West v. Adelmann
| Decision Date | 31 March 1993 |
| Docket Number | No. 1-91-1888,1-91-1888 |
| Parties | , 196 Ill.Dec. 681 Jeffrey WEST, a minor, by his mother and next friend, Rosemary West, Plaintiff-Appellant, v. Douglas ADELMANN, M.D., Defendant-Appellee and St. Joseph Hospital, et al. |
| Court | United States Appellate Court of Illinois |
Goldberg & Goldberg, Chicago, for appellant (David A. Novoselsky and Linda A. Bryceland, David A. Novoselsky & Associates, of counsel).
Lord, Bissell & Brook, Chicago, for appellee Douglas Adelmann, M.D. (Robert B. Aus Diane I. Jennings, and Mary Ellen Busch, of counsel).
Plaintiff Jeffrey West, a minor, appeals the trial court's summary judgement in favor of defendant Douglas Adelmann in plaintiff's medical malpractice action.
Plaintiff argues on appeal that a question of fact exists as to whether defendant deviated from the standard of care considering the professional relationship between the parties and where plaintiff's expert, in part, conditioned his testimony on the nature of the relationship between the physicians treating plaintiff.
We reverse and remand since plaintiff has come forward with sufficient evidence of the defendant's conduct to present a genuine issue of material fact based upon expert testimony to be considered by the jury.
Plaintiff fell from an all-terrain vehicle on February 28, 1985, and was taken to St. Joseph Medical Center in Joliet, Illinois, where he was found to have fractured his left leg in three places: the femur, tibia and fibula. Dr. Dwight Woiteshek initially treated plaintiff on February 28 by placing a pin in his lower leg, casting the lower portion and placing plaintiff in traction to align the fractured thigh bone.
Defendant practiced with Dr. Woiteshek in Adelmann-Woiteshek Orthopedic Surgeons, S.C., a medical partnership and made hospital visits to plaintiff, apparently in rotation with Dr. Woiteshek, on March 3, 5, 7, 10, 11 and 13. Defendant also cared for plaintiff from March 15-18 when Dr. Woiteshek was on vacation.
On March 15, defendant noticed a motor palsy (loss of nerve strength) in plaintiff's left leg and padded the cast at the top to alleviate the problem. On March 17, plaintiff complained of pain in his ankle, which defendant initially relieved by adjusting plaintiff's foot inside the cast. When the pain persisted in the heel area, defendant found a blister there and treated it at 1 a.m. on March 18 by cutting a "window" in the cast, re-padding the area and taping the cut-out section into it's original position.
On March 18, defendant discovered through new x-rays that there had been a shortening of the leg since x-rays apparently taken two days prior.
There was a shortening of both the lower and upper portions of the leg by approximately 1 inch. That evening, defendant informed plaintiff's parents what the x-rays revealed and urged them to allow him to recast the leg as soon as possible, including changing the pin, in order to avoid any further damage. Plaintiff's mother immediately consulted with doctors at another hospital and plaintiff was moved to another hospital that night, without any further treatment being administered by defendant.
Plaintiff's expert witness, Dr. Wilfred Yoslow, an orthopedic surgeon, testified that plaintiff's condition required a pin change and a cast change within two or three days of the initial treatment and that Dr. Woiteshek deviated from accepted standards of orthopedic surgery when he failed to take such action. It was Dr. Yoslow's opinion that Dr. Woiteshek should have transferred the pin or put a new pin into the distal end of the femur and should have used a long leg cast instead of a half cast. During those days immediately after plaintiff's admission to the hospital, defendant visited plaintiff, beginning on March 3, the third day plaintiff was in the hospital.
Dr. Yoslow stated that the injuries caused by the failure to change the pin and cast included an infection under the cast, a blister on the left heel, shortening of the tibia and femur and a peroneal nerve palsy.
Dr. Yoslow initially had no criticism of defendant's care; however, his opinion was based on an assumption that defendant was covering (or "marking time") for Dr. Woiteshek when he saw plaintiff on alternate days and supervised plaintiff's treatment during Dr. Woiteshek's vacation. Dr. Yoslow assumed that defendant did not have equal responsibility with Dr. Woiteshek in the care of plaintiff. However, Dr. Yoslow acknowledges that he knew nothing of the arrangement of responsibility between the two doctors. Further, he testified that the hospital records suggest that Dr. Woiteshek and defendant were not in complete accord as to the plan of plaintiff's treatment.
Later in his deposition, Dr. Yoslow's qualifies his initial impression by stating:
Dr. Yoslow testified that he believed that two doctors could not be equally responsible for the care of a patient, and if defendant took over the care of plaintiff when Dr. Woiteshek was on vacation, defendant should have changed the method of treatment. Dr. Yoslow found that plaintiff's condition worsened between March 15 and March 18, when Dr. Woiteshek was on vacation, and that if defendant was in fact responsible for plaintiff's treatment, then he should have taken off the cast, examined the leg, checked the pin, changed the position of the pin and recast the leg.
While we are guided by the medical opinion of plaintiff's expert witness, we need not be bound by his ruminations about agency, multiple proximate causes or other matter that are for the court as a matter of law or the jury after proper instruction.
In a medical malpractice action the plaintiff must generally present expert testimony to establish: (1) the proper standard of care against which the defendant's conduct is measured; (2) an unskilled or negligent deviation from the applicable standard of care; (3) an injury that was proximately caused by this breach of the applicable standard of care. Addison v. Whittenberg (1988), 124 Ill.2d 287, 297, 124 Ill.Dec. 571, 529 N.E.2d 552; Gorman v. Shu-Fang Chen, M.D., Ltd. (1992), 231 Ill.App.3d 982, 986, 173 Ill.Dec. 471, 596 N.E.2d 1350; Roach v. Springfield Clinic (1991), 223 Ill.App.3d 597, 612, 166 Ill.Dec. 48, 585 N.E.2d 1070; Smith v. South Shore Hospital (1989), 187 Ill.App.3d 847, 854, 135 Ill.Dec. 300, 543 N.E.2d 868.
When the trial court granted summary judgment in favor of defendant, it stated:
Plaintiff contends that summary judgment was improperly granted by the trial court because the court focused upon whether defendant made a specific declaration that he had taken over plaintiff's care from Dr. Woiteshek and not whether defendant's actions allowed a reasonable inference that defendant and plaintiff enjoyed a physician-patient relationship, thus creating a duty of care for defendant.
Plaintiff argues that such a reasonable inference may be drawn from defendant's actions in his treatment of plaintiff during March 15-18 that he did assume responsibility for plaintiff's treatment and had the authority to change that treatment plan without conferring with or obtaining authorization from Dr. Woiteshek.
Additionally, defendant has never claimed that Dr. Woiteshek's authorization was required before he might change plaintiff's treatment program.
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...another version of the relevant events, thus creating a genuine issue as to which version is true." West v. Adelmann, 260 Ill.App.3d 455, 458-59, 196 Ill.Dec. 681, 630 N.E.2d 846 (1993). A triable issue exists if fair-minded persons could draw more than one conclusion or inference from the ......