Essig v. Advocate Bromenn Medical Center

2015 IL App (4th) 140546, 33 N.E.3d 288

• Court: Appellate Court of Illinois
• Decided: May 29, 2015
• Docket: 4-14-0546
• Status: Unpublished

Opinion

FILED 2015 IL App (4th) 140546 May 29, 2015 Carla Bender NO. 4-14-0546 th 4 District Appellate Court, IL IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

MICHAEL ESSIG and KAY ESSIG, Individually and as ) Appeal from Coadministrators of the Estate of Kathryn Essig, ) Circuit Court of Deceased, ) McLean County Plaintiffs-Appellants, ) No. 09L211 v. ) ADVOCATE BROMENN MEDICAL CENTER, ) Honorable Defendant-Appellee. ) Paul G. Lawrence, ) Judge Presiding.

JUSTICE STEIGMANN delivered the judgment of the court, with opinion. Justice Holder White concurred in the judgment and opinion. Justice Turner specially concurred, with opinion.

OPINION

¶1 In March 2009, 24-year-old Kathryn Essig died of a pulmonary thromboembolism

due to deep vein thrombosis, which occurred when a piece of a blood clot from her deep veins

traveled into her lungs and caused a blockage, leading to her asphyxiation. In October 2009,

Kathryn's parents, plaintiffs Michael and Kay Essig, sued Dr. Daniel Lange and Carle Clinic

Association, P.C. (Carle), alleging that Lange's negligent attempt to remove a kidney stone from

Kathryn in April 2008 was the proximate cause of her death. In June 2010, plaintiffs filed an

amended complaint, which added claims of institutional negligence against defendant, Advocate

BroMenn Medical Center (BroMenn). In February 2014, the trial court granted BroMenn's

motion for summary judgment. In June 2014, the court dismissed the case with prejudice after plaintiffs reached a settlement agreement with Lange and Carle.

¶2 Plaintiffs appeal, arguing that the trial court erred by granting summary judgment

in favor of BroMenn as to plaintiffs' claims of institutional negligence. We disagree and affirm.

¶3 I. BACKGROUND

¶4 The following facts were gleaned from the parties' pleadings, affidavits,

depositions, and admissions on file with the trial court.

¶5 A. The Defendants

¶6 Lange is a licensed physician specializing in the field of urology. In April 2008,

Lange was employed by Carle within Carle's clinic system in Bloomington-Normal. Although

an agent of Carle, Lange performed some surgical procedures at BroMenn Regional Medical

Center in Normal, Illinois. (In January 2010, BroMenn Regional Medical Center merged with

Advocate Health Care and became known as Advocate BroMenn Medical Center. We refer to

the defendant in this appeal and the physical hospital facility in Normal interchangeably as

"BroMenn.") Plaintiffs do not allege that Lange was an agent of BroMenn during the relevant

time period.

¶7 B. Events Preceding Kathryn's Death

¶8 On April 2, 2008, Kathryn went to the emergency room after experiencing lower

back pain and blood in her urine. A computed tomography scan revealed that Kathryn had a left

renal calculus (a kidney stone in her left kidney). Although Lange could not determine the

source of Kathryn's pain, he did not believe that this particular stone was the cause. Later that

day, Kathryn met with Lange, who, after a consultation, prescribed her some pain medication

and instructed her to return to see him in five days.

-2- ¶9 On April 7, 2008, Kathryn again met with Lange and agreed to be admitted to

BroMenn the next day as an inpatient to undergo a procedure—known as a ureteroscopy—in

which a long, thin, flexible scope would be inserted into her urethra and up through her ureter to

allow Lange to see the inside of her urinary system. (The ureter is a thin tube that transports

urine from the kidney to the bladder.) Lange ordered the ureteroscopy to help him identify the

nature of Kathryn's medical problems. Kathryn signed a preprinted form entitled

"Acknowledgement of Informed Consent to Operation or Procedure." This form, which bore

BroMenn's letterhead, stated, in pertinent part, as follows (italics indicate handwritten portions):

"1. I hereby request and authorize Dr. Lange *** to treat

the condition(s) which appear indicated by the diagnostic studies

already performed. The procedure to treat my condition is

cystoscopy, bilateral retrograde pyelogram, possible ureteroscopy

with possible stone manipulation and possible stent insertion.

2. My doctor has explained to me the diagnosis of my

condition and the nature and purpose of the procedure for which

this consent is given, as well as the risks and complications

associated with this procedure. In addition, he/she has advised me

of the feasible alternative forms of treatment.

