Johnson v. St. Bernard Hospital
| Decision Date | 20 December 1979 |
| Docket Number | No. 78-1377,78-1377 |
| Citation | 399 N.E.2d 198,35 Ill.Dec. 364,79 Ill.App.3d 709 |
| Parties | , 35 Ill.Dec. 364 Lovie JOHNSON, Administrator of the Estate of Samuel Johnson, Deceased, Plaintiff-Appellant, v. ST. BERNARD HOSPITAL, an Illinois Not-for-Profit Corporation, Defendant- Appellee, and Dr. Isaac Thapedi, Defendant. |
| Court | United States Appellate Court of Illinois |
Wildman, Harrold, Allen & Dixon, Chicago (Thomas D. Allen, Miles J. Zaremski, William D. Serwer, Chicago, of counsel), and Hinshaw, Culbertson, Moelmann, Hoban & Fuller, Chicago (D. Kenndall Griffith, John D. Cassiday, James R. Pancheri, Chicago, of counsel), for defendant-appellee.
Plaintiff, Lovie Johnson, administrator of the estate of Samuel Johnson, brought this survival and wrongful death action against defendants, Dr. Isaac Thapedi and St. Bernard Hospital, based on defendants' alleged negligent care and treatment of plaintiff's intestate. The circuit court of Cook County granted summary judgment in favor of defendant St. Bernard Hospital. Plaintiff appeals contending that material questions of fact exist which preclude the entry of summary judgment and that the hospital is not entitled to summary judgment as a matter of law.
We reverse the judgment of the trial court and remand the case for additional proceedings.
On November 4, 1974, Samuel Johnson was injured when struck by an automobile. He was taken to the emergency room at St. Bernard Hospital where he was examined by Dr. Gilberto Arevalo and treated for a head injury. Johnson was then admitted to the hospital under the care of defendant Dr. Isaac Thapedi, a staff neurosurgeon. Two days after the accident, on November 6, 1974, Johnson was examined by a physician who was identified by Dr. Thapedi as Dr. Drumright, a house physician employed by the hospital to take histories and give physical examinations.
On January 14, 1975, approximately two and one-half months after admission to the hospital, it was discovered that Johnson was suffering from an intertrochanteric fracture of the left hip. After discovering the fracture, Dr. Thapedi requested orthopedic consultation from Dr. Allen Wright, an orthopedic surgeon on the staff of St. Bernard Hospital and chairman of the Department of Orthopedics at the hospital. Dr. Wright refused to see Johnson in consultation for Dr. Thapedi.
After Dr. Wright refused to see his patient, Dr. Thapedi, in compliance with the hospital bylaws, advised the hospital administration
[35 Ill.Dec. 367] that Dr. Wright refused to see Johnson. St. Bernard Hospital bylaw 14 provides:
The administration told Dr. Thapedi that it had no authority to force Dr. Wright to see his patient and suggested that Dr. Thapedi obtain an orthopedic consultation from outside the hospital. Johnson remained in the hospital until his death on February 14, 1975, one month after discovery of the fracture and without having been examined by an orthopedic surgeon.
Plaintiff filed this action on February 10, 1976. With regard to the hospital the amended complaint alleged that Johnson's aggravated injuries and eventual death were the proximate result of one or more of the following negligent acts:
"(a) Failed to have proper emergency room care given to a patient;
(b) Contrary to its rules and regulations, failed to insure that the patient got prompt and adequate attention;
(c) Contrary to its rules and regulations, failed to have proper and adequate orthopaedic consultation."
The hospital answered the amended complaint, denying that it had been negligent in the care and treatment of Johnson.
On January 18, 1978, plaintiff's qualified medical expert Dr. Farag Loutfy, gave his discovery deposition. Dr. Loutfy had reviewed the hospital medical records concerning Johnson's care and treatment, copies of certain hospital bylaws, and Dr. Thapedi's deposition. Dr. Loutfy explained that Johnson's intertrochanteric hip fracture was undoubtedly caused by the initial trauma of the automobile accident. A classic characteristic of this type of hip fracture is an externally rotated or everted leg. When the leg is manipulated during examination, it will flop back into the everted position.
The first aspect of Johnson's care and treatment criticized by Dr. Loutfy was the initial examination performed by the emergency room physician, Dr. Arevalo. In Dr. Loutfy's opinion, a thorough examination of Johnson's lower limbs, including X ray of the hips, was called for because of the manner in which Johnson had sustained his injuries. During a thorough examination, Dr. Loutfy stated the physician should have noticed the everted position of the leg and discovered the fracture.
