Goncaves v. Saab

GONCAVES, Altair Gon- of the Estate of Indiv. and as Adm’r EUGENIA SAAB, Deceased, al., Defend- caves, Plaintiffs-Appellees, SALIM B. et v. al., Defendants). (St. Hospital ant-Appellant Anne’s et (5th Division) No. 1 — 86—3046 First District 31, 1989. Opinion filed March PINCHAM, J., dissenting.

Clausen, Miller, Gorman, P.C., Caffrey Witous, Chicago (James & T. Kouba, Ferrini, Oberts, O’Connor, Mary William J. C. and Lisa Marco counsel), appellant. for Hoffman, Friedman, Ltd.,

Mitchell L. of Albert Brooks Alan O. Associates, P.C., Chicago, Amos & appellees. both PRESIDING JUSTICE LORENZ delivered the opinion court: 29, 1988,

On July we filed our original in this opinion matter. Subsequently, granted we plaintiff-appellant’s motion for rehearing. parties submitted additional briefs and we allowed additional oral argument on the motion.

This appeal involves a grant of post-judgment (Ill. relief Rev. 1985, Stat. ch. par. an 1401) vacating order for summary 2— judgment (Ill. Rev. Stat. ch. par. 1005) which dismissed 2— Salim M.D., B. as a party defendant a medical malpractice action. reverse,

We vacate the trial court’s order granting post-judgment relief, and direct the trial court to reinstate the order of summary judgment.

The following chronology is pertinent disposition. our On December Altair Goncaves was taken to the emer- room gency of St. Anne’s Hospital Chicago, Illinois, following an automobile collision from which he suffered serious injuries and later died. Dr. David C. was the Mayor room emergency who physician treated the decedent. Dr. Salim B. Saab was the on-call thoracic sur- geon that night. 17, 1983, Eugenia

On November Goncaves, in individually and representative capacities, Tony Goncaves (plaintiffs) filed their original complaint medical in malpractice this cause in the circuit court of Cook The County. complaint named several in respondents discovery included Saab and St. Hospital Anne’s as party defend- ants. The complaint did not name Mayor. 6, 1984,

On February here, deposed. Saab was Relevant Saab testified he seeing had no recollection of ever the decedent or of be- ing 10, 1982, consulted over the on telephone regarding December the decedent’s treatment. maintained this assertion Saab even though plaintiffs’ attorney pointed out room emergency chart contained a notation to call Saab as well both as included name Saab’s within a box labeled “referral” and that the emergency room physician’s orders sheet contained two notations to consult with Saab. 24, 1984, order,

On February agreed Saab was granted leave to file a motion for judgment ground that he summary did for, examine, care plaintiffs’ treat decedent. The motion was sup- Saab’s to that on the matter ported Hearing with affidavit effect. 9, (Pursuant was continued to 1984. to several or- April subsequent of upon agreement hearing ders entered date for on parties, 25, was set 1984.) motion for September 2, 1984, Chessick, March On Dr. Kenneth ren- plaintiffs’ expert, dered to report plaintiffs’ attorney. report The detailed a review of previously medical and set forth unsupplied records Chessick’s as a basis for opinions establishing The concluded malpractice. report decedent, several actors were negligent plaintiffs’ the treatment of including emergency personnel room for their failure to promptly contact a surgeon. Significantly, the first page report, contain- ing what appears records, of typewritten reproductions hospital reference, twice refers to Mayor. At the second his name is con- tained in underscored text. 13, April

On plaintiffs original amended their At complaint. time, Mayor was added also as party defendant. Plaintiffs’ sin- gle effort serve Mayor by delivering a copy to St. complaint Hospital Anne’s was unsuccessful. September

On one day prior hearing scheduled motion, filed plaintiffs action separate against Mayor. Mayor was served with in that successfully summons action on the . day following September 25, 1984,

On without opposition plaintiffs, judgment Saab’s motion for summary granted. was September 3, testified, On Mayor was in- deposed. Mayor alia, ter that he had with the telephone regard- consulted Saab over ing treatment of plaintiffs’ decedent on December He 1982. stated that he was contacted Saab because Saab on-call thoracic surgeon. 8, 1985, plaintiffs

On November filed their petition for post-judg- relief, ment this subject appeal. sought thereby Plaintiffs judgment Mayor’s vacate the rendered favor of light Saab deposition testimony. testimony Mayor stated that “was not available” at the time for summary judg- Saab’s motion ment heard. tele- Referring concerning Saab’s statements call, phone plaintiffs procured by contended that that the part Mayor fraud on which was “not until discoverable” process was “served with taken.” depositions 1986, September 30, the trial granted plaintiffs’ petition On court and vacated order of favor of Saab. A summary judgment 28,1986. notice was filed on October timely appeal Opinion 1401, Pursuant to section Code Civil Procedure 2—

provides a simple petition process affording parties, when appropri ate, “[rjelief from final orders judgments, after 30 from the days entry (Ill. thereof.” 1985, Rev. 110, Stat. ch. par. 1401.) A section 2— 2—1401 petition is addressed to the equitable powers of the trial court (People v. (1981), 1026, 95 Ill. App. 3d 420 N.E.2d Alfano 1114) and allows a party bring before the court matters unknown to both the parties and the court at the time of judgment which would precluded have entry. its v. (Manning Meier (1983), 114 Ill. 835, 3d

App. 449 N.E.2d 560.) Because a petition under section 2— 1401 constitutes a new proceeding separate from that in which the judgment challenged was (Ill. rendered Rev. Stat. 1985, 110, ch. par. 1401(b)),the petitioner allege must and prove a right to the relief 2— sought as in any other civil action. Reuben H. Donnelley v. Corp. (1979), Thomas 726, 79 Ill. 3d App. 398 N.E.2d 972. Generally, prevail 1401, under section petitioner must 2—

show both that if the grounds for relief had been known when the judgment complained of rendered, entry thereof would have been precluded, and that the failure to and present discover ground for relief was not the result of the petitioner’s own lack of diligence. v. (Ostendorf International Harvester (1982), Co. 89 Ill. 2d 273, 433 N.E.2d 253.) In determining diligence, courts examine whether the petitioner, at the time of entry judgment and af ter making every effort in his power, failed to raise or discover the grounds asserted no through fault or neglect of his (Crane own. Co. v. Parker (1922), 331, 304 Ill. 733; 136 N.E. v. Brockmeyer Duncan (1960), 18 Ill. 2d 165 N.E.2d 294.) The requirement diligence effectively denies petitioners new opportunity to do that which should have been done at the earlier proceeding. (Petrauskas v. Mo tejunas (1971), 133 Ill. App. 2d 272 N.E.2d 805.) Satisfaction of that requirement, however, does not demand that the an petitioner ticipate improper Thus, conduct. where actual fraud or unconsciona ble conduct has played part rendering of the which relief is sought, the requirement diligence is not en rigidly forced. (Department Public Buildings Works & v. O’Hare Interna tional Bank (1976), Ill. 3d App. 1308.) Therefore, 358 N.E.2d while operation of section 2—1401 may relieve from ad petitioners verse judgments because of of matter not discovery previously ap pearing record, relief is not afforded when that matter should have presented been and the petitioner could have done reasonably so. testi- Mayor’s deposition

On Saab does not that appeal, dispute entry it have of sum- mony, presented, prevented had been would Rather, easily Saab contends that evidence could mary judgment. and, therefore, have discovered to of the prior entry been not it an of discretion for plaintiffs diligent, because were was abuse the court for relief. grant below In our agree. opinion, generate discovery

We the failure to procure Mayor’s testimony, thereby pre create an issue of fact cluding summary judgment, occurred because motion Saab’s was earnestly through contested means which were available readily prior of the Plaintiffs’ counsel did not the mo entry judgment. oppose tion for of Saab’s testi summary judgment deposition basis in which Saab stated he did not a tele mony receiving remember call phone from the room treatment of emergency regarding 10, plaintiffs’ decedent on plaintiffs’ December 1982. Had counsel recollections, contested the of Saab’s accuracy rather than accept Saab’s value, statements at face the only and obvious to do way so would be to interview room emergency personnel present on that date to determine was, fact, whether such a call telephone made. of the

Review record indicates that of as identity Mayor material for that witness should have been clear purpose when Saab deposed was on more than February seven months prior entry of summary judgment. It was that apparent Mayor was the 10, room emergency physician on December 1982. Although never served with process, complaint amended names Mayor as a party defendant in that The capacity. emergency room chart and physi- cian’s orders sheet night for that contain references to Saab. The significance of both documents was not lost on counsel. plaintiffs’ During counsel, of deposition plaintiffs’ referring to those documents, repeatedly questioned Saab as to whether he received a call from the telephone emergency room treatment regarding of plaintiffs’ Although decedent. the documents contain similar signa- tures, court, both of which are illegible to this have not plaintiffs contested assertions contained in the for brief both docu- ments were signed by Mayor.

However, any doubt as a material witness Mayor’s identity dispelled the inclusion of Mayor’s report name prepared by plaintiffs’ expert litigation. anticipation report specifically recites that the failure emergency personnel, of the room including room to contact a emergency physician, surgeon regarding treat- ment of decedent plaintiffs’ negligence. constituted name Mayor’s ap- pears reference, twice on the first At the page report. second is contained in text.

