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12/10/87 Mary Solon Et Al., v. Mukund Godbole

December 10, 1987





516 N.E.2d 1045, 163 Ill. App. 3d 845, 114 Ill. Dec. 890 1987.IL.1831

Appeal from the Circuit Court of Bureau County; the Hon. James J. Wimbiscus, Judge, presiding.


JUSTICE SCOTT delivered the opinion of the court. WOMBACHER and HEIPLE, JJ., concur.


This is a medical malpractice action brought by plaintiffs Mary Solon and Eugene Solon against defendant, Mukund Godbole, M.D. The trial court granted defendant's motion for summary judgment and denied plaintiffs' motion to vacate summary judgment. Plaintiffs now appeal both trial court rulings in favor of defendant. No questions are raised on the pleadings.

The issue presented is whether the trial court erred in granting defendant's motion for summary judgment and in denying plaintiffs' motion to vacate summary judgment. In particular we must decide the following: (1) whether plaintiffs' objections to defendant's motion for summary judgment or (2) whether plaintiffs' proposed expert's letter and subsequent affidavit were sufficient to comply with Supreme Court Rule 191(a) (107 Ill. 2d R. 191(a)), thereby creating a genuine issue of material fact.

According to plaintiffs' complaint, Mary Solon was referred to Dr. Godbole on May 5, 1983, for a condition later diagnosed as "well differentiated squamos cell carcinoma of the left upper lobe." Dr. Godbole performed a left upper lobectomy on May 10, 1983. Dr. Godbole saw Mary Solon for follow-up care and treatment on May 27, 1983, July 6, 1983, October 10, 1983, November 7, 1983, and January 20, 1984. On the October 10, 1983, visit, Dr. Godbole's notes referred to a "swollen area" on plaintiff's left chest wall. A biopsy performed on January 24, 1984, confirmed that the cancer had metastasized to the left chest wall. Mary Solon was subsequently seen at the Mayo Clinic, where surgery was performed for removal of the cancer.

On May 10, 1985, the plaintiffs filed a medical malpractice complaint against defendant. The gist of the complaint is that defendant was negligent in his patient's follow-up care in that he did not take the proper measures necessary to diagnose her condition and rule out a metastasis to her left chest wall until January 24, 1984, and that a reasonably prudent physician or surgeon practicing in the Princeton, Illinois, area would have done a biopsy much sooner than did defendant.

On July 8, 1985, the trial court entered a certification order whereby plaintiffs were required to complete written discovery by October 14, 1985, to depose all parties and non-experts by December 30, 1985, and to disclose their experts by January 30, 1986. A second certification order was filed January 23, 1986, extending the time for the parties to be deposed and further requiring plaintiffs to identify their experts by July 30, 1986. Plaintiffs failed to disclose any expert before July 30, 1986.

On September 17, 1986, the defendant moved for summary judgment on grounds that by failing to disclose an expert, the plaintiffs had not established the requisite standard of care. Attached to the motion was an affidavit of defendant which outlined the qualifications of the defendant, the care provided to Mary Solon, and further stated that such care was in keeping with the standard which would be used by a surgeon in similar cases in the Princeton, Illinois, and Bureau County medical community.

Plaintiffs filed their objections to motion for summary judgment, stating generally that (1) defendant's affidavit was incomplete for failing to mention his office notes of October 10, 1983, wherein the statement "rule out metastatic area to chest wall" was written in reference to a painful lump; (2) it is possible for plaintiff to extract enough admissions from defendant under section 60 (Ill. Rev. Stat. 1975, ch. 110, par. 60, now Ill. Rev. Stat. 1985, ch. 110, par. 2-1102) cross-examination to meet the requirement of expert testimony; (3) it was common knowledge among lay persons that a lump should be biopsied to determine whether it was cancerous and that many cancer patients have a recurrence of cancer shortly after it is initially cured; and (4) Dr. Godbole's own notes indicate negligent conduct in waiting until January 24, 1984, to perform the biopsy and that a lay person could readily identify the negligence. Plaintiffs attached defendant's office notes of October 10, 1983, to their objections.

A hearing was held on the motion for summary judgment on October 17, 1986, and the trial court took the matter under advisement. Plaintiffs subsequently filed a motion for continuance and extension of time to obtain an expert and stated therein that plaintiffs had been relying on potential co-counsel in Chicago to supply plaintiffs' expert up until October 16, 1986. Immediately thereafter plaintiffs began searching for an expert and on October 27, 1986, received a favorable reply from Dr. Howard L. Ravenscraft (Dr. Ravenscraft) for the purpose of giving expert testimony in the case. Attached to plaintiffs' motion was the letter from Dr. Ravenscraft and plaintiffs' counsel's affidavit stating that he had relied upon potential co-counsel for supplying an expert witness and shortly after potential co-counsel would not do so, Dr. Ravenscraft was contacted.

Defendant's response to plaintiffs' motion for continuance and extension of time to obtain an expert stated generally that plaintiffs were not diligent in obtaining an expert, that plaintiffs' proposed expert was unqualified to testify as to the appropriate standard of care to be used by defendant, and ...

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