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Woolums v. Huss

June 28, 2001

ADAM WOOLUMS, DARRELL WOOLUMS, AND BRENDA WOOLUMS, PLAINTIFFS-APPELLANTS,
v.
M. STEPHEN HUSS, M.D.; M STEPHEN HUSS, M.D., S.C., A CORPORATION; GORDON CROSS, M.D.; AND DECATUR RADIOLOGY PHYSICIANS SERVICE CORPORATION, A CORPORATION, DEFENDANTS-APPELLEES.



Appeal from Circuit Court of Macon County No. 98L101 Honorable James A. Hendrian, Judge Presiding.

The opinion of the court was delivered by: Justice Knecht

Not Released For Publication

ADAM WOOLUMS, DARRELL WOOLUMS, AND BRENDA WOOLUMS, PLAINTIFFS-APPELLANTS,
v.
M. STEPHEN HUSS, M.D.; M STEPHEN HUSS, M.D., S.C., A CORPORATION; GORDON CROSS, M.D.; AND DECATUR RADIOLOGY PHYSICIANS SERVICE CORPORATION, A CORPORATION, DEFENDANTS-APPELLEES.

Appeal from Circuit Court of Macon County No. 98L101 Honorable James A. Hendrian, Judge Presiding.

The opinion of the court was delivered by: Justice Knecht

Plaintiffs, Adam Woolums, Darrell Woolums, and Brenda Woolums, appeal from the judgment of the circuit court of Macon County granting summary judgment to defendants M. Stephen Huss, M.D.; M. Stephen Huss, M.D., S.C., a corporation; Gordon Cross, M.D., and Decatur Radiology Physicians Service Corporation in plaintiffs' medical malpractice action. Plaintiffs contend (1) the trial court erred in (a) striking an affidavit filed with their response to the motions for summary judgment, and (b) granting summary judgment and (2) abused its discretion in failing to consider amended and additional affidavits and its motion to reconsider the summary judgment order. We affirm.

 On March 27, 1995, 16-year-old Adam Woolums was brought to see Dr. Huss, an orthopedic surgeon, by his father, Darrell, complaining of pain in his right ankle and heel. Adam reported he had fallen after a collision in gym class about a week before and injured the ankle. Approximately a year before, he had injured the same ankle in a trampoline accident and it had never fully resolved as he continued to suffer intermittent discomfort in the ankle. Adam's ankle and heel were not swollen or discolored but were extremely painful to the touch. Dr. Huss diagnosed posttraumatic spastic right ankle and a sprain of the hind foot. Traumatically induced sprains generally cause pain and swelling immediately though there can be a delay in swelling. Dr. Huss interpreted Adam's reported lack of immediate pain as a mistake in reporting on Adam's part or the fact it was of such a low-grade nature at first that it did not bother him enough to acknowledge. Dr. Huss ordered physical therapy.

Adam returned to Dr. Huss on March 31 and reported swelling and inability to bear weight on his right foot. X rays taken from March 23-31 revealed nothing. Dr. Huss continued to treat Adam's condition as a sprain.

On April 7, Adam returned to Dr. Huss, who noted large black and blue swelling on the sides of Adam's hindfoot, the posterior portion of the foot. Dr. Huss reported such discoloration can be delayed several days after a traumatic sprain. Dr. Huss ordered a computerized tomography (CT) scan to see if there had been a bone injury to Adam's hindfoot because of his generally slow progress. When he ordered the CT scan, Dr. Huss gave the radiologist, Dr. Cross, a clinical history of traumatic injury to the hindfoot. The CT scan was performed and interpreted by Dr. Cross on April 7, 1995. Dr. Cross' interpretation was nondisplaced comminuted fracture through the calcaneus, a bone near the ankle joint. Dr. Huss then changed his diagnosis to traumatic fracture of the calcaneus.

Adam showed little improvement and needed treatment for open blisters caused by the cast placed on his ankle. Dr. Huss prescribed antibiotics as a precaution against infection from the blisters but discontinued them by April 19 to check for the existence of bacteria causing the swelling. On April 21, Dr. Huss performed a fine needle aspiration in the soft and swollen tissue surrounding the ankle and found no evidence of any infection.

Dr. Huss continued to treat Adam and on May 10 diagnosed an infection. He first diagnosed osteomyelitis on May 12 and ordered intravenous antibiotics. While a sprain or fracture can be expected to heal through rest and/or physical therapy, osteomyelitis, a bone infection, is healed only through antibiotics. As far as a complete cure of osteomyelitis, the sooner that antibiotics are started, the better.

Plaintiffs filed a complaint against defendants on June 19, 1998, alleging medical negligence. Plaintiffs claimed Dr. Huss was negligent in failing to timely diagnose an infection of the right heel and failing to adequately treat the infection after plaintiff initially saw him on March 27, 1995. Plaintiffs allege negligence on the part of Dr. Cross in failing to include infection as part of the differential diagnosis of the bone tissue and soft tissue changes allegedly present when he performed and interpreted the CT scan of Adam's ankle. A second- amended complaint was filed on March 16, 1999, with essentially the same allegations but with the addition of certificates of merit of reviewing health care professionals, David Schurman, M.D., an orthopedic surgeon, and Lynne Steinbach, M.D., a radiologist, pursuant to section 2-622(a)(1) of the Code of Civil Procedure. 735 ILCS 5/2-622(a)(1) (West 1998).

