*1 urge keep during rigors We all this maxim mind attorneys trial participation. for a reasons,
For the we and remand this cause above reverse new trial.
Reversed and remanded.
LORENZ, P.J., PINCHAM, J., concur. JOHNSON, Deceased, Johnson, CRAIG A. Adm’r of the Estate of Connie Johnson, Deceased, Bethany Adm’r of the Estate of Plaintiff-Appellant, MATVIUW, al., v. WILLIAM D. Defendant-Appellee (Richard et F. Whitlock
Defendants). First (5th Division) District No. 87 — 2456 Opinion 3, 1989. Rehearing filed November January denied *3 PINCHAM, J., specially concurring part in dissenting part. and in McArdle, Chartered, McArdle, Chicago.
Michael J. of Michael J. of Kistenbroker, Jones, Boyd, David H. Eric all Carolyn J. and E. Rooks, Poust, Pitts & of Chicago, appellee.
JUSTICE of the court: opinion MURRAYdelivered Johnson, Plaintiff A. as administrator of the estates Craig Johnson, wife, daughter, Connie and a medi- Bethany, brought stillborn defendants, Matviuw, M.D., D. against cal suit malpractice William Whitlock, M.D., Choh, M.D., Han, M.D., E H. Jae Eun Joong Richard (Sherman). appeal and Sherman in This involves the Hospital Elgin Matviuw, physician to Dr. with staff granting at suit is still the trial court pending Sherman. The privileges on to this against remaining appeal defendants. addition merits, supplement this also has it motion to plaintiff's before the record on with of two appeal transcripts entered, taken and experts, six weeks after or, alternatively, por- also defendant’s motion strike briefs rule We on relating experts’ depositions. agreed tions thereof are motions this The facts relevant this opinion. following these appeal. 4, 1983, Hospi- Connie Johnson was admitted Sherman April
On Han, of com- her Dr. for an evaluation physician, tal under care of pain right leg, in her lower plaints hyperventilation, numbness an ex- pregnant chest At the time she was weeks with pain. 9, Connie Around April p.m. April 7:30 pected delivery date Blue” arrest. A “Code experienced Johnson cardiac respiratory pa- of his sounded, Matviuw, attending to one who was but calling hallway. down was summoned nurses hospital, tients room, patient determined into Johnson’s Dr. Matviuw going Upon an endotracheal He inserted tube apparent arrest. respiratory at approximately resuscitation 7:33 began cardiac respiratory nurses, it, along A care team arrived and with several p.m. respiratory Han, attending physician, *4 patient. patient’s also assisted the no over and needed at that he would take arrived 7:50 and declared efforts 8:20 resuscitation Matviuw. At further assistance Dr. pronounced child were and Connie and her stopped were Johnson a pulmo- by was caused An revealed that Connie’s death autopsy dead. child, embolism died from lack of nary oxygen. and her Bethany, 1985, In March aforementioned defendants con- plaintiff sued the Dr. tending negligence respect that their the deaths. caused With Matviuw, careless and alleges negli- his that doctor was complaint in gent fetus, his of the in he to rec- Bethany, (1) treatment that failed ognize fetus; complications life-threatening (2) condition to arrange monitoring; (3) failed for fetal failed to order cardiopulmo- Connie nary resuscitation of Johnson so as to fetus’ well- preserve being; and (4) perform failed a cesarean of the fetus. Dr. delivery Matviuw denying allegations. answered all of the 1, 1986,
On October Dr. filed a for summary judg Matviuw motion ment his he that accompanied affidavit stated he had met wherein the applicable standard of care in rendering emergency treatment fetus, Connie Johnson her being care his sole con tact with decedent charged which no fee. He also asserted he civil liability upon could be him to section 2a imposed pursuant of the Medical (Ill. 1985, 111, Practice Act Stat. ch. par. Rev. (now 1987, 111, Rev. Stat. as 30)), commonly known 4400— Samaritan statute. The motion since no expert stated that testimony evidence of had negligence been presented by plaintiff, there was no material fact issue summary appropri ate.
