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08/04/87 Franklin Addison, v. James M. Whittenberg Et Al

August 4, 1987

FRANKLIN ADDISON, PLAINTIFF-APPELLANT

v.

JAMES M. WHITTENBERG ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

512 N.E.2d 76, 159 Ill. App. 3d 585, 111 Ill. Dec. 172 1987.IL.1116

Appeal from the Circuit Court of Randolph County; the Hon. Jerry D. Flynn, Judge, presiding.

APPELLATE Judges:

JUSTICE HARRISON delivered the opinion of the court. KASSERMAN and WELCH, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HARRISON

Franklin Addison filed a medical malpractice action in the circuit court of Randolph County against James W. Whittenberg, M.D., Randolph Hospital, d/b/a Chester Memorial Hospital, and Shoss Radiological Group, Inc. Motions for summary judgment were filed on behalf of all three defendants, and the trial court entered summary judgment in favor of each of the defendants. Plaintiff appeals the granting of summary judgment in favor of each defendant, and we reverse and remand this cause to the trial court for further proceedings for the reasons which follow.

The gravamen of plaintiff's complaint is that each of the defendants either failed to discover or failed to discover and treat a broken vertebra in plaintiff's neck when he was admitted to Chester Memorial Hospital on or about January 17, 1981, after being involved in an automobile accident. The issue presented for review is whether there was a genuine issue of material fact to prevent the entry of summary judgment in favor of defendants. Under section 2-1005(c) of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-1005(c)), summary judgment is proper only "if the pleadings, depositions and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." The purpose of summary judgment is not to try an issue of fact, but determine whether a triable issue of fact exists. (Miller v. Smith (1985), 137 Ill. App. 3d 192, 196, 484 N.E.2d 492, 495-96.) Although summary judgment is recognized as a salutary procedure in the administration of Justice, it should be granted with caution so that the right to trial of conflicting facts and inferences is not usurped. Only when 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 movant is entitled to judgment as a matter of law should summary judgment be awarded. (Elliot v. Chicago Title Insurance Co. (1984), 123 Ill. App. 3d 226, 231, 462 N.E.2d 640, 644.) Moreover, because it is a drastic remedy, summary judgment should not be granted unless the movant's right to such relief is clear and free from doubt. See Miller v. Smith, 137 Ill. App. 3d 192, 196, 484 N.E.2d 492, 496.

In support of their motions for summary judgment, defendants relied upon plaintiff's responses to interrogatories posed by defendants pursuant to Supreme Court Rule 220 (107 Ill. 2d R. 220), evidence depositions of plaintiff's experts, and depositions of Dr. Whittenberg and Dr. Shoss of Shoss Radiological Group. Paragraph (c) of Rule 220 provides in pertinent part:

"(1) Upon interrogatory propounded for that purpose, the party retaining or employing an expert witness shall be required to state:

(i) the subject matter on which the expert is expected to testify;

(ii) his Conclusions and opinions and the bases therefor;

(iii) his qualifications.

(3) A party shall be required to seasonably supplement his answers to interrogatories propounded under this rule as additional information becomes known to the party or his counsel." (107 Ill. 2d R. 220(c).)

In answering supplemental interrogatories propounded pursuant to paragraph (c) of Rule 220, plaintiff indicated that he reasonably contemplated that five expert witnesses would testify at trial, to wit: Dr. R. P. Baysinger, Dr. Fred Knoke, Dr. M. Afzal Riaz, Dr. William S. Coxe, and Dr. Yoon Chan Lee. Plaintiff's counsel later sent a letter to all parties explaining that he would not be using Dr. Coxe as an expert witness in the case. Plaintiff further answered interrogatories by stating that the experts would testify to the condition of Frank Addison upon the admission to the Veterans Administration Hospital in Marion on January 20, 1981, and to the Veterans Administration Hospital in St. Louis on January 22, 1981, and thereafter, and possible cause of his injury. In answer to the interrogatory regarding each expert's opinion and basis therefor, he stated, "Frank Addison upon admission into V-A Hospital in Marion had a fracture of the cervical spine based upon examination of x-rays and examination of patient and fracture could have been caused by auto accident. Frank Addison, upon admission into V-A Hospital in St. Louis had a fracture of the cervical spine based upon x-rays and examination of patient and fracture could have been caused by accident." Pursuant to stipulation by all parties, an order was entered by the trial court requiring plaintiff to disclose all expert witnesses within 30 days and to make them available for deposition and providing further that the parties would be prohibited from calling at trial any expert witness who was not disclosed. Evidence depositions of all plaintiff's experts were taken by the plaintiff and none of the experts had any criticism of defendants' treatment of plaintiff, nor did they examine any records including X rays of plaintiff from Chester Memorial Hospital. Plaintiff's experts did state that plaintiff had a fracture of the cervical spine when he was examined at the Veterans Administration Hospital in Marion on January 20, 1981, the same day he was released from Chester Memorial Hospital and three days after X rays had been taken at Chester. Portions of the depositions of Dr. Whittenberg and Dr. Shoss were also filed by defendants. Dr. Whittenberg stated that the X rays taken on January 17, 1981, at Chester Memorial Hospital, as viewed by him at his deposition, ...


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