Mayor’s name underscored material, Despite possession of that the record indicates 1984, defendant, from when was April Mayor party added as until on no entry summary judgment September attempt our depose made to In Mayor. opinion, diligence reasonable motion opposing summary judgment for dictated discovery generated should the purpose securing have been a statement call. Mayor pertaining telephone Plaintiffs’ counsel depose contends failure to Mayor solely attributable to the “deceptive conduct” of Saab during than diligence rather a lack of on part plaintiffs’ counsel. is placed Reliance v. principally Lubbers & West Norfolk ern Ry. (1984), 201, 955, Co. 105 Ill. 473 2d N.E.2d and v. Ostendorf (1982), 273, International Harvester Co. 89 Ill. 2d 433 N.E.2d 253.

We find neither decision As this applicable. pointed court out in thorough of those in discussion cases Malek v. Lederle Laboratories

(1987), App. 152 Ill. 3d N.E.2d both Lubbers and Os in actively involved situations which defendants concealed ev tendorf concealment, case, idence. That of in act each precluded discovery the through evidence other reasonable means.

Here, although claim plaintiffs intentionally Saab misrepre sented that he not telephone call, did receive the we find nothing the Moreover, record to support contention. such a misrepresen tation, substantiated, even if in no way prevented plaintiffs from dis covering necessary the evidence to refute those statements thereby raise an issue of fact avoid to Plaintiffs summary judgment. merely depose had to to Mayor accuracy determine the of Saab’s rec Instead, ollection. plaintiffs elected to al rely memory lowed to summary judgment be entered.

Relaxation not diligence requirement justified under such circumstances. Section 2—1401 was not designed peti relieve responsibilities consequences tioners of their to avoid the of adverse judgments through neglect prosecution occasioned their own an (Malek action. v. Laboratories 152 Ill. 3d Lederly (1987), App. 893.) readily 504 N.E.2d Because have discov plaintiffs could petition, ered the matter asserted as the basis for the instant there For diligence exists no reason lessen the burden. the same rea sons, we are likewise contentions that en unpersuaded by plaintiffs’ on un try judgment predicated the instant case was summary requisite such as excuse that might conscionable circumstances- showing. was an for the court

We therefore conclude that it abuse below dismissed as judgment which finality disturb defendant. party reverse, vacate the court’s order

Accordingly, granting we trial relief, the trial court reinstate the order and direct post-judgment of summary judgment. with directions.

Reversed remanded

COCCIA, J.,* concurs. PINCHAM, dissenting:

JUSTICE Following original my dissenting opinion original majority opinion, granting of which were withdrawn upon plaintiff- both Concaves’ I dis- appellant rehearing, rehearing again upon sent. summary judgment dismissing plaintiffs’ complaint against defendant, surgeon Dr. Salim B. the thoracic at defendant

St. Hospital Anne’s who was on call when decedent was adminis- tered there emergency emergency treatment room physician, L. Mayor, David on Dr. based Saab’s affidavit and deposition that he did receive a call from the testimony telephone emergency room concerning the nothing decedent that he had to do with consultation, decedent's treatment or care. The trial court found this affidavit and deposition of Dr. Saab were false and testimony were first discovered to such after summary had been entered. There is support abundant in the record for the trial findings. court’s on these the trial findings, Predicated court properly granted 2—1401 plaintiffs’ section and vacated post-judgment the summary judgment. trial court did not abuse its discretion so court doing. Conversely, trial would dis- grossly have abused its it granted cretion had not plaintiff’s summary motion and vacated the I therefore judgment. agree do not with the majority’s reversal of order, trial or the grounds majority predicates court’s which the its i.e., plaintiff thereof, reversal was not Dr. diligent discovering the summary judgment Saab’s falsehoods before entered. a licensed and as surgeon po- Saab was such he held highly credible sition was perceived society exceedingly per- to be an credible surgeon son. As a licensed he had taken and was physician bound Following originally participated majority opinion. John J. *Justice Sullivan court, desig resignation Justice Sullivan’s from the Justice Michael A. Coccia was panel participated disposition. nated the third member of the in this Reliance on his by Hippocrates.1 Oath war- credibility health, ranted. entrusted him with their People medical care and treatment, and, indeed, lives, sight with their previously unseen and with no of him. A knowledge lawyer should not be required by law to check or make certain that he posthaste automatically has not performance professional lied about his his responsibilities, plaintiff should not be held to have forfeited her cause of action against having him for her done so within an lawyer unspecified time. should not importantly, More be allowed his un- seemly deception consequences avoid of his failure to properly perform his duties. He should not professional permitted to avoid professional irresponsibility or benefit his lack of I integrity. would therefore affirm the trial court’s order vacating dismissal of plaintiffs’ complaint against Dr. Saab. Hippocrates 1The “I Oath of states: SWEAR BY APOLLO. THE PHYSICIAN-

AND AESCULAPIUS-AND HEALTH-AND ALL ALL HEAL-AND THE GODS AND GODDESSES-THAT ACCORDING TO MY ABILITY AND JUDGMENT-I KEEP THIS AND THIS WILL OATH STIPULATION-TO RECKON HIM WHO TAUGHT ME THIS ART DEAR ME MY TO AS PARENTS-TO SHARE EQUALLY MY SUBSTANCE WITH HIM & RELIEVE HIS NECESSITIES IF REQUIRED-TO IN THE AS MY LOOK UPON HIS OFFSPRING SAME FOOTING OWN BROTH THEM THIS ART-IF THEY SHALL WISH TO LEARN IT- ERS-AND TO TEACH -AND THAT BY PRECEPT-LECTURE & WITHOUT FEE OR STIPULATION A OTHER OF INSTRUCTION-I WILL IMPART KNOWLEDGE OF EVERY MODE MY THE ART TO MY OWN SONS-AND THOSE OF TEACHERS-AND TO DISCI OATH THE PLES BOUND BY A STIPULATION AND ACCORDING TO LAW OF THAT OF MEDICINE-BUT TO NONE OTHERS-I WILL FOLLOW SYSTEM REGI MY ABILITY AND FOR MEN WHICH-ACCORDING TO JUDGMENT-I CONSIDER MY IS DELE THE BENEFIT OF PATIENTS-AND ABSTAIN FROM WHATEVER DEADLY MEDICINE TERIOUS AND MISCHIEVOUS-I WILL GIVE NO TO ANY IN LIKE ONE IF ASKED-NOR SUGGEST ANY SUCH COUNSEL-AND MANNER A A PESSARY TO PRODUCE ABORTION-WITH I NOT GIVE TO WOMAN WILL MY LIFE & MY ART I HOLINESS I PASS PRACTICE PURITY & WITH WILL THE STONE-BUT LEAVE UNDER WILL WILL NOT CUT PERSONS LABORING OF THIS WORK-INTO THIS BE DONE BY MEN WHO ARE PRACTITIONERS TO I GO INTO THEM FOR THE BENEFIT WHATEVER HOUSES ENTER-I WILL OF MIS VOLUNTARY ACT OF THE SICK-AND WILL ABSTAIN FROM EVERY OF FE FURTHER-FROM THE SEDUCTION CHIEF & CORRUPTION-AND CONNECTION MALES MALES-OF FREEMEN AND SLAVES-WHATEVER-IN OR WITH IT-I NOT IN CONNECTION WITH MY PROFESSIONAL PRACTICE-OR BE OF OUGHT TO SPOKEN SEE OR HEAR-IN THE LIFE OF MEN-WHICH NOT THAT ALL SUCH SHOULD DIVULGE AS RECKONING ABROAD-I WILL NOT KEEP THIS OATH UNVIOLATED BE KEPT I CONTINUE TO SECRET-WHILE THE OF THE LIFE AND PRACTICE MAY IT BE GRANTED TO ME TO ENJOY I TRESPASS BY ALL ALL TIMES-BUT SHOULD ART-RESPECTED MEN-IN BE MY LOT.” THIS OATH-MAYTHE REVERSE AND VIOLATE

961 Goncaves, de- a.m., plaintiffs’ Altair 1982, at 1 December On Anne’s St. of defendant room emergency to the cedent, brought was acci- in an automobile he sustained injuries for treatment Hospital the emer- who was Mayor, Dr. David by treated dent. Goncaves was emer- Goncaves’ morning. hospital at the room gency physician a.m., was 1:35 Goncaves as late as reflects that room chart gency heart regular and present awake, pulses and oriented with alert however, lung, left from the noted sounds were sounds. No breath a hemo- revealed which chest X was taken ray 1:45 a.m. a and at inserted a Mayor clavicle. Dr. fractured possible and pneumothorax thorax and air from his chest to remove in Goncaves’ tube taken, of which tests were X and rays Additional lung. reexpand Mayor Dr. 3:50 a.m. approximately and at Mayor apprised Dr. At testing. additional on Goncaves tap an abdominal performed in- surgical a.m., was transferred Goncaves approximately exces- a.m., suddenly exhibited unit, where, at 7:30 care tensive and expired. the chest tube bleeding through sive concluded that Chessick, expert, plaintiffs’ Dr. Kenneth C. from a combination hemorrhage exsanguinating “died from decedent and stud- signs He had and an source. of chest intra-abdominal injury surgeon by general promptly that he seen required ies which (op- laparotomy diagnostic therapeutic exploratory given and be in his so resulted The failure to do bleeding. to control this eration) of multi- part negligence I find evidence of death. preventable surgeon of almost three hours before Delay factors. ple hospital negligence by represents is excessive ***. This contacted surgeon, by a general to contact failing room emergency personnel and tho- surgeon general the staff failing notify the floor nurse in attending surgeons.” surgeon, by racic appears record there room admission emergency On Goncaves’ the notation: Anagnost.” Dr.

