal medicine; (3) he was a licensed physician in Missouri and Washington and was board certified in internal medicine; (3) he was currently in private practice in Everett, Washington, and from 1995 until 1999, he specialized in internal medicine at the Springfield Clinic Cancer and Hematology Center in Springfield, Missouri (Cox also attached his curriculum vitae to his affidavit); (4) "the examination, diagnosis, care[,] and treatment of patients with a history and symptoms similar to [Curtis] when treated by [Graham] is a national standard...