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05/06/88 Allen Mcnichols, v. Harold J. Jersild

May 6, 1988





523 N.E.2d 1172, 169 Ill. App. 3d 791, 120 Ill. Dec. 261 1988.IL.693

Appeal from the Circuit Court of Rock Island County; the Hon. L. E. Ellison, Judge, presiding.


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


The plaintiff, Allen McNichols, brought an action to recover damages allegedly occasioned by the medical negligence of the defendants, Dr. Jersild and the Rock Island Franciscan Hospital, in treating him for fractures of both the radius and ulna in the right forearm. Both defendants filed motions for summary judgment which were granted by the trial court. The plaintiff appeals. We affirm.

The facts of the case are as follows. On July 5, 1982, the plaintiff was taken to the hospital after a motorcycle accident in which he sustained comminuted fractures of the radius and ulna in the right forearm. The following day he underwent surgery by Dr. Jersild for internal fixation of the fractured bones. Internal fixation involves the use of plates and screws to hold the fracture rigidly and eliminate, as much as possible, movement of the fractured bones. Dr. Jersild used a five-hole, semitubular metal plate to secure the plaintiff's radius bone. After surgery, a cast was also applied. On August 16, 1982, Dr. Jersild removed the cast, examined the plaintiff's right forearm and noted that the radial fracture had angulated, because the internal fixation was not holding. A new cast was applied and it was decided that the arm would be reexamined in a month. X rays taken the next month showed callus forming on the radius, so the doctor decided to allow the injury more time to heal. A shorter cast was applied. On October 13, 1982, the short arm cast was removed and more X rays were taken, which revealed good callus across both fracture sites. The angulation of the radius was still apparent and prevented the plaintiff from being able to fully pronate and supinate the forearm. On November 16, 1982, Dr. Jersild examined the plaintiff and noted that he was "doing pretty well with the arm." The plaintiff told the doctor that he had the possibility of getting a vending machine job, and the doctor told him to use the arm as tolerated but to be careful about falling down on it. The plaintiff was to return in several months for a follow-up exam, but never returned.

The plaintiff began seeing Dr. Stachniw on February 28, 1983. Dr. Stachniw found that the plaintiff had a deformity of his right forearm, that the plate secured by Dr. Jersild had bent at the fracture site, and that there was a nonunion of the radial fracture. Dr. Stachniw testified that only two things could cause a plate to bend -- trauma or a muscle pull. He operated to correct the deformity, and in so doing, removed the plate used by Dr. Jersild and replaced it with a longer, thicker, six-hole plate. After Dr. Stachniw's operation on the plaintiff, the radius still failed to unite. A third operation was performed November 15, 1983. X rays taken August 9, 1984, showed that the fracture of the radius had healed and that the plaintiff could perform most of his daily living activities without a problem. He still had limitations supinating and pronating.

The plaintiff filed a complaint against the two defendants on July 5, 1984. On December 6, 1985, the court entered an order directing the plaintiff to disclose all experts no later than 60 days from that date. Two days after the 60-day period expired, the plaintiff disclosed that Dr. Stachniw would be his expert against both Dr. Jersild and the hospital. Dr. Stachniw was deposed on May 28, 1987. In his deposition, he testified that he was not in a position to give an opinion as to whether Dr. Jersild's treatment of the plaintiff's injury fell below the requisite standard of care. He also stated that the plaintiff's attorney had not asked him to render an opinion against the hospital, and that he had no opinion concerning whether or not the hospital breached a duty owed to the plaintiff.

Thirty days after Dr. Stachniw's deposition, Dr. Jersild motioned the court for summary judgment and filed his own affidavit in support. The plaintiff filed a response to the motion and attached an excerpt from Campbell's Operative Orthopedics, a medical treatise, an affidavit of the plaintiff's attorney, and certain correspondence. The response claimed that the treatise supported the allegations of negligence made against Dr. Jersild -- that he placed at least one of the screws improperly and that he should have used a different size and type plate. The affidavit stated that the plaintiff's attorney had been surprised by the deposition testimony of Dr. Stachniw and that he believed he could obtain an expert to prove the plaintiff's case. At a later date, the plaintiff filed with the court a letter from an undisclosed, alleged medical consultant which indicated that Dr. Jersild placed one of the screws improperly and possibly chose the wrong size and type plate.

On August 21, 1987, the court granted the motion for summary judgment. The plaintiff filed a motion for reconsideration which the court denied on September 22, 1987. At that time, the trial court also entered an order granting the hospital's motion for summary judgment. The plaintiff appeals from those orders.

Initially, we will consider the hospital's motion taken with the case to dismiss the appeal as to it. The hospital argues that because the plaintiff's brief failed to address or claim as error the order of August 21, 1982, as it applies to the hospital, the plaintiff waived any issues as to the hospital. Thus, the appeal should be dismissed. We agree that by failing to raise any issues as to the hospital, the plaintiff has waived them. (107 Ill. 2d R. 341(e)(7); Shockley v. Ryder Truck Rental, Inc. (1979), 74 Ill. App. 3d 89.) However, rather than dismiss the appeal, we affirm the judgment granting the hospital's motion for summary judgment. See Shockley, 74 Ill. App. 3d 89.

The plaintiff first contends on appeal that Dr. Jersild's motion for summary judgment was improperly granted because he was not given every reasonable opportunity to establish his case after he demonstrated that he might be able to obtain a new expert witness. The plaintiff maintains that he demonstrated his ability to obtain an expert through the medical treatise and the "medical consultant's report." We disagree.

The medical treatise described the types of plates and screws that can be used for internal fixation of fractures and described the surgical technique for applying the devices. Though the treatise author preferred a dynamic compression plate over the type of plate chosen by Dr. Jersild, he stated that each device has advantages and disadvantages and that the choice of plate is determined chiefly by the training and experience of the surgeon. The author also stated that a plate that is longer than necessary is better than one that is too short, because screws inserted too closely to the fracture may split the bone as the screw is tightened and pressure is applied. The treatise was ...

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