Solon v. Godbole

• Decision Date: 10 December 1987
• Docket Number: No. 3-87-0176,3-87-0176
• Citation: Solon v. Godbole, 516 N.E.2d 1045, 163 Ill.App.3d 845 (Ill. App. 1987)
• Parties: , 114 Ill.Dec. 890 Mary SOLON and Eugene Solon, Plaintiffs-Appellants, v. Mukund GODBOLE, M.D., Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 1045

516 N.E.2d 1045

163 Ill.App.3d 845, 114 Ill.Dec. 890

Mary SOLON and Eugene Solon, Plaintiffs-Appellants, v.Mukund GODBOLE, M.D., Defendant-Appellee.

No. 3-87-0176.

Appellate Court of Illinois Third District.

Dec. 10, 1987.

John Olivero, William LaSorella, Peru, for Mary and Eugene solon.

Douglas J. Pomatto, Kevin Luther(argued), Heyl, Royster, Voelker & Allen, Rockford, for Mukund Godbole, M.D.

Justice SCOTTdelivered the opinion of the court:

This is a medical malpractice action brought by plaintiffs, Mary Solon and Eugene Solon, against defendant, Mukund Godbole, M.D.The trial court granted defendant's motion for summary judgment and denied plaintiffs' motion to vacate summary judgment.Plaintiffs now appeal both trial court rulings in favor of defendant.No questions are raised on the pleadings.

The issue presented is whether the trial court erred in granting defendant's motion for summary judgment and in denying plaintiffs' motion to vacate summary judgment.In particular we must decide the following: (1) whether plaintiffs' objections to defendant's motion for summary judgment or (2) whether plaintiffs' proposed expert's letter and subsequent affidavit were sufficient to comply with Supreme Court Rule 191(a)(Ill.Rev.Stat.1985, ch. 110A, par. 191(a)), thereby creating a genuine issue of material fact.

According to plaintiffs' complaint, Mary Solon was referred to Dr. Godbole on May 5, 1983, for a condition later diagnosed as "well differentiated squamos cell carcinoma of the left upper lobe".Dr. Godbole performed a left upper lobectomy on May 10, 1983.Dr. Godbole saw Mary Solon for follow-up care and treatment on May 27, 1983, July 6, 1983, October 10, 1983, November 7, 1983, and January 20, 1984.On the October 10, 1983, visit, Dr. Godbole's notes referred to a "swollen area" on plaintiff's left chest wall.A biopsy performed on January 24, 1984, confirmed that the cancer had metastasized to the left chest wall.Mary Solon was subsequently seen at Mayo Clinic where surgery was performed for removal of the cancer.

On May 10, 1985, the plaintiffs filed a medical malpractice complaint against defendant.The gist of the complaint is that defendant was negligent in his patient's follow-up care in that he did not take the proper measures necessary to diagnose her condition and rule out a metastasis to her left chest wall until January 24, 1984, and that a reasonably prudent physician or surgeon practicing in the Princeton, Illinois, area would have done a biopsy much sooner than did defendant.

On July 8, 1985, the trial court entered a certification order whereby plaintiffs were required to complete written discovery by October 14, 1985, to depose all parties and non-experts by December 30, 1985, and to disclose their experts by January 30, 1986.A second certification order was filed January 23, 1986, extending the time for the parties to be deposed and further requiring plaintiffs to identify their experts by July 30, 1986.Plaintiffs failed to disclose any expert before July 30, 1986.

On September 17, 1986, the defendant moved for summary judgment on grounds that by failing to disclose an expert, the plaintiffs had not established the requisite standard of care.Attached to the motion was an affidavit of defendant which outlined the qualifications of the defendant, the care provided to Mary Solon, and further stated that such care was in keeping with the standard which would be used by a surgeon in similar cases in the Princeton, Illinois, and Bureau County medical community.

Plaintiffs filed their objections to motion for summary judgment stating generally that (1)defendant's affidavit was incomplete for failing to mention his office notes of October 10, 1983, wherein the statement "rule out metastic area to chest wall" was written in reference to a painful lump; (2) it is possible for plaintiff to extract enough admissions from defendant under section 60 cross-examination to meet the requirement of expert testimony; (3) it was common knowledge among lay persons that a lump should be biopsied to determine whether it was cancerous and that many cancer patients have a recurrence of cancer shortly after it is initially cured; (4) Dr. Godbole's own notes indicate negligent conduct in waiting until January 24, 1984, to perform the biopsy and that a layperson could readily identify the negligence.Plaintiffs attached defendant's office notes of October 10, 1983, to their objections.

