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01/31/89 Benjamin Gatlin, By His v. Bernard Ruder

January 31, 1989

GATLIN, PLAINTIFF-APPELLANT

v.

BERNARD RUDER, DEFENDANT-APPELLEE (RIVERSIDE MEDICAL CENTER, DEFENDANT)



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

BENJAMIN GATLIN, by his Mother and Next Friend, Marla

534 N.E.2d 177, 178 Ill. App. 3d 1059, 128 Ill. Dec. 157 1989.IL.98

Appeal from the Circuit Court of Kankakee County; the Hon. Daniel Gould, Judge, presiding.

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WOMBACHER

On July 29, 1974, the plaintiff, Benjamin Gatlin, was delivered as a live birth by caesarean section at Riverside Medical Center by Dr. Bernard Ruder.

Subsequent to the birth it was discovered that the plaintiff had scratches and a bruise on his head. A small abrasion was later noted on his right ear. Today the plaintiff suffers from cerebral palsy.

The plaintiff, through his mother, filed a medical malpractice cause naming the hospital and Dr. Ruder as defendants.

Based upon the testimony of the plaintiff's expert, a pediatric neurosurgeon, a motion for summary judgment was granted in Dr. Ruder's favor. The expert had stated that the plaintiff had sustained his injuries while in the care of the hospital personnel, and not during the birth process.

Six months later the plaintiff deposed Dr. Kenneth Niswander, a professor of clinical obstetrics at the University of California at Davis. Dr. Niswander, testifying as the hospital's expert, stated that the probable cause of the plaintiff's head injury would be the hands of the obstetrician. Based upon the statements of Dr. Niswander, the plaintiff filed a motion to vacate the summary judgment entered in Dr. Ruder's favor. The motion was denied and this appeal ensued.

In his affidavit submitted to the trial court, Dr. Niswander stated that Dr. Ruder performed his services within the standard of care required of such obstetricians. He specifically noted:

"[It] would be my testimony at trial that, in my opinion, Dr. Ruder was well within the area of the standard of care and that nothing that he would have done prior to handing the child to the anesthesiologist would have been below the required standard of care. The anesthesiologist received the child in excellent condition, according to the medical records and at that point, Dr. Ruder's duties with regard to the birth of Benjamin Gatlin would have been completed."

There is lack of evidence as to the abrogation of Dr. Ruder's duty to provide competent medical services. Dr. Niswander's statements fail to raise an issue of material fact regarding the necessary elements required to maintain a malpractice cause against Dr. Ruder. In a medical malpractice case, the plaintiff must prove that it is more probably true than not true that the defendant's negligence was a proximate cause of the plaintiff's injury. (Russell v. Subbiah (1986), 149 ...


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