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Silverstein v. Brander

June 20, 2000

MARTIN SILVERSTEIN, PLAINTIFF-APPELLANT,
v.
VICTORIA BRANDER, AND REHABILITATION INSTITUTE OF CHICAGO, DEFENDANTS-APPELLEES
(MARK STOLAR, AND NORTHWESTERN MEMORIAL HOSPITAL, DEFENDANTS).



The opinion of the court was delivered by: Presiding Justice McNULTY.

Not Released For Publication

MARTIN SILVERSTEIN, PLAINTIFF-APPELLANT,
v.
VICTORIA BRANDER, AND REHABILITATION INSTITUTE OF CHICAGO, DEFENDANTS-APPELLEES
(MARK STOLAR, AND NORTHWESTERN MEMORIAL HOSPITAL, DEFENDANTS).

The opinion of the court was delivered by: Presiding Justice McNULTY.

Modified December 11, 2000

Appeal from the Circuit Court of Cook County Honorable James Quinlan, Jr., Judge Presiding

 OPINION MODIFIED UPON DENIAL OF REHEARING

Martin Silverstein sued Dr. Victoria Brander and her employer, Rehabilitation Institute of Chicago (RIC), for medical malpractice. On the eve of trial the court disallowed plaintiff's expert. The court then found good cause to excuse compliance with court rules for summary judgment motions. Plaintiff appeals from the decision granting summary judgment in defendants' favor.

Plaintiff, who had a history of peptic ulcers, had hip replacement surgery on May 27, 1993. The orthopedic surgeon ordered the administration of Indocin following the operation. The hospital released plaintiff to RIC, where he came under the care of Dr. Brander, a physiatrist. Plaintiff complained of stomach pains and nausea. On June 7, 1993, RIC transferred him back to the hospital, and he had an operation to repair a new stomach ulcer.

On May 26, 1995, plaintiff filed this medical malpractice suit, naming as defendants Dr. Brander and RIC, along with his internist and the hospital where he had the hip surgery. He appended to his complaint a letter from Dr. Barry Singer, stating that, in his opinion, Dr. Brander's care for plaintiff fell below accepted medical standards because she should have recognized problems from the use of Indocin for a patient with a history of peptic ulcers complaining of nausea. The continued use of Indocin caused plaintiff's ulcer.

In his deposition Dr. Singer admitted that he was an internist, not a physiatrist. He had no criticism of Brander's work directing plaintiff's physical therapy; he criticized only the medical management of plaintiff. Dr. Singer worked on the medical management for more than 100 patients who had physical therapy at a rehabilitation hospital following hip replacement surgery. He also had considerable experience with Indocin, a gastric irritant that can cause ulceration. Dr. Singer agreed with the surgeon's order for Indocin following the operation because of the risk of bone ossification. But in his opinion, when plaintiff complained of nausea, the doctors responsible for his medical management should have discontinued the drug or they should have evaluated endoscopically the drug's effect; at the very least they needed to discuss the problem with the orthopedic surgeon. Dr. Brander did not take any of these courses of action. She permitted continued administration of Indocin until plaintiff suffered the new ulcer.

The court set the case for trial April 20, 1999, and on that date the parties presented pretrial motions. The defense attorneys jointly moved to bar Dr. Singer from testifying that Dr. Brander, RIC, and a co-defendant violated the standard of care, or offering any other opinions against those defendants. The attorneys filed no written motion that day. The court took the motion under advisement.

On April 21, 1999, the day after the defense made the motion in court but the day before its filing, plaintiff filed a written response and the judge ruled on the motion. The judge said:

"[T]he issue is [whether Dr. Singer is] qualified to give an expert opinion on the standard of care with respect to physiatrists, and my reading of that deposition indicates to me that he isn't."

RIC immediately made an oral motion for summary judgment. The judge insisted on a written motion. Following plaintiff's further arguments, the judge explained that Dr. Singer's testimony showed he lacked sufficient familiarity with the standard of care for physiatrists. The judge read into the record the portion of the deposition that he took to establish the lack of familiarity:

"Q Is it your opinion that a physical medicine and rehabilitation physician would have the same level of knowledge as a physician who specializes in internal medicine, with regard to the use of Indocin, its contraindications, and the use of H2 blockers?

A Probably the use of Indocin they would be familiar with, because a lot of times they ...


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