3. I am aware that during the course of the authorized

procedure, unexpected conditions may be revealed that require an

extension of the authorized procedure or performance of a

procedure different than stated in paragraph #1. I, therefore,

-3- authorize the above named physician and selected assistant(s) to

perform such surgical and/or medical procedures as necessary in

his/her professional judgment. I am aware that the practice of

medicine and surgery is not an exact science, and I acknowledge

that no guarantees have been made to me as to the results of the

operation or procedure(s)."

¶ 10 On April 8, 2008, Kathryn was placed under general anesthesia in an operating

room at BroMenn's facility, where Lange performed the procedure at issue in this case. The only

agents of BroMenn present during the procedure were Christine Hammond, a registered nurse,

and Susan Spencer, an operating-room technician.

¶ 11 Lange performed the ureteroscopy by first passing the ureteroscope through

Kathryn's urethra to the bladder, then from the bladder into Kathryn's left ureter. Finding no

kidney stone in Kathryn's left ureter, Lange extended the ureteroscope all the way to the junction

of the ureter and Kathryn's left kidney. From prior imaging, Lange knew that a kidney stone was

present in Kathryn's left kidney. The ureteroscope was capable of grabbing onto the stone with a

"basket" that extended from the end of the scope. Although Lange did not think that this

particular stone was the cause of Kathryn's recent pain, he decided that removal of the stone was

medically appropriate. Lange grabbed the stone with the basket, intending to pull the stone

through the ureter to the bladder, then out of Kathryn's body. However, after Lange grabbed the

stone with the basket, the stone became stuck at the junction of the ureter and kidney. The stone

was too large to pull through the ureter.

¶ 12 In response to this complication, Lange decided to break up the stone into smaller

-4- fragments. Lange did this by releasing the stone from the basket and operating an

electrohydraulic lithotripsy (EHL) machine, which fragmented the stone using shockwaves

generated by electricity. After using the EHL machine to break the stone into two pieces, Lange

made several unsuccessful attempts to further manipulate the stone fragments or to open the

basket to retrieve the fragments. At that same time, Lange noticed that Kathryn's ureter had

become torn. Concerned that he might cause further damage to the ureter, Lange discontinued

the procedure. In so doing, Lange intentionally left various pieces of equipment inside Kathryn's

body so as to avoid further injury to the ureter. Two weeks later, Kathryn underwent an

additional surgical procedure to remove the stone pieces and the equipment left behind.

Thereafter, Kathryn continued to experience complications resulting from the damage to her left

ureter. In the months that followed, Kathryn underwent several additional procedures and

surgeries, including removal of her left kidney at the Cleveland Clinic in August 2008.

¶ 13 Kathryn continued to experience pain and complications until March 2009, when

she died suddenly as the result of a pulmonary thromboembolism. Specifically, Kathryn's death

occurred because a piece of a blood clot, which broke away from a larger blood clot inside a

deep vein in Kathryn's leg, was pumped through Kathryn's heart and into the arteries of her lung,

causing a blockage that resulted in asphyxia and cardiopulmonary arrest. It was discovered

postmortem that Kathryn had suffered from undiagnosed celiac disease during her lifetime,

which is associated with chronic inflammation and deep vein thrombosis. One of plaintiffs'

expert witnesses, Dr. Peter Green, opined in an affidavit that the injury to Kathryn's ureter during

the April 8, 2008, surgery exacerbated the symptoms of her celiac disease and thereby

contributed to her death.

-5- ¶ 14 C. Plaintiffs' Allegations

¶ 15 Although plaintiffs' claims against Lange and Carle are not at issue in this appeal,

we set forth those claims in detail so as to place plaintiffs' claims against BroMenn into the larger

context of this lawsuit.

¶ 16 1. Allegations Against Lange and Carle

¶ 17 Plaintiffs alleged that Lange, and thereby Carle through the doctrine of

respondeat superior, negligently (1) performed an invasive surgical procedure on Kathryn that

was not clinically necessary; (2) failed to properly perform that surgery; (3) proceeded with that

surgery knowing that a necessary piece of equipment was unavailable—namely, a holmium

laser—which provides a safer means of fragmenting kidney stones within the body; (4)

performed EHL upon Kathryn in the absence of Kathryn's informed consent; (5) caused a tear in

Kathryn's ureter; (6) failed to timely recognize and treat that tear; (7) caused or contributed to the

obliteration of Kathryn's ureter; (8) failed to properly manage Kathryn's postsurgical condition;

(9) failed to timely, properly, and adequately inform Kathryn of the cause and extent of the

injury to her ureter; (10) failed to fully inform Kathryn of the consequences and complications of

her care, including that she had suffered an accidental injury during the surgical procedure,

which caused urine to leak outside of her urological system; and (11) failed to afford Kathryn her

rights under the Medical Patient Rights Act (410 ILCS 50/0.01 to 99 (West 2008)).

