APPEAL from the Circuit Court of Cook County; the Hon. JOHN
C. FITZGERALD, Judge, presiding.
MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
Plaintiff brought this action sounding in medical malpractice for the wrongful death of Franciszek Kwak (decedent). Prior to trial, the trial court granted St. Anthony's motion for summary judgment and, after the close of plaintiff's case, directed a verdict in favor of Dr. Sadlek. Plaintiff appeals each of these judgments and contends that the trial court erred in failing to dismiss the cause as having been settled, in granting St. Anthony's motion for summary judgment and in directing the verdict in favor of Sadlek. Defendants have moved for dismissal of this appeal for the alleged failure of plaintiff to file a timely notice of appeal. This motion was taken with the case and is considered later in this opinion.
It appears that on August 1, 1970, decedent fell and injured his head while at work and was taken home by two co-workers. After vomiting and complaining of a headache through the evening, at approximately 10 p.m. he was taken to the emergency room of St. Anthony's Hospital (the hospital), where he was admitted. Defendant Sadlek was the attending physician. The results of a battery of tests showed that decedent's skull was not fractured but that he was suffering from pneumonia. Accordingly, keflin (a potent antibiotic) was administered intravenously, but this treatment was discontinued when his temperature and blood count reduced to a normal level. Thereafter, he was given pollicillin (another antibiotic) which was administered orally, and he remained in the hospital until August 11. During the last four days of his stay, his temperature remained normal, he was ambulatory, he ate well, and he had no specific complaints such as headaches. Upon his release, he was given antibiotics and told to return for a follow-up examination at Sadlek's medical center and also told that he could return to work. During the next two days, he worked full shifts and, when he returned home, ate well. On the evening of August 14, he visited Sadlek at his medical office but, at that time, complained only of a cough. At midday on Saturday, August 15, decedent again became ill at work, and one of his adult daughters was called. Upon arrival, she found decedent vomiting and lying on some boxes. She and one of his co-workers then took him to Sadlek's office. They had to assist him, as he was having difficulty with his vision and in walking. Once there, decedent and his daughter were called into Sadlek's office ahead of an unspecified number of people who were present in the waiting room. Suspecting the development of a subdural hematoma due to his symptoms and his history of a head injury, Sadlek told him he would have to be hospitalized. While Sadlek testified that decedent refused hospitalization and that he administered an injection of demerol and gave him talwin capsules (each being pain suppressants), the daughter testified that decedent was given the injection and pills and was told only to return home for bed rest.
While those members of decedent's family who testified were in agreement that decedent continued to have headaches and to vomit after the Saturday visit with Sadlek, there is disagreement as to when they first noticed a stiffening in decedent's gait, which eventually developed into paralysis on Tuesday morning. It is clear, however, that the first signs of stiffening occurred after the Saturday visit to the doctor and that the family did not call Sadlek to report this development or bring decedent to the office for another examination. Instead, on Tuesday morning (August 18), two hours before his death, decedent was brought back to the hospital. An autopsy report attributed his death to meningitis and pneumonia.
At trial, plaintiff presented medical evidence by calling Sadlek under section 60 of the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, par. 60) and Dr. William Fitzsimmons as her sole medical witness. Fitzsimmons's direct testimony was based upon his review of a limited number of hospital records supplied to him years earlier when he was called to testify before the Industrial Commission, where a claim had been filed for benefits because of decedent's death. On this basis, he opined that Sadlek's care of decedent had deviated from the community standard of good medical care, in that a third blood count and tests such as a bronchoscopy or bronchiolgram were not ordered prior to releasing decedent from the hospital on August 11 and in not warning his family on August 15 that he would die if not hospitalized. However, responding to hypothetical questioning during cross- and re-cross-examination, he agreed that, by releasing decedent on the 11th with antibiotics and orders to return for follow-up care, Sadlek complied with the community standard of good medical practice; that an additional blood count would have told Sadlek nothing more than he already knew; i.e., decedent was responding well to treatment, but the infection was not entirely cleared up; that performing a bronchoscopy or bronchiolgram would have been provident, but a failure to so test did not deviate from the applicable standard of care; and that on Saturday, August 15, the symptoms which decedent exhibited, considered in the light of his history of head injury, indicated to him (as it did to Sadlek) the possible development of a subdural hematoma, requiring hospitalization. Only in his belief that Sadlek should have warned the family to take decedent to a hospital or risk his death was Fitzsimmons's opinion in conflict with that of Sadlek.
