Robidoux v. Oliphant, 91072.

• Court: Supreme Court of Illinois
• Citation: 201 Ill.2d 324,775 N.E.2d 987,266 Ill.Dec. 915
• Docket Number: No. 91072.,91072.
• Parties: Shirley ROBIDOUX, Indiv. and as Ex'r of the Estate of Harvey Robidoux, Deceased, Appellee, v. Uretz J. OLIPHANT, M.D., et al. (Uretz J. Oliphant, M.D., et al., Appellants).
• Decision Date: 20 June 2002

775 N.E.2d 987
201 Ill.2d 324
266 Ill.Dec. 915

Shirley ROBIDOUX, Indiv. and as Ex'r of the Estate of Harvey Robidoux, Deceased, Appellee,
v.
Uretz J. OLIPHANT, M.D., et al. (Uretz J. Oliphant, M.D., et al., Appellants)

No. 91072.

Supreme Court of Illinois.

June 20, 2002.

Rehearing Denied August 29, 2002.

775 N.E.2d 989

Karen L. Kendall, Peoria, and Edward M. Wagner, Urbana, both of Heyl, Royster, Voelker & Allen, for appellants

Michael D. Marrs, Jeffrey M. Goldberg and Mark A. Brown, of Jeffrey M. Goldberg & Associates, Ltd., and Bruce R. Plaff, Chicago, for appellee.

Justice McMORROW delivered the opinion of the court:

This appeal stems from the death of Harvey Robidoux, who was injured in a motorcycle accident on July 15, 1995, and was subsequently taken to the Carle Foundation Hospital (the Hospital) in Urbana. While there, he was treated by, inter alia, defendant Uretz J. Oliphant, M.D., an employee of defendant Carle Clinic Association (the Clinic). Harvey Robidoux died at the Hospital the same day. In June 1997, plaintiff Shirley Robidoux, Harvey's widow, sued Oliphant and the Clinic, along with several others who are not parties to this appeal, in the circuit court of Champaign County. In 1999, following defendants' motions for summary judgment, plaintiff filed a response to which she attached the affidavit of David Richards, M.D., plaintiff's expert witness. On October 4, 1999, Oliphant filed a supplemental reply to plaintiff's response and a motion to strike Richards' affidavit. The next day, October 5, the trial court granted Oliphant's motion to strike, as well as his "unrefuted" motion for summary judgment. The trial court subsequently granted the Clinic's motion for summary judgment. Plaintiff appealed, and the appellate court reversed. No. 4-00-0105 (unpublished order under Supreme Court Rule 23). We allowed defendants' petition for leave to appeal. 177 Ill.2d R. 315. For the reasons set forth below, we reverse the judgment of the appellate court.

BACKGROUND

The following facts are taken from the pleadings and other materials of record, including Richards' affidavit and Oliphant's deposition. On July 15, 1995, plaintiff's decedent, Harvey Robidoux (decedent), was injured in a motorcycle accident and was taken to the Hospital. He arrived at the emergency room shortly after 12 p.m. Oliphant, the head of the Hospital's trauma division, was not in the emergency room when decedent arrived, and took no part in his initial care and treatment. At 12:32 p.m., it was ordered that decedent undergo a computed tomography (CT) scan. During this scan, decedent went into cardiac arrest. Oliphant, who arrived at the emergency room about this time, ordered the CT scan halted, and decedent was taken to the operating room.

Oliphant, who is a board-certified general surgeon, began operating on decedent at about 1:15 p.m. He testified in his deposition that he found a large, ruptured hematoma, or blood clot, extending from decedent's pelvis upward and spreading over half his abdomen. Oliphant determined that decedent's iliac vein ¹ was completely

775 N.E.2d 990

severed, and he believed that all of decedent's iliac vessels on one side were torn. Decedent died a short time later. According to Oliphant, the cause of death was intra-abdominal bleeding from the severed or injured iliac vessels

In his deposition, Oliphant was asked if alternative measures, including starting surgery earlier, might have saved decedent's life. Oliphant answered that because of the severity of decedent's injuries, he did not believe it would have made any difference. Oliphant also stated that his treatment of decedent on July 15, 1995, was within the appropriate standard of care.

In counts I through III of her fourth amended complaint, plaintiff alleged that Oliphant was negligent in failing timely to (1) institute appropriate fluid resuscitation therapy, (2) diagnose internal bleeding, (3) treat internal bleeding, and (4) diagnose an unstable pelvic fracture. In counts X through XII plaintiff sought to hold the Clinic, Oliphant's employer, vicariously liable for Oliphant's actions.