On February was deposed by plaintiff, Matviuw who on subsequently March responded judg- motion ment and filed a motion to strike Dr. Matviuw’s At a pretrial affidavit. conference on March plaintiff expert disclosed one of witnesses. his On March Dr. Matviuw filed a motion reply plaintiff’s to strike and filed a complete of his mo- transcript deposition support his tion for In summary judgment. compliance pretrial discovery with a order, plaintiff on 1May indicated that he had identified his expert take their witnesses and would August California hearing A held on the summary judgment motion and the mo- tion strike on 1987. The July trial denied motion to strike and granted in Dr. Matviuw’s favor. so doing, court denied for a until plaintiff’s request continuance after experts were that the since deposed, noting request untimely since summary judgment motion had been October pending granted 1986. The court that on the basis had not shred presented of medical evidence that Matviuw had wrong done anything to his counterpoint deposition testimony that, in his opinion, upon a reasonable degree “based and surgical did not certainty, any respect deviate [he]
from the of medical care in care and treat applicable standard [his] fetus, Connie The ment of Johnson the Johnson.” court Bethany 4404) also found that section 2a Rev. Stat. was (Ill. circumstances, under these to situations a applicable, This followed. hospital. appeal (1)
On
that
was im-
appeal, plaintiff
summary judgment
asserts
since Dr.
affidavit
proper
conclusory
self-serving;
Matviuw’s
summary
since
had not
(2)
judgment
premature
plaintiff’s experts
Sherman,
a
(3) as
member of
Dr. Matviuw had
deposed;
been
staff
yet
Johnson,
to assist Connie
therefore
preexisting duty
precluding ap-
2a;
2a
to situations
(4)
applies only
arising
of
section
section
plication
was ren-
of a
Dr. Matviuw’s services
hospital;
(5)
outside
a bill
2a.
dered, thus
him
the
of section
removing
protection
from
follow,
For the
that
we affirm the trial court.
reasons
the
rule
motion to
rec
plaintiff’s
supplement
We must first
on
motion to strike and for sanctions.
Court
Supreme
ord
defendant’s
the
which a
omis
procedure by
party may supply
Rule 329 sets forth
to
sions,
errors,
any controversy
and settle
as whether
rec
correct
(107
what occurred at the trial level.
Ill.
appeal actually
ord on
reflects
authorize
supplementation
R.
rule has
construed to
2d
This
been
that
the trial
actually
with documents
were
before
only
record
Stuckey
Insurance Co. v.
court. State Farm Mutual Automobile
112 Ill.
3d
We turn our first Court Ride 191 Illinois Supreme affidavit insufficient. Matviuw’s be made on support affidavits requires evidentiary forth knowledge affiant, setting specific the personal Ill. R. (107 testify. could competently facts which the affiant It is requirements. meets these Here, 191(a).) Dr. Matviuw’s affida may submit own well established that defendant physician of a support of care in sum vit as evidence of the applicable standard action; such affidavit in "a mary malpractice motion then entry must be contradicted avoid 516 N.E.2d judgment. (Solon v. Godbole 1045.) Furthermore, when Dr. considered in tan Matviuw’s affidavit is *6 with regarding dem his which contained more detailed facts deposition, rendered, the standard of care plaintiff’s allegations negligence Thus, no were refuted as a matter of law. issue of material disputed fact remained affidavits any opposing by plaintiff. absent
This
summary judgment
us to
that
was
brings
assertion
premature
expert
deposed.
since his
witnesses had not
been
yet
is clear:
summary judgment
rule
is
where
proper
pleadings,
and
there is no
depositions,
genu
affidavits
file establish
fact,
ine issue of material
no
conflicting
and when
affidavits
filed,
have
been
is
to
as
judgment
movant
entitled
matter of
(Ill.
1985,
110,
law.
Rev. Stat.
In
1005(c).)