Fitzsimmons also testified that in his opinion the introduction of the pneumonia bacteria into the bloodstream caused the meningitis which in turn resulted in death. It was his further opinion that decedent developed meningitis sometime between August 11 and 18, but he was not asked whether the condition resulted from any act or omission on the part of Sadlek.
In this cause, the motion for summary judgment was granted and the hospital dismissed as a party on January 26, 1976. Included in the order was the trial court's statement that no just reason existed to delay enforcement or appeal from the order. Thereafter, on January 29, 1976, at the close of plaintiff's case, a directed verdict was entered in favor of Sadlek. On February 23, 1976, plaintiff filed a motion to extend time for filing post-trial motions as to both orders, but an extension was not granted until March 10, 1976. The post-trial motions were then filed on March 18, 1976, and denied on June 7, 1976. The notice of appeal was filed on July 7, 1976. Defendants contend that the notice of appeal was not timely filed, because the post-trial motions were untimely. We agree.
Supreme Court Rule 303 provides in pertinent part:
"(a) Time. Except as provided in paragraph (b) below, the notice of appeal must be filed with the clerk of the circuit court within 30 days after the entry of the final judgment appealed from, or, if a timely post-trial motion directed against the judgment is filed, whether in a jury or a non-jury case, within 30 days after the entry of the order disposing of the motion." (Ill. Rev. Stat. 1975, ch. 110A, par. 303(a).)
Section 68.1(3) of the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, par. 68.1(3)) provides:
"(3) Post-trial motions must be filed within 30 days after the entry of judgment or the discharge of the jury, if no verdict is reached, or within any further time the court may allow within the 30 days or any extensions thereof." (Emphasis added.)
The failure to timely file a post-trial motion deprives the trial court of jurisdiction to entertain that motion, and the failure to file a timely notice of appeal deprives the appellate court of jurisdiction to consider the merits of the appeal. (E.g., Huber v. Maggio (1975), 31 Ill. App.3d 624, 333 N.E.2d 270; Stauffer v. Held (1974), 16 Ill. App.3d 750, 306 N.E.2d 877.) Here, although a motion was made within 30 days to extend the time to file post-trial motions, none was actually filed within the 30-day period required by Supreme Court Rule 303(a), nor was any order entered extending the time within the 30 day period as provided in section 68.1(3). Plaintiff nonetheless contends that the post-trial motions and the notice of appeal were timely filed, relying on Krotke v. Chicago, Rock Island & Pacific R.R. Co. (1974), 26 Ill. App.3d 493, 327 N.E.2d 212. In Krotke, both sides entered into and executed a stipulation to the effect that the time in which to file post-trial motions was to be extended to and including a certain date. The stipulation was not, however, filed with the trial court until the 31st day after judgment. After noting that "[t]he statute imposing a time limitation within which a party must file his post-trial motion is not inconsistent with the inherent power of courts> of general jurisdiction to enter orders modifying or vacating their judgments pursuant to the express consent and agreement of all the interested parties" (26 Ill. App.3d 493, 496, 327 N.E.2d 212, 215), this court found that in view of the stipulation the judgment could no longer be viewed as final in nature under section 68.1(3). Therefore, the post-trial motion filed within the extension allowed by the trial court and the notice of appeal which followed the disposition of the motion were timely under Supreme Court Rule 303.
• 1 Here, to the contrary, the parties did not enter into a stipulation, such as in Krotke, which affected the finality of the judgments and accordingly did not give rise to the inherent powers of the court. As the judgments of January 26 and 29 were at all times final, the jurisdiction of the trial court could be extended beyond February 25 and 28 only if prior to these dates a post-trial motion had been filed or the trial court had allowed an extension of time within which to file such motion. Plaintiff ...