BRANDEIS BY BRANDEIS v. Salafsky

563 N.E.2d 1026, 206 Ill. App. 3d 31, 150 Ill. Dec. 899, 1990 Ill. App. LEXIS 1721
CourtAppellate Court of Illinois
DecidedNovember 9, 1990
Docket1-89-3471
StatusPublished
Cited by6 cases

This text of 563 N.E.2d 1026 (BRANDEIS BY BRANDEIS v. Salafsky) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
BRANDEIS BY BRANDEIS v. Salafsky, 563 N.E.2d 1026, 206 Ill. App. 3d 31, 150 Ill. Dec. 899, 1990 Ill. App. LEXIS 1721 (Ill. Ct. App. 1990).

Opinion

JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiffs appeal from the trial court’s award of summary judgment in favor of defendant Dr. Ira Salafsky.

This medical malpractice action was filed on August 13, 1985, on behalf of Elizabeth Brandéis, a minor, by her mother, Arlene Brandéis. The minor’s parents, Alvin and Arlene, sued as individual plaintiffs. Plaintiffs alleged that Dr. Salafsky, along with other defendants, including North Suburban Pediatrics S.C., Leonard T. Carr, M.D., North Suburban Psychiatric Associates, Ltd., Jeffrey Teich, M.D., David Engels, M.D., Steven A. Lipschultz, M.D., and Evanston Hospital, negligently treated the 12-year-old minor from January 24, 1985, through March 17, 1985, for a condition involving persistent regurgitation.

Plaintiffs alleged that during the course of the hospitalization and treatment, defendants incorrectly concluded that Elizabeth’s condition was psychological and failed to consider a physiological basis for her condition. Plaintiffs further alleged that as a result of a behavioral modification treatment program prescribed by the defendants, the patient suffered an aggravation of a preexisting condition, internal and external injuries, and mental distress. The parents’ amended complaint alleged the loss of their daughter’s society and companionship.

On December 6, 1985, defendants Dr. Salafsky and North Suburban filed interrogatories requesting plaintiffs to identify any consulting experts they expected to call at trial. Plaintiffs’ original counsel was substituted on March 18, 1986. In April 1987 and May 1987, respectively, plaintiffs responded that no expert had been consulted or retained for trial.

Dr. Salafsky filed a motion for summary judgment on December 23, 1987. He attached the affidavit of Dr. William H. Dietz, a pediatrician specializing in nutrition, which stated that Dr. Salafsky’s treatment of the minor patient conformed with the applicable standard of care. On March 10, 1988, the first hearing date, the motion judge ordered plaintiffs to name their expert and respond to defendant’s summary judgment motion by May 15, 1988.

In the meantime, the case appeared on the pretrial calendar. On October 22, 1987, the pretrial judge continued the case to January 20, 1988. At the next pretrial date, April 25, 1988, the judge ordered that plaintiffs be allowed to depose Dr. Salafsky, which proceeded as scheduled on July 1, 1988. On July 26, 1988, the case was set for pretrial on December 2, 1988. On September 8, 1988, defendants propounded interrogatories to plaintiffs.

At the next summary judgment hearing before Judge Lassers on July 25, 1988, plaintiffs requested an additional 28 days to respond. Judge Lassers continued the motion to September 19, 1988, and gave them until September 2 to respond. On September 14, 1988, plaintiffs filed an emergency motion for more time to respond to the summary judgment motion. According to plaintiffs, they needed 90 additional days because they believed that Elizabeth had Ehlers-Danlos Syndrome, an uncommon organic disease that manifests itself as an eating disorder, and that she should have been tested for this disease. Plaintiffs’ counsel indicated that a trained medical person on his staff had been researching the disease for two months and had been in contact with various university professors across the nation, attempting to define their case and locate an expert. Judge Lassers granted plaintiffs 60 additional days to respond to the summary judgment motion and set the case for status on November 14,1988.

On November 14, plaintiffs again requested an extension to respond to the interrogatories and the summary judgment motion. Plaintiffs’ counsel stated that although his staff was in contact with two pediatricians from the Ehlers-Danlos Foundation, these doctors could not yet render an opinion. Counsel indicated that they would be able to formulate a theory of the case “within a relatively short period of time.” Judge Lassers granted a 90-day extension and placed the case on his February 1989 call.

Meanwhile, the pretrial judge ordered plaintiffs to identify their expert witness by July 24, 1989. Defendant moved to bar plaintiffs from naming an expert at trial on the ground that despite repeated extensions of time, plaintiffs failed to disclose their experts as ordered by the court on November 14, 1988. On March 29, 1989, Judge Lassers ordered plaintiffs to identify experts by July 24, 1989, paralleling the pretrial judge’s order, and specifically indicating that this continuance for the identification of experts was final. On July 24, 1989, the pretrial judge granted the motion of defendants Drs. Salafsky, Engels, Carr, Teich and Evanston Hospital to bar plaintiffs from naming Rule 220 (107 Ill. 2d R. 220) experts.

At the July 31 hearing on defendant’s summary judgment motion, plaintiffs’ attorney failed to appear. Defense counsel informed Judge Lassers that the pretrial judge had barred plaintiffs from naming experts. Defense counsel requested that the court grant summary judgment to Dr. Salafsky, clarifying that the motion was substantive and was supported by an affidavit from Dr. Dietz which alleged that defendant did not act negligently. Judge Lassers granted summary judgment in favor of Dr. Salafsky, but ordered defense counsel to file an additional motion to make the order final and appealable according to Supreme Court Rule 304(a)(107 Ill. 2d R. 304(a)).

Plaintiffs filed a motion to vacate the summary judgment order on August 14, 1989. On August 23, 1989, Judge Lassers heard Dr. Salafsky’s motion to make the summary judgment order final and appealable and plaintiffs’ motion to vacate the summary judgment order. Plaintiffs’ counsel indicated that although he had an expert, he did not yet have an opinion because he gave the records to his expert only a week before. Again, plaintiffs requested a continuance of their motion. Plaintiffs’ counsel suggested that Judge Lassers postpone his decision until the pretrial judge decided plaintiffs’ motion to vacate, which was set for September 19, 1989. Judge Lassers subsequently continued the motions before him to October 5, 1989, and then to November 15, 1989.

Meanwhile, on November 13, 1989, after continuing plaintiffs’ motion to vacate the order barring experts, the pretrial judge granted plaintiffs until November 28, 1989, to answer the Rule 220 interrogatories regarding experts. However, on November 15, 1989, the parties again appeared before Judge Lassers for continued hearings regarding the summary judgment. Plaintiffs’ counsel explained that the pretrial judge had granted plaintiffs 15 additional days to answer defendants Rule 220 interrogatories and requested that Judge Lassers further continue the matter until after that date. Again, counsel stated that although he now had an expert, he still had no opinion regarding Dr. Salafsky’s negligence. The court concluded that plaintiffs had received enough time and granted Dr. Salafsky’s request to make the summary judgment order final and appealable.

On appeal, plaintiffs contend that the grant of summary judgment was improper. Plaintiffs essentially make three arguments: First, plaintiffs contend that the order granting summary judgment was a discovery sanction and, as such, was an excessive penalty. Plaintiffs also argue that summary judgment in favor of Dr.

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Bluebook (online)
563 N.E.2d 1026, 206 Ill. App. 3d 31, 150 Ill. Dec. 899, 1990 Ill. App. LEXIS 1721, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brandeis-by-brandeis-v-salafsky-illappct-1990.