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Redmond v. Central Community Hospital

OPINION FILED SEPTEMBER 22, 1978.

HATTIE REDMOND, ADM'X OF THE ESTATE OF HUBERT REDMOND, DECEASED, ET AL., PLAINTIFF-APPELLANT,

v.

CENTRAL COMMUNITY HOSPITAL ET AL., DEFENDANTS-APPELLEES.



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

MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:

Plaintiff appeals from an order which (1) granted summary judgment in favor of Central Community Hospital (hereafter defendant); and (2) denied her motion for sanctions for failure of defendant to comply with her discovery requests.

Initially, Hattie Redmond, as an individual and not as personal representative, brought suit in 1974 *fn1 against defendant and J. Gurk (the latter is not involved in this appeal), alleging certain acts and omissions, one or more of which proximately caused her husband's death on October 16, 1972, and, as a direct and proximate result, that she and their children suffered loss of support for which she seeks damages.

On April 24, 1975, Hattie Redmond filed a third amended complaint *fn2 as administrator of her husband's estate, which in substance was identical to the original complaint, except that count I contained an allegation that the estate of decedent sustained loss rather than decedent's next of kin, as was the case in the original complaint, and that in count II it was alleged "that the estate of decedent did sustain damages, expenses, costs, and pain and suffering as a direct and proximate cause of the foregoing acts or omissions." On August 27, 1976, plaintiff, under Supreme Court Rules 214 and 219 (Ill. Rev. Stat. 1975, ch. 110A, pars. 214, 219) sought the production by defendant of (1) all records concerning the admission, treatment and discharge of decedent; and (2) the relationship between defendant and Dr. J. Gurk. Subsequently, on September 29, plaintiff served defendant with a set of interrogatories seeking more detailed information concerning substantially the same information.

Defendant answered the third amended complaint by generally denying each of its allegations and asserting certain affirmative defenses, pertinent of which is that the action for the wrongful death of decedent was barred by the failure of the administrator to bring suit within two years of his death.

On October 26, 1976, defendant filed interrogatories (which were answered by plaintiff on December 29) and a request for an admission of facts pursuant to Rule 216 (Ill. Rev. Stat. 1975, ch. 110A, par. 216). Therein, plaintiff was asked to admit the truth of the following: (1) that she was not appointed administrator of decedent's estate until November 26, 1974, which is more than two years after his death; (2) that her first allegation that she was appointed administratrix appears in her third amended complaint filed on January 30, 1975; (3) that there are no facts to support the allegation that Dr. Gurk was its employee, agent or resident; (4) that no act or omission on its part caused or contributed to the injuries and/or damages for which the suit was brought; (5) that no expert witness will testify that any act or omission on its part or its agents or employees, caused or contributed to cause any such injuries and/or damages for which the suit was brought; and (6) that no expert witness will testify that any act or omission on its part constituted malpractice.

On January 18, 1977, the trial court denied defendant's motion for summary judgment based upon plaintiff's admission of the above facts by her failure to deny or object to them within 28 days as required by Rule 216. On the same day, the court allowed plaintiff to file an answer to the request for admissions in which she admitted that she was not appointed administrator until November 26, 1974, but neither admitted nor denied the other requests stating that they were improper.

Subsequently, the case was assigned to another judge who, on April 5, 1977, ordered plaintiff "to submit for deposition her purported experts Dr. Thapebi and Dr. Renato Tanquilut for their deposition within one week * * *." In an interrogatory answer plaintiff had previously named those doctors as her treating physicians, but to a following interrogatory concerning persons "who had been contacted for expert opinion," she made no specific answer, stating "information given in previous answers." So far as the record discloses it was on the basis of these interrogatory answers that plaintiff was ordered to submit the doctors for deposition. In the same order, defendant was directed to answer "within 28 days thereafter" interrogatories of plaintiff which had been served on defendant some six months prior.

The depositions of the doctors had not been taken when, on June 22, defendant filed its second motion for summary judgment asserting that plaintiff had informed the court on April 5, 1977, that Drs. Thapebi and Tanquilut were her expert medical witnesses; that on that date the court ordered plaintiff to submit those doctors for deposition; that defendant's attorneys had contacted those doctors and were informed that neither had agreed to testify as an expert witness as indicated in their unsworn letters to that effect which were attached as exhibits; and that in light of these letters and plaintiff's answer to its request for admissions, which was attached as an exhibit, and because plaintiff had no expert testimony she could not "maintain an action for alleged malpractice against this defendant."

In response, plaintiff asserted that statements of the physicians do not relieve them of their duty to testify under subpoena as attending physicians; that other expert testimony may be obtainable; that her case might be established by the co-defendant, Dr. Gurk, under section 60 (Ill. Rev. Stat. 1975, ch. 110, par. 60); and that, in any event, she could not produce the physicians for deposition other than by subpoenaing them — a course equally available to defendant. Plaintiff attached a letter from a Dr. John Coleman, which states in pertinent part that he had read an attached hospital transfer record of defendant pertaining to decedent and that he was prepared to state from the copy of its transfer record that defendant "should have either immediately commenced intensive care, or immediately referred the patient to a facility capable of giving intensive care" and that "such treatment might have substantially increased his chances of survival."

In addition, plaintiff moved for sanctions against defendant for answers to her interrogatories and for the production of documents she had requested in August and September, 1976, and for the failure to produce a nurse for deposition, notice for which was served in February 1977.

On June 22, 1977, defendant's motion for summary judgment was granted, and plaintiff's motion for sanctions was denied.

OPINION

The order appealed from stated that summary judgment was granted "pursuant to Supreme Court Rules 217 and 219(c)." Plaintiff contends that neither rule provides a basis for dismissal of her case. Defendant makes no attempt to support a dismissal grounded upon noncompliance with Rule 217, but maintains that dismissal was proper under Rule 219(c), which provides in pertinent part that upon the unreasonable refusal to comply with any provision of Rules 201 through 218 or the failure to comply ...


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