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11/16/88 Brent Smith, v. Neil Kurtzman Et Al.

November 16, 1988

BRENT SMITH, PLAINTIFF-APPELLANT

v.

NEIL KURTZMAN ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

531 N.E.2d 885, 176 Ill. App. 3d 840, 126 Ill. Dec. 258 1988.IL.1661

Appeal from the Circuit Court of Cook County; the Hon. Edwin M. Berman, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE WHITE delivered the opinion of the court. RIZZI and FREEMAN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WHITE

Plaintiff, Brent Smith, appeals from an order of the circuit court of Cook County, Illinois, granting summary judgment to defendants Neil Kurtzman, M.D., and Olga Jonasson, M.D., on count III of plaintiff's fifth amended complaint at law. We affirm.

In a previous appeal, Smith v. Kurtzman (1982), 106 Ill. App. 3d 712, 436 N.E.2d 1, we reversed an order of the circuit court which denied plaintiff leave to file count III of the fifth amended complaint at law. *fn1 We observed that in count III plaintiff alleged his reliance on affirmative, intentional misrepresentations by defendants Kurtzman and Jonasson occurring subsequent to certain acts of "malpractice" committed by the defendants in connection with a renal transplant operation performed upon plaintiff. Plaintiff further alleged that the misrepresentations caused him to forego a proper cure of his condition. We held that count III stated a cause of action for the tort of intentional misrepresentation and remanded the cause for further proceedings.

Upon remand, defendants Kurtzman and Jonasson took plaintiff's deposition. In the deposition, plaintiff testified that he first saw defendants Kurtzman and Jonasson, both doctors at University of Illinois Hospital, in 1973. Plaintiff was having chronic problems with renal failure and with his urinary tract. Defendants Kurtzman and Jonasson treated plaintiff on a "team" basis. They supervised plaintiff's treatment. However, plaintiff was seen by many residents and other doctors in the field of nephrology at University of Illinois Hospital. Plaintiff discussed the possibility of a renal transplant with defendants Kurtzman and Jonasson. They informed him of the risks involved in the transplant and of the possibility of rejection of the transplant by his body. Defendants performed the renal transplant operation on August 13, 1974. The transplanted kidney worked well the first two weeks following the operation. Thereafter, plaintiff experienced problems with the kidney. One of his doctors informed him that his body was rejecting the kidney. The doctors did not indicate to him that infection played any role in the rejection. Defendants Kurtzman and Jonasson subsequently removed the transplanted kidney.

Plaintiff testified that he was discharged from the hospital shortly after October 21, 1974. At the time of his discharge, he was told by defendant Kurtzman or defendant Jonasson that he would have to get healthy before a second attempt at a transplant could be made. Defendants Kurtzman and Jonasson also told him he should have a transplant from a cadaver because his body would be less likely to reject the transplant and because there were no readily available live donors. The choice as to whether a second transplant should be performed was left to him. Plaintiff admitted that neither defendant Kurtzman nor Jonasson told him that he could not have a second transplant or that there was a greater chance of rejection of a second transplant because of rejection of the first transplant.

Plaintiff was admitted to University of Illinois Hospital five times between November 1974 and September 1975. He testified that he could not recall any specific conversations with defendant Kurtzman or Jonasson during these admissions regarding the reasons for the failure of the transplant. Nor could he recall any specific conversations with the defendants regarding a second transplant. During that time, he was concerned with his general health rather than with a second transplant.

Plaintiff testified that he left the care of defendants Kurtzman and Jonasson in late 1975 or early 1976. He transferred to a dialysis center where he was under the care of Dr. Paul Balter, a nephrologist. In the summer of 1976, he consulted Dr. Geis, a surgeon at Loyola University Hospital (Loyola), and Dr. Hano, a nephrologist at Loyola. Dr. Geis recommended a second transplant using a kidney from plaintiff's grandmother. Dr. Geis also asked plaintiff to talk with defendant Jonasson regarding plaintiff's reasons for changing hospitals. Plaintiff testified that he then spoke with defendant Jonasson regarding a transplant from plaintiff's grandmother. Plaintiff stated that defendant Jonasson told him that his "grandmother's kidney would reject just like [his] mother's did, and that we shouldn't do it." Plaintiff did not ask defendant Jonasson the basis for her Conclusion.

Plaintiff testified that he then went home and discussed the situation with his mother. His mother called Dr. Olaf Anderson, a doctor on the team which performed the first renal transplant. His mother later related to him her conversation with Dr. Anderson. She said that Dr. Anderson told her that infection, not rejection, caused the first renal transplant to fail and that plaintiff should proceed with the second transplant. Plaintiff did not speak with Dr. Anderson directly. Plaintiff also admitted that no doctor at Loyola has ever told him that infection, rather than rejection, caused the failure of the first transplant. Further, no doctor has ever told him that the first transplant failed because of infection.

Plaintiff was admitted to Loyola in October 1976, for a workup preparatory to the transplant. The actual transplant operation took place in January 1977. He had minor bouts of rejection within six weeks of the transplant. Thereafter, his medical condition improved. Plaintiff testified that until his consultation with Dr. Geis in the summer of 1976, he had not considered having a second transplant because he was trying to regain his health. He would have waited a year or so to have a second transplant whether the transplant was from a cadaver or from his grandmother.

Plaintiff visits Dr. Williams in Phoenix, Arizona, periodically to determine whether the transplanted kidney is functioning adequately. At the time of his last visit to the doctor, plaintiff was told that his kidney was functioning normally. Plaintiff has not had any ...


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