Lassai v. Holy Cross Hosp.

• Citation: 166 Ill.Dec. 610,224 Ill.App.3d 330,586 N.E.2d 568
• Decision Date: 27 December 1991
• Docket Number: No. 1-90-1354,1-90-1354
• Parties: , 166 Ill.Dec. 610 Minnie LASSAI, Individually and as Special Administrator of the Estate of Bernell Lassai, Deceased, Bernell Lassai II, Raphael Lassai, and Alphonse J. Lassai, Plaintiffs-Appellants, v. HOLY CROSS HOSPITAL, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 568

586 N.E.2d 568

224 Ill.App.3d 330, 166 Ill.Dec. 610

Minnie LASSAI, Individually and as Special Administrator of the Estate of Bernell Lassai, Deceased, Bernell Lassai II, Raphael Lassai, and Alphonse J. Lassai, Plaintiffs-Appellants, v. HOLY CROSS HOSPITAL, Defendant-Appellee.

No. 1-90-1354.

Appellate Court of Illinois First District, Third Division.

Dec. 27, 1991.

Leonard M. Ring and Associates, P.C., Chicago (Leonard M. Ring, William J. Jovan, of counsel), for plaintiffs-appellants.

Hinshaw & Culbertson, Chicago (Nancy G. Lischer, Diane Cernivivo, Terrence K. McGrath, of counsel), for defendant-appellee.

Justice GREIMAN delivered the opinion of the court:

Plaintiffs Minnie Lassai, individually and as special administrator of the estate of Bernell Lassai, deceased, Bernell Lassai, Raphael Lassai, and Alphonse J. Lassai brought this medical malpractice action against defendant Holy Cross Hospital following the death of Bernell Lassai. Plaintiffs now appeal from an order granting summary judgment in favor of defendant Holy Cross Hospital.

We reverse the judgment of the circuit court of Cook County.

While walking across the street on the evening of June 16, 1984, plaintiff's decedent, Bernell Lassai, was hit by a motorcycle. Decedent's son, Bernell Lassai II ["Lassai"], was notified of his father's accident by telephone at approximately 9 p.m. When Lassai arrived, he found that his father had left the accident scene. Since his father claimed that he felt fine and was conscious and seemingly alert, Lassai took him home.

About 10 p.m., after returning home, Lassai took his father to the emergency room at defendant Holy Cross Hospital ["Holy Cross"]. Decedent was conscious when he arrived at Holy Cross and a skull x-ray, among other routine tests, was taken but no CT scan was performed. About 2 a.m., decedent was discharged from Holy Cross and taken home by Lassai.

A few hours later, about 8:30 a.m., decedent was found unconscious on the floor next to his bed. An ambulance took decedent to Little Company of Mary Hospital. Decedent never regained consciousness. On the fourth day of hospitalization, decedent was pronounced brain dead and medical care was terminated.

There is no dispute that the cause of death was a subdural hematoma and that a CT scan was the only available test to diagnose a subdural hematoma.

Plaintiffs brought an action against numerous defendants for the wrongful death of decedent. At issue in the present appeal are the two counts against Holy Cross in plaintiffs' second amended complaint. Plaintiffs alleged that Holy Cross was negligent in its treatment of decedent in a wrongful death action (Count XII) and that this negligence caused pain and suffering to decedent (Count XIII).

Holy Cross filed a motion for summary judgment and attached affidavits from its expert witnesses, Dr. Patrick Sullivan and Dr. Ruth Ramsey. In his affidavit, Dr. Sullivan stated that Holy Cross did not deviate from the standard of care in its treatment of decedent because there were no clinical signs of a subdural hematoma and the x-ray reports revealed a normal skull. In her affidavit, Dr. Ramsey stated that she is a radiologist and that no skull fracture is demonstrated in the skull x-rays taken at Holy Cross and at Little Company of Mary Hospital. Thus, Dr. Ramsey opined that Holy Cross did not deviate from the standard of care in failing to treat a fractured skull.

