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09/22/88 Shirley Reed, v. Natividad Bascon

September 22, 1988





530 N.E.2d 417, 124 Ill. 2d 386, 125 Ill. Dec. 259 1988.IL.1406

Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County; the Hon. Brian B. Duff, Judge, presiding.


JUSTICE RYAN delivered the opinion of the court. JUSTICE STAMOS took no part in the consideration or decision of this case.


In this medical malpractice action, the plaintiff, Shirley Reed, sued Dr. R. P. Bascon, Dr. A. O. Botuyan, and Norwegian American Hospital in the circuit court of Cook County. The suit is based on complications following surgery by Dr. Botuyan. Dr. Bascon, a general practitioner, had referred the plaintiff to Dr. Botuyan, a surgeon. Dr. Bascon was not present during the surgery; however, he was identified as the attending physician on each page of plaintiff's hospital record, and saw the plaintiff each day of her hospital stay following surgery. Dr. Bascon's motion for summary judgment was granted by the trial court. The appellate court reversed. (148 Ill. App. 3d 389.) We granted Dr. Bascon's petition for leave to appeal. (107 Ill. 2d R. 315.) This case only involves the cause of action against Dr. Bascon and whether the trial court properly granted summary judgment in his favor.

On May 29, 1979, the plaintiff saw Dr. Bascon concerning rectal pain and bleeding. Dr. Bascon made a provisional diagnosis of hemorrhoids and suggested that an operation might be necessary. Dr. Bascon recommended immediate hospitalization.

On May 31, 1979, the plaintiff was admitted to Norwegian American Hospital. Because Dr. Bascon was a general practitioner, he referred the plaintiff to Dr. Botuyan, a board-certified surgeon, to determine if the plaintiff needed surgery. After Dr. Botuyan performed a proctosigmoidoscopy, he concluded that a hemorrhoidectomy was necessary. On June 1, 1979, Dr. Botuyan performed a modified Whitehead hemorrhoidectomy. Although Dr. Bascon saw a copy of the consultation report prior to surgery, he did not select the surgical procedure. As the attending physician, Dr. Bascon saw the plaintiff each day of her hospitalization but, as noted, was not present during the surgery. Dr. Bascon charged a fee for each visit he made to the plaintiff during her hospitalization; however, he did not charge or receive a fee for the surgery.

On June 8, 1979, the plaintiff was discharged from the hospital. She continued having pain following hospitalization, and also was having difficulty walking. Dr. Bascon, as the post-operative attending physician, informed the plaintiff that the difficulty with her leg was due to "poor circulation." He prescribed medicine and told the plaintiff to "walk around a little bit." Because she was unable to reach Dr. Bascon later and her condition had worsened, she went to Cook County Hospital emergency room. The plaintiff subsequently underwent surgery at Cook County Hospital on June 17 and July 10, 1979, for her condition, which was diagnosed as a veinous thrombosis and a rectal stricture.

Dr. Botuyan admitted in his deposition that he did not check current medical literature dealing with the modified Whitehead procedure until he was sued in this case. Dr. Botuyan discontinued performing the modified Whitehead hemorrhoidectomy upon discovering that the procedure was outmoded. The first count of plaintiff's second amended complaint is against Norwegian American Hospital. Counts II and III allege a cause of action jointly against Dr. Bascon and Dr. Botuyan. The second count was based on negligence and the third count was based on res ipsa loquitur.

In granting Dr. Bascon's motion for summary judgment, the trial court relied on Beckwith v. Boynton (1924), 235 Ill. App. 469, in holding that the attending physician could not be strictly or vicariously liable for the surgical procedure selected by the specialist, Dr. Botuyan. The trial court concluded that the plaintiff's cause of action was based upon the choice of surgical procedure and the surgery itself, because in her complaint the plaintiff alleged that the negligence occurred on June 1, 1979, the date of the surgery. Additionally, the trial court concluded that summary judgment was proper because there was not any allegation or proof of independent negligence on the part of Dr. Bascon.

The appellate court acknowledged that the pleadings were "drawn inartfully." However, the court concluded that because pleadings must be construed liberally on a motion for summary judgment, they "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." (148 Ill. App. 3d at 392.) The appellate court, therefore, reversed and found that a genuine issue of material fact existed as to: (1) whether Dr. Bascon was in active control of plaintiff's entire treatment; (2) whether there was concerted action between Dr. Bascon and Dr. Botuyan in their treatment of the plaintiff; and (3) whether Dr. Bascon was negligent in selecting Dr. Botuyan as the surgeon because he had used the outmoded modified Whitehead procedure. The appellate court expressed another concern which, in an adversary proceeding, we consider irrelevant, stating:

"Granting summary judgment in favor of Dr. Bascon, on the basis of what happened on June 1, 1979, would leave the plaintiff at the mercy of any defense that may be raised by the surgeon. With Dr. Bascon safely out of the case, there would be a possibility of the surgeon acknowledging that although the surgical procedure was outmoded, it did not cause the injuries about which plaintiff complains. The blame could possibly be shifted to negligent post-operative care by Dr. Bascon." 148 Ill. App. 3d at 393.

Dr. Bascon, as petitioner, asserts that the appellate court decision radically expands the potential liability in medical malpractice actions for attending physicians. Moreover, Bascon contends that the appellate court's decision is contrary to long-standing Illinois law. Bascon submits that an attending physician can be held vicariously or jointly liable for the malpractice of a surgeon only if there is an agency relationship between the attending physician and the surgeon, or the attending physician participated in the selection of the surgical procedure and has the training or expertise to evaluate the selection and the manner the procedure was carried out, or if the attending physician charged or received a fee for the surgery itself. (See Beckwith v. Boynton (1924), 235 Ill. App. 469.) The defendant further asserts that persuasive parallel authority supports the rule in Illinois that to be vicariously or jointly liable for the malpractice of a specialist to whom an attending physician has referred a patient, the attending physician ...

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