“4. Call Dr. Saab—call signed medical chart section of the Goncaves’ orders physician’s states: Mayor similarly Dr. by Dr. Anagnost

“1. Admit to

2. Consult: Saab.” gen- the thoracic and were respectively, Dr. Anagnost, Dr. Saab and morning. during were on call surgeons eral who adminis- Goncaves, as wife, individually, Eugenia The decedent’s Gon- Thomas next of friend of estate and as trator of the decedent’s complaint instant four-count Goncaves, filed the Tony caves the defend- against malpractice medical alleging November ants St. Hospital Anne’s Dr. Salim B. Saab. The al- complaint leged, alia, inter the commission or omission of various acts of negli- gence his consultation and treatment of the decedent. In Dr. Saab’s verified answer he “specifically that he had denie[d] with any duty respect the plaintiff’s decedent and further denie[d] the violation of such any duty.”

On February plaintiffs’ attorney deposed defendant, Dr. Salim during which Dr. Saab denied that he ever received a telephone Goncaves, call concerning decedent, Altair from St. Anne’s room emergency and further physician, denied that he had anything to do consultation, with decedent’s treatment or care.

Dr. Saab testified that he became board-certified in sur- general gery 1970 and in thoracic and cardiovascular surgery in 1971. He came to Chicago in July and established a private practice. Saab testified that in 1982 practiced he with Dr. partnership Paul Naffah and that they both were on the medical staff at St. Anne’s Hospital as thoracic and surgeons. cardiovascular Dr. Saab related that although was the surgeon thoracic on call at St. Anne’s Hos- pital morning that the decedent a patient there, and died 10, 1982, he December stated that he did not treat the decedent and that he was not contacted or phone by any other means regarding the care or treatment of the decedent. Dr. Saab further related that it was Dr. Naffah who had attempted cardiac resuscitation of the decedent. Dr. Saab was shown and reviewed medical charts of decedent, whereupon he testified pursuant questions put to him by plaintiffs’ counsel:

“Q. IAnd want to show a you medical record —Did you see the complete medical record of St. Anne’s Hospital [dece- Altair Goncaves? dent]

A. Yes.

* * * Q. Doctor, I see here says that it here that Dr. Naffah at- tempted unit, cardiac resuscitation in the intensive care is that correct?

A. Correct.

Q. And your that’s what record shows?

A. Correct.

Q. And you never saw this patient?

A. No.

Q. youWere ever called on the to see telephone him? No, A. not that I recollect.

Q. Doctor, tell me your what is when receive a practice you phone call when on during night are call thoracic you at St. surgery Hospital. cardiovascular Anne’s A. It is depends what the call about. phone

Q. you call, Doctor, When receive telephone that there emergency an in a cardiovascular case— A. I to it in I respond way. what think is an appropriate If it is an I emergency, go it should hospital. means

Q. go Did you night? hospital A. You are assuming I call. got phone Q. I am asking you; go hospital did you night? A. No.

Q. You do not know whether not you received a phone call?

A. I know that I did not.

Q. you How do know you did not phone receive a call? did, A. Because I I responded. would have if

* * * Q. Doctor, I am asking to look at the you indication on the record hospital under ‘Referral.’ Under it says, ‘Treatment’ ‘Called that; Dr. Saab.’ You read correct?

A. Right.

* * * Q. Dr. Naffah call, and you would they be would merely call you, is that right? Right.

A. Q. you Do recall receiving telephone call at 3:50 concern- ing Mr. Goncaves? [the decedent]

A. No.

* * * . Q. you Have ever discussed with Dr. Naffah? [this case] A. Briefly got after I the subpoena.

* * * Q. me, Can tell you recollection, to best your what you said to him and what he said to you concerning that? him,

A. I just about,’ asked ‘What is this case all I because couldn’t remember anything patient about or hav- myself ing involved, been and I asked him if he were with involved this patient or not. Q. And he you? what did to say said,

A. And he ‘Yes,’ he was pa- involved. this [T]hat tient was to presented St. after sus- Hospital having Anne’s 964 in time he trauma, point and at a certain some kind of

tained in his case. participated

* * * record, also Doctor, if saw this then saw Q. you you one was—1 stated that the second orders it physician’s Saab; was to consult Anagnost; admitted Dr. change.’ if Are was, Anagnost any or Saab acute ‘call Dr. of that notation? you aware Yes,

A. I read it.

* * ^[*] with Q. suggested you? There was a consultation A. Right.

[*] * * ‘Referral,’ ‘Referral, checked, Q. says, it’s it there Under name has been written on Saab. Your thing 3:50’ with twice, is that correct? there

A. Yes. portion is written on another

Q. And then name your suggested you stating somebody again that file that cor- change, if acute is and called there an consulted rect? say.

A. That’s what the orders

* * * notations, testi- Doctor, you it those Q. notwithstanding is— being made any phone call you fied that have no recollection you, is that correct? any being or consultation made you added.) (Emphasis A. Correct.” forgoing from Dr. Saab’s doubt any possible If there remained he had abso- to relate that testimony that intended of Al- consultation, treatment care nothing to do with lutely dis- promptly such doubt was Hospital, tair at St. Anne’s Goncaves subsequently following Dr. Saab deposition testimony pelled by attorney, Dr. own by from Dr. Saab at the elicited Mary O’Connor: or Doctor, any treat or order medication

“Q. did ever you for Goncaves? tests Altair

A. No. pa- monitor this at time

Q. any physically ever you Did or status? tient’s care his clinical A. No. as to the capacity medical

Q. any advise in you Did ever patientl to be taken this that was care and treatment A. No.

Q. Doctor, your does name appear any physician’s orders or any consultations that may appear chart?

A. Except quoted others, as by by me.

Q. you, Did yourself, any ever author physician’s orders or consultation in the chart! No,

A. (Emphasis no.” added.) The 5, record reflects that on March one month after plain- tiffs’ attorney deposed plaintiffs’ attorney received a five- page report, dated March from his expert, Dr. Kenneth C. Chessick, in which Dr. Chessick stated that he had received Altair Goncaves’ hospital records from St. Anne’s from which Hospital, found “numerous negligent acts which were re- proximately causally *** lated to this patient’s strong evidence of medical death[ ] [and] malpractice.” Pertinent to the issues on this appeal, Chessick stated in his findings that the 37-year-old decedent

“died from exsanguinating from hemorrhage a combination chest injury and an intra-abdominal source. He had signs and studies which required that he seen be promptly by general surgeon and given diagnostic and therapeutic exploratory laparotomy (operation) to control this bleeding. The failure to do so resulted in his preventable death.

I find evidence of negligence on the part multiple factors. These are listed as follows:

1. Delay almost three hours before surgeon was con- excessive; tacted is I can find no evidence surgeon that a attending physician (or resident) ever saw the patient after ar- rival the hospital. This represents negligence by the at- tending surgeons.

2. Six hours ER is excessive ***. The ER physician obligated to general obtain a surgeon to assume active man- agement of the patient prior to discharge the emergency room to the hospital floor. Failure to do so was negligent.

3. The failure to perform exploratory surgery for probable major intra-abdominal injury major proportion is negligent; it is probable had patient continued and unrecognized intra-abdominal bleeding. finding of a positive abdominal tap (presence blood) is usually strong considered to be a in- dication for immediate exploratory abdominal This is surgery. particularly situation a physician where is not available to perform serial diagnostic physical examinations. The failure to do negligent so was attending general surgeon and tho- 966 *** surgeon.

racic and bleeding of intra-abdominal 4. The had evidence patient he went into shock as should have received transfusions before examinations and evidence of a determined serial clinical by failure to transfuse in falling hemoglobin. hemocrit and The bleeding negligence by emergency the the presence surgeon, surgeon. the and the thoracic physician, general room and gases (p02, pCo2, 5. failure to arterial obtain blood tension lungs, in a trauma to pH) patient major with negli- rate in excess of is respiratory and a pneumothorax, general surgeon, room gence by emergency physician, surgeon. thoracic in a (I) 6. The failure to an intravenous perform pyelogram is negli- trauma and hematuria patient major with abdominal doctor involved. gence each by an EKG in a with perform patient major

7. The failure to chest trauma each doctor involved. negligence by

8. a tube in a with nasogastric patient The failure insert trauma is each doctor involved. multiple negligence by

* * ^[*] Summary: room emergency negligent by

There are acts multiple surgeon, the thoracic physician, general surgeon, in this be- through patient’s its nurses which resulted hospital ing mismanaged. negligence patient’s This resulted than not probable But for this it is more negligence, death. that the have patient would survived.” However, testimony foregoing deposition based Dr. Saab’s upon 6, 1984, emergency he had not been called February treatment or consul- nothing room and had to do with the physician 24, February at St. Anne’s Dr. on Hospital, tation of decedent 1984, dismissed as filed his motion for summary alleged complaint defendant. The motion stated that party plaintiffs’ 1982, cared negligently that on carelessly December Goncaves, decedent, pa- for Altair while he was and treated of Dr. Saab’s care- tient at Anne’s and that as a result Hospital St. omissions, injuries acts and the decedent sustained negligent less and 10, 1982. Dr. motion him to on December Saab’s expire which caused licensed to prac- further stated that he was summary judgment for Illinois; he was board-certified in the State of tice medicine and thoracic and that: surgery, the field of cardiovascular oath, states, that on December doctor under “[T]he examine, decedent, he did not care treat the plaintiffs’ for nor Goncaves, Altair at further that no Hospital St. Anne’s at time or prior subsequent to December did exam- ine, decedent, care for or treat Altair Gon- plaintiffs’ caves.” motion further asserted that there summary judgment genuine nothing

was no issue the fact he had to do with consultation, decedent’s treatment care at St. Hospital. Anne’s affidavit, Dr. him January Saab’s subscribed and sworn to on 5, 1984, was presented support with and in of his motion for sum- mary judgment, and stated in as pertinent part follows: SAAB,

“SALIM M.D., being oath, B. first sworn on de- duly poses and states as follows:

1. That I am one of the Defendants in this cause. 2. That I have the personal knowledge of matters con- tained in this Affidavit upon testify and if called to would be to competent testify thereto.

