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McCorry v. Gooneratne

July 15, 2002


Appeal from the Circuit Court of Cook County Honorable (Thomas Hurley, James Varga and Kathy Flanagan, Defendant). Judges Presiding



After surgery left Richard McCorry paralyzed, he and his wife, Barbara McCorry, sued the surgeon, Dr. Thomas Hurley, the radiologist, Dr. Nihal Gooneratne, and Christ Hospital, where Hurley performed the surgery. The trial court granted Gooneratne's motion for summary judgment because it found no evidence that Gooneratne's alleged negligence had any causal connection to the injuries. Plaintiffs appeal from that judgment in docket number 1-00-1954. Christ Hospital moved to dismiss one count of the amended complaint based on the statute of limitations. The trial court granted the motion, holding that the count did not relate back to the original complaint. Plaintiffs appeal from that ruling in docket number 1-00-3352. We consolidated the appeals.


Richard had back pain that prevented him from sitting for prolonged periods. The pain steadily worsened through 1993 and early 1994, to the point that Richard could no longer drive. In June 1994 Dr. Andrew Kazaniwskyj admitted Richard to Christ Hospital for a neurosurgery consultation. Hurley, a neurosurgeon, examined Richard and ordered a magnetic resonance imaging (MRI) test of the upper part of Richard's spine, the part in his neck. Gooneratne reported that the MRI showed disc herniation at two locations.

Hurley performed the surgery on October 27, 1994. When Richard awoke after surgery, Hurley tested his condition and found Richard unable to move his legs. Hurley ordered a new MRI. Although he discussed the possibility of further surgery with plaintiffs, he did not recommend surgery, as he had little hope of restoring any function to the legs. Richard remains paralyzed.

Plaintiffs filed their original complaint on October 25, 1996, alleging as follows:

"On or about June 15, 1994, NIHAL GOONERATNE, M.D., administered and interpreted diagnostic MRI films of RICHARD MCCORRY's cervical spine at CHRIST HOSPITAL

*** HURLEY *** [m]isread and misinterpreted the MRI films of the Plaintiff's cervical spine; [and a]pplied additional and unnecessary pressure to the Plaintiff's spinal cord during surgery ***.

*** GOONERATNE *** [m]isread and misinterpreted the MRI films of the Plaintiff's cervical spine."

Plaintiffs claimed that Richard's paralysis resulted from the negligence. Plaintiffs sought to hold Christ Hospital liable based on respondeat superior; they alleged no negligence of Christ Hospital apart from the negligence of the named doctors.

No. 1-00-1954

In his deposition Hurley swore that he interpreted the MRI films himself when he performed the operation. He did not rely on Gooneratne's report. Gooneratne moved for summary judgment, and he attached to his motion an excerpt from the transcript of the deposition. Plaintiffs missed the initial date for a response to the motion and sought an extension of time. The trial court allowed extra time but added that plaintiffs should respond with "Counter-Affidavits only." After plaintiffs filed their affidavits but no brief, the court denied the motion for summary judgment because Gooneratne failed to supply all relevant portions of Hurley's deposition.

Gooneratne moved for reconsideration, supporting the motion with the complete transcript of Hurley's deposition. By order dated January 28, 2000, the court set the motion for ruling on February 28, 2000. Plaintiffs did not seek leave to respond to the motion for reconsideration. On February 28, 2000, the court granted the motion for reconsideration and entered summary judgment in favor of Gooneratne. The court added, "This finding is made pursuant to Supreme Court Rule 3204(a) [sic] thus there is no just reason to delay the enforcement or appeal of this order."

Plaintiffs moved to reconsider the judgment and fully briefed the merits of the summary judgment motion. By order dated April 19, 2000, the trial court denied the motion for reconsideration, stating that the "summary judgment entered in favor of Dr. Nihal Gooneratne on February 28, 2000 stands." On May 16, 2000, plaintiffs moved for a finding that the order denying the motion to reconsider was final and appealable. The court granted the motion by order dated May 22, 2000. Plaintiffs filed their notice of appeal for docket number 1-00-1954 on June 2, 2000.

Gooneratne asks this court to dismiss plaintiffs' appeal for want of jurisdiction. Supreme court rules narrowly circumscribe this court's jurisdiction. If the appellant fails to comply with the deadline for appeals provided in Supreme Court Rule 303 (155 Ill. 2d R. 303), this court lacks authority to consider the appeal. See Bernhauser v. Glen Ellyn Dodge, Inc., 288 Ill. App. 3d 984, 989, 683 N.E.2d 1194 (1997). When the trial court finds no reason to delay enforcement or appeal of a judgment that is final with respect to one of multiple parties to a ...

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