Lawrence v. Rubio
| Decision Date | 26 June 1980 |
| Docket Number | No. 79-181,79-181 |
| Citation | 406 N.E.2d 946,40 Ill.Dec. 743,85 Ill.App.3d 472 |
| Parties | , 40 Ill.Dec. 743 Arthur LAWRENCE, Plaintiff-Appellant, v. S. E. RUBIO, G. B. Murphy and Salem Memorial Hospital, a township hospital, Defendants-Appellees. |
| Court | United States Appellate Court of Illinois |
Meyer & Meyer, Greenville, for plaintiff-appellant.
Cornelius Thomas Ducey, Jr., Ducey & Feder, Ltd., Belleville, for Salem Memorial Hospital.
John E. Jacobsen, Campbell, Furnall, Moore & Jacobsen, Mount Vernon, for S. E. Rubio.
Carl W. Lee, Terry N. Brown, Gundlach, Lee, Eggmann, Boyle & Roessler, Belleville, for G. B. Murphy.
Plaintiff, Arthur Lawrence, brought this malpractice action in the circuit court of Marion County against Dr. S. E. Rubio, a licensed general practitioner, Dr. G. B. Murphy, a licensed radiologist, and Salem Memorial Hospital. Plaintiff appeals summary judgment entered by the trial court for all three defendants as to all counts. The question on appeal is whether the summary judgments were properly granted.
On July 18, 1973, plaintiff stepped into a deep hole, injuring the lower portion of his left leg. He felt a "pop" or "snap" and suspected it was broken. Pain and severe swelling caused him to seek treatment at the Salem Memorial Hospital emergency room the next day. He was treated by defendant Dr. Rubio and a nurse. Dr. Rubio palpated the ankle, tested plaintiff's ability to manipulate the foot and ordered x-rays. He interpreted the x-rays as normal, showing no bone injury. Dr. Murphy, chief radiologist at the hospital, also interpreted the x-rays, reaching the same result. Dr. Rubio concluded the ankle was severely sprained.
Plaintiff was treated by Dr. Rubio in his office on July 21, 24, 27, and 31. Dr. Rubio made no change in his original diagnosis. Plaintiff did not return to Dr. Rubio until September of the following year, when Dr. Rubio diagnosed the injury as a rupture of the Achilles tendon. This diagnosis was later confirmed by Dr. William S. Costen, an orthopedic surgeon.
Plaintiff's amended complaint alleged the treatment provided by each of the three defendants fell short of the requisite standard of care and treatment. The complaint contains so many allegations that a complete detailing here is impractical and unnecessary to the result we reach. The depositions considered by the trial court as part of the motions for summary judgment reveal the following testimony.
Plaintiff Arthur Lawrence testified in his deposition that he told Dr. Rubio at the emergency room that he thought the leg was broken. Dr. Rubio prescribed warm soaks and pain medication; he did not wrap or cast the leg. Dr. Rubio told plaintiff the sprain would take time to heal and that he could return to work. He did not order plaintiff not to use the leg.
Plaintiff testified that when the leg appeared not to be healing, he consulted an attorney who arranged a September 1974 appointment with Dr. Costen. After examination of the leg and a new set of x-rays, Dr. Costen told him the injury was now too old to treat successfully.
Dr. Rubio testified in his deposition that in the emergency room he tested plaintiff's ankle for dorsal flexion, plantar flexion, extension, lateral rotation, and internal and external rotation. He palpated the injured area. He found no "gap" in the Achilles tendon; he did not suspect it was ruptured. There was no apparent contraction or retraction of the calf muscle.
Dr. Rubio testified that he did not request any specific x-ray procedure, there being three standard views taken of ankle injuries "a.p.," lateral, and oblique. All were taken here and all were normal (negative). The films were of "perfect" quality.
