Smith v. South Shore Hosp.

• Decision Date: 21 August 1989
• Docket Number: 1-87-0477,Nos. 1-86-2387,s. 1-86-2387
• Citation: 543 N.E.2d 868,187 Ill.App.3d 847,135 Ill.Dec. 300
• Parties: , 135 Ill.Dec. 300 Clark SMITH, Plaintiff-Appellant, v. SOUTH SHORE HOSPITAL and T.V. Arcillas, M.D., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 868

543 N.E.2d 868

187 Ill.App.3d 847, 135 Ill.Dec. 300

Clark SMITH, Plaintiff-Appellant, v. SOUTH SHORE HOSPITAL and T.V. Arcillas, M.D., Defendants-Appellees.

Nos. 1-86-2387, 1-87-0477.

Appellate Court of Illinois First District, First Division.

Aug. 21, 1989.

Sheldon Hodes and Leonard D. Litwin, Chicago, for plaintiff-appellant.

Wildman, Harrold, Allen & Dixon, Chicago (Mark C. Fedota, Ruth E. Van Demark, and Davi L. Hirsch, of counsel) and Hinshaw, Culbertson, Moelmann, Hoban & Fuller, Chicago (Stephen R. Swofford, Susan A. Wagener, and Kathryn A. Spalding, of counsel), for defendants-appellees.

Presiding Justice MANNING delivered the opinion of the court:

Plaintiff, Clark Smith, appeals from a July 24, 1986, order, granting summary judgment to Dr. Teresito Arcillas and South Shore Hospital, defendants in a medical malpractice action. The record discloses that on March 6, 1979, Dr. Arcillas examined the plaintiff who was experiencing difficulty urinating. Plaintiff's condition was diagnosed as a benign enlargement of the prostate gland or "benign prostatic hypertrophy." As a result of this diagnosis, Dr. Arcillas ordered tests to be performed on an outpatient basis, and subsequently, on March 20, 1979, arranged to have plaintiff admitted to South Shore Hospital for surgery to correct this condition.

Upon admission, Dr. Arcillas took an admissions history of the plaintiff which is used to determine what kind of anesthesia to administer to the patient. Dr. Velas Khanterperker, a urologist, was consulted on March 21, 1979, regarding the plaintiff's condition. After examining the plaintiff, he confirmed Dr. Arcillas' diagnosis of enlargement of the prostate gland and performed a cystoscopy to determine whether there was any bleeding, a tumor or any change in the lining of the urinary bladder which would indicate a chronic obstruction. On March 22, 1979, the day before the surgery, the notes of the nurse and the house physician revealed that the plaintiff was experiencing weakness and could not get back into bed without assistance. However, the admissions history taken by Dr. Arcillas did not indicate that upon admission to the hospital plaintiff was experiencing weakness in his legs. Instead, plaintiff informed Dr. Arcillas that he had not been previously sick or hospitalized.

After reviewing plaintiff's hospital records, the anesthesiologist, who was employed by South Shore Hospital, approved plaintiff for spinal anesthesia and administered the spinal anesthetic pontocaine. On March 23, 1979, Dr. Khanterperker performed transurethral resection of the prostate gland surgery. Dr. Arcillas did not participate in the surgery nor the administering of the anesthesia. Three days after surgery was performed, plaintiff attempted to walk and experienced weakness in his legs. As a result of the continued weakness, plaintiff was examined by two other neurosurgeons who diagnosed his condition as "flaccid paraplegia" which is an absence of the "abdominal and cremasteric reflexes."

On April 6, 1979, an addendum to plaintiff's history was made by Dr. Arcillas in which he noted that plaintiff's wife had informed him that plaintiff had suffered weakness in his legs for six months prior to the surgery, and he was a heavy drinker. On April 25, 1979, plaintiff was transferred to the Veteran Administration Hospital for further consultation, and it was discovered that he had general damage to his nervous system.

Plaintiff filed a two count complaint on November 30, 1979, against Dr. Arcillas and South Shore Hospital, alleging that: Dr. Arcillas failed to take a proper medical history; the hospital negligently failed to require the proper taking of a medical history by Dr. Arcillas; the spinal anesthetic was negligently administered by Dr. Tomas Munoz, the hospital anesthesiologist; and raising a negligence theory based on res ipsa loquitur.

On January 31, 1985, Dr. Arcillas moved for summary judgment, attaching the affidavit of Dr. Maynard Cohen, a board-certified neurologist, who found that Dr. Arcillas met the acceptable standard of care in treating the plaintiff. On September 18, 1985, the hospital moved for summary judgment asserting that the plaintiff had provided no competent evidence to support his allegations and that he had not named an expert. Dr. Edward Brunner, a board-certified anesthesiologist, also testified that in his opinion South Shore Hospital met the appropriate standard of care in treating plaintiff. Moreover, that the anesthesiologist met the standard of practice for anesthesia.

The trial court granted summary judgment for Dr. Arcillas on July 24, 1986, and partial summary judgment to the hospital. On January 22, 1987, summary judgment was entered for the hospital by the trial court on the remaining issues. Plaintiff appeals from the July 24, 1986, order. On appeal plaintiff contends that the trial court erred in granting summary judgment since genuine issues of material facts remain regarding whether Dr. Arcillas met the standard of care for taking a hospital admission history, and whether the hospital anesthesiologist negligently administered the spinal anesthesia.

