Buck v. Alton Memorial Hospital , 86 Ill. App. 3d 347 ( 1980 )

Mr. PRESIDING JUSTICE JONES

delivered the opinion of the court:

Plaintiff Charles Robert Buck, by his father and next friend, Timothy C. Buck, appeals from summary judgment in the circuit court of Madison County in favor of defendants, Doctors Donald E. Hardbeck and Frank A. Morrison and Alton Memorial Hospital, in accordance with section 57 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 57). Alton Memorial Hospital is not involved in this appeal. The issues on appeal are whether summary judgment was improper because (1) the motion therefor was not accompanied by affidavit; (2) the doctrine of res ipsa loquitur applies and precludes summary judgment; (3) the deposition testimony of plaintiff’s medical expert established a genuine triable issue of fact regarding whether defendant doctors were negligent in their treatment of plaintiff and his mother prior to plaintiff’s birth by cesarean section.

Plaintiff filed his initial complaint on July 9,1973, alleging that he was bom by cesarean section on June 27, 1969, approximately 17 hours after his mother entered Alton Memorial Hospital, in labor and passing a meconium (yellow)-stained amniotic fluid from her vagina. Plaintiff alleged that the defendant physicians were negligent in failing to come to the mother’s aid at the hospital until just prior to surgery, though the doctors were apprised of her situation by telephone by the nurses monitoring her. Plaintiff sought damages for chronic neurological disabilities and other injuries proximately caused by the alleged negligent •conduct. These allegations were carried forward in plaintiff’s final amended complaint which was ultimately filed on January 13,1976, after several dismissals of the complaint.

On November 15, 1976, defendants filed a supplemental interrogatory requesting that plaintiff identify any expert witnesses he had retained to review the medical records in the case. Plaintiff responded on February 17, 1977, that he had not yet retained any such witnesses but planned to in the near future and would promptly notify defendants of their names. Upon defendants’ motion, the trial court ordered plaintiff to reveal the names of his expert witnesses to defendants on or before May 2, 1977, or face dismissal of his complaint. On May 19, 1977, plaintiff named Doctors Dodge, Pretsky, and DeVivo as his expert witnesses.

A discovery deposition of Dr. DeVivo was taken on October 12, 1977. Based upon clinical examination, Dr. DeVivo testified that plaintiff had suffered a chronic neurological disability, manifesting itself as weakness in his right arm and leg, a mild reduction in the awareness of vision in his right eye, a structural or anatomical defect on the left side of his brain, and a reduction in plaintiff’s general fund of knowledge and intellect. This was all due, in Dr. DeVivo’s opinion, to an episode of paranatal distress (distress “ [i]mmediately surrounding the event of birth”), and more particularly a weak fetal heartbeat which resulted in an inadequate supply of blood and oxygen to plaintiff’s body. However, because Dr. DeVivo had not reviewed any of the hospital records concerning plaintiff’s birth, he was unable to render an opinion as to whether defendant doctors’ failure to examine the mother more promptly was unreasonable. Dr. DeVivo also questioned his own qualifications to render an opinon as to management of the mother and infant during that time because obstetrics was not his “sub-specialty.”

After Dr. DeVivo examined the hospital records, he was deposed again on June 27, 1978. He reiterated his earlier findings. He explained that the paranatal distress was indicated by the meconium-stained fluid leaking from the mother as she entered the hospital, and the hospital record’s description of the infant at the time of delivery as limp and without respiration. He emphasized that the record showed that the fetus maintained an “adequate” heart rate throughout. Following a detailed examination regarding the contents of the Alton hospital record in question, Dr. DeVivo declined to criticize the care provided by the hospital nursing staff, the decision to perform the cesarean section, or the manner in which it was performed. Dr. DeVivo was equivocal as to whether the leaking of meconium-stained fluid from the mother required an immediate cesarean section. In his opinion such staining did not preclude the possibility of a natural childbirth. He testified that if the child were delivered by cesarean section, all subsequent deliveries would also have to be by cesarean section, and he noted this was the mother’s first pregnancy. He recognized, in addition, that the cesarean section procedure had some potential for complication. Accordingly, one might postpone decision on whether to perform cesarean section where the fetus did not lose heartbeat or movement, to see whether the progress of labor was inadequate to allow delivery. Dr. DeVivo testified another reason for performing cesarean section was a prolonged labor, and he noted the mother had not been in prolonged labor when she arrived at Alton Memorial Hospital.

