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Hansbrough v. Kosyak





Appeal from the Circuit Court of Vermilion County; the Hon. Paul M. Wright, Judge, presiding.


Plaintiffs appeal orders of the circuit court of Vermilion County striking the affidavit of their expert witness and granting summary judgment in favor of defendants Dr. E.P. Kosyak and the Hoopeston Community Memorial Hospital. We reverse in part, affirm in part and remand.

This appeal arises out of the treatment of and surgery performed on plaintiff Janine Hansbrough. Afflicted with a history of fibrocystic disease, plaintiff sought the medical services of Dr. Franklin Roller and Dr. E.P. Kosyak, who diagnosed her condition in August 1981 as "severe fibrocystic disease." Both doctors recommended immediate surgery, advising a subcutaneous mastectomy with Silastic implants in each of her breasts.

Plaintiff entered defendant Hoopeston Community Memorial Hospital on August 24, 1981, for the recommended surgery. Upon admission, plaintiff signed a surgical consent form as requested by a hospital nurse. According to this form, the operation was to be a "simple mastectomy, bilateral, subcutaneous with immediate implant." Surgery was performed by Drs. Roller and Kosyak on August 25.

Plaintiff began to suffer complications shortly after her discharge from the hospital. Her right breast blistered; subsequently a hole in the skin appeared through which the Silastic implant was exposed. This condition was later diagnosed as resulting from necrosis or death of the skin at the site of the implant. The necrosis and resultant hole were in turn caused by the excision of too much fat under the breast skin and a concomitant lack of sufficient blood supply to the skin.

Thereafter, on October 22, 1981, plaintiff was readmitted to the hospital for the purpose of repairing the opening and ulceration of the right breast. During this surgery, the Silastic implant was removed. Treatment did not end there, however; plaintiff was once again readmitted to the hospital on December 17, 1981, to revise and improve the scar and "puckering" which remained present at the site of the previously existing hole in her right breast. Finally, on March 23, 1982, plaintiff was readmitted to the hospital to remove the 234 cc Silastic implant from her left breast and reimplant 200 cc Silastic implants in each of her breasts.

Plaintiff filed an 11-count complaint in the circuit court of Vermilion County on August 23, 1983, seeking to recover damages for alleged acts of medical malpractice during the course of treatment and surgery. Named as defendants were Dr. Roller, Dr. Kosyak, and the Hoopeston Hospital. Counts I through IV alleged various claims against Dr. Roller. Count V sounded in negligence against Dr. Kosyak; count VI alleged the theory of res ipsa loquitur against Dr. Kosyak; count VII alleged a failure by the doctor to disclose or properly inform. Counts VIII and IX were derivative claims, in which plaintiff George Hansbrough sought damages for loss of consortium against both doctors. Count X as amended on April 12, 1984, claimed, among other allegations, that the hospital negligently permitted the doctors to perform surgery when they lacked the requisite skill for such surgery. Count XI as amended contained husband George's loss of consortium cause of action against the hospital.

Defendant Hoopeston Hospital moved for summary judgment on April 25, 1984. Said motion was supported by the answers of Drs. Kosyak and Roller to interrogatories propounded by the hospital. Supplemental support for the hospital's motion was filed on June 8, 1984, accompanied by the discovery deposition of Dr. William S. Johnson. A hearing was held on June 12, 1984; the court then took the motion under advisement pending the filing of briefs and authorities by the respective parties. Both a brief and supplemental brief in support of its motion for summary judgment were filed by defendant hospital. No such pleadings were filed by the plaintiffs.

The motion for summary judgment remained under advisement when a pretrial conference was held October 19, 1984. Under the pretrial order as issued, plaintiffs were instructed to disclose the names of their expert witnesses by December 14, 1984. No such disclosure of expert witnesses was made by plaintiffs during this time.

Hoopeston Hospital filed a supplemental motion for summary judgment on March 11, 1985. On March 12, defendant Dr. Kosyak filed his motion for summary judgment accompanied by his own affidavit and deposition transcript.

Plaintiffs filed their first response to defendants' motions for summary judgment on March 27, 1985. The affidavit of Dr. T. Shelly Ashbell, plaintiffs' expert, was presented at this time. The affidavit essentially stated that Dr. Ashbell had reviewed the record of medical care and surgery performed on plaintiff and expressed his opinion, based upon personal knowledge, that the doctors lacked sufficient training, knowledge, and experience to perform the surgery in question. Dr. Ashbell's affidavit continued that, according to the "standard of care nationwide, and in Illinois," such an operation should be performed by "surgeons trained in plastic and reconstructive surgery." Accordingly, the standard of care did not permit a general surgeon to perform this operation in a non-emergency situation. The affidavit further recounted Dr. Ashbell's belief that Hoopeston Hospital breached its applicable standard of care by allowing the doctors in question to perform this surgery without at least requiring supervision by a qualified plastic surgeon. Based upon the deposition testimony of Dr. Kosyak and the consent form signed at the hospital, the affidavit concluded that the plaintiff may not have chosen to undergo this surgery had she been properly and adequately informed of the risks and alternatives, and that in fact performance of the subcutaneous mastectomy left no fat under the skin, deprived the skin of its circulation, and caused the resultant ulceration.

The next day, on March 28, 1985, plaintiff filed her own affidavit in opposition to defendants' motion for summary judgment. On April 22, defendant hospital filed a motion to strike the affidavit of plaintiffs' expert due to untimely submission and other technical defects.

Further hearings on the defendants' motions were held on April 26 and June 4. On June 7, 1985, the trial court entered an order striking the affidavit of Dr. Ashbell and granting defendant Hoopeston Hospital's motion for summary judgment. A second order was entered by the court on June 12 granting defendant Dr. Kosyak's motion to strike the Ashbell affidavit "as there [was] no testimony with regard to the appropriate standard of care," and entering summary judgment against plaintiffs. (At no time did the third defendant, Dr. Roller, present any motion for summary judgment; hence, the cause of action against him remains pending below.) This matter was then certified for interlocutory appeal by the trial court pursuant to Illinois Supreme Court Rule 304(a) (87 Ill.2d R. 304(a)).


• 1 Our initial inquiry necessarily concerns whether the trial court properly struck the affidavit of the plaintiff's expert, for without it, plaintiff has no viable claim against either the doctor or the hospital. One element in a cause of action for medical malpractice is the standard of care by which the defendant's conduct is to be measured. (Thompson v. Webb (1985), 138 Ill. App.3d 629, 486 N.E.2d 326.) The plaintiff must generally establish the standard of care, with limited exceptions, through expert testimony. (Walski v. Tiesenga (1978), 72 Ill.2d 249, 255-56, 381 N.E.2d 279, 282; Lebrecht v. Tuli (1985), 130 Ill. App.3d 457, 471, 473 N.E.2d 1322, 1332.) Plaintiff must then prove by affirmative evidence that, judged in light of this standard, the defendant was unskillful or negligent and that his want of skill or care caused injury to the plaintiff. (Walski v. Tiesenga (1978), 72 Ill.2d 249, 381 N.E.2d 279; Borowski v. Von Solbrig (1975), 60 Ill.2d 418, 328 N.E.2d 301.) Where a plaintiff fails to offer such expert testimony on the applicable standard of care, his action may be dismissed. (Mielke v. Condell Memorial Hospital (1984), 124 Ill. App.3d ...

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