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Bullistron v. Augustana Hospital





APPEAL from the Circuit Court of Cook County; the Hon. DAVID A. CANEL, Judge, presiding.


Rehearing denied September 26, 1977.

Plaintiff, Mary Bullistron, as administratrix with the will annexed of the estate of Patrick Gannon, deceased, brought an action seeking to recover damages sustained as a result of the death of plaintiff's decedent and allegedly occasioned by the failure of defendant, Augustana Hospital, to properly maintain its facilities and operation. Count I of plaintiff's complaint alleges, in pertinent part, that decedent was an ambulatory inpatient at defendant's facilities from August 2, 1970, to October 23, 1970: that during this period decedent attempted to open a door located upon this facility and in so doing was caused to be thrown to the floor; that such a fall was occasioned by defendant's negligent failure to maintain the door in proper operating condition; and that as a result decedent sustained a fracture of his lower extremity. Plaintiff further avers in count II that treatment of the aforementioned fracture necessitated performance of a surgical procedure during the course of which decedent was supplied with quantities of blood plasma; that such plasma was contaminated, in an unreasonably dangerous condition and unfit for human transfusion; and that as a result decedent developed serum hepatitis and expired of complications thereof on October 23, 1970. Counts III and IV are based upon these facts and plead negligence and breach of implied warranty in supplying the blood plasma used in the operation.

Defendant in its answer admitted that decedent was a patient in its hospital but substantially denied all the remaining allegations of the various counts. Defendant also initiated a third-party proceeding against the supplier of the blood plasma, Chicago Blood Donor Services, Inc., which sold and supplied the blood transfused to decedent. The third-party defendant also filed an answer which substantially denied all the allegations of the third-party complaint.

The trial court, on defendant's motion, entered summary judgment in favor of defendant and as against plaintiff. Plaintiff's motion to vacate this order and to set the cause for trial was denied. It is from these adverse rulings that plaintiff currently appeals contending (1) that the trial court abused its discretion in placing the cause on trial and in refusing to grant plaintiff's motion for continuance in order to permit her completion of discovery; and (2) that the trial court erred in awarding defendant summary judgment.

As previously noted, the occurrence which serves as the basis of this litigation transpired in August 1970. Suit was initiated thereafter and an amended complaint was filed on March 9, 1973. The cause was initially set for pretrial conference before Judge Sidney A. Jones on August 13, 1974. Thereafter, the case reappeared on Judge Jones' calendar on eight separate occasions and was continued on each successive date for reasons unapparent from the record.

On June 13, 1975, a separate "malpractice" calendar was created pursuant to an order of the circuit court of Cook County and all pending litigation of this nature was reassigned to Judge David A. Canel for all purposes. Judge Canel was authorized by this order "to enter any and all orders that are necessary to bring said cases to issue and early disposition." The instant case was assigned to Judge Canel on September 9, 1975, and transferred to his calendar on September 16, 1975. There is no dispute that the instant cause was properly transferred to Judge Canel's calendar.

The case thereafter appeared on Judge Canel's docket on November 4, 1975, pursuant to notice sent to all parties. This notice provided:

"Above cause is set for pre-trial/trial on November 4, 1975 at 9:00 o'clock in Room 2006 Civic Center. Please appear at the above time and place and have your client or representatives available in person. If case is not disposed of at said time, it will be set for immediate trial. Failure to appear will result in dismissal under Rules 218 and 219(c)."

On November 4, 1975, defense counsel was engaged in trial and the case was continued to Thursday, November 13, 1975.

On that date plaintiff's counsel appeared before Judge Canel at approximately 10:30 a.m. and it became apparent that the matter could not be settled. Plaintiff's counsel also represented to the court that certain depositions of two nurses employed by defendant at the time of testator's death had not been taken and that defendant had failed to produce these witnesses. It was later developed that defendant had advised plaintiff's attorney by letter of August 8, 1975, that these nurses had left defendant's employ and that defendant had experienced "little success" in its efforts to determine their whereabouts.

Plaintiff also informed the court that her expert, Dr. Charles Ketterman, had moved to California and that his evidence deposition would be necessary.

Judge Canel set the cause for trial at 12 noon over the objection of plaintiff's counsel and subsequently continued the case until 2 p.m. on the same day. At that time defendant and third-party defendant made motions in limine seeking to bar plaintiff from introducing any evidence pertaining to serum hepatitis and the decedent's death allegedly caused thereby as alleged in counts II, III and IV on the grounds that plaintiff had not produced a medical expert to prove these claims. Defendant had not previously requested plaintiff to identify an expert but had been provided with the name of Dr. Ketterman.

Plaintiff's counsel requested that the court reserve its ruling on the motions in limine until such time as plaintiff was able to obtain the required expert testimony. Counsel indicated to the court that such testimony might be obtained within four days, and plaintiff requested a continuance until Monday, November 17, 1970. The trial court declined to ...

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