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06/29/87 Dustin Caine James, By His v. Shig Yasunaga Et Al.

June 29, 1987





DUSTIN CAINE JAMES, by his Parents and Next Friends, Thomas

510 N.E.2d 531, 157 Ill. App. 3d 450, 109 Ill. Dec. 663 1987.IL.925

Appeal from the Circuit Court of Champaign County; the Hon. George S. Miller, Judge, presiding.


JUSTICE LUND delivered the opinion of the court. McCULLOUGH and KNECHT, JJ., concur.


Plaintiffs appeal the entry of summary judgment in favor of defendant Burnham City Hospital (Burnham) on plaintiffs' negligence cause of action. Integral to the resolution of this dispute is the timing of an expert opinion report filed the same day a hearing on the motion for summary judgment was held, but after a deadline for disclosure of expert witnesses set by court order entered pursuant to Supreme Court Rule 220 (103 Ill. 2d R. 220) had passed.

We begin by considering two motions taken with the case. First, plaintiffs move pursuant to Supreme Court Rule 329 (87 Ill. 2d R. 329) to amend the record on appeal to include an additional portion of the deposition transcript of Dr. Shig Yasunaga, a second of three named defendants (although not a party to this appeal). The record reflects inclusion of only the initial 40 pages of the Yasunaga deposition transcript as an attachment to the plaintiffs' brief in opposition to a third defendant's motion for summary judgment presented before the trial court. That brief makes express reference to statements appearing within those first 40 pages of the transcript only. Plaintiffs aver that while only a portion of the transcript appears of record, the entire deposition was before the court during the October 22, 1986, hearing on the respective motions for summary judgment. They direct this court's attention to certain pages from the remainder of the deposition transcript as examples "of the factual testimony that would be used to support the [plaintiffs'] complaint against . . . Burnham . . . for negligence on the part of the nursing staff." Those pages are attached to their brief and motion to amend on appeal.

Nothing in the record, however, indicates to our satisfaction that the remaining portion of the Yasunaga deposition was ever directed to the trial court's attention in relation to Burnham's motion. Plaintiffs never cited from the latter portions of Dr. Yasunaga's deposition at the trial level in opposition to a motion for summary judgment, although they attempt to do so before this court on appeal. We cannot consider upon review that which was not submitted to the trial court when it rendered its decision. Plaintiffs' motion to amend is therefore denied.

Second, Burnham asks this court to strike the statement of facts portion of the plaintiffs' brief. Burnham's motion raises a failure to comply with Supreme Court Rule 341, which calls for the statement of facts to "contain the facts necessary to an understanding of the case, stated accurately and fairly without argument or comment, and with appropriate reference to the pages of the record on appeal." (103 Ill. 2d R. 341(e)(6).) Burnham asserts the plaintiffs' brief is replete with argument, Conclusion, and unsupported accusations.

Counsel for the plaintiffs admitted during oral argument to a good deal of "enthusiastic writing." Indeed, some of the comments we find appearing throughout the plaintiffs' statement of facts are highly conclusory and therefore inappropriate for a proper appellate brief. To be fair, perhaps counsel is guilty only of overzealous advocacy of his clients' position. The brief did comply with Rule 341(e)(6) in other respects by making reference to the record and by setting forth other fairly innocuous representations of fact. Where none of the purported violations of supreme court rules are so flagrant as to hinder or preclude review, the striking of a brief in whole or in part may be unwarranted. (Gallo v. Henke (1982), 107 Ill. App. 3d 21, 25, 436 N.E.2d 1068, 1070.) The motion to strike is denied. In reviewing this matter we shall disregard any inappropriate statements.

What can be gleaned factually from the briefs and record is that on April 2, 1984, the minor plaintiff Dustin James was admitted to Burnham Hospital suffering from a high fever. Dustin was about two months old at the time. The child remained in the hospital until April 4, when during the early morning hours he exhibited worsening conditions. A decision was reached at around 8:30 a.m. to transfer the child to Children's Memorial Hospital in Chicago. However, the transfer was not made until some time in the afternoon. Upon his arrival at Children's Memorial, the child was diagnosed as suffering from meningitis and underwent emergency surgery. The affliction, though, left the child with a substantial if not total loss of hearing. Testimony and comment appearing in the record also indicate retardation and seizure activity are possibilities in the minor's future.

Counts III and IV of the plaintiffs' amended complaint, filed June 6, 1985, are directed at defendant Burnham. (Again, two private physicians are also named in the complaint, but they are not parties to this appeal.) Count III asserts a negligence cause of action on behalf of Dustin. The parents seek recovery under count IV. In their amended complaint, the plaintiffs essentially assert the following negligent acts or omissions on the part of the hospital staff: failure to report to hospital administration or to other physicians the lack of tests in light of the "observed classic symptoms" of the minor plaintiff which should have indicated the presence of meningitis; failure to independently review the treatment and diagnosis so as to intercede in the minor's case and provide a remedy; allowance of "grossly inadequate care and treatment" to be rendered the infant by the two named defendant physicians; failure to transfer the child sooner to a hospital with proper facilities, equipment or personnel; and failure to promptly arrange for transfer of the minor to Children's Memorial Hospital once a decision to transfer was made.

The plaintiffs' cause of action against Burnham therefore rests on whether the hospital's treatment, care, and diagnosis of the child based upon his symptoms failed to meet the appropriate standard of care, and whether any such failure proximately caused injury to the child. Of particular significance would be the applicable standard of care in relation to the delay between the worsening symptoms as noted, the decision to transfer, and the actual transfer itself.

As the case progressed, a pretrial conference was held on March 25, 1986, with all parties present. At the Conclusion of that conference, the trial court entered an order pursuant to Supreme Court Rule 220 (103 Ill. 2d R. 220) setting forth a schedule for disclosure of expert witnesses. According to that schedule, plaintiffs were permitted 60 days to disclose their experts; defendants had 60 days thereafter to disclose their experts; and the identity of rebuttal experts was to be exchanged within an additional 60-day period. The cutoff date for all discovery was set for 60 days subsequent. The cause was allotted for trial in February 1987.

No pleadings filed for the express purpose of disclosing expert witnesses are reflected in the record before us. However, an expert for the plaintiffs was deposed. There are also no motions to compel disclosure filed by these parties. Nor do any motions for sanctions due to noncompliance with the March 25, 1986, court order appear of record.

We calculate that the initial 60-day deadline for plaintiffs to disclose their expert witnesses ran on May 26, 1986. The second successive 60-day deadline for disclosure by the defendants was up on July 25, 1986. That same day, the deposition of Dr. Robert Boucek as an expert witness for the plaintiffs was taken. On September 5, 1986, Burnham filed its motion for summary judgment asserting the nonexistence of any genuine issue of material fact. ...

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