2—
actions, failure to file counteraffidavits leaves an
of a sum
opponent
judgment motion at
mary
risk since assertions in the movant’s affida
vit must be
true
though
taken as
even
the opponent’s pleadings con
tain contrary
(Eberlee
assertions.
v. Brenner
131 Ill.
3d
(1985),
App.
394, 475
639.) In
malpractice cases,
N.E.2d
must
plaintiff
present expert medical
testimony
duty
to establish the
care and
breach thereof
aby
(Purtill
defendant
Hess
physician.
(1986),
v.
111
229,
2d
Ill.
The case law regarding appears this issue to it on resolve a case- by-case basis. Where resulted, unfairness has summary judgment is re versed; where a party opposing the motion had ample to opportunity so, obtain counteraffidavits but did not do judgment summary is af firmed. See Hansbrough Kosyak v. (1986), 141 App. 538, Ill. 3d 490 181 (summary judgment N.E.2d for defendants entered 10 months af complaint ruling ter filed reversed because that plaintiff had filed late
914 expert was deadline for
counteraffidavit where there
no
disclosure
450,
Yasunaga (1987),
v.
157
James
error);
was
Ill.
3d
witness
for defendant affirmed where
(summary judgment
N.E.2d
to
timely
expert
reason was shown for failure
contradict defendant’s
court had
and disclosure deadlines
scheduling
where
set
v. Kantor
see also Goldstein
meet);
which
failed
plaintiff
264,
Although, Prather, orders, opportunity had covery ample as was done he had one that Dr. Matviuw experts written opinion obtain a three was filed two complaint years Plaintiff’s negligent. been judgment hearing; the summary months before more four than hearing; motion filed nine months *7 only set for the sum the schedule was hearing, filing months before taken; deposition motion and Matviuw’s mary judgment doctor’s affidavit as insufficient March, moved to strike the plaintiff at inapplicable, the Samaritan statute was contended that charts, constitution, and rules bylaws, Sherman’s taching decedent; also in March to for services rendered regulations plus a bill 1, (for the entire set 1987 September cut-off date was discovery coun his witnesses to all defense expert disclosed case), plaintiff motion summary judgment to sel; hearing, months prior 2V2 other than that in which rest to a court was transferred for the motion was set a schedule whereupon pending, action was the court. coun- still had not submitted hearing, plaintiff 1 July
By
his as-
he intended to stand on
record indicates that
The
teraffidavits.
sertions of an
of the statute.
inapplicability
insufficient affidavit
asked for a continu
arguments, plaintiff
After the court
these
rejected
to
un
request
ance to obtain affidavits. The court declared the
be
having
hearing.
been four continuances of the
timely
already
—there
The record
shows that
had notice that a counteraffi
clearly
motion
judgment
continuing sep
davit was needed.
arately from the rest of the cause. Plaintiff did not need to complete
in order to
from
discovery
experts writing
obtain
one of
321,
defendant was
Bennett v.
103 Ill.
3d
negligent.
Raag (1982),
App.
Moreover, the to material proper procedure be used obtain facts in a action is delineated in Court summary judgment Supreme Rule 191(b). (107 191(b).) 191(b) 2d R. Rule states that a party needing additional facts in a summary judgment proceeding must sub mit an naming persons affidavit from facts whom additional can be obtained, showing obtained, cannot why stating affidavits what it is believed the proposed affiant testify would and the rea sons therefor. A fails party who to follow these procedures until after summary judgment granted is cannot complain of an to con inability duct discovery entry Mazian, before (Rush order. v. Simon & Inc. (1987), 1081, Robson, 159 Ill. 3d 100; 513 N.E.2d Rogers v. Masters, Ryan, Brumund (1979), & Belom 74 Ill. App. 3d N.E.2d 81 Ill. (1980), 2d 407 N.E.2d In the 47.) affd case, plaintiff made no to file a attempt 191(b) Rule affidavit.
It is true that
is
in a medical
proper
mal
practice case
where the
only
plaintiff has failed to demonstrate an abil
offer,
ity
through competent
evidence
expert testimony,
at trial on
the applicable standard of
(See
care.