¶ 18 2. Allegations Against BroMenn

¶ 19 Plaintiffs' claims against BroMenn were not based not upon respondeat superior,

but instead, institutional negligence, under which "[l]iability is predicated on the hospital's own

negligence, not the negligence of the physician." Jones v. Chicago HMO Ltd. of Illinois, 191 Ill.

-6- 2d 278, 292, 730 N.E.2d 1119, 1128 (2000). Plaintiffs' complaint set forth 13 specific

allegations of institutional negligence against BroMenn, which—taken together—generally

alleged that BroMenn committed institutional negligence by (1) permitting Lange to perform

unnecessary procedures upon Kathryn (specifically, the ureteroscopy and EHL procedure); (2)

failing to properly obtain informed consent from Kathryn; (3) improperly credentialing Lange,

particularly as to the use of EHL; and (4) failing to provide Lange with the necessary equipment,

namely a holmium laser.

¶ 20 Pursuant to section 2-622(a)(1) of the Code of Civil Procedure (735 ILCS 5/2-

622(a)(1) (West 2008)), plaintiffs attached to their complaint a physician's written report

attesting to the merits of their claims. In that report, Dr. Jay Copeland, a Maryland physician

who specialized in urology, provided the following opinions regarding BroMenn's liability:

"It is my medical opinion there was no need to proceed with

ureteroscopy on [Kathryn], considering the signs, symptoms, and

radiology findings prior to the performance of the procedure. ***

In my opinion, BroMenn allowed Dr. Lange to proceed with

performing [EHL] upon the patient without first obtaining the

patient's informed consent, and without the patient authorizing

such procedure. BroMenn failed to disclose to [Kathryn] the

potential risks of using the EHL machine and specifically failed to

disclose the high complication rates that such equipment carries

when utilized within the ureter in close proximity to the ureteral

tissue. ***

-7- In my opinion, BroMenn deviated from the medical

standard of care by allowing the patient to undergo a surgical

procedure without first obtaining the patient's informed consent.

***

I believe BroMenn should have had a Holmium laser

available for Dr. Lange if it was his expectation that such

equipment was needed for treatment of the patient's medical

problem. ***

I believe BroMenn was negligent by failing to adequately

monitor Dr. Lange, failing to provide him with training in the use

of the EHL machine, and failing to assure that he would provide

medical care and services that met the applicable standard of care.

I believe BroMenn was negligent by failing to properly credential

Dr. Lange and failing to train him in the proper use of its EHL

machine. It would appear from a review of the medical records

and from Dr. Lange's deposition that he should not have been

credentialed to perform such a procedure upon the patient, under

the applicable circumstances."

¶ 21 D. Lange's Admissions

¶ 22 In response to plaintiffs' written interrogatories, Lange provided the following

pertinent facts: (1) Lange told Kathryn before the April 8, 2008, procedure that he would attempt

to manipulate the kidney stone, if possible; (2) the stone's becoming stuck at the junction of the

-8- kidney and ureter was an unexpected condition of the surgery; (3) it was Lange's professional

judgment that the stone's becoming stuck necessitated the use of EHL; (4) Lange had previously

used EHL equipment in postresidency practice and believed he did not require any additional

training; (5) Lange was aware that damage to the ureter was a potential complication of EHL;

and (6) pursuant to an agreement with BroMenn, a third-party provider could have provided a

holmium laser for the April 8, 2008, procedure if Lange had so requested in advance.

¶ 23 E. The Experts

¶ 24 1. Plaintiffs' Experts

¶ 25 Plaintiffs retained three expert witnesses: Jay Copeland, M.D.; Peter Green, M.D.;

and Lawrence Hatchett, M.D. Among those three experts, however, only Copeland claimed to

have any opinion as to whether BroMenn was in any way negligent. Green and Hatchett both

explicitly stated that they had no opinion as to whether BroMenn or any of its agents breached

any applicable standard of care. Accordingly, we summarize only Copeland's opinions.

¶ 26 At an August 2012 deposition, Copeland testified that the task of obtaining

informed consent is "purely a function of a physician," who usually obtains informed consent

from the patient in an office setting without hospital personnel present. Copeland also testified

that it is sometimes permissible, and within the standard of care, for a physician to respond to an

unexpected complication of surgery by performing an additional procedure that was not

discussed with the patient ahead of time.

