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11/28/88 Craig A. Johnson, Adm'r of v. William D. Matviuw

November 28, 1988





531 N.E.2d 970, 176 Ill. App. 3d 907, 126 Ill. Dec. 343 1988.IL.1707

Appeal from the Circuit Court of Cook County; the Hon. Willard J. Lassers, Judge, presiding.


JUSTICE MURRAY delivered the opinion of the court. LORENZ, P.J., concurs. JUSTICE PINCHAM, specially Concurring in part and Dissenting in part.


Plaintiff Craig A. Johnson, as administrator of the estates of his wife, Connie Johnson, and stillborn daughter, Bethany, brought a medical malpractice suit against defendants, William D. Matviuw, M.D., Richard F. Whitlock, M.D., Joong H. Choh, M.D., Jae Eun Han, M.D., and Sherman Hospital in Elgin (Sherman). This appeal involves the granting of summary judgment to Dr. Matviuw, a physician with staff privileges at Sherman. The suit is still pending in the trial court against the remaining defendants. In addition to this appeal on the merits, this court also has before it plaintiff's motion to supplement the record on appeal with transcripts of depositions of two plaintiff experts, taken six weeks after summary judgment was entered, and also defendant's motion to strike plaintiff's briefs or, alternatively, portions thereof relating to the experts' depositions. We agreed to rule on these motions in this opinion. The following facts are relevant to this appeal.

On April 4, 1983, Connie Johnson was admitted to Sherman Hospital under the care of her physician, Dr. Han, for an evaluation of complaints of numbness and pain in her lower right leg, hyperventilation, and chest pain. At the time she was 37 weeks pregnant with an expected delivery date of April 8. Around 7:30 p.m. on April 9, Connie Johnson experienced respiratory and cardiac arrest. A "Code Blue" was sounded, but Dr. Matviuw, who was attending to one of his patients in the hospital, was summoned by nurses calling down a hallway. Upon going into Johnson's room, Dr. Matviuw determined the patient was in apparent respiratory arrest. He inserted an endotracheal tube and began respiratory and cardiac resuscitation at approximately 7:33 p.m. A respiratory care team arrived and it, along with several nurses, also assisted the patient. The patient's attending physician, Dr. Han, arrived at 7:50 and declared that he would take over and needed no further assistance from Dr. Matviuw. At 8:20 resuscitation efforts were stopped and Connie Johnson and her child were pronounced dead. An autopsy revealed that Connie's death was caused by a pulmonary embolism and her child, Bethany, died from a lack of oxygen.

In March 1985, plaintiff sued the aforementioned defendants contending that their negligence caused the deaths. With respect to Dr. Matviuw, his complaint alleges that the doctor was careless and negligent in his treatment of the fetus, Bethany, in that he (1) failed to recognize the complications and life-threatening condition of the fetus; (2) failed to arrange for fetal monitoring; (3) failed to order cardiopulmonary resuscitation of Connie Johnson so as to preserve the fetus' well-being; and (4) failed to perform a cesarean delivery of the fetus. Dr. Matviuw answered denying all of the allegations.

On October 1, 1986, Dr. Matviuw filed a motion for summary judgment accompanied by his affidavit wherein he stated that he had met the applicable standard of care in rendering emergency treatment to Connie Johnson and her fetus, such emergency care being his sole contact with decedent and for which he charged no fee. He also asserted that no civil liability could be imposed upon him pursuant to section 2a of the Medical Practice Act (Ill. Rev. Stat. 1985, ch. 111, par. 4404 (now Ill. Rev. Stat. 1987, ch. 111, par. 4400-30)), commonly known as the Good Samaritan statute. The motion stated that since no expert testimony or evidence of negligence had been presented by plaintiff, there was no material fact issue and summary judgment was appropriate.

On February 13, 1987, Dr. Matviuw was deposed by plaintiff, who subsequently on March 12 responded to the motion for summary judgment and filed a motion to strike Dr. Matviuw's affidavit. At a pretrial conference on March 12, plaintiff disclosed one of his expert witnesses. On March 20, Dr. Matviuw filed a reply to plaintiff's motion to strike and filed a complete transcript of his deposition in support of his motion for summary judgment. In compliance with a pretrial discovery order, plaintiff on May 1 indicated that he had identified his expert witnesses and would take their depositions in California on August 19.

A hearing was held on the summary judgment motion and the motion to strike on July 1, 1987. The trial court denied plaintiff's motion to strike and granted summary judgment in Dr. Matviuw's favor. In so doing, the court denied plaintiff's request for a continuance until after his experts were deposed, noting that the request was untimely since the summary judgment motion had been pending since October 1, 1986. The court granted summary judgment on the basis that plaintiff had not presented a shred of medical evidence that Dr. Matviuw had done anything wrong in counterpoint to his affidavit and deposition testimony that, in his opinion, "based upon a reasonable degree of medical and surgical certainty, that [he] did not deviate in any respect from the applicable standard of medical care in [his] care and treatment of Connie Johnson or the fetus, Bethany Johnson." The court also found that section 2a (Ill. Rev. Stat. 1985, ch. 111, par. 4404) was applicable, under these circumstances, to emergency situations in a hospital. This appeal followed.

On appeal, plaintiff asserts that (1) summary judgment was improper since Dr. Matviuw's affidavit was conclusory and self-serving; (2) summary judgment was premature since plaintiff's experts had not yet been deposed; (3) as a staff member of Sherman, Dr. Matviuw had a preexisting duty to assist Connie Johnson, therefore precluding application of section 2a; (4) section 2a applies only to situations arising outside of a hospital; and (5) a bill for Dr. Matviuw's services was rendered, thus removing him from the protection of section 2a.

For the reasons that follow, we affirm the trial court.

We must first rule on plaintiff's motion to supplement the record and defendant's motion to strike and for sanctions. Supreme Court Rule 329 sets forth the procedure by which a party may supply omissions, correct errors, and settle any controversy as to whether the record on appeal actually reflects what occurred at the trial level. (107 Ill. 2d R. 329.) This rule has been construed to authorize supplementation of the record only with documents that were actually before the trial court. State Farm Mutual Automobile Insurance Co. v. Stuckey (1983), 112 Ill. App. 3d 647, 445 N.E.2d 791.

Our supreme court in the medical malpractice case of Jenkins v. Wu (1984), 102 Ill. 2d 468, 468 N.E.2d 1162, refused supplementation of the record with a doctor's deposition taken after the trial court proceedings. The Jenkins court noted that the deposition was unnecessary to fully and fairly present the question involved and, further, that the deposition could not be characterized as an omission under Rule 329 since it was not in existence when the trial court's order was entered. Therefore, we must deny plaintiff's motion to supplement the appellate record with material not before the trial court. We deny defendant's motion to strike plaintiff's brief, preferring instead to disregard any material in the ...

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