Dr. DeVivo testified further that based on the hospital record he found nothing wrong with the decision to perform the cesarean section or the procedure followed. He found nothing to indicate that the treatment of the mother and fetus by doctors Hardbeck and Morrison was in any way less than adequate. He found no evidence that either doctor “may or could” have been guilty of any malpractice in this case. He was also of the opinion that the care provided by the hospital nurses and staff was acceptable.

Defendant hospital moved for summary judgment on August 8,1978. The defendant physicians moved for summary judgment on August 11, 1978, on the grounds that Dr. DeVivo’s deposition testimony failed to disclose that defendants had in any way deviated from the acceptable medical standards in 1969, the year of plaintiff’s birth. The doctors’ motion was not supported by affidavit but it did contain portions of the deposition testimony. Both motions were granted on November 8,1978. Plaintiff then filed a motion for reconsideration of the summary judgment in favor of defendant physicians, but not as to defendant hospital. Plaintiff’s motion was denied and this appeal followed as to defendant physicians only.

Appellant first contends that summary judgment was improperly granted in favor of appellees because their motion was not supported by an affidavit. However, we find this claim to be without merit because of sections 57(2) and (3) of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, pars. 57(2), (3)):

“(2) For defendant. A defendant may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part of the relief sought against him.

(3) Procedure. The opposite party may prior to or at the time of the hearing on the motion file counter affidavits. The judgment sought shall be rendered forthwith 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.” (Emphasis added.)

Moreover, Supreme Court Rule 212(a)(4) provides that a discovery deposition can be used “for any purpose for which an affidavit may be used.” (Ill. Rev. Stat. 1977, ch. 110A, par. 212(a)(4).) It is, therefore, settled that a motion for summary judgment can be supported solely by depositions. (Breault v. Feigenholtz (1973), 54 Ill. 2d 173, 296 N.E.2d 3; Gagliardo v. Vodica (1978), 58 Ill. App. 3d 1053, 1055, 374 N.E.2d 1302; People ex rel. Scott v. Continental Can Co. (1975), 28 Ill. App. 3d 1004, 1007, 329 N.E.2d 362.) There was accordingly no error in the trial court’s summary judgment based on Dr. DeVivo’s first deposition and his entire second deposition which appellees properly incorporated into their motion for summary judgment.

Appellant next argues that the doctrine of res ipsa loquitur applies to the case at bar and precludes summary judgment for defendants. We note that reliance on this doctrine was not pleaded in plaintiff’s final complaint or any of his other complaints, nor was it mentioned in plaintiff’s motion for reconsideration of summary judgment. It does not appear that this argument was raised at any time in the trial court. In general, a new point or theory cannot be raised for the first time in a court of review where it could have been raised in the trial court. (City of Chicago v. Wildman (1909), 240 Ill. 215, 88 N.E. 559; Consumers Petroleum Co. v. Flagler (1941), 310 Ill. App. 241, 33 N.E.2d 751.) Had this contention been raised in the circuit court it could easily have been decided. Our supreme court has recently held that “in the pleading of a cause of action under the doctrine of res ipsa loquitur, reliance on the doctrine should be alleged.” (Walker v. Rumer (1978), 72 Ill. 2d 495, 502, 381 N.E.2d 689, 691-92.) Here, plaintiff did not even allege facts which would entitle plaintiff to recovery under a res ipsa loquitur theory. We do not reach the merits of plaintiff’s res ipsa loquitur claim, and we find no error in the trial court’s failure to withhold summary judgment on that basis.