3. I That am a licensed physician medicine practice the State of Illinois and am Board the Certified in field of car- diovascular and thoracic surgery.

4. Decedent, That at no time during the Plaintiffs’ ALTAIR GONCAVES’ at St. I stay Hospital examine, Anne’s did care GONCAVES, or treat the said alleged ALTAIR as Plaintiff’s Complaint.

5. 10, That at no time prior subsequent December 1982 I Plaintiff/Decedent, did come in ever contact with the GONCAVES, ALTAIR nor. I have ever seen ALTAIR GON- CAVES.”

In reliance on Dr. the a licensed integrity physician board-certified in field and surgery, cardiovascular thoracic and the veracity of his affidavit and that had testimony he to do nothing plaintiffs with the decedent at St. Anne’s Hospital, and 24, her attorney agreed of the entry February order Dr. granting Saab leave to file his motion for summary judgment, they did not subsequently entry contest summary judg- 25, 1984, ment September dismissing on Dr. Saab as a party defend- ant. September plaintiffs’ attorney deposed

On Dr. David Mayor. Mayor’s deposition emergency Dr. that he was the disclosed morning room on call at St. physician Hospital Anne’s the decedent Mayor’s deposition testimony was admitted. Dr. contra- dicted Dr. affidavit that Dr. Saab deposition testimony Dr. Hospital. Anne’s the decedent at St. do with nothing

had Dr. and consulted with he had in fact contacted testified that Mayor of December morning the decedent on regarding Dr. injuries. Mayor of the decedent’s to the extensive nature due the thoracic because Dr. Saab was stated he contacted Dr. Saab al- further related that morning. Dr. Mayor on call that surgeon duty Altair patient-decedent, about the he consulted with Dr. Saab though or to take active hospital to come to the Goncaves, Dr. Saab refused patient. control of the chest X at given ray related that Mr. Goncaves was Mayor in- pneumothorax, had a a.m., because Mr. Goncaves

1:45 “a pneumothorax Mayor serted a chest tube. Dr. stated air, the thorax that there is means lung collapsed pneumo that is had sev- Mr. Goncaves in the thorax.” lungs means outside but the X clavicle which showed eral fractured ribs and a fractured tube approximately clear plastic The chest tube is a round ray. anterial lateral the area in the length. Mayor prepared inches in skin, threaded i.e., “he incised the a minithoracotomy, chest and did and slid the ribs, ribs, punctured pleura over the up down to the out of to take air function of the chest tube was tube in it. The of a lung A thorax, lung. puncture which would re-expand for the air between one of his ribs was cause possibly by related that Mayor his chest.” Dr. lining the inside lung lining and condition, if left untreated which dangerous was a pneumothorax could lead to death. Mayor that Mayor’s testimony in Dr. juncture

It is at this a tele- he never received of Dr. Saab that testimony contradicted the with the nothing and had do room emergency call from the phone to questions response testified further deceased. Mayor counsel, as follows: plaintiffs’ do, if

“Q. anything? Then did you what I Dr. Saab. A. called

Q. Who is hel was on call. surgeon thoracic who A. He is the * * ^[*] is in the that Q. people a list of all these you Do have emergency?

A. He was on call then. wall? me, a list on the

Q. you Excuse did have Yes. A.

Q. surgeon? thoracic He is a

A. Yes.

Q. time you About what did call him? A. what I after I Usually place do chest tube in and ask for a second and I see that my job chest immediate x-ray, lung so this expanding person can breathe has been taken of, care I the thoracic be called at that request surgeon time.

Q. Why? A. Because he will need to be patient’s involved care.

Q. What time did you call Dr. Saabl call, A. He answered I and talked to him at 3:50.

Q. Do remember what you conversation was between you and him.

A. I have a procedure routine I go when I through talk to physicians about a I patient. explain to them the his- that I I tory have. them explain to his physical findings. I ex- plain to them the procedures that I done, have I and then ask them if would they like else anything done.

Q. What did he sayl He said that because the initial output only .A. cc’s decreased, and had that to watch the subcutaneous emphy- sema and to contact the general surgeon, and that he would be a consult the case.

Q. But he wasn’t —did he indicate he was not coming over? A. I him When initially asked to come over and after he heard my description of what had happened and how stable the patient was, he said that —to call him there was any if change and after I had explained to him I felt accurately the patient’s condition —I felt comfortable statement, with his even though initially my request was that he should come in and see the patient.

Q. Did he ever come in and see the patient while pa- tient was in the emergency room ?

A. No.

Q. What after happened you called Dr. Saab and he said that he wasn’t coming and you could call him if back there was any change?

A. I—after I got the —several more chest or several more x-rays to evaluate again the pain he was complaining of back, and I when received the results back from the I tap, called the general on surgeon call.

Q. didWhy you do that?

A. of Dr. he be a consult- per request Because would general for the case and he would like a sur- ing physician geon to the case manage generally.

Q. there to You said the man was sta- manage? What was ble? accident,

A. though that there is an auto even the Anytime involved, chest trauma is since there is a of other possibility trauma developing, general involved it is usual to have a sur- ' geon coordinating surgeon be the on a case.

Q. So you general .surgeon, called correct?

A. Correct.

Q. did reach Dr. at his home"! By way, you Saab and / was A. The call was one of the nurses placed by given phone phone.” (Emphasis added.) and he was on the foregoing This of Dr. con- deposition testimony Mayor directly flicts of Dr. prior deposition testimony with Saab contrary noth- was never contacted about and had telephonically absolutely ing consultation, to do treatment of the decedent. with care or

In this court Dr. the merits of dispute plaintiffs’ Saab does not medical claim him. The defendant Anne’s ex- malpractice against St. Carden, Dr. Terrance at pert, deposition August testified 1985, two weeks before Dr. that Dr. Saab’s fail- Mayor’s deposition, ure to to the decedent’s medical respond appropriately emergency by examining, treating caring going hospital properly the decedent deviated from and breached the standard of accepted admitting care. asked if he had criticism of the care any When decedent, that his responded rendered to Dr. Carden physicians criticism that “some doctor did not come and evaluate further testified that take active control of the Dr. Carden patient.” take active the failure or Dr. to come Anagnost of Dr. from and management departure control and was a patient con- of care of the decedent’s was a violation of standard because related, “The additionally dition when were called. Carden they trauma, hemop- to have had was known patient multiple care area neumothorax, admitted to an intensive being and was the pa- care of that when patient, some doctor has to come and take That’s a universal standard hospital. tient is admitted to the care.” deposition September upon Mayor’s and based

Following that he had not 3, 1985, contradicted Dr. Saab’s which consultation, treatment nothing called and had to do with been on November decedent, attorney plaintiffs’ or care of the filed a petition pursuant to section 2—1401 of the Illinois Code of dismissing Civil Procedure to Dr. Saab summary judgment vacate as a party petition defendant. Plaintiffs’ to vacate asserted that Dr. Saab’s affidavit and that he had not been called deposition testimony and had of the de- nothing do with consultation or treatment cedent, upon exclusively which dismissal was summary judgment predicated, were perjurious false and and were unknown to be such plaintiffs’ when to the and the court attorney agreed entry of when entered the summary dismissal Plaintiffs’ to va- judgment. cate that, Saab, M.D., further asserted “Salim procured summary reason judgment fraud,” that, reason of “by tes- fraud tifying falsely at his deposition and in in of his support affidavit motion for summary judgment that his motion or summary judgment granted,” that, was “it would amount to constructive and actual fraud upon this court to allow the summary judgment to stand which procured by perjured testimony affidavit,” that, defendant, “the Saab, Salim M.D., had been out of the case as a result of misconduct,” his own that, Saab, M.D., “Salim pro- cured a motion for summary judgment by reason of fraud which was not until M.D., discoverable David Mayor, process served with and deposition taken.”