Dr. Loutfy also discussed a physical examination conducted on November 6, 1974, two days after Johnson was admitted to the hospital. According to the deposition of Dr. Thapedi, this examination was performed by Dr. Drumright, a house physician. From his evaluation of the hospital medical records, Dr. Loutfy indicated that the examining physician apparently failed to completely examine the patient's lower extremities or notice the everted position of Johnson's leg.
Finally, Dr. Loutfy discussed the failure of the treating physician and the hospital to secure consultation of an orthopedic surgeon after Johnson's hip fracture was diagnosed on January 14, 1975. Referring to St. Bernard Hospital bylaw 14, Dr. Loutfy stated that the hospital administration should have insured that an orthopedic consultation was obtained in Johnson's case. With regard to the hospital's duty to obtain a consultation for the patient, Dr. Loutfy stated:
"A. My only criticism is the fact that there, we have a patient lying in the hospital with a problem for so long, and when it was discovered, there is nothing done about it, because No. 1, the physician that was asked for consultation declined it several times.
No. 2, another orthopedic man was not consulted.
No. 3, the administration sat there with doing something about it.
THE WITNESS: I say it is the responsibility of the hospital administration to see to it that an orthopedic consultation is MR. ZAREMSKI: Q. Do you know whether there's a standard of care in this community?
[35 Ill.Dec. 368] done when requested, for the well-being of the patient, if not for anything else.
A. That is true.
Q. How do you know that?
A. And that is why.
Q. Doctor, just answer my question, please.
A. Yes, I do.
Q. From where do you know that?
A. From the bylaws of every hospital I know of.
Q. Doctor, in 1974 and 1975, did you know for a fact that it's the duty of the hospital administration to insure that consultations are given or rendered when an attending physician requests it?
A. Yes, I do.
Q. And once again, I'm asking you, how do you know that for a fact?
A. Because of the bylaws.
Q. Of which hospital?
A. Of Lutheran General Hospital.
Q. Are you telling us now that the criticism that you're rendering against St. Bernard is based upon what Lutheran General requires of its doctors, as reflected in the bylaws?
A. That's right."
It was Dr. Loutfy's conclusion that the cause of Johnson's death was pulmonary embolism caused by thrombophlebitis of the limb, resulting from lack of movement and possibly from increased pressure of hematoma in the area of the fracture.
Shortly after taking Dr. Loutfy's deposition, defendant St. Bernard Hospital moved for summary judgment. Count I of the two-count motion for summary judgment was based on the grounds that Dr. Arevalo, the emergency room physician, was neither employed nor paid by the hospital. An attached affidavit of the hospital's senior vice-president stated that Dr. Arevalo was not an employee of the hospital on November 4, 1974. Count II alleged that Dr. Loutfy had failed to establish a recognized standard of care with regard to the hospital or show a deviation from the standard of care. In support of this contention, the hospital relied on the deposition of Dr. Loutfy.
Plaintiff responded to the hospital's motion for summary judgment and the hospital replied to plaintiff's response. After a hearing was held on the motion, the trial court entered an order on April 20, 1978, granting summary judgment in favor of the hospital on both grounds raised in its motion. Plaintiff then filed a motion to vacate the award of summary judgment and attached the affidavit of Dr. Loutfy. In this affidavit, Dr. Loutfy stated: "the failure of the administrator at St. Bernard Hospital to make any effort to exercise his authority under the above by-laws to get the orthopod to comply with his obligations under the above by-laws was clearly below the standard of care as it existed in 1974 and 1975 for good hospital practice." Plaintiff's motion was denied and she appeals pursuant to Supreme Court Rule 304(a) (Ill.Rev.Stat.1977, ch. 110A, par. 304(a)).
OPINIONA motion for summary judgment should only be granted where "the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Ill.Rev.Stat.1977, ch. 110, par. 57.) In determining whether a genuine issue as to any material fact exists, the court must construe the pleadings, depositions, and affidavits most strictly against the movant. (Kolakowski v. Voris (1979), 76 Ill.App.3d 453, 32 Ill.Dec. 59, 395 N.E.2d 6.) A triable issue precluding summary judgment exists where there is a dispute as to material facts, or where, the material facts being undisputed, reasonable persons might draw...
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