Dr. Rubio testified that symptoms of Achilles tendon rupture included extreme pain, a perceptible gap in the tendon, loss of plantar flexion, excessive dorsal flexion, and crimping or bunching of the calf muscles. Dr. Rubio recalled finding normal dorsal and plantar flexion, no gap in the tendon, and no crimping or bunching of the calf muscle (plaintiff testified in his deposition that he did not notice bunching or knotting of muscles in that leg).
Dr. Rubio testified that following the emergency room examination, he prescribed ice packs for the first 24 hours and warm soaks thereafter. During each of the four subsequent office visits, he felt the injured area and tested dorsal and plantar flexion. His nurse soaked and wrapped the leg each time. Dr. Rubio instructed plaintiff to stay off the leg, stay off work and return for further treatment if needed.
Dr. Murphy testified in his deposition that his duties did not include taking x-rays. He stated soft tissue injuries (injuries other than to bones) are not generally diagnosable by x-rays. He speculated that soft tissue diagnosis had become possible within the last year, but he knew of no machine capable of taking such x-rays in Illinois at the time of plaintiff's injury (Dr. Rubio testified in his deposition that he was aware of a soft tissue x-ray technique).
David Heavener, administrator of Salem Memorial Hospital, testified in his deposition (only part of which appears of record) that one of two hospital-employed technicians took plaintiff's x-rays. He characterized Dr. Murphy as an independent contractor.
Dr. William S. Costen was named by plaintiff as the sole expert witness plaintiff intended to call at trial. Dr. Costen, an orthopedic surgeon licensed to practice in Missouri, testified in his deposition that when he examined plaintiff in November of 1974, the left calf was smaller than the right. There was a palpable defect behind the left ankle, Dr. Costen being able to place a finger "well toward the bones." Dorsal and plantar flexion were satisfactory, but plaintiff could not stand on his left toes.
Dr. Costen testified that he had three x-ray views taken of plaintiff's ankle "a.p.," lateral, and oblique (the same views taken at Salem Memorial Hospital). They showed no abnormality other than a small bone spur. Dr. Costen stated he would have taken the same views, and no others, on the date of plaintiff's injury. He would also have performed a clinical examination; he would not have performed any other diagnostic procedure.
Dr. Costen testified that his examination indicated an "old tear" of the Achilles tendon, discoverable only by clinical examination. X-rays would not show such an injury since x-rays do not normally show soft tissue.
Dr. Costen testified that a rupture of the Achilles tendon is "very difficult" to feel through the swelling usually accompanying such an injury. It would not be unusual to miss it for a week to ten days by not pushing hard enough to feel the gap in the tendon. Such diagnosis would be difficult even for an orthopedic surgeon Asked whether a diagnosis by a general practitioner of an ankle sprain, where the ankle was swollen, would be contrary to the diagnosis other general practitioners might make under similar circumstances, Dr. Costen replied that it would not.
Dr. Costen answered several hypothetical questions posed by Dr. Rubio's attorney and based on facts similar to those in this case. None of those answers indicated that he felt the procedures followed by Dr. Rubio were not usual and customary for a general practitioner.
The three defendants moved separately for summary judgment. Plaintiff filed a brief in opposition to the motion by the hospital and an affidavit and exhibit in opposition to the motions by Dr. Murphy and Dr. Rubio. The affidavit by Dr. Costen stated Dr. Rubio had misdiagnosed plaintiff's injury, resulting in "50 percent permanent functional impairment" of the left leg. The exhibit was a letter by Dr. Costen in which he stated to plaintiff's attorney that Dr. Rubio's diagnosis was incorrect.
The motion for summary judgment by Salem Memorial Hospital was granted after a hearing. No written judgment appears of record. After another hearing, the motions for summary judgment by Dr. Murphy and Dr. Rubio were also granted. The trial court stated in a written judgment the findings that (1) the x-rays were of good diagnostic quality and properly interpreted and would not show the Achilles tendon injury, and the same type would have been taken by plaintiff's expert, and (2) treatment of plaintiff following his accident was the usual, ordinary, and expected treatment for a general practitioner given the nature of the injury presented,...
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