Dr. Saab’s 13-page memorandum, response in opposition plain- tiffs’ motion to vacate the summary judgment him dismissing as a party defendant, did not deny or dispute plaintiffs’ assertion that the summary judgment was predicated on Dr. Saab’s perjured affidavit and deposition rather, testimony; Dr. Saab simply contended that plaintiffs were not diligent in discovering that his affidavit and deposition testimony were false. Plaintiffs urge that the mere state- ment of Dr. Saab’s contention demonstrates its absurdity.

Dr. Saab admitted in his response that, memorandum “at time of incident, the decedent was attended to primarily by Dr. David Mayor, emergency room physician on duty morning in question Saab, M.D., Salim was the cardiovascular surgeon [and] on call.” Dr. Saab’s response that, further conceded defendant, “the Saab, M.D., Salim filed a motion for summary judgment, based on his own affidavit and alleging that he had never been contacted or requested to come to the emergency 10, 1982,” room on December and that based thereon a summary judgment dismissing him as a party defendant was entered. Dr. response urged “plain- tiff seeking rejoin Dr. Saab as a defendant party based on the testimony Dr. Mayor, room emergency physician, fact he did 1982. Dr. contact Dr. Saab’s response Saab December that, should not be analysis insisted the court’s

further focus of rather accuracy Mayor’s testimony, directed to the but plaintiff diligence issue of whether exercised due the first instance Thus, this obtaining contraposed plain- information.” Dr. Saab in- attorney tiffs and her should not have relied on the honesty of Dr. tegrity surgeon, licensed and board-certified or on the of his sworn veracity deposition testimony or affidavit and should have of a him agreed entry summary judgment dismissing case; rather, insists, from the plaintiffs attorney Saab and her should have to establish that Dr. was a promptly sought per- jurer, which neither nor her or had plaintiffs attorney suspected any suspect. reason to

Plaintiffs filed their to Dr. Saab’s memorandum reply responsive judgment. which motion to vacate the opposed plaintiffs’ summary al- malpractice complaint Plaintiffs’ stated that their medical reply defendants, the that the St. Anne’s Dr. David leged Hospital, Mayor, decedent, room attended the Dr. Salim emergency physician who Saab, call, Anagnost, gen- the on and Dr. Maria the surgeon thoracic call, in their treatment the dece- surgeon negligent eral on were that, dent. Plaintiffs’ further stated “Dr. Saab answered reply him. Dr. Saab allegations against Subsequently complaint denying filed a motion for his own affida- summary judgment, supported by vit, examine, for, in he swore that at no time did he care which treat, or come in contact with Mr. Goncaves.” Plaintiffs’ [decedent] Dr. motion for summary judg- also recited that while Saab’s reply as a defendant was party pending, plaintiffs ment for his dismissal testified, Saab, “repeatedly Dr. that during Dr. which Saab deposed more did not importantly speak he did not treat the decedent and the care of Dr. advice as to telephone Mayor give over the with that plaintiffs’ reply It set forth in additionally the decedent.” on sustained “based summary judgment Dr. motion for Saab’s Saab, his affidavit and his of Dr. as evidenced testimony sworn give consult or advice that he did not treat or deposition testimony decedent.” anyone regarding entry out that after additionally pointed Plaintiffs’ reply Dr. September deposed on summary judgment, plaintiffs Mayor directly room and that “Dr. emergency physician, Mayor, that he had never been previous testimony contradicted Dr. Saab’s Plain- call.” telephone decedent’s condition via regarding consulted he had called that, “Dr. testified that Mayor also stated reply tiffs’ him at call; he had spoken on that surgeon Dr. as thoracic Saab emer- to the Dr. to come over a.m.; he asked Saab initially 3:50 that room and see the that Dr. Saab stated would gency patient; come ***.” significant to the trial court the

Plaintiffs’ further disclosed reply that, Dr. for the experts, plaintiffs, conclusion “the Kenneth Chessick defendant, Hospital, Dr. St. Anne’s Terrence Carden for the Saab, stated in that Dr. report deposition testimony have in thoracic on call that his refusal to come surgeon night, by if neces- emergency patient room and examine the and take control sary, violated the standard of care in hospitals.” Additionally, trial court was informed in plaintiffs’ reply plaintiffs’ that “Dr. vacate the was based fact Saab summary obtained summary judgment by testifying reason of fraud falsely deposition at his and in his his mo- support affidavit ’’ tion summary judgment. Plaintiffs also stated the reply:

“(1) summary judgment should be set aside as it was [T]he procured by the fraudulent conduct movant [Dr. concealed, fraudulently through his false who] affidavit testimony, he acted as consulting physician of decedent’s day death.

(2) response totally revealing as to the fraud he perpetuated upon this court and the plaintiffs. (3) Dr. Saab ‘does not deny charge con- of fraudulent

duct plaintiffs have valid and meritorious cause of [or] against action him.’ Instead

(4) argues were not plaintiffs diligent [Dr. Saab] that his conduct discovering was dishonest and fraudulent ***. Therefore, (5) argues, plaintiffs’ va- petition [to cate the summary judgment] should denied.” concluded, alia, Plaintiffs’ reply inter that “summary judgment was by obtained only through his giving knowingly testi- [Dr. Saab] false mony that Dr. Saab’s and lack of due in complaint diligence dis- [and] the covering fraudulent concealment of evidence should not be heard and that [plaintiffs’] section 2—1401 to vacate petition judgment the through obtained methods should unconscionable be sustained.” the attorneys When the appeared before trial court and pre- sented their oral in arguments of and in to support opposition plain- tiffs’ section 2—1401 to the petition summary judgment, vacate the trial court had before it for its consideration in ruling motion the (1) plaintiffs’ (2) aforementioned Dr. complaint; Saab’s answer to plaintiffs’ complaint; (3) Dr. motion for summary judgment; (4) Saab’s Dr. Saab’s affidavit in of his motion for support summary judgment;

(5) Dr. Saab’s in of his mo- deposition testimony, presented support for summary judgment; (6) plaintiffs’ tion section 2—1401 to thereof; vacate the in summary judgment, (7) and presented support Dr. David L. Kenneth Mayor’s deposition; (8) Dr. Chessicks’ deposi- tion; (9) and Dr. to (10) Terrence Carden’s report plaintiffs’ attorney; Dr. Saab’s answer opposition and memorandum in to mo- plaintiffs’ tion to vacate the summary judgment; (11) plaintiffs’ reply and Dr. Saab’s answer and memorandum. hearings

At one of the of ruling the trial court prior motion to the trial plaintiffs’ summary judgment, vacate the court *** no expounded, are doubt familiar even after it judgment, “[Y]ou could be set aside where there was fraudulent concealment abso- *** lute falsehoods / about some facts. would like to be clear *** in own mind my as to extent the concealment here whether of are there on which the is based.” Thereupon, falsehoods attorney immediately plaintiffs’ retorted, “[Njowhere response in the does Dr. Saab deny the the statement made both he untruthfulness of in his and in his Plaintiffs’ addition- deposition.” attorney affidavit court, testimony stated to the Dr. ally deposition trial “[T]he of Saab, which was taken when he let out shortly prior was of this case on a motion for summary judgment unequivo- is clear and cally when he stated was not contacted by anyone false from hospital.” attorney court, Plaintiffs’ further advised trial “It quite seems clear since Dr. deny that Saab doesn’t the inaccuracies deposition his testimony, then it is ad- deemed affidavit mitted.” the final plaintiffs’ On dates hearing of motion vacate summary plaintiffs’ judgment, attorney again informed the trial that, court his deny “Dr. in doesn’t that there was a pleadings in discovery misstatement his and also in his of fact affidavit that, Dr. not once it con- deposition,” Saab’s does it—is reply “[I]n Instead, tended Dr. error in Mayor testimony. we, thrust of Dr. didn’t dis- pleadings plaintiffs, time,” that, Dr. Saab’s misstatement cover “[N]owhere to our Section Dr. response pleadings petition has Saab 2—1U01 he, was, our denied the Dr. accuracy allegation fact, by contacted Dr. Dr. Mayor, nowhere does Saab state Car- stating den and Chessick are incorrect in that his to come failure departure over to the at that time standard hospital was a care, i.e., malpractise [sic].” trial court concluded that Dr. Saab’s affidavit and and, thereof, false 2—1401 granted plaintiffs’ were reason section petition and vacated the judgment which dismissed Dr. summary defendant, as a party Saab in the following colloquy: “THE certainly COURT: would that there was appear [i]f representations either in that deposi- or in the false affidavit testimony tion ***. There is and there is Lubbers.2 Ostendorf Lubbers is a little bit different in that not in the Lubbers only case they give did false they information but threatened wit- ness who So, knew that the information false. there no is charge here, that took place it is similar to the terribly but me, case it seems to that reason the motion Ostendorf 25, 198U, is—the September order is vacated. being Honor, Saab’s Attorney]: Your could you we are [Dr. have— expressing finding that the diligence due un- requirement der Section 2—1401has been met also?

