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02/22/89 Dorothy Eckhardt, Adm'r of v. Thomas Kirts

February 22, 1989

DOROTHY ECKHARDT, ADM'R OF THE ESTATE OF HAROLD

v.

ECKHARDT, PLAINTIFF-APPELLANT,

v.

THOMAS KIRTS, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

534 N.E.2d 1339, 179 Ill. App. 3d 863, 128 Ill. Dec. 734 1989.IL.221

Appeal from the Circuit Court of De Kalb County; the Hon. Rex F. Meilinger, Judge, presiding.

APPELLATE Judges:

JUSTICE McLAREN delivered the opinion of the court. INGLIS, J., concurs. JUSTICE REINHARD, specially Concurring.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCLAREN

On March 29, 1984, plaintiff, Dorothy Eckhardt, administrator of the estate of Harold V. Eckhardt, decedent, filed a malpractice action against Thomas Kirts, M.D., defendant, alleging that his negligent psychiatric treatment of Joyce Eckhardt was a cause of the wrongful death of the decedent. Joyce Eckhardt, the decedent's wife, who suffered from mental disabilities, shot her husband with his police service revolver on March 29, 1982. The amended complaint, filed July 1, 1987, contained three counts. Count I sought pecuniary losses under the Wrongful Death Act (Ill. Rev. Stat. 1985, ch. 70, pars. 1, 2); count II sought compensation for funeral expenses; and count III sought compensation for bodily injury, pain, and suffering under the Survival Act (Ill. Rev. Stat. 1985, ch. 110 1/2, par. 27-6). On December 23, 1987, the defendant filed a motion for summary judgment, arguing that plaintiff could not demonstrate that defendant owed a duty to the plaintiff and that plaintiff's expert deposition testimony could not establish that defendant's alleged negligent treatment of Joyce Eckhardt proximately caused the death of the decedent.

On March 10, 1988, the trial court struck the affidavits of plaintiff's expert witness, Dr. Sanford Finkel, and granted defendant's motion for summary judgment. Plaintiff appeals. We affirm.

On appeal, plaintiff argues that the trial court erred in striking the affidavits of Dr. Sanford Finkel, asserting that rather than being conclusory, the affidavits presented an adequate factual basis for the medical opinions offered therein, and the trial court erred in granting summary judgment because there were material factual issues regarding Dr. Kirts' duty of care toward plaintiff's decedent, because the decedent husband was a readily identifiable and foreseeable member of a group of three potential victims subject to Joyce Eckhardt's violent proclivities. Additionally, plaintiff argues that defendant's alleged negligent treatment and failure to warn were the proximate cause of decedent's death because they increased the probability that the homicide was more likely to occur than not.

On March 29, 1982, in the early morning hours, Harold V. Eckhardt, decedent, a De Kalb County sheriff's deputy, was sleeping in the bedroom of his mobile home in Kirkland, Illinois. His wife, Joyce Eckhardt, who suffered from cyclical mental health disabilities, took Harold Eckhardt's police service revolver and shot him to death.

The mother of Harold V. Eckhardt and plaintiff herein, Dorothy Eckhardt, was appointed administrator of the estate of Harold Eckhardt. On March 29, 1984, plaintiff, as administrator, filed suit against the defendant, Dr. Kirts, a psychiatric physician from De Kalb, Illinois, who had been treating Joyce Eckhardt prior to the death of her husband, Harold Eckhardt. Joyce Eckhardt had been undergoing psychiatric treatment as an outpatient at the De Kalb Clinic from December 1976 until February 2, 1982, approximately seven weeks prior to the homicide. She had also been hospitalized twice in October 1981, for a recurrent, major depressive disorder.

During pretrial discovery, an amended complaint was filed on January 1, 1987. The amended complaint alleged that Dr. Kirts was negligent in his treatment of Joyce Eckhardt and negligent with regard to the safety of Harold V. Eckhardt in the following ways: (1) he failed to test Joyce Eckhardt properly to determine the nature of Joyce Eckhardt's mental health disabilities; (2) he failed to diagnose accurately the nature of Joyce Eckhardt's mental health disabilities; (3) he failed to refer Joyce Eckhardt to a specialist for treatment of her mental health disabilities; (4) he failed to provide Joyce Eckhardt with appropriate medication to control or otherwise treat the mental health disabilities from which she suffered; and (5) he failed to warn Joyce Eckhardt or Harold Eckhardt of the danger to them from Joyce Eckhardt's mental health disabilities.

On December 23, 1987, the defendant filed a motion for summary judgment, arguing that the deposition testimony of the plaintiff's expert witness demonstrated that the plaintiff could not, as a matter of law, establish a duty owed by Dr. Kirts to Harold Eckhardt. The defendant further argued that the expert's deposition testimony failed to establish that the alleged negligence of the defendant proximately caused the death of Harold Eckhardt.

Plaintiff submitted her memorandum and the affidavit of her expert witness, Sanford I. Finkel, M.D., in opposition to the motion for summary judgment. Defendant filed a reply and moved to strike the affidavit of Dr. Finkel because it contradicted his earlier deposition. Plaintiff moved for leave to amend the affidavit of Dr. Finkel; the motion was granted, and the amended affidavit was filed on February 28, 1988.

In his amended affidavit, Dr. Finkel stated that he was a psychiatric physician licensed to practice in the State of Illinois and resided in Chicago, Illinois; that he received his medical degree from the University of Michigan in 1967 and received certification from the American Board of Psychiatry and Neurology in 1976; and that he had been in the private practice of psychiatry since 1971. Dr. Finkel also indicated that his practice of psychiatry had included work in Cook County, Kane County, and McHenry County, Illinois, and the standard of care in De Kalb County is substantially the same as the standard of care in the other localities. In his amended affidavit, Dr. Finkel further stated that he had fully examined the medical records and medical history of Joyce Eckhardt, the records concerning her diagnosis and treatment by Dr. Kirts, the deposition of Dr. Kirts and the history and conduct of Joyce Eckhardt prior to, during, and after the death of Harold Eckhardt. Plaintiff did not attach those documents to the affidavit, presumably because of their bulk.

With regard to his deposition, Dr. Finkel stated in his affidavit that he was asked questions which he understood dealt with the narrow issue of whether Harold Eckhardt would be "alive today" and the exact probability, in percentages, that Harold Eckhardt "would be alive today" if the proper standard of care had been followed in Joyce Eckhardt's psychiatric treatment. In his earlier deposition, Dr. Finkel indicated that Dr. Kirts could have managed Joyce Eckhardt's depression more effectively by conforming to the standard of care; that adhering to the proper treatment could well have lessened the chances of an ultimate tragedy occurring, but he was unable to give an exact percentage or probability that Harold Eckhardt would be alive today. The deposition indicates that Joyce made no specific threats on the life of her husband. Other deposition questions were directed specifically to the narrow issue of predicting the specific homicide of Harold Eckhardt. In answering those questions, Dr. Finkel indicated that Kirts "would have some idea, assuming now that he can verify there were threats to life, that the possibility of her having a similar episode with similar symptoms which would include that [homicide] was, indeed, a distinct possibility." Dr. Finkel admitted that the homicide of Harold ...


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