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Purtill v. Hess

OPINION FILED FEBRUARY 6, 1986.

CAROL L. PURTILL, APPELLANT,

v.

J.H. HESS ET AL., APPELLEES.



Appeal from the Appellate Court for the Fourth District; heard in that court on appeal from the Circuit Court of Champaign County, the Hon. Creed D. Tucker, Judge, presiding.

JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:

This medical malpractice action was instituted by the plaintiff, Carol L. Purtill, for damages occasioned by the alleged negligence of the defendants, George Elfers, M.D., J.H. Hess, M.D., and Gibson Community Hospital, in the care, diagnosis, and treatment of the plaintiff during and following the birth of her child. The circuit court of Champaign County granted motions for summary judgment in favor of defendants Elfers and Gibson Community Hospital, on the ground that plaintiff's complaint was barred by the applicable statute of limitations. The circuit court also entered summary judgment in favor of defendant Hess on the basis of plaintiff's failure to affirmatively demonstrate the ability to offer competent expert testimony at trial concerning the applicable standard of medical care. (See 87 Ill.2d R. 191; Bartimus v. Paxton Community Hospital (1983), 120 Ill. App.3d 1060.) The appellate court affirmed the circuit court's entry of summary judgment in favor of the defendants in an unpublished Rule 23 order (87 Ill.2d R. 23). (128 Ill. App.3d 1162.) We granted plaintiff's petition for leave to appeal (94 Ill.2d R. 315). After oral argument, a brief amicus curiae was filed on behalf of Dr. Hess by the Illinois State Medical Society. This appeal involves only defendant Hess. No question has been raised in this court concerning the ruling of the trial and appellate courts on the statute of limitations issue.

On July 3, 1979, plaintiff gave birth to a child at Gibson Community Hospital in Gibson City. Dr. George Elfers, a licensed Illinois physician and surgeon practicing in McLean County, in the course of delivering the baby, performed a midline episiotomy, a surgical incision of the vulva. (Stedman's Medical Dictionary 474 (5th ed. 1982).) This incision allows delivery to occur without the tearing of the tissues which support the rectum and bladder, and prevents excessive stretching as the newborn passes through the vagina. 5B Lawyers' Medical Cyclopedia of Personal Injuries & Allied Specialties sec. 37.7d (1972).

While performing the episiotomy, however, Dr. Elfers allegedly lacerated or tore the tissue between plaintiff's rectum and vagina. During the weeks following the delivery, plaintiff was examined by her family physician, Dr. J.H. Hess, a licensed Illinois physician practicing in Rantoul, in Champaign County. Dr. Hess' medical records indicated that he examined plaintiff in the area of her vagina and in the area of the episiotomy on July 9, August 9, and August 19 of 1979. Dr. Hess noted in his records that the scar left by the episiotomy seemed to be healing satisfactorily.

Approximately four months following the delivery, plaintiff began to experience the passing of fecal matter and flatulence from her vaginal opening. Plaintiff sought the medical advice of Dr. Hess. There is conflicting evidence in the record as to the exact number of occasions plaintiff consulted Dr. Hess. Plaintiff testified that she sought Dr. Hess' medical advice either by phone or by office visit on at least four occasions. Dr. Hess' notes and medical records indicated that the plaintiff first consulted him on September 19, 1980. In any event, the record established that between October of 1979 and February of 1981, plaintiff sought the medical advice of Dr. Hess, complaining only of vaginal irritation and discharge. Dr. Hess diagnosed plaintiff's condition during this period as a yeast infection and treated her with a topical ointment and vaginal suppositories. Plaintiff's problem, however, did not abate, and her condition deteriorated, proving particularly bothersome during her menstrual period.

Finally, on February 12, 1981, plaintiff informed Dr. Hess that she was passing fecal matter and flatulence through her vaginal opening. After a vaginal examination, Dr. Hess diagnosed the existence of a rectovaginal fistula at the site of the episiotomy performed by Dr. Elfers. A rectovaginal fistula is an abnormally formed canal or passage leading from the rectum to the vagina. (Stedman's Medical Dictionary 530-31 (5th ed. 1982).) A fistulous opening is formed by "the failure in the healing process of a penetrating wound." (2 Attorneys' Dictionary of Medicine and Word Finder (MB) No. 609, at F-52 (1984).) Dr. Hess referred plaintiff to Dr. Lewis Trupin, a licensed Illinois gynecological specialist practicing in Champaign. Dr. Trupin examined plaintiff in June of 1981. Plaintiff subsequently underwent surgery at Burnham City Hospital in July of 1981. Dr. Trupin repaired the fistula and the third degree laceration in her rectal tissue allegedly resulting from an obstetrical injury during the episiotomy and delivery of plaintiff's child.

On February 14, 1983, plaintiff filed a three-count complaint in the circuit court of Champaign County, seeking damages for injuries allegedly sustained by her as a result of negligent medical diagnosis and treatment by the defendants. Count I of the complaint, which was directed against Dr. Hess, alleged that he negligently failed to properly diagnose the presence of, or the formation of, two rectovaginal fistulae following child delivery on July 3, 1979, failed to use proper techniques in the presence of plaintiff's complaints, delayed in taking necessary steps to arrive at a proper diagnosis of plaintiff's condition of ill-being, and failed to refer plaintiff to a properly qualified gynecological specialist capable of diagnosing her condition. Count II was directed against Dr. Elfers, and count III was against the hospital. The trial court granted summary judgment in favor of the defendants as to counts II and III, holding that the statute of limitations had run. The appellate court affirmed. That issue has not been raised in this court.