¶ 27 Copeland acknowledged that circumstances exist in which the use of EHL falls

within the standard of care—namely, when used to fragment a stone in the bladder. Copeland

believed that Lange's use of EHL to fragment a stone in the ureter was a breach of the standard

-9- of care. When asked to explain how he believed BroMenn "permitted" Lange to use EHL upon

Kathryn in an inappropriate manner, Copeland suggested that the BroMenn nurse who was

present during the procedure should have "questioned" Lange's use of EHL because (1) EHL was

not listed on the "operative permit" and (2) the nurse should have known that Lange's intended

use of EHL was not appropriate under the circumstances. In somewhat of a contradiction,

however, Copeland also stated that (1) the stone becoming stuck at the junction of Kathryn's

ureter was an unexpected complication of the procedure and (2) the manner of dealing with an

unexpected complication is a surgical decision, not a nursing decision.

¶ 28 Copeland also agreed that Lange had been trained in the use of EHL, but

Copeland did not know the nature or extent of that training. Despite statements Copeland made

in his section 2-622 report, he actually did not know anything about the credentials or privileges

BroMenn provided to Lange regarding the use of EHL. The following exchange occurred

between Copeland and counsel for Lange and Carle:

"[COUNSEL]: You talk about that Dr. Lange was

improperly credentialed and BroMenn should not have

credentialed him to use EHL. What's your basis for that opinion?

[COPELAND]: *** I think using EHL in a proper way

such as in the bladder is what its current use is. And unfortunately

*** I don't know enough about BroMenn's credentialing because

there was a problem one way or the other, *** either Dr. Lange

was not credentialed to use it for renal or ureteral calculi [(stones

in the kidney or ureter)]. And if he wasn't, he used it, which is a

- 10 - breach of the standard of care. ***

The other way, he was credentialed by BroMenn to use it in

the ureter and in the kidney, which is not right. ***

[COUNSEL]: Okay. Is it common for you to offer

opinions with regard to whether a doctor was improperly

credentialed by a hospital even though you don't know anything

about exactly what those credentials are and what that

credentialing process was?

[COPELAND]: I guess as a specific statement no, but

there's the problem with the peer review where we know that Dr.

Lange has had multiple peer reviews ***. *** [E]ither Dr. Lange

wasn't credentialed or was improperly credentialed. And if he was

not credentialed, then it's the hospital mechanism failing to keep

him from using the EHL in an improper way."

Copeland then explained that his concerns over Lange's credentials arose from a November 2009

letter to Lange from BroMenn's president, Alan Ginzburg, regarding peer review of Lange's past

cases. That letter, which is included in the record, reads in its entirety as follows:

"Dear Dr. Lange,

As you know, the medical staff is responsible for peer

review and assurance of quality care at BroMenn. Over the past

few years, several of your cases have been the subject of peer

review.

- 11 - I am happy to report, however[,] that none of the reviews

raised questions or concerns regarding your surgical skills,

judgment, or medical care. Therefore, this letter is to affirm that

your urology privileges at BroMenn are full and unrestricted at this

time."

After reading Ginzburg's letter aloud at his deposition, Copeland stated, "I imply from that that

there have been questions about cases Dr. Lange has done. I know nothing further than that."

¶ 29 2. BroMenn's Experts

¶ 30 In support of its motion for summary judgment, BroMenn submitted the affidavit

of Kelly Cone, a registered nurse who stated that she was familiar with "standards of care for

hospital personnel such as nurses and certified nursing technicians in the surgical environment

and, in particular, in the environment of assisting physicians with the urological procedures such

as occurred in the matter that is in litigation in this case."

¶ 31 Cone explained why the standard of care would not require the nurse or surgical

technician to intervene when Lange decided to use EHL:

"[A] reasonably well-qualified nurse or certified surgical

technician would not know whether EHL was or was not an

appropriate modality of treatment in the situation that allegedly

presented to Dr. Lange[,] as that is not in their scope of practice. A

decision of that nature is considered the practice of medicine and is

not an area in which a reasonably well-qualified nurse or certified

surgical technician is educated—hence it was not contrary to the

- 12 - standard of care to not attempt to intervene in some fashion when

Dr. Lange chose that modality of treatment to attempt to alleviate

the problem that he perceived he was facing."

Cone went on to explain that virtually all of Lange's allegedly negligent decisions regarding the

April 8, 2008, procedure were medical decisions and therefore outside the scope of practice of a

nurse or surgical technician. (We note that Hammond and Spencer, the registered nurse and

operating-room technician present during the April 8, 2008, procedure, are the only BroMenn

personnel who plaintiffs have alleged were involved in Lange's treatment of Kathryn.)