Oliphant and the Clinic filed motions for summary judgment. In Oliphant's motion, to which he attached excerpts from his deposition, Oliphant asserted that he was not involved in the initial treatment of decedent and there was no negligence in his subsequent treatment of decedent. Plaintiff's response was filed seven days after the initial deadline set by the trial court, but within an extended deadline that was set by the court sua sponte.² Plaintiff asserted in her response that there were genuine issues of material fact as to whether Oliphant acted within the standard of care. Attached to plaintiff's response was Dr. Richards' signed affidavit, which stated in full:

"The undersigned, being first duly sworn under oath, deposes and states as follows:

1. I am a physician licensed to practice medicine in the State of Ohio and a board certified general surgeon;

2. I have been treating trauma patients with injuries similar to those of Harvey Robidoux and have practiced in the same area of health care medicine that is at issue in this case in excess of six years;

3. I have reviewed the records of Ford-Baier Ambulance Service and Carle Foundation Hospital, as well as various depositions, including the deposition of Urtez [sic] J. Oliphant, M.D.;

4. That in my opinion, based upon a reasonable degree of medical certainty, the care and treatment provided by Dr. Oliphant to Harvey Robidoux at Carle Foundation Hospital on July 15, 1995, fell below the standard of care. In my opinion, Dr. Oliphant failed to recognize in a timely fashion that the patient had a[n] unstable pelvic fracture that was the most probable source of the bleeding, failed to take appropriate measures to provide adequate fluid resuscitation therapy and failed to take appropriate measures to immobilize and repair the damages [sic] blood vessels;

5. In my opinion, based upon a reasonable degree of medical certainty, had the patient received appropriate fluid resuscitation in a timely manner, and

775 N.E.2d 991

appropriate treatment to immobilize and repair the damage to blood vessels in the pelvic region, it is more probably true than not that the patient would have survived.

6. This affidavit is based on my education, training and experience, as well as my review of the various materials referenced herein and that, if sworn as a witness, I can and will testify competently to the facts and opinions stated herein, to a reasonable degree of medical certainty."

Oliphant filed a supplemental reply to plaintiff's response and a motion to strike Richards' affidavit. In his motion, Oliphant alleged that Richards' affidavit was improper and in violation of Supreme Court Rule 191 (145 Ill.2d R. 191). Oliphant asserted that the affidavit was undated and unverified, and therefore did not contravene Oliphant's summary judgment motion, which was supported by his sworn deposition testimony. According to Oliphant, there was no indication in Richards' affidavit "of verification or swearing under oath by any proper official or notary public." Oliphant added that Richards' affidavit consisted of "vague conclusions" and contained no admissible facts, and thus did not comply with Supreme Court Rule 191, which requires that such affidavits set forth with particularity "the facts" upon which the affiant relied. 145 Ill.2d R. 191. In addition, Oliphant pointed to a Rule 191 requirement that sworn or certified copies of all papers upon which the affiant relies must be attached to the affidavit. No such papers were attached to Richards' affidavit.

The trial court granted Oliphant's motion to strike, explaining that Richards' affidavit "is not verified and does not comport with the requisites of Supreme Court Rule 191." The court then granted Oliphant's motion for summary judgment, which the court held "stands unrefuted in effect." Plaintiff filed a motion to reconsider, to which she attached Richards' supplemental affidavit. Oliphant filed a response to plaintiff's motion to reconsider and a motion to strike Richards' supplemental affidavit.

Because the original judge who granted Oliphant's motion for summary judgment had since retired, a different judge presided over a joint hearing on plaintiff's motion to reconsider, Oliphant's motion to strike Richards' supplemental affidavit, and the Clinic's motion for summary judgment. Despite finding that Richards' supplemental affidavit was "adequate to create a genuine issue of material fact," the trial court nevertheless granted Oliphant's motion to strike, "not because [the affidavit] is defective under Rule 191, but because it is not timely." The court therefore denied plaintiff's motion to reconsider and held that the summary judgment in favor of Oliphant remained "in full force and effect." The court also granted the Clinic's motion for summary judgment. Finally, the court found, pursuant to Supreme Court Rule 304(a) (155 Ill.2d R. 304(a)) that, as to all of these rulings, there was no just reason to delay enforcement or appeal.

Plaintiff appealed, and the appellate court reversed and remanded. No. 4-00-0105 (unpublished order under Supreme Court Rule 23). The appellate court first held that the striking of an affidavit for noncompliance with Rule 191 should be reviewed de novo and not under the "abuse of discretion" standard. The court then found that, while Richards' original affidavit might have violated Rule 191 in a technical sense, it was nevertheless substantively in compliance and should not have been stricken. This affidavit, the appellate court further held, presented a genuine issue of material fact as to whether Oliphant's treatment of decedent fell

775 N.E.2d 992

below the standard of care. Accordingly, the appellate court determined that the trial court improperly granted summary judgment in favor of Oliphant and the Clinic. We allowed...