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Kosten v. St. Anne's Hospital

OPINION FILED APRIL 23, 1985.

HELEN KOSTEN, INDIV. AND AS SPECIAL ADM'R OF THE ESTATE OF VICTOR KOSTEN, DECEASED, PLAINTIFF-APPELLANT,

v.

ST. ANNE'S HOSPITAL ET AL., DEFENDANTS-APPELLEES (DR. THOMAS J. MOORE, DEFENDANT).



Appeal from the Circuit Court of Cook County; the Hon. Brian B. Duff, Judge, presiding.

JUSTICE BILANDIC DELIVERED THE OPINION OF THE COURT:

Helen Kosten, plaintiff-appellant, filed a medical malpractice suit against the defendants after her husband died while he was a patient at St. Anne's Hospital. The defendants-appellees, St. Anne's Hospital, Dr. Shoai and Dr. Sung, moved for summary judgment principally based on the deposition of their expert witness, Dr. Peter Rosen. The appellant filed a response to the motion that contained an affidavit by Dr. Jack Morgan, but the trial court struck the affidavit as being legally insufficient. As a result, the court found that there was no issue of material fact and granted the defendants' motion for summary judgment. The court also denied Kosten's motion to vacate the judgment. This appeal followed.

The issues before this court are: (1) whether the trial court erred in granting the defendants' motion for summary judgment; and (2) whether the trial court erred in denying Kosten's motion to vacate the judgment. For the reasons given below, we affirm the rulings of the lower court.

On May 16, 1980, the appellant's husband, the decedent Victor Kosten, was brought to the emergency room of St. Anne's Hospital. Dr. Thomas J. Moore, who is not involved in this appeal, diagnosed the decedent as having alcoholic withdrawal and delirium tremens. Drs. Moore, Sung and Shoai prescribed a course of treatment consisting of medication, hydration and application of leather straps. The doctors' orders were carried out by the staff of the hospital.

Three days later, on May 19, 1980, Victor Kosten died of acute pulmonary edema and congestion due to chronic liver disease. Helen Kosten later filed suit. She claimed that the defendant physicians had: (1) failed to diagnose the decedent's condition properly; (2) failed to treat his delirium tremens appropriately; (3) gave the decedent a fluid overload, resulting in his pulmonary edema and cardiovascular failure; (4) failed "to do the appropriate tests during fluid therapy"; and (5) failed to treat the decedent for his complications.

In her complaint against the hospital, Kosten claimed that it had failed to provide adequate supervision, failed to monitor the decedent's condition, and failed to provide adequate medical care and treatment.

During discovery, attorneys for all the parties (except Dr. Shaoi) deposed Dr. Peter Rosen in Denver, Colorado, on May 4, 1982. The deposition of Dr. Rosen in crucial because it later became the basis for the defendants' motion for summary judgment. Dr. Rosen, an expert in the treatment of alcoholism and related disorders, testified that the decedent would have died regardless of any change in treatment. Dr. Rosen testified as follows:

"Q. [By Mr. Howser, attorney for St. Anne's]: As far as the patient['s] care and management, is there anything that could have been done differently that would have in your opinion prevented this patient's death?

A. No.

Q. What is the basis for your opinion, Doctor?

A. I think that this patient underwent a down hill course from his liver failure and his alcohol withdrawal, and while I personally would have used a different hydrational schedule, I don't think that it would have made a bit of difference in this case

nor do I find the dosage schedule of drugs and medications that was used to be negligent, just different from what I would have done.

Q. [by plaintiff's attorney]: You are not saying, Doctor, that had all the things that I just mentioned, things that you would have done been done in this case, that this patient had no chance of survival?

A. That is precisely what I am saying. I think that even had more aggressive therapy been carried out for this patient, he had too many systems failing to salvage him. You might have been able to cure the pneumonia, but there is no evidence that he died of sepsis.

I don't think that you would have been able to prevent his liver failure or his cerebral failure, and I very much doubt if you would have been able to prevent his pulmonary failure even ...


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