¶ 32 F. Summary Judgment

¶ 33 In December 2013, BroMenn moved for summary judgment. In February 2014,

after briefing and a hearing (the transcript of which is not included in the record on appeal), the

trial court granted summary judgment for BroMenn. In a written order, the court found that (1)

no triable issues of fact existed between plaintiffs and BroMenn, and (2) "the alleged negligent

acts [were] not the proximate cause of plaintiffs' alleged damages." In June 2014, after plaintiffs

reached a settlement agreement with Lange and Carle, the court dismissed the action with

prejudice.

¶ 34 This appeal followed.

¶ 35 II. ANALYSIS

¶ 36 On appeal, plaintiffs argue that the trial court erred by granting summary

judgment in favor of BroMenn as to plaintiffs' claims of institutional negligence. We disagree.

¶ 37 A. Summary Judgment and the Standard of Review

¶ 38 "The purpose of a summary-judgment proceeding is not to try an issue of fact but,

- 13 - instead, to determine whether a genuine issue of material fact exists." Evans v. Brown, 399 Ill.

App. 3d 238, 243, 925 N.E.2d 1265, 1270 (2010). Summary judgment is appropriate only "if the

pleadings, depositions, and admissions on file, together with the affidavits, if any, show that

there is no genuine issue as to any material fact and that the moving party is entitled to a

judgment as a matter of law." 735 ILCS 5/2-1005(c) (West 2012). "In order to survive a motion

for summary judgment, a plaintiff need not prove her case, but she must present a factual basis

that would arguably entitle her to a judgment." Bruns v. City of Centralia, 2014 IL 116998, ¶ 12,

21 N.E.3d 684. "If the plaintiff fails to establish any element of the cause of action, summary

judgment for the defendant is proper." Williams v. Manchester, 228 Ill. 2d 404, 417, 888 N.E.2d

1, 9 (2008).

¶ 39 We review a trial court's entry of summary judgment de novo. Standard Mutual

Insurance Co. v. Lay, 2013 IL 114617, ¶ 15, 989 N.E.2d 591. Before turning to plaintiffs' claims

and the trial court's judgment in this case, however, we must address evidentiary issues that have

come to light on appeal.

¶ 40 B. Plaintiffs' Reliance Upon Improper Evidence

¶ 41 Throughout this litigation, plaintiffs' arguments against summary judgment have

been based primarily upon evidence that was not properly before either the trial court or this

court when determining whether summary judgment was appropriate. Specifically, plaintiffs

have relied mostly on the opinions in Copeland's written report, which plaintiffs filed along with

their complaint pursuant to section 2-622(a)(1) of the Code. Indeed, Copeland's section 2-622

report is by far the most heavily cited item in the record. (The report is literally "Exhibit A" of

plaintiffs' memorandum in opposition to BroMenn's motion for summary judgment.) However,

- 14 - plaintiffs' reliance on Copeland's report is entirely inappropriate for purposes of summary

judgment.

¶ 42 Section 2-622(a)(1) of the Code provides, in pertinent part, as follows:

"(a) In any action *** in which the plaintiff seeks damages

for injuries or death by reason of medical, hospital, or other

healing art malpractice, the plaintiff's attorney *** shall file an

affidavit, attached to the original and all copies of the complaint,

declaring one of the following:

1. That the affiant has consulted and reviewed the

facts of the case with a health professional ***; that the

reviewing health professional has determined in a written

report *** that there is a reasonable and meritorious cause

for the filing of such action ***. *** A copy of the written

report, clearly identifying the plaintiff and the reasons for

the reviewing health professional's determination that a

reasonable and meritorious cause for the filing of the action

exists, *** must be attached to the affidavit." 735 ILCS

5/2-622(a)(1) (West 2008).

¶ 43 Copeland's written report in this case, although sufficient for purposes of section

2-622 of the Code, was entirely insufficient for the purpose of opposing BroMenn's motion for

summary judgment. The most obvious fatal deficiency is that Copeland's written report was not

an affidavit, meaning it was not sworn to, notarized, or otherwise made under oath. See Roth v.

- 15 - Illinois Farmers Insurance Co., 202 Ill. 2d 490, 494, 782 N.E.2d 212, 214 (2002) ("[A]n

affidavit must be sworn to, and statements in a writing not sworn to before an authorized person

cannot be considered affidavits."). Section 2-1005(c) of the Code requires the trial court to make

its summary judgment determination based upon "the pleadings, depositions, and admissions on

file, together with the affidavits." 735 ILCS 5/2-1005(c) (West 2012). Unsworn statements of

opinion from a party's retained expert may not be considered for purposes of section 2-1005(c) of

the Code.

