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09/02/94 JUDITH A. GAUTHIER v. CHARLES H.P.

September 2, 1994

JUDITH A. GAUTHIER, PLAINTIFF-APPELLANT AND CROSS-APPELLEE,
v.
CHARLES H.P. WESTFALL AND ELMHURST CLINIC, DEFENDANTS-APPELLEES AND CROSS-APPELLANTS.



Appeal from the Circuit Court of Du Page County. No. 92-L-640. Honorable William E. Black, Honorable Robert K. Kilander, Judges, Presiding.

Quetsch, McLAREN, Doyle

The opinion of the court was delivered by: Quetsch

JUSTICE QUETSCH delivered the opinion of the court:

Plaintiff, Judith A. Gauthier, appeals from the entry of summary judgment in favor of defendants, Dr. Charles H. P. Westfall and the Elmhurst Clinic, in her action seeking recovery under a theory of medical malpractice, and from a ruling barring one of her proposed expert witnesses pursuant to Supreme Court Rule 220(b) (134 Ill. 2d R. 220(b)).

We briefly summarize the facts of the case at this point and will supply additional detail as we discuss the issues. In her complaint, plaintiff alleged that in November 1985 Dr. Westfall failed to diagnose and treat plaintiff in accordance with the proper standard of care after having received a copy of a report of a mammogram performed on plaintiff. Although not stated in the complaint, the record reveals that in April 1987 plaintiff was diagnosed with a malignancy of the left breast and underwent a radical mastectomy. Plaintiff filed her complaint on October 30, 1987. Discovery conductedin the case included depositions of plaintiff's expert witness, Alan Pinshaw, M.D. (an obstetrician/gynecologist), one of plaintiff's treating physicians, Dr. Donald Sweet (an oncologist), defendants' expert witness, Myles P. Cunningham, M.D. (a surgical oncologist), and defendant Westfall.

Plaintiff's expert, Dr. Pinshaw, testified that when retained by plaintiff's counsel, he had indicated that he was only prepared to offer an opinion on the standard of care. He testified that the mammogram report that Dr. Westfall reviewed "uses specific language raising the possibility of this patient having a breast malignancy." In Dr. Pinshaw's opinion, when Dr. Westfall received the mammogram report, the standard of care required that Dr. Westfall fully apprise plaintiff of the possibility of a malignancy and that a biopsy was mandated under the circumstances.

Based on his review of various medical records, including defendant Westfall's treatment records, defendants' expert, Dr. Cunningham, rendered the opinion that the proper standard of care required that Dr. Westfall advise plaintiff of the possibility of a malignancy and recommend a follow-up examination such as further mammography at appropriate intervals. However, Dr. Cunningham testified that the standard of care did not require that a biopsy be performed. Dr. Cunningham also testified that he "could not identify * * * that Mrs. Gauthier had suffered any damages relative to Dr. Westfall's participation in her care." Dr. Cunningham explained as follows:

"My understanding is that the patient is alive, well, and healthy, without any evidence of cancer as of today; that if she had a cancer in 1985, it is impossible to prove or to recognize other than by intuition, which is wholly unsatisfactory, that she suffered by a delay in diagnosis of some eighteen months.

The treatment would not necessarily have been any different. She had options for treatment in * * * 1987; and had she had a breast cancer in 1985, in all probability the same options would have been offered.

So that the probability is there would have been no difference in treatment.

There is no evidence that she has suffered any damage if the diagnosis were in fact delayed by eighteen months."

Dr. Sweet, one of plaintiff's treating physicians, testified that he first examined plaintiff in June 1988. A consultation note he prepared at that time indicated that there was a 20% to 30% of a recurrence of cancer. Dr. Sweet testified that he had most recently examined plaintiff in June 1990. Based on studies that had beenreleased after he initially examined plaintiff in 1988, Dr. Sweet concluded that the risk of recurrence was approximately 2% to 4%. Dr. Sweet testified that plaintiff's present prognosis was excellent and that, based on data published after plaintiff's initial examination, her chances of survival were in excess of 90%.

Defendants moved for summary judgment on the basis that plaintiff's sole expert witness was unable to offer an opinion whether Dr. Westfall's alleged negligence proximately caused any injury, whereas defendant's expert witness had opined that it could not be established any delay in properly diagnosing plaintiff's condition caused any injury. After defendants filed their summary judgment motion, plaintiff moved to identify an additional expert witness, Dr. James Vogel. The trial court denied the motion and subsequently granted defendant's motion for summary judgment on March 8, 1991.

Before we may proceed to the merits, we must confront an unusual question concerning appellate jurisdiction. On March 8, 1991, after the trial court entered its summary judgment order, defendants filed a motion which included a request for sanctions pursuant to Supreme Court Rule 137 (Official Reports Advance Sheet No. 26 (December 22, 1993), R. 137, eff. February 1, 1994). Before the request for sanctions was ruled upon, plaintiff filed a notice of appeal from the entry of summary judgment.

In an unpublished order under Supreme Court Rule 23 (Official Reports Advance Sheet No. 15 (July 20, 1994), R. 23, eff. July 1, 1994) we determined, based on Marsh v. Evangelical Covenant Church (1990), 138 Ill. 2d 458, 150 Ill. Dec. 572, 563 N.E.2d 459, that because defendant's request for sanctions pursuant Rule 137 was apparently still pending, an appeal from the order granting summary judgment was premature in the absence of a finding by the trial court of no just reason to delay enforcement or appeal of the judgment. (Gauthier v. Westfall (2d Dist. January 6, 1992), No. 2-91-0385 (unpublished order under Supreme Court Rule 23).) Our Rule 23 order stated that the appeal was dismissed. On March 9, 1992, the mandate of this court was filed in the circuit court. The mandate stated: "in accordance with the attached Decision the judgment of the trial court is dismissed." (Emphasis added.)

Thereafter, plaintiff filed a new jury demand and her attorney filed a new appearance. The case was assigned a new case number in the trial court and was assigned to Judge Robert K. Kilander. Judge William E. Black had previously presided over the case. Judge Black was assigned to rule on defendants' request for sanctions. Plaintiff took the position that the case proceeding under a new case number was itself a new case and asserted the right to respond to defendants' motion for summary judgment in the "newly filed case." Plaintiffnoted that after our mandate was issued, defendant served her with a notice of the March 8, 1991, motion which also included a request that the ...


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