THE I COURT: am that saying because of this—I am going to say allegedly information, false that it totaled the running of the time. Of the Attorney]: diligence due so requirement,

[Dr. to speak. THE COURT: Yes. That’s what (Emphasis said.” Ostendorf

added.) The trial court vacated the summary judgment on its finding that the summary judgment was predicated on Dr. Saab’s false affidavit and deposition. The majority, however, reverses the improperly trial court’s order on a totally basis, i.e., different plaintiffs’ lack dili- gence in obtaining Dr. Mayor’s deposition which established the fal- of Dr. sity Saab’s affidavit and deposition From the here- testimony. inbefore quoted record, verbatim trial court it is quite apparent this record more than adequately supports the trial court’s finding. Moreover, the hereinbefore verbatim trial court quoted record also clearly contradicts the majority’s erroneous and record unsubstanti- that, ated conclusion nothing “We find in the record to support plain- tiffs’ claim that Saab testified untruthfully during his deposition an attempt misrepresent the December telephone call did not place take has steadfastly maintained [and] throughout that he so testified These truthfully.” by conclusions majority simply are unsupported in the record. Conversely, the rec- ord, as hereinbefore quoted, verbatim abundantly contrary and affirmatively refuted, establishes that Dr. Saab never disputed, v. International Harvester Co. (1982), 253; 89 Ill. 2d 433 N.E.2d 2Ostendorf Ry. Lubbers v. & Western Co. (1984), 105 Ill. 2d 473 N.E.2d 955. Norfolk to him in disclaimed, or denied the falsehoods attributed explained contrary testimony Mayor’s affidavit deposition testimony. contrary posi takes the and irrelevant majority additionally tel if that he did not receive the misrepresented

tion that even Saab substantiated, call, if in no ephone “such a even misrepresentation, necessary the evidence way prevented plaintiffs discovering refute raise an issue and fact to avoid thereby those statements and the sum (184 App. 958.) Ill. 3d at Inasmuch as summary judgment.” on as mary judgment misrepresentations, Dr. Saab’s predicated found, the trial court substantiated and which finding which did discover, under the au misrepresentations plaintiffs ultimately v. International Harvester (1982), thorities of 89 Ill. 2d Ostendorf v. Ry. and Lubbers & Western Co. 273, (1984), 105 Ill. 2d Norfolk 201, not discovered misrepresentations the fact that Dr. Saab’s were before, entry summary judgment, but were first discovered after the summary were irrelevant to the merits of the motion to vacate on the misrepresenta the of which was judgment, entry predicated tions. the based on its authority vacating summary judgment,

As for affidavit and finding that it was on Dr. Saab’s false predicated v. the trial court relied deposition testimony, expressly Ostendorf and Lubbers v. International Harvester Co. 273, Ill. (1982), 89 2d & Ry. Western Co. Ill. 2d 201. Not was that (1984), only 105 Norfolk warranted, reliance it was also mandated. practi

The facts and issues in and the case at are bar Ostendorf brought against identical. In suit Interna cally plaintiff Ostendorf tional Harvester to recover he sustained when injuries burn tractor he was op fuel tank filler of an International Harvester cap tank, off, ignite erating causing gasoline gush out blew plaintiff alleged upon products liability, burn Based strict plaintiff. tank and on the gas gas cap and manufacture of the design to its intended put it when unreasonably dangerous tractor rendered and judg in favor of the defendants use. The returned verdict jury (Ostendorf appeal. thereon was affirmed on ment was entered which de appeal 214, v. Brewer 1009, 367 N.E.2d (1977), 51 Ill. 3d App. nied petition filed a (1978), 593.) plaintiff Ill. 2d On May 1979, Act Rev. Stat. ch. (Ill. under section 72 of the Civil Practice Stat. ch. (Ill. section 2—1402 Rev. par. 72), currently of Harvester entered favor 1402), judgment vacate par. 2— Plaintiff asserted in his 17, 1975, 3½ years previously. on December International Harvester had “that petition to vacate had given interrogatories” false answers to plaintiff’s [pretrial] “in earlier action.” Unlike concealed evidence fraudulently initial bar, at International Harvester’s Ostendorf, case defendant interrogato response given was that it had not false answers bar, ries In the case at and had not concealed evidence. fraudulently him by attributed to Saab has not controverted the falsehoods defendant, Harvester, In International plaintiffs. Ostendorf, bar, as did the that the urged peti defendant in the case at tion to The untimely. agreed vacate was trial court Ostendorf The trial court dis dismissed to vacate the judgment. In agreed bar, however, in the case at Os judgment. and vacated remanded the cause for an tendorf, the court reversed and appellate concealment and evidentiary hearing issue of fraudulent to the in given whether International Harvester had false answers terrogatories. (Ostendorf,. 316.) 88 Ill. 3d court App. supreme that, granted leave to and reiterated “A motion to dismiss ad appeal mits all facts. that a well-pleaded We have held mo repeatedly tion to granted dismiss should not be unless it clearly appears no set of proved facts could ever be that would entitle the plaintiff to recover.” 89 Ill. at2d 280. The supreme court further out in pointed plain Ostendorf petition

tiff’s to vacate the In judgment, “alleged that significantly, ternational Harvester gave false answers to and with interrogatories held test and other reports information demanded by interrogatories.” (89 Ill. 2d 280.) interrogatories at One of plaintiff’s sought information concerning tests conducted International any by on the Harvester tractor’s fuel to Har system, which International vester responded, “Detailed records tests are no concerning specific longer (89 available.” Ill. 2d at 280.) interrogatories by plain Other tiff asked if any personnel of International ex Harvester had ever pressed an opinion against using the tank on the gasoline tractor or if International Harvester had ever had recommendation any against gasoline the use of the tank on the tractor. International Harvester answered, “Not to our Ill. knowledge,” (89 281) 2d at to each of pretrial these interrogatories There was set forth in by plaintiff. plaintiff’s petition vacate the in favor of International judgment Harvester affidavits and fuel reports system of tests of the tractor’s by conducted International against Harvester and recommendations use, its acquired by plaintiff long after the had been en judgment tered. In vacating plaintiff’s trial court’s order which dismissed to vacate that it was insuffi grounds cient and not timely, language uniquely applicable to case at

bar, the supreme court held:

“The existence of these reports, which are clearly material em braced by interrogatories, demonstrates International Har vester’s failure to comply with the requirements of full and frank disclosure imposed our by rules. In discovery light of documents, these were, International Harvester’s responses if not outright falsehoods, the type condemned in half-truths of Buehler v. Whalen (1977), 64-68. In the context of 70 Ill. 2d discovery, which is supposed to be conducted in good faith a spirit cooperation the purpose ascertaining the of for of truth, such equivalent are lies. outright They half-truths have the effect of concealment, affirmative since they imply that there is no information or evidence to be sought. in They evitably tend to mislead opposing counsel into the belief inquiry is not needed. further

We have very recently reiterated our for purpose views of discovery and the conduct of expected parties in the discov ery process. Discovery is intended to be a mechanism for truth, ascertainment the purpose promoting either a of for settlement or a trial. It is not a game tactical to be fair fair used to obstruct or harass the opposing litigant. (Williams v. A.E. Staley Manufacturing Co. (1981), 559, 564-66, 83 Ill. 2d and cases there cited.) ‘Fractional disclosure’ in discovery is the disclosure contemplated our discovery rules. (Buehler v. Whalen (1977), that, We hold 70 Ill. 67-68.) 2d law, as a matter comply with the obligation failure disclosure imposed litigants by our dis full truthful covery rules constitutes concealment purposes fraudulent tolling statute limitations.” (Emphasis added.) 89 Ill. 2d at 282. The supreme court addressed the issue of plaintiff’s diligence by his belated discovery falsehoods in in the following Ostendorf language, again uniquely applicable the facts in the case at bar:

“As regards petitioners’ diligence discovering the ground we think a litigant relief, ordinary exercises diligence in pretrial discovery poses interrogatories when he reasonably calculated to elicit the important to his case. information If his opponent suppresses then scope within the information of the interrogatories in such a way prevent as to the inquirer occurred, realizing what has the to discover the from failure is the result the fault, not the lat- information of former’s of *** ter’s negligence. sec guiding principles One in the administration of powers tion 72 is that the invokes the equitable relief court, judgment which should prevent enforcement of unfair, (Elfman when it would be or unconscionable. v. unjust, 609, 613; Bus Evanston Co. 27 Ill. 2d Ellman v. De (1963), Ruiter 412 Ill. (1952), 292.) As court stated in ‘ Elfman, “Something more than the morals of a medieval may market in the conduct of reasonably expected litiga be ’ ” tion.” added.) 89 Ill. 2d at 284-85. (Emphasis In Ostendorf, misrepresentations defendant’s were discovered after the long cause had been tried in by jury, which found favor bar, defendant. In the case at misrepre defendant Dr. Saab’s sentations were much sooner discovered were discovered before trial. Dr. discovery deposition clearly “calculated to elicit information important case.” Dr. the questions Saab answered to him put during his “in such a as to the in way prevent quirer realizing what occurred” and “the failure to dis [had] cover the information fault, result not of [was] [Dr. Saab’s] [plaintiff’s] negligence.” guiding principles the administration relief, of section 2—1401 “that the petition invokes the equitable powers of the court prevent enforcement of a judgment when it [to] unfair, would unjust unconscionable,” are clearly applicable the case at bar. The trial vacating court’s order the summary judg fair, ment was just and conscionable. Enforcement of the summary dismissing Saab as a party defendant on his based “unfair, falsehoods is unjust and unconscionable.” v. Inter Ostendorf national Harvester Co. (1982), Ill. 2d 285. Lubbers v. & Western Ry. (1984), Co. 105 Ill. 2d Norfolk other authority relied, which the trial court demanded that trial court vacate the summary judgment favor of Dr. In Saab. Lubbers, plaintiff sued to for injuries recover he sustained when the grain truck he was driving was struck train by defendant’s at a rail crossing. road The defendant filed a railway company counterclaim against Lubbers. Lubbers’ complaint alleged that the defendant rail way company negligent in failing provide, maintain or operate adequate nondefective him the crossing lights warn oncom In ing train. answers to interrogatories, Lubbers’ the defendant rail way company stated that the flashing crossing lights had peri been odically inspected functioning were before and at the properly time of Lubbers’ accident. The defendant railway company named numerous individuals its interrogatories answers Lubbers’ who had the flashing crossing lights seen properly functioning date