On July 12, 1999, the trial court entered a case- management order pursuant to Supreme Court Rule 218 (166 Ill. 2d R. 218). The scheduling order set December 15, 1999, as the deadline for plaintiffs' disclosure of opinion witnesses and March 31, 2000, as the defendants' deadline. The trial court never modified the case-management order nor does evidence show an agreement between the parties to modify the order. No opinion witnesses were ever disclosed by plaintiffs, and in response to interrogatories propounded by defendants they stated their identity had not yet been determined. Defendants disclosed their opinion witnesses on March 31, 2000.

Discovery depositions of defendants were taken on March 28, 2000. Thereafter, transcripts of these depositions were attached to the summary judgment motions of Dr. Huss and Dr. Cross filed April 10 and April 11, respectively. The motions were set for hearing on May 8.

On April 19, plaintiffs filed a motion to reset the case-management schedule. Written responses to that motion were filed by defendants but the motion was never set for hearing. Plaintiffs filed written responses to Dr. Huss' and Dr. Cross' motions for summary judgment on May 1 and May 3, respectively. They included affidavits from Drs. Schurman and Steinbach.

Dr. Huss received plaintiffs' response to his motion for summary judgment on Thursday, May 4, 2000. On Friday, May 5, he faxed plaintiffs a copy of a motion to strike Dr. Schurman's affidavit, which he intended to file on Monday, May 8, the day of the hearing. The motion pointed out the insufficiencies of the affidavit, including failure to comply with the requirements of Rule 191(a) (145 Ill. 2d R. 191(a)). Dr. Cross joined in that motion at the hearing.

On May 8, the trial court heard arguments on defendants' motion to strike and their motions for summary judgment. Before commencing argument, the trial court asked plaintiffs' counsel if they were seeking a continuance or if they had any motions pursuant to Rule 191(b) on file (145 Ill. 2d R. 191(b)). Plaintiffs sought no continuance, nor did they file a motion pursuant to Rule 191(b) stating they were unable to obtain necessary affidavits. Plaintiffs never asked for leave to amend or supplement Dr. Schurman's affidavit. Instead, they stood on Dr. Schurman's and Dr. Steinbach's affidavits and argued why summary judgment was not proper as to either defendant.

At the conclusion of the hearing, the trial court took the matter under advisement as well as plaintiff's motion to reset the case-management schedule. Plaintiffs requested leave to submit additional legal authority with regard to Dr. Cross' motion for summary judgment. The trial court granted this request. Plaintiffs then filed a written response to Dr. Huss' motion to strike on May 15 and attached a "supplemental affidavit" by Dr. Schurman to this written response. The trial court never granted leave to file the supplemental affidavit, nor was such leave ever sought.

The trial court issued a memorandum order on May 31 striking Dr. Schurman's original affidavit pursuant to Supreme Court Rule 191(a) as being too speculative to form the basis for the orthopedic opinions expressed therein. The court found, because such testimony would be inadmissible at trial, summary judgment was appropriate as to Dr. Huss. As to Dr. Cross, the court granted summary judgment in his favor also because no expert testimony was offered to establish that a breach of the radiologist's standard of care contributed to the injury plaintiffs alleged.

On June 29, plaintiffs filed a timely motion to reconsider and vacate the summary judgment orders. To this motion plaintiffs attached a new affidavit from Dr. Schurman as well as an affidavit from radiologist Dr. Phillip Lang. The trial court held a hearing on this motion on September 13, 2000, and denied it. This appeal followed.

Plaintiffs first argue the trial court erred in striking Dr. Schurman's original affidavit. Plaintiffs contend the motion to strike should not have been heard at all on May 8 as it was filed that day and, thus, a hearing on it was untimely pursuant to local court rule 2.1(f), which provides:

"Time of Notice. Unless otherwise ordered by the court, notice by personal service or by U.S. Mail shall be made not less than fourteen (14) days prior to the hearing." 6th Judicial Cir. Ct. R. 2.1(f) (eff. November 1, 1992.)

When a party moves to strike an affidavit filed in summary judgment proceedings, it is that party's duty to bring his motion to the attention of the trial court and to get a ruling on the motion. Failure to obtain such a ruling will operate as a waiver of the objections to the affidavit. Intercontinental Parts, Inc. v. Caterpillar, Inc., 260 Ill. App. 3d 1085, 1090, 631 N.E.2d 1258, 1263 (1994).

Dr. Huss attempted to give plaintiffs as much notice as possible for his motion to strike. He filed his motion for summary judgment on April 10 and set it for hearing on May 8. Plaintiffs did not file a response to the motion until May 1, including Dr. Schurman's affidavit, which was not received by Dr. Huss until Thursday, May 4. Dr. Huss then faxed plaintiffs' attorneys his motion on Friday, May 5. ...


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