Purtill v. Hess
(1986),
Ill. 2d
Here,
One of major
regarding
concerns
courts
a rush to summary
in a
malpractice case is the difficulty plaintiffs
have in
may
obtaining a medical
expert
against one in the
testify
same profes
sion. (See Chiero v. Chicago Osteopathic Hospital
74 Ill.
916 as a means of pro- the policy using summary judgment procedure moting judicial appropriate. where economy was pre assuming, arguendo,
Even mature, in this case the Samaritan appropriate it was because That applicable. provides: statute is statute to this Act or li “Any person pursuant any person licensed the ailments in other practice any censed treatment human States, of the a licensed to territory except person state United good who in faith and without notice of practice midwifery, provides emergency per the illness or care without fee a injury not, omissions, son, except as a result of his acts or wilful or shall misconduct of such such part person, providing wanton care, 1985, 111, Ill. Stat. ch. damages.” be liable for civil Rev. 1987, 111, (now par. 30). Ill. Rev. Stat. ch. par. 4404 4400— to a applies physician responding The issue of whether section 2a Illinois, impression to an in a is one of first al emergency hospital other States. Illinois also it has been considered in several law though rendering others from relieving liability has protective provisions others, for wilful and wanton conduct. emergency except free aid to See, (law ch. 61 enforcement e.g., par. person Ill. Rev. Stat. (nurses); Stat. ch. fighters); par. nel and fire Rev. 111 1/2, medical care tech (emergency Ill. Rev. Stat. nicians). of the inapplicability several reasons for the
Plaintiff asserts staff, medical as a member of Sherman’s (1) this situation: to Connie a to render medical care duty Dr. Matviuw had preexisting child; services was and her a for Dr. Matviuw’s (2) Johnson unborn bill aris emergencies section 2a by hospital; (3) only applies sent of a find merit in none of these contentions. ing hospital. outside We contends argument, plaintiff of the preexisting duty support Sherman, legal had a Matviuw, a member staff that Dr. as rules and established hospital’s decedent virtue of duty to aid However, because merely there is no evidence procedures. he an em- privileges thereby had staff at the physician hospital, legal emergency to aid in aris- hospital duty of that with ployee Furthermore, rules and hospital regulations in the ing hospital. indicate that in an only by plaintiff submitted save possible everything to do “shall be permitted staff member is not This harm.” from serious a patient life of a or to save patient reliance Plaintiff’s legal duty. as to create a language mandatory on Lee v. analogous P.2d is not State (Alaska 1971), Lee, injured by po- case. In situation in court decided attempted lice officer as he to rescue her a lion. the in- because inapplicable that Alaska’s Good Samaritan statute to pro- duties fulfilling employment occurred as the officer was jury *9 above, of at large. tect the lives and welfare citizens As discussed duty. not predicated upon any legal actions Matviuw’s were of of other defendant Moreover, two excerpts physician “required” a staff doctors do not establish that clearly in the record indi- event, nothing to to a call. In respond code blue to in response cates that Dr. came to Johnson’s aid Matviuw Connie that Sherman the fact Similarly, other than a nurse’s shouts. anything has unborn child billed for services rendered his wife and no no bearing on Dr. The bill indicates alleged liability. Matviuw’s charge services, for the to be professional appears doctor’s but rather charges supplies drugs during emergency. used
Plaintiff
2a
language
vague
contends that the
of section
is
ambiguous
care,”
in that it does not
or define
explain
“emergency
its
portions
utilizes
of
debate
in his
legislative
prior
passage
argument. However, we
The statute is not
Al
disagree.
ambiguous.
such
a
in determin
though
debates are valued source utilized
courts
by
intent,
ing legislative
only
sources come into
where the
play
meaning of a
statute cannot be determined from
statute itself.
Singleton
v.
(People
(1984),
200.)
103
2d
469
N.E.2d
best
indication of legislative intention
from the
lan
explicit
is determined
of the
guage
statute.
v.