¶ 44 At oral argument in this appeal, plaintiffs' counsel asserted that Copeland's section

2-622 report should be considered a "sworn" document because Copeland subsequently

"incorporated" the report into a November 2013 affidavit. We disagree. Copeland prepared two

section 2-622 reports in this case: one discussing the cause of action against Lange and Carle and

one discussing the cause of action against BroMenn. In Copeland's November 2013 affidavit,

executed more than 3 1/2 years after he prepared his section 2-622 reports, Copeland purported

to incorporate only a single report, stating, "I have prepared a written report in this matter,

attached hereto and incorporated herein as part of this affidavit." (Emphasis added.) Although

neither report was actually attached to the affidavit and Copeland did not specify which of the

two reports he was attempting to incorporate, we note that the November 2013 affidavit was filed

in response to Lange and Carle's motion for summary judgment. Copeland signed his affidavit

the same day that plaintiffs' counsel signed his response to Lange and Carle's motion for

summary judgment (November 19, 2013), and both documents were filed together the following

day. Copeland's November 2013 affidavit said nothing about BroMenn or institutional

negligence, but instead, concluded with the following statement: "[I]t is my opinion *** that the

- 16 - iatrogenic injuries and their sequelae suffered by [Kathryn] *** are the type of injuries that a

reasonably well qualified physician and surgeon would anticipate as a likely result of

substandard medical care in the performance of urologic surgery." Last, plaintiffs did not

include this affidavit in the materials they submitted in response to BroMenn's motion for

summary judgment. It is obvious to us that Copeland—even if he can be said to have

"incorporated" his earlier unsworn statements into a sworn affidavit—incorporated only the

section 2-622 report pertaining to Lange and Carle. We reject counsel's assertion that Copeland's

section 2-622 report pertaining to BroMenn should be considered an affidavit.

¶ 45 In any event, when a party offers expert opinions in written form at the summary

judgment stage, the writing must not only be sworn (i.e., an affidavit), but must also comply with

Illinois Supreme Court Rule 191(a) (eff. July 1, 2002), which provides, in pertinent part, as

follows:

"Affidavits in support of and in opposition to a motion for

summary judgment under section 2-1005 of the Code of Civil

Procedure *** shall be made on the personal knowledge of the

affiants; shall set forth with particularity the facts upon which the

claim, counterclaim, or defense is based; shall have attached

thereto sworn or certified copies of all papers upon which the

affiant relies; shall not consist of conclusions but of facts

admissible in evidence; and shall affirmatively show that the

affiant, if sworn as a witness, can testify competently thereto."

¶ 46 The requirements of Rule 191(a) are based on the recognition that "[a]n affidavit

- 17 - submitted in the summary judgment context serves as a substitute for testimony at trial."

Robidoux v. Oliphant, 201 Ill. 2d 324, 335, 775 N.E.2d 987, 994 (2002). At trial, an expert may

give an opinion without first disclosing the facts underlying that opinion (Wilson v. Clark, 84 Ill.

2d 186, 194, 417 N.E.2d 1322, 1326 (1981)) because the opposing party has the opportunity to

cross-examine the expert as to the basis of his opinion. Robidoux, 201 Ill. 2d at 334, 775 N.E.2d

at 993. However, because the opportunity to cross-examine is not present when a party submits

written opinions in the summary judgment context, Rule 191(a) essentially requires the affiant to

provide his own cross-examination regarding the factual bases for his opinions. Id. at 338, 775

N.E.2d at 995 ("Given that cross-examination is unavailable as a means to test an affidavit, it is

not surprising that the standard for admission of an affidavit in a summary judgment context

would be higher than for the admission of an expert's opinion at trial.").

¶ 47 Copeland's section 2-622 report failed almost entirely to comply with the

requirements of Rule 191(a). Copeland based much of his conclusory opinions on facts upon

which he had no personal knowledge, he failed to set forth with particularity the facts upon

which he based his opinions, and he failed to attach to his report the documents upon which he

relied. Because affidavits in summary judgment proceedings are substitutes for trial testimony,

"it is necessary that there be strict compliance with Rule 191(a) 'to insure that trial judges are

presented with valid evidentiary facts upon which to base a decision.' " Id. at 336, 775 N.E.2d at

994 (quoting Solon v. Godbole, 163 Ill. App. 3d 845, 851, 516 N.E.2d 1045, 1049 (1987)).

¶ 48 The facts of this case acutely illustrate the purpose behind Rule 191(a). At

Copeland's deposition, when defense counsel asked Copeland about certain opinions he included

in his section 2-622 report, the following exchange occurred:

- 18 - "[COUNSEL]: [Y]ou talk about, 'BroMenn failed to properly

inform the patient that the urological basket was stuck in the

patient's left ureter and failed to clearly and plainly explain to the

patient that she had suffered an injury during the procedure on

April 8, 2008, at BroMenn.' That's your opinion?

[COPELAND]: Yes.

