Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Eberle v. Brenner

OPINION FILED MARCH 4, 1985.

LELAND J. EBERLE, PLAINTIFF-APPELLANT,

v.

MARY JANE BRENNER, EX'X OF THE ESTATE OF FRANK T. BRENNER, M.D., ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Adams County; the Hon. Edward B. Dittmeyer, Judge, presiding.

JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:

Medical malpractice and products liability.

Summary judgment granted as to all defendants.

We affirm as to the doctors.

We reverse and remand as to the manufacturer and lessor.

While cleaning a spray painting gun in the course of his employment, Eberle sustained a high pressure injection of a hydrocarbon fluid into his left index finger. Eberle was immediately taken to the emergency room of Blessing Hospital. The emergency room physician consulted with Dr. Drennan, who advised the physician to instruct Eberle to come to Drennan's office on Monday morning. Later that day, Eberle, who was experiencing increasing pain, was admitted to the hospital by Dr. Brenner. Dr. Brenner performed surgery on the finger the following day, making a mid-lateral incision along the outside and inside of the finger and inserting two Penrose drains in the finger. The condition of Eberle's finger worsened. Eberle was later treated by Dr. Lewis Kinkead, who amputated the finger.

On February 23, 1982, Eberle filed a multicount complaint, alleging negligence and products liability against Binks Manufacturing Company (Binks) and Henry G. Garrolts & Sons (Garrolts), the manufacturer and lessor of the spray painting gun, and alleging malpractice against Frank T. Brenner, M.D., David B. Drennan, M.D., and Blessing Hospital. (Blessing Hospital is not involved in this appeal.)

In response to motions by Drs. Drennan and Brenner, the trial court, on November 7, 1983, in anticipation of trial set for March 1984, ordered Eberle to disclose the name and specialty of each of his experts by December 15, 1983. Thereafter Eberle disclosed the name of his medical expert, Dr. Kinkead.

Drs. Drennan and Brenner each moved for summary judgment on those counts of the complaint directed against them on the ground that the deposition of Dr. Kinkead revealed that he could not testify with any degree of medical certainty that their conduct was the cause of Eberle's injuries. Portions of Dr. Kinkead's deposition were attached to the motion. On January 24, 1984, Binks and Garrolts moved to dismiss Eberle's complaint against them on the ground that Eberle had failed to disclose any expert witnesses with respect to his negligence and products liability claims against them. In their motion, they argued that expert testimony was required to establish these claims. Eberle failed to respond to either the motion to dismiss or the motions for summary judgment.

On April 5, 1984, the trial court granted Brenner and Drennan's motions for summary judgment and denied Eberle's motion for leave to file the complete discovery deposition of Dr. Kinkead. By separate order, the trial court also granted Binks and Garrolts' motion to dismiss and dismissed the counts against them with prejudice. Eberle moved to vacate the orders entered on behalf of all defendants.

On May 24, 1984, the trial court denied Eberle's motion to vacate the summary judgment entered in favor of Drs. Brenner and Drennan. By this order, Eberle was given leave to file the complete deposition of Dr. Kinkead. On June 4, 1984, the trial court denied Eberle's motion to vacate the order dismissing his claims against Binks and Garrolts.

DRS. BRENNER AND DRENNAN

• 1 On appeal, Eberle contends that the trial court erred in granting summary judgment in favor of Drs. Brenner and Drennan because they failed to show, by affirmative evidence, that Eberle's finger would not have been saved even if his injury had received prompt, proper medical treatment. In response, the physicians argue that summary judgment was proper, given the failure of Eberle's expert to establish that their treatment or failure to treat Eberle proximately caused the loss of his finger. We agree with the physicians.

(Before we discuss the law in this case, we note that the record does not contain a copy of a report of the proceedings of the hearings on the defendants' motions to dismiss and for summary judgment. This practice should be discouraged. Transcripts of such hearings, especially in cases where the plaintiff is denied ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.