A hearing was held on the motion for summary judgment on October 17, 1986, and the trial court took the matter under advisement.Plaintiffs subsequently filed a motion for continuance and extension of time to obtain an expert and stated therein that plaintiffs had been relying on potential co-counsel in Chicago to supply plaintiffs' expert up until October 16, 1986.Immediately thereafter plaintiffs began searching for an expert and on October 27, 1986, received a favorable reply from Dr. Howard L. Ravenscraft("Dr. Ravenscraft") for the purpose of giving expert testimony in the case.Attached to plaintiffs' motion was the letter from Dr. Ravenscraft and plaintiffs' counsel's affidavit stating that he had relied upon potential co-counsel for supplying an expert witness and shortly after potential co-counsel would not do so, Dr. Ravenscraft was contacted.

Defendant's response to plaintiffs' motion for continuance and extension of time to obtain an expert stated generally that plaintiffs were not diligent in obtaining an expert, that plaintiffs' proposed expert was unqualified to testify as to the appropriate standard of care to be used by defendant, and that the plaintiffs' filings failed to comply with Supreme Court Rule 191(a).

On December 10, 1986, plaintiffs filed a motion for leave to attach medical report to objections to motion for summary judgment wherein plaintiffs sought to attach a report received from Dr. Ravenscraft, dated November 10, 1986, that concluded defendant was negligent in his care of Mary Solon.Plaintiffs' motion further argued that Dr. Ravenscraft was competent to testify as to the care provided by defendant as both surgeons and general practitioners are licensed under the Medical Practice Act; further, that Dr. Ravenscraft meets the requirements of section 8-2501 of the Illinois Code of Civil Procedure(Ill.Rev.Stat.1985, ch. 110, par. 8-2501) for determining when a witness qualifies as an expert witness who can competently testify as to an appropriate standard of care.

On December 19, 1986, the trial judge, Honorable James J. Wimbiscus, delivered a letter opinion allowing defendant's motion for summary judgment.Judge Wimbiscus stated that although Dr. Ravenscraft qualifies as a competent expert witness, plaintiffs had not submitted anything in objection to defendant's motion which complied with Supreme Court Rule 191(a).Defendant's attorney was to prepare the order.Prior to the order, however, plaintiffs, on December 29, 1986, filed the affidavit of Dr. Ravenscraft which stated that he had first-hand knowledge of the matters contained in his report of November 6, 1986, and that all of the matters contained within his report were true and correct upon his best information and belief.Judge Wimbiscus, however, signed the proposed order and it was filed on December 31, 1986.

On February 25, 1987, plaintiffs filed a motion to vacate order granting summary judgment asserting that the subsequent affidavit of Dr. Ravenscraft cured any defect of his November 6, 1986, report for section 191(a) purposes.Moreover, plaintiffs cautioned the trial court that it should be extremely hesitant in entering summary judgment when due to the reluctance of one member of the medical profession to testify against another.Only when a plaintiff has had extensive opportunities, but has failed to demonstrate defendant's negligence, should summary judgment issue.Hansbrough v. Kosyak(1986), 141 Ill.App.3d 538, 95 Ill.Dec. 708, 490 N.E.2d 181.

By order dated March 9, 1987, Judge Wimbiscus denied plaintiffs' motion to vacate order granting summary judgment stating that plaintiffs still had not complied with Illinois Supreme Court Rule 191(a), and that, moreover, plaintiffs had been afforded a reasonable opportunity to establish a medical malpractice claim by expert testimony.

An order for summary judgment made pursuant to Illinois Code of Civil Procedure, section 2-1005(Ill.Rev.Stat.1985, ch. 110, par. 2-1005) shall be rendered 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."Affidavits in support thereof "shall be as provided by rule."(Ill.Rev.Stat.1985, ch. 110, par. 2-1005(e).)Illinois Supreme Court Rule 191(a)(Ill.Rev.Stat.1985, ch. 110A, par. 191(a)) establishes the requirements for affidavits filed under section 2-1005 of the Code of Civil Procedure:

"Affidavits in support of and in opposition to a motion for summary judgment * * * shall be made on the personal knowledge of the affiants; shall set forth with particularity the facts upon which the claim, counterclaim, or defense is based; shall have attached thereto sworn or certified copies of all papers upon which the affiant relies; shall not consist of conclusions but of facts admissible in evidence; and shall affirmatively show that the affiant, if sworn as a witness, can testify competently thereto."Ill.Rev.Stat.1985, ch. 110A, par. 191(a).

Defendant's motion for summary judgment had attached thereto his own affidavit indicating...