980 against accident. The found Lubbers jury and awarded defend

ant railway company on which en damages judgment was $650 tered. The was affirmed on judgment appeal. (Lubbers v. & Norfolk (1980), Western Co. Ill. 1205 Ry. App. (Supreme 3d Court Rule 23 order).) two later years Over Lubbers filed a petition under section the 2—1401 of Code of (Ill. Civil Procedure Rev. Stat. ch. par. 1401) to set aside the for a new trial on the 2— grounds that the defendant railway company’s aforesaid answers to interrogatories Lubbers’ concerning inspection the and operation of signals and the crossing reports thereof were railway false. The trial court petition denied Lubbers’ to vacate. The re appellate court versed of on the The authority supreme court granted Ostendorf. leave to affirmed the court appeal, appellate and remanded the cause to the court trial with directions to grant Lubbers leave “to amend his section 2—1401 in view of the of petition resolution this case Lubbers, this court.” 105 Ill. 2d at 214. to and Ostendorf, Lubbers in

Contrary majority the case at bar mistakenly conclude that plaintiffs were to obligated promptly depose Mayor after Dr. in Saab denied his that he had deposition any with the or verify connection deceased to dispute Saab’s denial so, plaintiffs and that did not do plaintiffs diligent because were not and therefore forfeited their set right to aside the summary judg- ment. hold expressly and Lubbers Osten- contrary. Ostendorf hold that in case at clearly plaintiffs and Lubbers bar were dorf justified in of Dr. relying veracity testimony, Saab’s deposition no plaintiffs legal obligation were under to thereaf- immediately ter to if pursue an expedition discover testi- of mony was truthful or false and that were not plaintiffs guilty lack doing. of in not so in diligence supreme court held Lubbers: “The in this was not untimely, case [section 1401] 2— of As guilty diligence.

and Lubbers was not of lack we stated diligence in in Ostendorf, litigant ordinary pre- exercises ‘[A] interrogatories reasonably discovery poses trial when calcu- important op- to elicit the to his case. lated information If the scope then within ponent suppresses of information interrogatories inquirer in as to way prevent such occurred, discover the realizing what has failure infor- fault, mation the result latter’s former’s do contention that Lub- Nor we find Norfolk’s negligence.’ employees failed to of the Norfolk whose any bers depose in interrogatories were answer to to examine given names in request the items submitted Lubbers’ for docu- response significant. Ostendorf, ments to As made dear the dili gence requirement does not so as to go section 2—1401 far parties acting good to assume possibility force faith discovery in the answers to and to take ex requests fraud traordinary steps to discover it in the limited have they time There trial. is no indication here that had rea Lubbers before son suspect that anyone engaging ***. deception Even if it were conceded that or ex depositions employees amination of documents would have revealed evidence that neglected Norfolk had signal examine the and later at to conceal tempted neglect, its it concept would distort the equity to hold that diligence required depart Lubbers to his chosen pretrial strategy to anticipate guard against the kind chicanery alleged here.” (Emphasis added.) (105 Ill. 210-11.) 2d at It, too, distorts the concept of to hold equity that diligence required plaintiffs to anticipate guard against kind of in chicanery which Dr. Saab in engaged the case at bar.

The supreme court pointed out further in Lubbers that defendant Railway’s answers to Lubbers’ interrogatories were “in- tended to and did frustrate the discovery process,” that con- “[s]uch duct is especially to be condemned because discovery is to supposed enable counsel to decide in advance of trial not only what the evi- dence is to likely be but what legal issues can argued,” credibly that “|jp]arties should not be to permitted avail of a themselves ver- dict obtained by an deluding opponent as to what the facts or the is- are,” sues in a case really and that “the ‘outcome-determinative’ re- quirement of section 2—1401 is met if it reasonably appears undiscovered evidence which was wrongfully withheld or falsified in would discovery prevented have the entry of the judgment.” (105 111. 2d at 213.) Dr. Saab did not contend below and does not contend here, and indeed Dr. Saab could not possibly contend that it does not reasonably appear his undiscovered false deposition testimony would prevented have entry summary judgment dismissing him as a party defendant. The majority’s attempt distinguish and Lubbers Ostendorf

from the case at bar is fallacious. The judgment sought to be vacated by the section 2—1401 petition in each case was on predicated defendant’s false answers in response plaintiffs’ pretrial discovery, extent, course, and to that each also they involved the defendant’s fraudulent concealment of evidence favorable In plaintiffs. Ostendorf, Lubbers and the defendants additionally con- affirmatively 982 plaintiff,

cealed other evidence favorable to the which is the stated, invalid, but distinction on which the majority rejects their application to the case at The bar. learned judge trial held that properly Osten- were Lubbers controlling correctly vacated the sum- dorf mary in favor of Dr. I judgment agree Saab. with that I ruling and would affirm it. single

The authority, Malek v. Lederle Laboratories (1987), Ill. 3d App. 504 N.E.2d on which the majority relies to re verse the trial court’s is not ruling analogous to the remotely case at bar. Malek did not vacating judgment involve a which predicated on a defendant’s falsehoods. Malek involved a section peti 2—1401 tion to vacate a entered on verdict for jury’s defendants after a trial on plaintiff’s complaint for alleged personal injuries from defendants’ negligence vaccine and products liability theories. grounds belated asserted by plaintiff in the section 2—1401 peti tion to vacate the judgment was the defendants’ legitimately claimed withholding of pretrial documents from plaintiff, of plaintiff which apprised and which plaintiff acquiesced before trial. Malek is no authority grave for the inequity injustice which reversal summary vacatur in judgment perpetrates the case at bar.

Moreover, the majority’s holding the case at bar distorts time legislatively imposed requirements and restrictions of section that, Section 1401(a) provides pertinent 2—1401. part “Relief 2— from final orders and after judgment, days from the entry thereof, be had as may upon petition provided (Ill. this Section.” 1987, 110, Rev. Stat. ch. 1401(a).) 1401(c) Section par. provides 2— 2— that, “The later 2 petition must be filed not than after the en years *** try of order or Time for judgment. during ground the which the relief is concealed shall be excluded in the fraudulently computing 1981, 110, 2 Ill. ch. period years.” 1401(c). of Rev. Stat. par. 2— 6, gave February Dr. Saab his false on 1984. The deposition sum- en- party Dr. Saab as a defendant was mary judgment dismissing 24, tered on 1984. Plaintiffs Dr. September discovered Saab’s 3, 1985, on “fraudulently September concealed” deposition testimony 1985, 8, when Mayor deposed, plaintiffs Dr. was and on November filed section to the well petition judgment, their 2—1401 vacate judgment,” within “2 after the of the order or without years entry during from the “time which the excluding two-year period, the 6, concealed,” 1984, fraudulently February for relief is ground 3, 1985, the date September date of Dr. Saab’s false deposition, 6, Dr. February on Dr. revealed that Saab’s Mayor’s deposition which 1984, holding The in the case bar majority’s was false. at deposition statute, for which afoul time mandated legislative runs and affirm trial disagree reason I also with the would majority order. court’s vacatur vacatur of reversing

After the trial court’s majority opinion Saab, defendant, Dr. was filed on judgment in favor summary 29, 1988, was herein on July my dissenting opinion and after filed 1988, August 19, 1988, 29, granted plaintiff- on September court oral rehearing argu Altair Goncaves’ and set appellant ment thereon for 1989. On December this February court decided Johnson v. Steiner (1988), App. During Ill. 3d 556. Johnson. on argument rehearing, attorney oral Dr. relied on That reliance was ill-founded. Johnson,

In a malpractice alleged medical action for defendants’ out plaintiff’s failure treat fractured of an properly arising wrist accident, trial summary automobile court entered dis- judgment missing defendants, Drs. Patel and Steiner as based their affida- vits. Dr. Patel’s he practice affidavit stated that did not or radiology orthopedics, that he never examined or treated plaintiff’s injured wrist, so, that he was never asked to do his treatment of plaintiff exclusively as and only regarding plaintiff’s consultant injuries, abdominal of which plaintiff made no complaint. Dr. Steiner’s affidavit stated that defendant Cardiovascular and Pulmo- nary Associates was professional owned solely corporation and that he too did not practice he radiology orthopedics, that never examined or treated plaintiff’s wrist injured was never asked so, do that his of plaintiff treatment exclusively as consult- ant and only regarding plaintiff’s hypertension and potassium, plaintiff which made complaint. no

