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Guttman v. Salvaggio

DECEMBER 8, 1969.

BERNARD GUTTMAN, PLAINTIFF-APPELLANT,

v.

SALVATORE SALVAGGIO, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County; the Hon. DAVID LEFKOVITS, Judge, presiding. Affirmed.

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.

In a two-count complaint, plaintiff seeks damages allegedly caused by the defendant in giving medical treatment to the plaintiff without being licensed to practice medicine. Count I is based on negligence, and Count II is based on malice and seeks punitive damages. At the close of plaintiff's evidence the trial court directed a verdict in favor of defendant on both counts. On appeal plaintiff contends that he presented a prima facie case sufficient to submit both counts to the jury.

In 1960 plaintiff, a certified public accountant, and his wife, a registered nurse, resided at 6739 South Clyde Avenue, Chicago. The defendant and his family lived on the third floor directly above plaintiff's second-floor apartment. In 1944 the Department of Registration and Education of Illinois denied defendant's application to practice medicine in Illinois.

Plaintiff testified that in May, 1959, defendant's wife introduced plaintiff to defendant and said, "This is my husband, Doctor Salvaggio." The name on the defendant's doorbell was "Dr. Salvatore Salvaggio." In August or September, 1960, plaintiff's wife cut her finger and went up to the defendant's apartment, and defendant bandaged her finger. Defendant was not paid for this, nor did he send a bill.

On Friday, December 9, 1960, plaintiff became ill. He had chills, he was coughing a lot, and he went to bed. He stayed home and in bed for the next three days, but his condition did not improve, and he had a temperature of 101° . On Tuesday, December 13, 1960, his condition was unchanged and, failing to reach his family doctor, he telephoned defendant and asked for an examination. Defendant had plaintiff strip to the waist and examined plaintiff with a stethoscope and made finger tappings in the same manner as by a medical doctor. Defendant also examined plaintiff's throat, took his temperature and pulse, put a hypodermic needle in him, telling him he was giving him a shot of penicillin, and gave him some tablets to take every three hours. He diagnosed plaintiff's condition as a cold. Plaintiff saw defendant professionally five more times in the next three days, during which he was examined by defendant, given capsules, an injection of streptomycin and a partially filled bottle of liquid described by defendant as an expectorant. On December 16, 1960, defendant examined plaintiff and informed plaintiff that he could leave his apartment to attend to such personal duties as going to the cleaners, getting a haircut, going to the dentist and to a convocation at the University of Chicago. Defendant testified that during all of this time his temperature remained at 101° . He offered to pay defendant for his services, but defendant did not submit a bill or request or receive any compensation from the plaintiff. They did not see each other after Friday, December 16, 1960.

On December 18, 1960, because his condition persisted, plaintiff consulted with Dr. Noah H. Sloan. His condition was diagnosed as viral pneumonia, and he was hospitalized. He was in the hospital from December 18, 1960, until February 11, 1961.

Defendant, called under section 60 of the Civil Practice Act, testified that he was not licensed to practice medicine in Illinois. He had received degrees from two unaccredited medical schools and was employed as a medical technician by the Elston Medical Center, where his duties were to take X rays, dress wounds and take the temperature of patients, and see that the mail got out properly. He substantially corroborated plaintiff's testimony. He denied that he injected plaintiff with penicillin, and admitted giving plaintiff penicillin capsules and telling him when to take them. He did not tell plaintiff that he was not a qualified medical doctor because "he never asked me." He saw plaintiff on only two occasions and never asked for any compensation for his services.

Dr. Sloan testified that he saw plaintiff at home on December 18, 1960. Plaintiff had pneumonia, and he sent him to a hospital. Dr. Sloan also testified as to his treatment of plaintiff and his charges for his services.

Dr. Sloan was asked three hypothetical questions by the plaintiff: one as to the kind of examination properly required to have been given plaintiff prior to his hospitalization, another as to the causal relation as to the treatment and the condition of ill-being, and a third as to whether the treatment of plaintiff might or could have aggravated or adversely affected the condition of the hypothetical man as found on December 13, 1960. Dr. Sloan answered the first question by saying that the treatment was not of the kind required of skilled doctors in Chicago in December, 1960; that he could not answer the causal connection question, and that there may or may not have been an aggravation of a pre-existing condition.

On the causal connection question Dr. Sloan's answers included: "It's a nebulous sort of thing. . . . Well, I don't think the alleged doctor produced the disease. . . . The natural history of pneumonia is a very difficult thing to know, because when a given point in time, you have pneumonia — but, what happened a day or six days before, or two months before, you don't know." In response to a question, "Might or could that previous treatment, prior to the treatment of December 18, adversely affect it — might or could it?", Dr. Sloan said, "It may, or may not be. . . . I have no way of knowing."

At the end of plaintiff's case, and after hearing from both counsel, the court directed a verdict for defendant as to both counts. Thereafter the trial court denied a post-trial motion of plaintiff and incorporated in his ruling a four-page "`Opinion of the Court' in support of his ruling."

At the outset, we think the basic guidelines to be used here are set forth in Gault v. Sideman, 42 Ill. App.2d 96, 191 N.E.2d 436 (1963), and Pedrick v. Peoria & Eastern R. Co., 37 Ill.2d 494, 229 N.E.2d 504 (1967). In Gault, it is said (p 104):

"In 34 ILP Trial, section 133, it is stated that a motion to direct a verdict for defendant should be allowed if when the evidence is considered in its aspects most favorable to the plaintiff, together with all reasonable inferences to be drawn therefrom, there is a total failure of proof on one or more ...


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