[COUNSEL]: So are you saying that neither [Kathryn] nor

her family were ever informed that the basket was stuck and that

she suffered an injury during the procedure on April 8, 2008, at

BroMenn?

[COPELAND]: I'm not clear what was explained to them.

Obviously [Kathryn] is dead and I don't know specifically what her

parents said.

[COUNSEL]: Why did you offer that opinion if you don't

really know what was informed as to the patient?

[COPELAND]: Because I was told that they didn't know.

[COUNSEL]: Who told you that?

[COPELAND]: Dr. Pliura [(plaintiffs' counsel)].

[COUNSEL]: Is it normal for you to rely upon the

statements of the advocate for one side or the other as your basis

for an opinion in a medical malpractice case?

[COPELAND]: If I don't have that information myself."

- 19 - ¶ 49 As the above exchange illustrates, at least some of the opinions in Copeland's

section 2-622 report had no valid evidentiary basis because they were based on nothing more

than the representations of plaintiffs' attorney, Thomas Pliura. Copeland therefore could not

have competently testified as to such opinions at trial. Opinions that are inadmissible at trial

cannot be used in opposition to a motion for summary judgment. If the rule were otherwise, the

motion for summary judgment might be denied based upon such an inadmissible opinion, only to

have the case then proceed to trial (with all the expenses and resources that would entail), at

which the opinion might still be inadmissible. This is exactly why Rule 191(a) requires an

expert to demonstrate that his opinion would be admissible at trial by setting forth the particular

facts upon which he relied in reaching his opinion, and to attach to his affidavit the documents

upon which he relied. Were we to give Copeland's report any evidentiary weight for purposes of

summary judgment, we would be allowing plaintiffs to use unsupported, bare conclusions from

an expert as " 'a free pass to trial.' " Id. at 337, 775 N.E.2d at 994 (quoting Hayes v. Douglas

Dynamics, Inc., 8 F.3d 88, 92 (1st Cir. 1993)). Accordingly, plaintiffs' reliance on Copeland's

section 2-622 report in opposition to summary judgment is improper. See Forsberg v. Edward

Hospital & Health Services, 389 Ill. App. 3d 434, 440, 906 N.E.2d 729, 734 (2009) (holding that

the expert's section 2-622 report in that case, even if sufficient to be considered an affidavit, was

nonetheless inadmissible in opposition to the defendant's motion for summary judgment because

it failed to comply with Rule 191(a)).

¶ 50 Copeland's written report is not the only piece of improper evidence upon which

plaintiffs have relied in the trial court and on appeal. In their brief to this court, for example,

plaintiffs assert that EHL "carries the highest complication rate" and "should not be available as

- 20 - an option for use in a hospital or surgery center." In support of these assertions, however,

plaintiffs cite an unsworn, unsigned, 22-page document in the record that appears to consist of

(1) text that has been copied from a medical record in Kathryn's case and (2) intermittent

commentary, written in the first person, critiquing Lange and BroMenn. Remarkably, although

the author of the commentary is not even identified in the document, plaintiffs have relied upon

this commentary in the factual statement and argument section of their appellate brief.

¶ 51 Elsewhere in their brief to this court, plaintiffs rely upon purported conclusions

and opinions contained in plaintiffs' discovery disclosures filed pursuant to Illinois Supreme

Court Rule 213(f)(3) (eff. Jan. 1, 2007). Rule 213(f)(3) provides, in pertinent part, that "[u]pon

written interrogatory, a party must furnish the identities and addresses of witnesses who will

testify at trial" and, for controlled expert witnesses, "identify: (i) the subject matter on which the

witness will testify; (ii) the conclusions and opinions of the witness and the bases therefor; (iii)

the qualifications of the witness; and (iv) any reports prepared by the witness about the case."

(Emphasis added.) Ill. S. Ct. R. 213(f)(3) (eff. Jan. 1, 2007). The purpose of this rule "is to

prevent unfair surprise at trial, without creating an undue burden on the parties before trial." Ill.

S. Ct. R. 213, Committee Comments (adopted Mar. 28, 2002). However, the contents of Rule

213(f) disclosures are not evidence for purposes of summary judgment because Rule 213(f)

disclosures are not pleadings, depositions, admissions, or affidavits. 735 ILCS 5/2-1005(c)

(West 2012).