We proceed to the crucial issue of this appeal. Plaintiff-appellant contends that Dr. DeVivo’s deposition testimony established that there were material issues of fact to be resolved by trial. Summary judgment should have been rendered only if the pleadings and depositions showed there was no genuine issue as to any material fact and that defendants were entitled to judgment as a matter of law. Ill. Rev. Stat. 1977, ch. 110, par. 57(3).

This court’s view of summary judgment is expressed in Sanders v. Frost (1969), 112 Ill. App. 2d 234, 238, 251 N.E.2d 105, 106, in pertinent part as follows:

“ ‘The purpose of summary judgment proceedings is to determine whether there is any genuine triable issue of fact which must be passed upon. [Citation.] If the pleadings, discovery depositions and exhibits, present a genuine issue as to any material fact, summary judgment should not be granted. [Citation.] The right of the moving party to summary judgment must be free from doubt.’ ”

One element of a cause of action for medical malpractice is proof of the standard of care by which the defendant physician’s conduct is to be measured. (Chamness v. Odum (1979), 80 Ill. App. 3d 98, 399 N.E.2d 238.) In a malpractice action a physician will be held responsible for injuries resulting from his want of reasonable care, skill and diligence in his practice. The plaintiff must prove by affirmative evidence that the defendant was unskillful or negligent and that his want of skill or care caused injury to the plaintiff. (Sanders v. Frost.) Generally plaintiff must show by expert testimony not only that injury occurred, but that such event does not ordinarily occur in the normal course of events without negligence. (Sanders v. Frost.) When more than one inference can be drawn from undisputed facts, a triable issue exists and summary judgment may not properly be granted. Gordon v. Oak Park School District No. 97 (1974), 24 Ill. App. 3d 131, 320 N.E.2d 389.

We review the pleadings, Dr. DeVivo’s discovery depositions, and the hospital record exhibits in light of the above authorities. Asked for his opinion of the care provided by defendants in this case, Dr. DeVivo testified as follows:

“Q. Was there anything in the records that you have looked at to indicate that the cesarean section itself was in any way improperly performed?

A. I find no evidence that it was improperly performed.

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Q. Do you see anything in these records that would indicate that the treatment the mother and the fetus received from the Doctors Hardbeck and Morrison were in any way less than adequate?

A. No.

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Q. Doctor, do you have an opinion based upon a reasonable degree of medical certainty as to whether from your examination of this child and from your review of the hospital records and the other knowledge you have of this case, whether Doctors Hardbeck and Morrison may or could have been guilty of any malpractice in this case?

A. I don’t have any evidence of that on the basis of the information available to me.”

Despite the foregoing testimony, plaintiff urges that Dr. DeVivo’s testimony showed defendant doctors were negligent in failing to arrive at the hospital sooner and perform a more prompt cesarean section. Plaintiff cites the following testimony by Dr. DeVivo:

“* * * I think the only question that one might raise is why the physicians were not available to examine the mother on the night of the admission and when there seemed to be some apparent fetal distress as reflected in the meconium-stained amniotic fluid. One should distinguish between the types of hospitals that are available.

My experience is limited to a tertiary care facility, where we constantly have physicians of full-time staff and house staff in constant attendance, and I suspect that's probably not the case at Alton Memorial Hospital. This may be very acceptable practice in a primary care facility such as Alton Memorial Hospital, for physicians to remain in contact with the nursing personnel as to the condition of any given patient at any point in time.

Q. What type of examination would the doctor have done if he had been in attendance when the woman came in with the leaking meconium-stained fluid?

A. I would presume he would have performed the same studies that he performed the next morning which ultimately led him to the decision to perform the cesarean section.”

Plaintiff also notes Dr. DeVivo’s response to the following question:

“Q. Would the fact that when the mother came into the hospital she was leaking some yellow liquid, I think that’s correct, would that fact by itself indicate that a cesarean section should be performed immediately?