On September 8, 1983, Dr. Hess filed a motion for summary judgment pursuant to section 2-1005 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2-1005), on the ground that there was no genuine issue as to any material fact in the action and that he was entitled to summary judgment as a matter of law. The motion was supported by his own affidavit. The affidavit set forth the specific instances in which Dr. Hess diagnosed and treated plaintiff for gynecological problems following the delivery of her child in July of 1979. The affidavit stated that the plaintiff did not present any symptoms suggestive of a rectovaginal fistula until February 12, 1981. After maintaining that Dr. Hess was familiar with the standard of care applicable to general practitioners in the Rantoul area for the years 1979 through 1981, the affidavit asserted that because an examination for a rectovaginal fistula is quite painful, the standard of care in Rantoul did not require a general practitioner to perform such an examination absent symptoms suggestive of that disorder. Finally, the affidavit concluded with an opinion, to a reasonable degree of medical certainty, that Dr. Hess' diagnosis and treatment of plaintiff's gynecological problems conformed to the applicable standard of care for general practitioners in the Rantoul area in the years 1979 through 1981.

Dr. Hess' motion for summary judgment dealt solely with his freedom from negligence, and it did not raise the issue that plaintiff's complaint was filed on February 14, 1983, two years and two days following the discovery of Dr. Hess' alleged negligence. However, on September 9, 1983, Dr. Hess filed a supplement to his previously filed motion for summary judgment raising the statute of limitations defense. This issue was resolved by the circuit court in favor of plaintiff upon explanation by plaintiff's counsel that the statute of limitations tolled on February 12, 1983, a Saturday. Pursuant to section 1.11 of the act on statutory construction, the last day for filing the complaint was extended to Monday, February 14, 1983. (See Ill. Rev. Stat. 1983, ch. 1, par. 1012.) Plaintiff's filing against Dr. Hess was within the limitation period.

In response to Dr. Hess' motion for summary judgment, plaintiff filed objections based on a counteraffidavit of William D. Matviuw, M.D. The affidavit stated that if called as a witness in the case, Dr. Matviuw could and would testify competently to matters in his affidavit. The affidavit further stated that he was familiar with "the minimal standards of acceptable medical care, diagnosis, and treatment for Carol L. Purtill's condition of ill-being as it existed" and that those minimal standards "were uniform throughout the United States wherever patients similar to Carol L. Purtill were examined, cared for and treated for the condition of ill-being similar to that suffered by Carol L. Purtill." After indicating that he had reviewed plaintiff's medical records pertaining to the diagnosis, care, and treatment plaintiff received from Dr. Hess between 1979 and 1981, the affidavit offered Dr. Matviuw's expert opinion, to a reasonable degree of medical certainty, that such diagnosis, care, and treatment were not in accordance with these uniform minimum standards and that this deviation from the accepted standard of care resulted in injury to the plaintiff.

Finally, the affidavit set forth specific instances in which Dr. Matviuw contended that Dr. Hess was negligent in the diagnosis and treatment of Carol Purtill. Dr. Matviuw was critical of Dr. Hess because Dr. Hess failed to refer the plaintiff to a properly qualified gynecological specialist, failed to take proper diagnostic steps to learn the precise nature of plaintiff's condition of ill-being in view of her recurring complaints of vaginal irritation and discharge, and failed to diagnose the presence of or formation of two rectovaginal fistulae during the several vaginal examinations he performed upon plaintiff between July 3, 1979, and February 12, 1981. Dr. Matviuw was of the medical opinion that such fistulae tracts were discernable by careful vaginal examination. Plaintiff thereafter moved to strike Dr. Hess' motion for summary judgment on January 31, 1984, contending that Dr. Matviuw's counteraffidavit created a genuine issue of material fact regarding the diagnosis, care, and treatment rendered to plaintiff by Dr. Hess.

Dr. Hess filed a motion to strike Dr. Matviuw's counteraffidavit. Dr. Hess objected on the ground that Dr. Matviuw was not competent to testify as an expert witness because he did not have sufficient knowledge of the applicable standard of medical care. Dr. Hess argued that the counteraffidavit was insufficient under Bartimus v. Paxton Community Hospital (1983), 120 Ill. App.3d 1060, because it failed to state specifically that Dr. Matviuw was familiar with the standard of practice in Rantoul, Illinois, the community in which Dr. Hess practiced, or in a similar community. Since Dr. Matviuw's counteraffidavit did not suffice to oppose his affidavit in support of his motion for summary judgment, Dr. Hess urged the circuit court to strike Dr. Matviuw's counteraffidavit and to enter summary judgment in his favor.

The circuit court granted Dr. Hess' motion for summary judgment and struck the counteraffidavit of Dr. Matviuw. The circuit court allowed plaintiff 14 days to provide a legally sufficient affidavit in opposition to Dr. Hess' affidavit. Rather than filing a new affidavit, however, plaintiff filed a motion to reconsider. In that motion, plaintiff's counsel, after listing the communities in which Dr. Matviuw maintained medical offices, attempted to establish by way of population census data that those medical communities resembled Rantoul, thereby objectively qualifying Dr. Matviuw's familiarity with the standard of care in similar communities. The circuit court denied plaintiff's motion to reconsider and entered a written order denying plaintiff's objections to Dr. Hess' motion for summary judgment, plaintiff's motion to strike Dr. Hess' motion, and plaintiff's motion to reconsider. The circuit court in turn granted Dr. Hess' motion to strike Dr. Matviuw's counteraffidavit and Dr. Hess' motion for summary judgment. Relying on Bartimus, the circuit court concluded that plaintiff had failed to file a sufficient affidavit which averred facts showing affirmatively that Dr. Matviuw was familiar with the standards of medical care in Rantoul, ...


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