Thereafter, Lassai and Dr. Sullivan were deposed. In his deposition, Lassai did not testify that he told any medical personnel at Holy Cross that a witness to his father's accident had told Lassai his father had been unconscious after being struck by a motorcycle.

In his deposition, Dr. Sullivan testified that failure to perform a CT scan would be a deviation from the standard of care if the personnel at Holy Cross had been informed that decedent was unconscious at the scene of the accident.

Subsequently, Lassai filed an affidavit in which he stated that he was told by an occurrence witness that his father was unconscious following the accident. In turn, Lassai provided this information to a nurse at Holy Cross who questioned Lassai about his father's condition.

Following a hearing, the trial court granted summary judgment in favor of Holy Cross. Plaintiffs now appeal from that order.

Plaintiffs' sole theory is that decedent should have had a CT scan at Holy Cross. In turn, the absence of this test resulted in the failure to diagnose the subdural hematoma which caused decedent's death.

Plaintiffs argue that the trial court reached the wrong conclusion because it improperly disregarded the testimony given by Lassai in his affidavit and by Dr. Sullivan in his deposition. Plaintiffs assert that the disregarded testimony of Lassai and Dr. Sullivan establishes a deviation from the standard of care and thus raises a genuine issue of material fact as to preclude summary judgment. We agree.

Holy Cross responds by arguing that Lassai's affidavit is inadmissible on the grounds that it is based on hearsay and contradicts his earlier deposition testimony. Holy Cross further contends that plaintiffs never offered any evidence to substantiate their allegations that Holy Cross deviated from the standard of care in not ordering a CT scan and that this deviation was a proximate cause of decedent's death.

Initially we note that plaintiffs contend that this case is controlled both on the facts and the law by Gatlin v. Ruder (1990), 137 Ill.2d 284, 148 Ill.Dec. 188, 560 N.E.2d 586, which was decided after the summary judgment proceedings in the present case. In Gatlin, the supreme court held that the plaintiff had presented enough evidence of the defendant obstetrician's negligence to succeed in vacating the trial court's order for summary judgment in the defendant's favor. The evidence relied upon to vacate the summary judgment was the deposition testimony of a doctor who opined that the injuries complained of could have resulted from the actions of the defendant obstetrician. After his deposition, the deponent doctor submitted an affidavit which stated that his deposition testimony did not indicate that the obstetrician practiced medicine below the standard of care. The supreme court found that the doctor's subsequent affidavit did not alter his deposition and the trier of fact should merely consider the affidavit with all of the other evidence in the case. A circuit court cannot weigh the deposition against the affidavit because to do so admits an issue of material fact exists and thus precludes summary judgment.

The Gatlin court also reaffirmed the summary judgment standards articulated in the Code of Civil Procedure and in Purtill v. Hess (1986), 111 Ill.2d 229, 95 Ill.Dec. 305, 489 N.E.2d 867.

The Code of Civil Procedure provides that summary judgment can only be entered "if 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.1989, ch. 110, par. 2-1005(c).) The pleadings, depositions and affidavits must be construed most strictly against the moving party and most liberally in favor of the opponent. Purtill v. Hess (1986), 111 Ill.2d 229, 240, 95 Ill.Dec. 305, 489 N.E.2d 867.

At the summary judgment stage, a plaintiff is not required to prove its case but rather merely has the duty to present a factual basis which would arguably entitle it to judgment in its favor. (Martin v. 1727 Corp. (1983), 120 Ill.App.3d 733, 737, 76 Ill.Dec. 336, 458 N.E.2d 990.) A triable issue exists if fair-minded persons could draw more than one conclusion or inference from the facts, including one unfavorable to the moving party. (Estate of Kern v. Handelsman (1983), 115 Ill.App.3d 789, 793-94, 71 Ill.Dec. 407, 450 N.E.2d 1286.) To survive a motion for summary judgment, the nonmovant must come forward with evidentiary material that establishes a genuine issue of fact. Salinas v. Chicago Park District (1989), 189 Ill.App.3d 55, 136 Ill.Dec. 660, 545 N.E.2d 184.

Our examination of the record reveals that plaintiffs submitted sufficient evidence to show that issues of...