Appeal from Circuit Court of Coles County No. 00L80 Honorable Dale A. Cini, Judge Presiding.
The opinion of the court was delivered by: Justice Cook
Plaintiff, Randall Hall, appeals the July 31, 2002, order of the Coles County circuit court denying plaintiff's motion for a protective order to prevent defense counsel from communicating ex parte with Dr. Gaylin Lack, one of plaintiff's treating physicians. Plaintiff also appeals the September 24, 2002, order of the court granting defendants' motion for summary judgment on the issue of causation. We affirm.
On October 27, 2000, plaintiff filed a complaint, alleging that he was entitled to damages sustained from the negligent administration of an intravenous pyelogram (IVP) performed by defendant Joyce A. Flowers, a radiological technologist, on October 30, 1998, at defendant Sarah Bush Lincoln Health Center (Sarah Bush). An IVP involves the intravenous injection (IV) of water-soluble contrast material. The contrast material collects in the kidneys for the purpose of performing an X ray. Flowers admitted in her deposition that when conducting the IVP procedure on plaintiff's right arm, she penetrated plaintiff's vein, allowing contrast material to seep into the surrounding tissues. She testified that plaintiff's right arm was not discolored, did not blister, but was slightly swollen. Plaintiff testified in his deposition that he remembered a strong metallic taste with the initial injection of contrast material. He felt a ripping sensation in his right arm, and he experienced a numbing and tingling sensation in his right hand. An X ray of plaintiff's right arm indicated complete extravasation, or escape, of the contrast material into the arm. An IVP was then successfully performed on plaintiff's left arm.
The day after the IVP procedure, plaintiff experienced soreness and a lack of sensation in his right hand. He sought care from Sarah Bush's emergency department. Plaintiff was told to stay off work and follow up with Dr. Mark Dettro, plaintiff's family practice physician.
Dr. Gaylin Lack is an orthopedic surgeon practicing medicine in Coles County. Dr. Lack has been a member of Sarah Bush's active medical staff, that is, he has had medical privileges, since 1980. In April 2001, Dr. Lack became an employee of Sarah Bush.
Dr. Lack treated plaintiff's complaints of soreness and lack of sensation in his right arm from February 2000 through March 2001. On June 9, 2000, Dr. Lack performed surgery on plaintiff's right arm at Sarah Bush. During Dr. Lack's first consultation with plaintiff, on February 24, 2000, Dr. Lack wrote in his physician's notes that plaintiff's carpal tunnel syndrome may have been based on a "double crush syndrome." In his physician's notes of November 9, 2000, Dr. Lack wrote, "I believe that we may be dealing with a double crush type of problem with an irritation or some [type] of persistent injury to the brachial plexus or some of the nerves proximally in the arm as a result of the extravasation of the contrast material that was injected when he had the IVP."
Plaintiff's attorney attached his affidavit to the complaint, as required by section 2-622 of the Code of Civil Procedure. 735 ILCS 5/2-622(a)(1) (West 2000). The report of a board-certified radiologist, Dr. Jeffrey Dach, was also attached to the complaint. Dr. Dach's report stated that in his opinion, "based upon the review of the records, it appears that the IV contrast extravasation into the patient's arm may have caused significant injury to the arm."
The court's case-management order directed plaintiff to disclose opinion witnesses by October 1, 2001. That order was extended twice. On June 3, 2001, plaintiff filed a third motion for an extension of time to disclose witnesses. The next day, defendants filed a motion for summary judgment. Apparently on June 21, 2002, plaintiff disclosed Dr. Lack as an independent expert witness. See 177 Ill. 2d R. 213(f) (eff. May 1, 1997). Plaintiff was given 30 days to take Dr. Lack's deposition. On July 15, 2002, plaintiff filed a motion to extend the time for taking Dr. Lack's deposition to August 20, 2002, and a request for a protective order to prohibit ex parte communications between defense counsel and Dr. Lack. The request for a protective order was denied July 31, 2002.
During his deposition, August 20, 2002, Dr. Lack testified he had two ex parte conversations with defense counsel about his treatment of plaintiff. The first of these conversations probably took place sometime in 2002, after he had stopped treating plaintiff, and after he had become an employee of the hospital. During this conversation, they examined records counsel had received from other physicians, specifically Dr. Dettro, and they discussed plaintiff's condition. The second such conversation took place immediately before Dr. Lack's discovery deposition.
During his deposition, Dr. Lack testified that he could not say to a reasonable degree of medical certainty that the IVP procedure could have been the cause of plaintiff's problems. Dr. Lack testified he rejected that possibility after review of the chart, "recollection of instances when we've had other people with extravasation of contrast material in the soft tissues without any significant long-term complication," talking with defense counsel, and looking at Dr. Dettro's records, which indicated plaintiff had recovered from the extravasation and then began to have more complaints after he returned to work.
On September 24, 2002, the trial court granted defendants' motion for summary judgment and on December 3, 2002, denied plaintiff's motion ...