A. Well, that’s a somewhat difficult question because I did review the record in detail with that question in mind, and as best as I can determine, that was ultimately the reason the cesarean section was performed, so if in fact they had arrived at the decision for performing the cesarean section the next morning because of apparent fetal distress and leaking of meconium-stained fluid, then I would presume that the same circumstances existed the evening before at the time the mother was admitted.”

We would have to ignore the remainder of Dr. DeVivo’s testimony to find that the testimony urged by plaintiff leaves a genuine triable issue of fact. We decline to do so. Dr. DeVivo characterizes the failure of the doctors to act more promptly as a matter “one might question.” However, the remainder of his testimony leaves no doubt that he resolved that question in his own mind, and that he did not find the defendant doctors negligent on the basis of that delay. Moreover, even ignoring the rest of Dr. DeVivo’s testimony, the testimony urged by defendant indicates at most that a matter of professional judgment was involved in that delay. Dr. DeVivo cited reasons why delay might have been appropriate. The mere fact that the doctors may have been mistaken in delaying the cesarean section is insufficient to present a genuine issue of fact for trial. (Sanders v. Frost; Lawrence v. Rubio (1980), 85 Ill. App. 3d 472, 406 N.E.2d 946.) The fact remains that Dr. DeVivo would not find defendant doctors negligent on the basis of that delay, and that plaintiff presented no expert witness who would do so. We find no triable issue here.

Plaintiff urges, without argument, that this court reverse summary judgment in view of his motion for reconsideration, which the trial court denied. Defendants’ motion for summary judgment was argued in the trial court October 4,1978, and granted November 8,1978. On December 8, 1978, plaintiff’s attorney filed the motion for reconsideration, stating in part that the attorney had additional evidence that defendant doctors’ failure to examine the fetus on the night before the cesarean section was negligent. Accompanying the motion for reconsideration was an affidavit by plaintiff’s attorney in which he stated:

“[U]pon a telephone conversation with Dr. Darryl DeVivo on the evening of November 7, 1978, I was advised and informed as to various statements under discovery deposition that Dr. DeVivo could and would make that would be a material bearing on this cause and would establish Dr. DeVivo’s opinion of negligence in the Defendants, DONALD E. HARDBECK and FRANK A MORRISON, and I further say that the above information was not available prior to the said date and has not been offered prior hereto through any negligence or delay on the part of Plaintiff or his counsel.”

On December 15, plaintiff’s attorney appeared and requested admission of unspecified new evidence which he “propose[d] to submit” in support of his reconsideration motion. The trial court allowed the request. On December 20, plaintiff’s attorney filed a motion for continuance in which he alleged Dr. DeVivo would not be able to give additional testimony prior to December 22, the date set for hearing on the motion for reconsideration. No date was specified on which the testimony would be forthcoming, nor was the nature of the expected testimony set forth. No specific length of continuance was sought, plaintiff’s attorney merely seeking continuance “for such time as would be necessary to afford additional deposition.” On December 22, 1978, after argument, the trial court, “considering the matters presented before it this date, the facts as originally presented in the motion for summary judgment in this case, and considering the fact that this cause has been on file since July, 1973,” denied both the motion for continuance and the motion for reconsideration.

Generally, the matter of allowing a case to be opened for taking further evidence rests in the sound discretion of the trial court, and courts of review will not interfere except where that discretion is abused. (Forest Preserve District of Cook County v. Lehmann Estate, Inc. (1944), 388 Ill. 416, 58 N.E.2d 538; Crothers v. La Salle Institute (1977), 68 Ill. 2d 399, 370 N.E.2d 213.) In view of plaintiff’s consistent inability to present a triable issue of fact in this case, and the lack of specificity on plaintiff’s part as to the nature of the evidence forthcoming and the time it would be presented, we conclude the discretion of the trial court was not abused. The trial court did not err in finally disposing of this action. We affirm summary judgment in favor of defendants.

Affirmed.

KARNS, J., concurs.