Steel Co.
(Schutzenhofer
City
(1982),
Granite
93 Ill. 2d
443 N.E.2d
563.) An undefined
a statute must
term
be given its ordinary and
meaning. (Canteen
understood
popularly
v.
Corp. Department
(1988),
Revenue
123 Ill. 2d
525
73.)
Thus, if statutory language is clear,
give
it
court must
effect and
should not read
limitations,
into the statute exceptions,
and conditions.
People v. Goins
(1988),
Ill. 2d
Given legal these we precepts, have no need examiné any source other than the statute No itself. one this case has suggested that the circumstances involving Matviuw with decedent consti tuted anything other than an It emergency. beyond is this court’s power to limit the ordinary meaning word “emergency” add by ing “except when occurring hospital.” Here, in a the statute clearly applies to a physician who, in faith good and without notice illness, renders without emergency charging care a fee. is That precisely the situation in the case.
We note that a few other
have
this same
A
States
addressed
issue.
series California Good
statutes are substantively
Samaritan
similar
2a,
to section
except
are
hospital emergency rooms
covered in the
disaster,
aid
doc
of medical
are doctors called in to
another
event
a
as
§§2395,
(Deering
& Prof.
(Cal.
tor
an
Bus.
Code
emergency.
involving
That
courts
held that situations
doctors
1986).)
State’s
have
give
staff
happen
hospital
on a
who
be
hospital
own, in an
create no
aid to
not their
patient,
emergency
emergency
Hospital
(Burciaga
the doctor to that
v. St. John’s
duty by
patient.
75;
3d
232 Cal.
McKenna v. Cedars
(1986),
Rptr.
187 Cal.
Cal.
(1979),
Rptr.
93 Cal.
Hospital
Lebanon
there
However,
immunity
has
where
is
statutory
California
disallowed
aid, as
case
emergency
to render
in the
of members
duty
a preexisting
78 Cal.
Colby
call
Schwartz
hospital’s emergency
panel.
885, 144
Rptr.
Cal.
faith
good
A
doctors from
who in
Georgia
exempts
liability
with
emergency”
accident or
emergency care “at
scene
an
give
A
interpreted
Ann.
this
charge. (Ga.
(1987).)
Code
§51—1—29
rendered in a
hospital
statute to
care
applicable
doctor,
nonethe-
inappropriate
but held that
as to whether the doctors involved in
less because issues of fact existed
*10
in
requirements
case
the statute because
protected
this
were
under
regulations relating
Clayton
their duties.
hospital’s
the
rules and
183 Ga.
ment defendant applicable emergencies statute is Good Samaritan substantively. in 2a if conditions stated section are hospital in a the other occurring met.
Affirmed.
LORENZ, P.J., concurs. PINCHAM, concurring dissenting in part specially JUSTICE in part: *** appro “that agree majority I with the is applicable.” Samaritan statute case in this because priate (Ill. Rev. Stat. 3d at The Good Samaritan (176 30) provides: 4400— to this li- “Any person pursuant licensed Act or any person censed to practice treatment of human ailments in other any state or States, of the United territory except person licensed to practice in midwifery, good who faith and without notice prior of the illness care fee to a injury provides emergency without not, omissions, shall as a result person, except acts or or wanton misconduct on the part person, pro- wilful care, viding such damages.” liable civil (Emphasis added.)
The defendant, Matviuw, Dr. William D. and the emergency care he provided in the case at bar came within the expressed purview of the foregoing statute. There was no dispute that Dr. provided Matviuw emergency care to the Johnsons in “good faith.” Nor was there any debate that he did so “without notice of the illness or injury” of the Johnsons. For Dr. Matviuw to “be liable civil damages” for the care he provided Johnsons, his acts or omissions of mis- conduct must have been or wanton. Plaintiff made no such alle- wilful gations against him. Plaintiff’s complaint charged Dr. simply Matviuw with mere negligence. Plaintiff did not allege that the acts or omissions of misconduct Matviuw his emergency treatment and care of the Johnsons was wilful or reason, wanton. For this plain- tiff’s complaint did not allege a cause of against Matviuw action and the trial court properly entered summary judgment in his favor.