Plaintiff’s subsequent section 2—1401 (Ill. motion Rev. Stat. Johnson, ch. par. 1401) the summary judg vacate 2— Steiner, ment in favor Drs. Patel and that the alleged subsequent newly discovered deposition evidence of defendants Drs. Parkh and Cabin revealed that Drs. Patel and Steiner had the overall responsi bility for care plaintiff’s Dr. Patel’s and Dr. Steiner’s affida were in Johnson vits therefore false and court perjurious, trial did find that Patel’s and Dr. false, Steiner’s affidavits were bar, whereas in the case at it is arguments clear counsel’s remarks, trial colloquy and the court’s and vacatur of findings court did find summary trial favor Dr. that the Saab’s affidavit and were perjurious. in Johnson the trial court found that bar, Unlike in the case at attorney did not plaintiff’s diligence exercise due discover the new 984 2—1401 motion to vacate section plaintiffs

evidence and denied Steiner; whereas, in of Drs. Patel and in summary judgment favor bar, granted the case at the trial court section 2—1401 mo plaintiffs in tion to vacate. On this court held Johnson that the trial appeal court did not its discretion in vacatur denying plaintiffs abuse motion; whereas, on the instant holds that the appeal, majority mo granting discretion in vacatur plaintiffs trial court did abuse its that the trial tion. In does not hold appeal, majority the instant to do nothing Dr. that he had finding, court’s Saab’s affidavit incorrect, erroneous, treatment was was plaintiff’s perjurious, with evidence, way or that the trial court in any unsupported by not in or that the trial court should finding, abused its discretion so Johnson, out and pointed so this court Conversely, have found. al held, upon seeks relief petition “Where a section 2—1401 based clear, convincing it shown leged perjured must be testimony, false, but that testimony only evidence that was satisfactory sec given. it Plaintiffs willfully purposely falsely [Citation.] tion falls far short of this mark. 2—1401 Plaintiff failed demonstrating even that Patel and Stein allege any remotely facts added.) willfully purposely (Emphasis lied in their affidavits." case, for 561-62.) 3d at Not so in the instant (Johnson, App. Ill. exercise and, again, proper alleged perjury, here wilful plaintiff evidentiary an basis function, adequate of its and with more than Dr. and affida it, deposition the trial court found that Saab’s support disturbed, found, contrarily has not perjurious. majority vit were nor in finding, original opinion neither in its or even criticized Instead, it. rea ignored By its has opinion rehearing. majority correctly the trial court va finding penury, son of its appropriate him dismissing as cated the in favor of summary judgment the trial There is no indication absolutely a defendant. valid majority’s un doing, spite court its discretion in so abused preceden no authoritative warranted assertion. Johnson is contrary tial to the defendant Dr. Saab. solace attorney, Mary Ms. in mind that Dr. Saab’s

It must be borne testified, under O’Connor, when deposition at his present that he concerning oath, call telephone that he never received consultation, pa- or care of the treatment nothing had do with in mind that at It must be also borne tient, Altair Goncaves. plaintiff O’Connor, if asked him Mary Ms. attorney, and treat- as to care capacity medical any he “ever advise[d\ if he treatment?" and was to taken ment that [Goncaves’s] this care on his patient’s any physically “ever at time monitor[ed] status,” (Em- to Dr. answered “No” questions clinical which Saab in mind that Dr. Saab’s added.) It be further borne phasis must the trial Dr. Saab’s affida- and to court attorney prepared presented in for, care or come contact examine, vit that Dr. Saab did not treat at St. any during stay Altair at time plaintiff with Goncaves in Anne’s it must be borne mind Dr. Hospital. Additionally, Saab’s to court Dr. Saab’s and attorney presented deposition the trial to support summary judgment affidavit in of Dr. Saab’s motion as a trial court to on requested rely be dismissed defendant and the the and The trial court did so veracity integrity said documents. granted his motion for summary judgment.

Ms. Lisa Marco Dr. represented during original Kouba the the of oral the during rehearing appeal on instant be- arguments Kouba, fore this court. Ms. Dr. and Ms. appeal Saab’s attorney, O’Connor, Dr. Saab’s trial are associates in same attorney, law firm, and their on both names counsel Dr. Saab’s briefs appear filed in this court. The in knowledge and acts of each the case at bar in trial court and in this court therefore chargeable are to both. on

During argument rehearing, oral the court asked Dr. Saab’s Kouba, appellate attorney, Ms. if re- plaintiff’s attorney should have lied on the defendant Dr. Saab’s affidavit in the trial deposition and court. Her answer was that plaintiff’s should not have done attorney In so. response argument court’s further questions during oral on Dr. rehearing, appellate Kouba, Saab’s attorney, Ms. additionally stated that she would on not have relied or af- deposition Saab’s fidavit in trial if Yet, court she plaintiff’s had been Ms. attorney. Kouba’s associate and Dr. attorney, O’Connor, Saab’s trial court Ms. out, as pointed took previously affidavit, Dr. Saab’s deposition presented court, same to the trial and asked the trial to court rely thereon in granting Saab’s motion for summary judgment. Whether Ms. Kouba’s unwillingness to have relied on her client’s deposition and affidavit based on some privileged communication associate, from her client O’Connor, her and/or her Ms. whether her refusal to rely her client’s deposition and affidavit was based on information from some other been source has not re- Nevertheless, vealed. circumstances, because these aforementioned it is clear to patently me it is grossly unjust unfair com- pel plaintiff be detrimentally by bound his attorney’s good-faith, mistaken, but reliance on Dr. and affidavit. To so require, my judgment, violates basic and fundamental flagrantly fairness.

What is before this court for our review is a simply case which to a duty pa- to fulfill his physician allegedly neglected professional In because of patient against physician tient. died. this suit death, the lied his failure to have patient’s physician per- about duties, thereon he was formed his medical and based dismissed wrongful goes the suit. The death unredressed and patient’s alleged legal has avoided the of his physician successfully consequences misconduct hospital by subsequent initial misconduct additional Thus, prevarications, in the courtroom. the doctor from his benefits his lies have been sanctioned this court. because (1975), This court held in v. 28 Ill. 3d People App. Shannon the use of is a mis “perjured testimony N.E.2d fairness and as carriage of which is abhorrent fundamental justice is the mortal and the Perjury enemy justice, such is intolerable. level, the con including them must at waged every battle between Eighth stitutional. For the administration of human justice, The su added.) first and the Commandment.” greatest (Emphasis 497, held in v. Cornille 95 Ill. 2d preme People (1983), court also 508, 511, that, is the and that “Perjury enemy justice” mortal of *** (Emphasis “the is seeking corrupted by perjury.” truth function use of in a added.) Regarding perjured testimony judicial pro in Mesarosh v. Court of the United States held ceeding, Supreme 9-10, 1, 1, 77 S. Ct. (1956), 352 U.S. L. Ed. 2d United States 8: “Mazzei, poisoned has water [perjured] testimony, reservoir, without

in and the reservoir cannot be cleansed this all has draining impurity. supervi- first it of Court [T]his If over the of the federal courts. sory proceedings jurisdiction it to see that the regard, it has in this is any duty perform having place are not Pollution taken justice polluted. waters of here, opportu- should remedied at the earliest the condition be nity. certainly of is one of justice

‘The untainted administration of our institutions. Its observ- aspects the most cherished *** Therefore, fastidious of our proudest ance is one boasts. re- justice the honor of the administration regard doing justice to make certain that quires Court perverse claims of manifest that irrational only made so can be asserted.’ disregard its [Citation.]” in v. Savvides People stated Appeals The York Court New 854, 885, 154 N.Y.S.2d 136 N.E.2d 1 N.Y.2d (1956), its ***.” In lan- lie, subject “A lie a no matter what 887, case, our court stated rul- supreme to the instant guage applicable ing of his in the trial adversely deception pro- a defendant because “To reward defendant’s deceit with a new trial would ceedings, now truth-seeking make a which our mockery process upon system justice is founded.” civil, these authorities were criminal and not Although foregoing tenuous, certainly peijury the law makes no distinction on such meaningless absolutely insignificant basis. bar,

The trial court the case at exercise of its proper function, that Dr. perjured. found Saab’s and affidavit were The abundantly supports record The trial court did not finding. abuse its discretion in so concluding rejecting argu- ment in his summary judgment favor should be vacated because of lack of plaintiff’s attorney’s purported diligence. By re- versing the trial court’s vacatur of judgment, Dr. Saab’s summary prioritized has majority judicially plaintiff’s elevated attorney’s justified diligence lack of over Dr. peijury. ju- Saab’s inexcusable should not to so diciary permit litigant advantageously exploit and the Halls of simultaneously denigrate deprecate Justice. I there- Indeed, fore cannot this I accept vigorously assessment. it. Ac- reject I cordingly, dissent. al.,

RICHARD et Plaintiffs-Appellees, ROSENBAUM v. JEAN ROSEN- BAUM, Defendant-Appellant. (2nd Division)

First 1 — 88—0217 District No. 21, 1989. 23, 1989. Rehearing denied June Opinion May filed —

Case Details

Case Name: Goncaves v. Saab

Court Name: Appellate Court of Illinois

Date Published: Mar 31, 1989

Citation: 538 N.E.2d 142

Docket Number: 1-86-3046

Court Abbreviation: Ill. App. Ct.