The purpose of summary judgment is to determine whether there exist any genuine issues of material fact (Addison v. Whittenberg (1988), 124 Ill.2d 287, 294, 124 Ill.Dec. 571, 529 N.E.2d 552; Puttman v. May Excavating Co. (1987), 118 Ill.2d 107, 112, 112 Ill.Dec. 722, 514 N.E.2d 188; Purtill v. Hess (1986), 111 Ill.2d 229, 240, 95 Ill.Dec. 305, 489 N.E.2d 867); and a motion for summary judgment should be granted when "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.1985, ch. 110, par. 2-1005(c).) Summary judgment is a drastic measure for disposing of litigation and should only be used when the right of the moving party is clear and free from doubt. Purtill, 111 Ill.2d at 240, 95 Ill.Dec. 305, 489 N.E.2d 867; Beverly Bank v. Alsip Bank (1982), 106 Ill.App.3d 1012, 1016, 62 Ill.Dec. 572, 436 N.E.2d 598.

In determining whether a genuine issue of material fact exits, courts must construe the pleadings, depositions, admissions, exhibits and affidavits on file strictly against the movant and liberally in favor of the opponent. (Addison, 124 Ill.2d at 294, 124 Ill.Dec. 571, 529 N.E.2d 552; In re Estate of Whittington (1985), 107 Ill.2d 169, 177, 90 Ill.Dec. 892, 483 N.E.2d 210, cert. denied (1986), 475 U.S. 1016, 106 S.Ct. 1199, 89 L.Ed.2d 313; Taylor v. City of Beardstown (1986), 142 Ill.App.3d 584, 594, 96 Ill.Dec. 524, 491 N.E.2d 803.) Where a party moving for summary judgment provides facts which, if not contradicted, would entitle that party to judgment as a matter of law, the opponent of the motion cannot rely solely on his pleadings to raise issues of material fact. (Addison, 124 Ill.2d at 294, 124 Ill.Dec. 571, 529 N.E.2d 552; Carruthers v. B.C. Christopher & Co. (1974), 57 Ill.2d 376, 380, 313 N.E.2d 457.) Therefore, facts contained in an affidavit in support of a motion for summary judgment are admitted and must be taken as true for purposes of the motion where the opponent has failed to contradict the facts by counter affidavit. Purtill, 111 Ill.2d at 241, 95 Ill.Dec. 305, 489 N.E.2d 867; Heidelberger v. Jewel Cos. (1974), 57 Ill.2d 87, 92-93, 312 N.E.2d 601.

It is well established that summary judgment will be affirmed on review where a party in opposition to the motion had ample opportunity to obtain counter-affidavits but failed to do so. (See Johnson v. Matviuw (1988), 176 Ill.App.3d 907, 913, 126 Ill.Dec. 343, 531 N.E.2d 970; James v. Yasunaga (1987), 157 Ill.App.3d 450, 460, 109 Ill.Dec. 663, 510 N.E.2d 531; Goldstein v. Kantor (1981), 101 Ill.App.3d 264, 267, 56 Ill.Dec. 776, 427 N.E.2d 1322.) Moreover, summary judgment in favor of the defendants is proper where the plaintiff has failed to reveal an expert opinion to sustain the allegations nor indicate that such an opinion would be forthcoming in the future. (Stevenson v. Nauton (1979), 71 Ill.App.3d 831, 835-36, 28 Ill.Dec. 71, 390 N.E.2d 53; Sanders v. Frost (1969), 112 Ill.App.2d 234, 241, 251 N.E.2d 105.) In the present case, plaintiff's complaint was filed for five years prior to Dr. Arcillas' motion for summary judgment and five years, 10 months prior to South Shore Hospital's motion for summary judgment. Summary judgment was not granted for Dr. Arcillas or South Shore Hospital until July 24, 1986. During this period, plaintiff had a sufficient opportunity to obtain a counter-affidavit from an expert witness, stating that Dr. Archillas and/or the South Shore Hospital negligently performed their duties. However, plaintiff failed to provide the trial court with any counter-affidavits.

Plaintiff argues that the trial court erred in granting summary judgment since there remains a genuine issue of material fact as to whether Dr. Arcillas and the hospital met the standard of care in taking the hospital admissions history of the plaintiff which should have revealed the weakness in plaintiff's legs. Plaintiff further argues that an issue of fact further remains regarding whether the use of pontocaine anesthesia in a patient experiencing weakness in his lower legs constitutes negligence.

It is well established that in a medical malpractice action the plaintiff must generally present expert testimony to establish: (1) the proper standard of care against which the defendants' conduct is measured; (2) a deviation from the applicable standard of care; and (3) an injury that was proximately caused by this breach of the applicable standard of care. (Addison, 124 Ill.2d at 297, 124 Ill.Dec. 571, 529 N.E.2d 552; Purtill, 111 Ill.2d at 242, 95 Ill.Dec. 305, 489 N.E.2d 867; Beaman v. Swedish American Hosp. Ass'n (1989), 179 Ill.App.3d 532, 536, 128 Ill.Dec. 340, 534 N.E.2d...