Because Dr. Matviuw and the emergency treatment he provided the case at bar came within the purview of the Good Samaritan statute and plaintiff’s complaint did not allege a cause of against him, action our affirmance of the entry Dr. Matviuw’s favor on that ground appropriately disposes is, instant appeal. It therefore, to decide unnecessary plaintiff’s additional assertions that “(1) summary judgment was improper since Dr. Matviuw’s affidavit was conclusory and self-serving,” and “(2) summary judgment was premature since plaintiff’s experts had not yet been deposed.” Conse quently, majority decides *11 needlessly “plaintiff that was given a fair opportunity contradict Dr. affidavit, Matviuw’s and that the trial court’s entry of summary judgment for defendant that was [on basis] not an abuse of discretion” (176 Ill. App. 915) 3d at and to which I dissent.
I wholeheartedly agree with the majority’s observation that “[o]ne of the major concerns of courts regarding rush to summary judgment in a malpractice case is the difficulty plaintiffs may [and defendants] have in obtaining a medical expert one in testify against the same (176 915.) rigors Ill. 3d at The and
profession.” App. perplexities trial are malpractice attorneys di defendant plaintiff and verse, Although they may and vexatious. unique, demanding extremely considerations, in my judgment not entitled to legally any special matter, that attorney for any the conduct these other attorneys, in court rightful day not be construed to their clients their deny should finder, unless hearing on a on the merits of the clients’ claims fact conduct and demands such denial. attorney’s clearly unequivocally in the case does not demand such attorneys’ Plaintiff’s conduct at bar denial. bar, set, case
In the at schedule was discovery majority “did not violate discov plaintiff’s that correctly observes attorney orders.” ery added.) major Ill. 3d at As the (Emphasis (176 914.) App. observes, additionally correctly plaintiff’s “disclosed his attorney ity 914) (176 to all defense counsel” Ill. 3d at witnesses expert affidavits. for their date the scheduled predicated on motion for Dr. Matviuw’s under the Good Sa was not liable that he Matviuw’s contention Dr. that his deposition Dr. statute and on Matviuw’s maritan to Dr. response proper. treatment of the Johnsons medically moved attorney judgment, plaintiff’s Matviuw’s motion attorney Dr. as insufficient. Plaintiff’s to strike Matviuw’s affidavit The inapplicable. contended that the Samaritan statute was also Good [plaintiff's out record indicates that aptly majority points “[t]he to stand on his assertions of an insufficient affidavit attorney] intended (176 statute.” inapplicability [Good Samaritan] contention, on attorney prevailed either 914-15.) plaintiff’s Had at not at that necessary would have been by plaintiff counteraffidavits stage proceedings. Matviuw’s
The trial court contention rejected plaintiff’s was in Samaritan affidavit was insufficient and that a continuance Thereupon, plaintiff’s requested applicable. attorney expert affidavits from his disclosed witnesses. previously obtain trial court request denied and entered Matviuw. In the trial its my judgment, court abused discretion so Kosyak (Hansbrough doing. 141 Ill. 490 attorney depose Plaintiff’s in fact expert did his two witnesses within six weeks after summary judgment was entered. It does not ap pear from the record before us that attorney’s conduct in the case at bar demanded the drastic of denying result his client his rightful day court on a full hearing the merits of his claim by appropriate fact finder. In judgment, it my improper and an abuse *12 for the discretion trial court on the facts in the case to instant de- feat right entry defendant. I therefore dissent. ALBRIGHT, SEYFARTH, Plaintiff-Appellant,
C. JERE FAIR WEATHER, GERALDSON, al., SHAW & et Defendants-Appellees. 88—427, (3rd Division)
First District Nos. — 4 85 cons. 88 Opinion 6, 1989. filed Rehearing November denied January