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Reed v. Bascon

OPINION FILED OCTOBER 7, 1986.

SHIRLEY REED, PLAINTIFF-APPELLANT,

v.

ROGELIO P. BASCON, DEFENDANT-APPELLEE.



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

PRESIDING JUSTICE BILANDIC DELIVERED THE OPINION OF THE COURT:

Plaintiff, Shirley Reed, brought this medical malpractice action against defendants, Norwegian American Hospital, Dr. A.O. Botuyan, and Dr. R.P. Bascon. Dr. Bascon moved for summary judgment. Dr. Bascon's motion was allowed. The sole issue on appeal is whether the trial court properly granted summary judgment in favor of Dr. Bascon.

On May 29, 1979, plaintiff saw Dr. Bascon at his office. She complained of rectal pain and bleeding. Dr. Bascon made a provisional diagnosis of hemorrhoids. He recommended immediate hospitalization at Norwegian American Hospital. After determining that she had "good insurance," he told her that a Dr. Botuyan would be consulted. He referred to Dr. Botuyan as "my assistant who would perform the surgery but I would be there." Dr. Botuyan testified in his deposition that Ms. Reed was never "transferred to me" by Dr. Bascon.

By "good insurance," Dr. Bascon meant a policy that would pay for two physicians during a hospital stay. If Ms. Reed did not have "good insurance," he would have referred her to Dr. Botuyan, a surgeon, and that would have ended his professional relationship with the patient for that illness.

Plaintiff was admitted to Norwegian American Hospital on May 31, 1979. Dr. Bascon was identified as the attending physician on each page of the hospital record. He saw plaintiff on each day of her hospitalization, including the day of surgery, although he was not present during the surgery. He was paid for each visit.

On June 1, 1979, Dr. Botuyan performed a surgical procedure known as a modified Whitehead hemorrhoidectomy. Prior to surgery, Dr. Botuyan sent a consultation report to Dr. Bascon. He testified that as the attending physician, Dr. Bascon had the option to decline the recommendation made in the report. He also testified that Dr. Bascon had the right to be present during surgery.

Plaintiff was discharged from Norwegian American Hospital on June 8, 1979. She continued to have pain and had difficulty walking. When she told Dr. Bascon of this condition, he said it was due to "poor circulation." He prescribed medication and told her to "walk around a little bit." Her condition got worse. When she was unable to reach Dr. Bascon, she went to the emergency room at Cook County Hospital. She was admitted to the hospital on June 17, 1979. She testified at her deposition that Dr. Nelson of Cook County Hospital told her Dr. Bascon and Dr. Botuyan "botched up" her case. Her condition at County was diagnosed as a veinous thrombosis and a rectal stricture. She underwent surgery during the June 17 hospital stay and again during a July 10, 1979, hospital stay at Cook County.

Plaintiff filed her complaint in February 1980. When the court considered Dr. Bascon's motion for summary judgment, it also considered the depositions of the plaintiff, a representative of Norwegian American Hospital, Dr. Bascon, Dr. Botuyan, hospital records from Norwegian American and Cook County, and certain affidavits. This appeal does not involve any of the other defendants.

I

• 1 The standard for summary judgment is well known. A motion for summary judgment should be granted where "the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Ill. Rev. Stat. 1985, ch. 110, par. 2-1005(c).) In determining whether a genuine issue as to any material fact exists, the court must construe the pleadings, depositions, and affidavits most strictly against the movant. (Johnson v. St. Bernard Hospital (1979), 79 Ill. App.3d 709, 714, 399 N.E.2d 198, appeal denied (1980), 79 Ill.2d 631.) A triable issue of fact that precludes summary judgment exists where there is a dispute as to the material facts or where, the material facts being disputed, reasonable persons might draw different inferences from the facts. (Ruby v. Wayman (1968), 99 Ill. App.2d 146, 150, 240 N.E.2d 699.) Summary judgment is "a drastic means of disposing of litigation and therefore should be allowed only when the right of the moving party is clear and free from doubt." Purtill v. Hess (1986), 111 Ill.2d 229, 240, 489 N.E.2d 862.

• 2 Generally, when one attempts to impose liability for the actions of another, one can assert four possible theories of liability: respondeat superior, agency, concerted action for a common purpose, or negligence in defendant's selection of the third person. Annot., 85 A.L.R.2d 889, 893 (1962) (and Later Case Service).

Count I alleged a cause of action against defendant Norwegian American Hospital. Counts II and III of plaintiff's second amended complaint alleged a cause of action jointly against Dr. Bascon and Dr. Botuyan. Count II was based on a negligence theory, and Count III on the theory of res ipsa loquitur. Each count alleged that "during a portion of the months of May and June 1979, the said defendants, each in his professional capacity, undertook and assumed the care and attended and treated the plaintiff." The negligence is principally based on the use of an allegedly outmoded surgical technique known as a modified Whitehead hemorrhoidectomy. Plaintiff further alleges that as a result of the negligence of Drs. Bascon and Botuyan, she had to undergo two corrective surgeries at Cook County Hospital and suffers from permanent disabilities.

The allegedly improper surgery was performed by Dr. Botuyan on June 1, 1979, at Norwegian American Hospital. The pleadings may have been drawn inartfully, which caused the trial judge to ask plaintiff's counsel, "You are suing for the surgery * * *?" Counsel responded, "[W]e are suing as to the whole results."

Under the liberal construction of pleadings on motions for summary judgment, the pleadings must be construed as alleging negligence against Dr. Bascon and Dr. Botuyan from May 1979, when plaintiff first came under their care, until June 1979, when she left them and sought professional help at Cook County Hospital. When Dr. Bascon made his provisional diagnosis of hemorrhoids, he could have tendered the patient to the exclusive care of ...


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