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August 1, 1995



Petition for Leave to Appeal Denied December 6, 1995.

Presiding Justice Scariano delivered the opinion of the court: Hartman and McCORMICK, JJ., concur.

The opinion of the court was delivered by: Scariano

PRESIDING JUSTICE SCARIANO delivered the opinion of the court:

Plaintiff Meme Coryell appeals from the award of summary judgment (735 ILCS 5/2-1005 (West 1992)) to defendants in the medical malpractice action which she brought against them for their failure to obtain her informed consent to the surgery she underwent while in their care.

Plaintiff had developed lower back pain which, though not severe, occasionally interfered with her daily activities; and after consulting two other physicians, she saw defendant Dr. John Smith ("Smith"), an employee of defendant Reconstructive Surgery, Ltd., regarding abdominoplasty surgery for a condition known as diastasis rectus abdomis - explained during the course of the proceedings as "weak [stomach] muscles." The proposed surgery entailed undermining all of the skin and fat on plaintiff's abdominal wall, and repairing her stomach muscles.

On September 2, 1988, plaintiff underwent the proposed surgery, and thereafter the skin edges of the incision separated, causing necrosis, or death of tissue, and creating an open wound in her stomach. After four and one-half months, the open wound healed, but a "major indentation" and scar tissue remained where the wound had been. Plaintiff complained that she would not have undergone the surgery had Dr. Smith adequately disclosed to her the risks she had experienced, and which she claims to have been foreseeable.

The trial court granted defendants' motion for summary judgment on the ground that plaintiff had failed to present any expert evidence showing that the alleged inadequacy of disclosure proximately caused her damages. For the following reasons, we reverse.

Summary judgment motions permit the trial court to determine whether any genuine issue of material fact exists in the action, and if not, to provide an expedient means of resolution. ( Purtill v. Hess (1986), 111 Ill. 2d 229, 240, 489 N.E.2d 867, 95 Ill. Dec. 305.) When deciding the motion, the trial court should construe all of the evidence before it strictly against the movant. ( Reed v. Bascon (1988), 124 Ill. 2d 386, 393, 530 N.E.2d 417, 125 Ill. Dec. 259.) Our supreme court has warned that while summary judgments are to be encouraged in the interest of prompt disposition of lawsuits, they are a drastic measure; consequently, trial courts should grant such judgments only where the movant's right is so clear as to be free from doubt. ( Bascon, 124 Ill. 2d at 393, 530 N.E.2d 417; Purtill, 111 Ill. 2d at 240, 489 N.E.2d 867.) The review of the grant of summary judgment is de novo. Myers v. Health Specialists, S.C. (1992), 225 Ill. App. 3d 68, 72, 587 N.E.2d 494, 167 Ill. Dec. 225.

Initially, we reject plaintiff's argument that defendants waived the issue of proximate causation by failing to raise it in their motion for summary judgment. ( Swift & Company v. Dollahan (1954), 2 Ill. App. 2d 574, 587, 120 N.E.2d 249 (defendants waived argument by failing to specify it in their motion to dismiss).) The record here shows that defendants clearly raised this issue in their reply memorandum, and that plaintiff's attorney vigorously addressed the issue during the hearing on the motion.

Plaintiff next contends that defendants submitted insufficient evidence, namely Dr. Smith's affidavit, regarding proximate causation to entitle them to a judgment as a matter of law. ( Purtill, 111 Ill. 2d at 241, 489 N.E.2d 867 (in motion for summary judgment, moving party has initial burden of supplying facts which, if not contradicted, would entitle such party to a judgment as a matter of law).) Alternatively, she asserts that she responded to defendants' motion with sufficient evidence to establish a genuine issue of material fact with respect to proximate causation. ( Barber-Colman Co. v. A & K Midwest Insulation Co. (1992), 236 Ill. App. 3d 1065, 1071, 603 N.E.2d 1215, 177 Ill. Dec. 841 (party opposing summary judgment motion need not prove her case to defeat the motion, but must present some factual basis which would arguably entitle her to judgment).) Lastly, plaintiff urges this court to adopt a "modified objective" standard to determine proximate causation, one she maintains that she could satisfy.

Defendants retort that they met their burden as movants, and that plaintiff did not meet hers since she failed to provide any expert evidence indicating specifically that Dr. Smith's alleged failure to adequately disclose, proximately caused her injury. They also argue against adopting plaintiff's "modified objective" standard.

To succeed in a malpractice action based on the doctrine of informed consent the plaintiff must plead and ultimately prove four essential elements: (1) the physician had a duty to disclose material risks; (2) he failed to disclose or inadequately disclosed those risks; (3) as a direct and proximate result of the failure to disclose, the patient consented to treatment she otherwise would not have consented to; and (4) plaintiff was injured by the proposed treatment. ( Roberts v. Patel (N.D. Ill. 1985), 620 F. Supp. 323, 325.) As noted above, and as the parties acknowledge on appeal, the trial judge in this case based his summary judgment ruling on the third element, finding that plaintiff had failed to present any expert evidence showing that Dr. Smith's alleged failure to disclose a material risk of the proposed surgery proximately caused her injury. That ruling is the focus of this appeal, and the parties do not raise issue with any of the other elements enumerated above.

Assuming, arguendo, that defendants met their burden as movants, we conclude that plaintiff was not required to present expert evidence specifically as to proximate causation, and that the evidence of record at this stage of the proceedings is sufficient to present a ...

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