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11/17/89 Robert Diggs, v. Suburban Medical Center Et

November 17, 1989

ROBERT DIGGS, PLAINTIFF-APPELLANT

v.

SUBURBAN MEDICAL CENTER ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

548 N.E.2d 373, 191 Ill. App. 3d 828, 138 Ill. Dec. 960 1989.IL.1793

Appeal from the Circuit Court of Cook County; the Hon. Thomas P. Quinn, Judge, presiding.

APPELLATE Judges:

JUSTICE PINCHAM delivered the opinion of the court. COCCIA and LORENZ, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE PINCHAM

Plaintiff Robert Diggs brought this medical malpractice action in the circuit court of Cook County against the defendants, Suburban Medical Center, Benjamin LeCompte, Frederick Locher, James B. Tully, and D. Waxler (Suburban Medical Center et al.). Plaintiff Diggs amended his complaint and added Dr. Nagabhu Koneru, an anesthesiologist, as a defendant. Dr. Koneru filed a motion for summary judgment which the trial court granted and found, pursuant to Supreme Court Rule 304(a) (103 Ill. 2d R. 304(a)), that there was no just reason to delay enforcement or appeal of the summary judgment. On this appeal plaintiff contends that the trial court erred in granting summary judgment to Dr. Koneru before the completion of discovery and that the trial court abused its discretion in finding that there was no just reason to delay enforcement or appeal of the summary judgment. We affirm.

The following facts are pertinent to our Disposition. On March 23, 1982, plaintiff filed a medical malpractice complaint against Suburban Medical Center et al., alleging that on or about October 27, 1981, the defendants, surgeons and a radiologist, "deviated from the appropriate standard of care, in failing to diagnose that sublaminar wires, surgically placed to reduce and hold [plaintiff's] cervical fractures, were pressing on his spinal cord resulting in quadriparesis." Almost a year later, on February 23, 1983, plaintiff amended his complaint, adding Dr. Koneru, an anesthesiologist, as a party defendant, and alleged that Dr. Koneru was negligent in various respects, including deviating from the applicable standard of care and in improperly administering anesthesia. Dr. Koneru answered the amended complaint on May 25, 1983, and denied plaintiff's allegations of negligence. Plaintiff filed additional amended complaints which in essence restated the allegations that had been made against Dr. Koneru in the first amended complaint. Dr. Koneru's denial responses to these amended complaints remained the same and discovery ensued.

On November 1, 1984, Dr. Koneru gave his discovery deposition and testified that the care he rendered to plaintiff was within the accepted standards of medical practice. Dr. Koneru then deposed Dr. Meyer, who was an orthopedic surgeon and who was also plaintiff's treating physician. Dr. Meyer testified on his deposition that he had no opinion of the care rendered by Dr. Koneru to plaintiff.

Neither of plaintiff's three expert witnesses, whom plaintiff intended to call at trial, criticized or offered an opinion on their deposition about the care rendered by Dr. Koneru to plaintiff. Plaintiff's first expert witness, Dr. Brooks, an orthopedic surgeon, testified on his deposition that he had no "basis to feel that anesthesia played any role in" plaintiff's injury. Plaintiff's second expert witness, Dr. Stears, a neuroradiologist, testified on his deposition that "[f]rom the evaluation of others that I have read, I understand that now -- from the orthopedist or the neurosurgeon, I understand that the anesthesia was not a problem here." Finally, plaintiff's third expert witness, Dr. Austin, a neurosurgeon, testified on his deposition that there was nothing to indicate that Dr. Koneru deviated from the acceptable standards of medical practice.

After the depositions of plaintiff's three expert witnesses, defendant Dr. Koneru filed a motion for summary judgment on March 29, 1988, on the ground that none of plaintiff's expert witnesses criticized or expressed any opinion that he deviated from the accepted standards of medical practice. Dr. Koneru attached his affidavit to his motion for summary judgment, which stated that the anesthesia care he rendered to plaintiff was well within the accepted standards of practice.

On May 23, 1988, plaintiff filed a motion pursuant to Supreme Court Rule 191(b) (73 Ill. 2d 191(b)),1 requesting a continuance of the summary judgment hearing on the ground that a witness, Dr. Weinberg, was still being deposed and could offer an opinion critical of Dr. Koneru's care. Plaintiff also requested permission to again depose Dr. Koneru. On the same day that plaintiff filed the Rule 191(b) motion, Dr. Koneru filed an affidavit which stated that Dr. Weinberg had been deposed and that he did not offer an opinion about Dr. Koneru's treatment of plaintiff.

The trial court granted plaintiff leave to again depose Dr. Koneru and ordered plaintiff to file by July 5, 1988, his response to Dr. Koneru's motion for summary judgment. On July 5, 1988, plaintiff filed his response to Dr. Koneru's motion for summary judgment, without having redeposed Dr. Koneru, and without filing any opposing affidavits to Dr. Koneru's motion for summary judgment. One week thereafter, on July 12, 1988, Dr. Koneru filed his reply to plaintiff's response. The trial court granted Dr. Koneru's motion for summary judgment on July 15, 1988, and made an express written finding, pursuant to Supreme Court Rule 304(a), that there was no just reason to delay enforcement or appeal of the judgment. On August 8, 1988, plaintiff filed a motion requesting the trial court to reconsider its order granting summary judgment to Dr. Koneru, or in the alternative, to strike the paragraph that contained the finding that there was no just reason to delay enforcement or appeal of the judgment. Plaintiff's motion for reconsideration or to strike was denied on August 11, 1988, from which plaintiff appeals. Plaintiff's suit is still pending in the trial court against the remaining defendants, Suburban Medical Center et al., and they are not parties to this appeal.

Plaintiff contends on appeal that it was error for the trial court to prematurely grant summary judgment to defendant Dr. Koneru when the witnesses expected to be called by the remaining defendants had not been deposed and when discovery had not been completed. We disagree with these contentions.

It is well established in Illinois that in medical malpractice and other cases summary judgment is appropriate where there is no genuine issue of material fact. Bennett v. Raag (1982), 103 Ill. App. 3d 321, 431 N.E.2d 48; Prather v. Decatur Memorial Hospital (1981), 95 Ill. App. 3d 470, 420 ...


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