¶ 52 Notably, Rule 213(f) requires the party—not the expert himself—to disclose the

substance of the expert's anticipated testimony. The disclosures plaintiffs rely upon in this case

were written and signed by plaintiffs' counsel, Pliura, and are unsworn. Pliura merely sets forth

- 21 - in the disclosures how he anticipates his retained experts will testify. We need look no further

than the strict requirements of Rule 191(a)—which apply even when an expert sets forth his

opinions in his own affidavit (Robidoux, 201 Ill. 2d at 337, 775 N.E.2d at 995)—to understand

why Pliura's Rule 213(f) disclosures cannot possibly be considered admissible as evidence of his

expert witnesses' opinions for purposes of summary judgment. In fact, we note that the Rule

213(f) disclosure that plaintiffs rely upon in arguing that Lange's procedure contributed to

Kathryn's death consists mostly of information that Pliura apparently copied from online medical

websites and pasted into the disclosure document. (We infer that Pliura copied this information

directly from websites because the disclosure document includes multiple different font sizes and

styles, website graphics, and metadata throughout.)

¶ 53 We have chosen to discuss plaintiffs' reliance upon improper evidence at length

because, for reasons that are not entirely clear, BroMenn has not. As far as the record reveals,

BroMenn has at no point during this litigation objected—or even drawn the court's attention to—

plaintiffs' improper reliance upon Copeland's section 2-622 report, the Rule 213(f) disclosures, or

any other inadmissible evidence for purposes of the summary judgment determination. In its

written order, the trial court did not reveal how it dealt with the improper evidence for purposes

of summary judgment—whether it gave full consideration to it or disregarded it in its entirety.

¶ 54 However, on review of a trial court's summary judgment determination, we are to

perform the appropriate analysis de novo, without deferring to the trial court's judgment or

reasoning. Bank of America, N.A. v. Adeyiga, 2014 IL App (1st) 131252, ¶ 56, 29 N.E.3d 60.

Indeed, even in the absence of an objection, the appropriate summary judgment analysis usually

requires the court to first identify the evidence that should be considered. In other words, the

- 22 - court cannot determine whether the "the pleadings, depositions, and admissions on file, together

with the affidavits" (735 ILCS 5/2-1005(c) (West 2012)) reveal a genuine issue of material fact

without first distinguishing the pleadings, depositions, admissions on file, and affidavits from the

rest of the various documents and filings in the record.

¶ 55 Further, although we have already concluded in this case that Copeland's section

2-622 report is not an affidavit, we note that courts of review have deemed it appropriate to sua

sponte determine the sufficiency of affidavits on de novo review of a trial court's summary

judgment ruling. In Fabiano v. City of Palos Hills, 336 Ill. App. 3d 635, 784 N.E.2d 258 (2002),

the court stated the general rule:

" 'Although the court at the summary judgment stage does

not try the issues, evidence that would be inadmissible at trial may

not be considered in support of or in opposition to a motion for

summary judgment. [Citation.] Accordingly, the trial court must

consider and decide whether the affidavits and attachments that

purport to create a genuine issue of material fact would be

admissible evidentiary matter at a trial on the merits.' " (Emphases

added.) Id. at 648, 784 N.E.2d at 271 (quoting Safeway Insurance

Co. v. Hister, 304 Ill. App. 3d 687, 691, 710 N.E.2d 48, 51

(1999)).

In Fabiano, the trial court failed to rule on the admissibility of evidence offered at the summary

judgment stage, even though both parties had raised objections. Id. On appeal, the First District

concluded that although "the trial judge failed to make the required evidentiary rulings in this

- 23 - case" and "neither party filed a written motion to strike affidavits submitted by the other, the

absence of such a motion does not preclude this court's de novo review of the sufficiency of

those affidavits." Id.

¶ 56 One year prior to Fabiano, in Jackson v. Graham, 323 Ill. App. 3d 766, 774, 753

N.E.2d 525, 532 (2001), this court held that (1) de novo review applies to the trial court's striking

of an affidavit in conjunction with a summary judgment ruling and (2) the trial court can—and

should—sua sponte strike affidavits that are insufficient under Rule 191(a).

¶ 57 In this case, BroMenn's failure to object to plaintiffs' reliance upon improper

evidence does not require this court to consider that improper evidence for purposes of summary

judgment. As we have often stated, "forfeiture is a limitation on the parties and not on this court,

which has a responsibility to achieve a just result and maintain a sound and uniform body of

precedent." Roxana Community Unit School District No. 1 v. Environmental Protection Agency,

2013 IL App (4th) 120825, ¶ 39, 998 N.E.2d 961. Accordingly, we turn now to whether the "the

pleadings, depositions, and admissions on file, together with the affidavits" (735 ILCS 5/2-

1005(c) (West 2012)), provide a factual basis for plaintiffs' claims against BroMenn. Because

we decline to consider the improper evidence in making our determination, our analysis is

relatively straightforward.

¶ 58 C. Plaintiffs' Claims Against BroMenn

¶ 59 Plaintiffs' institutional-negligence claims against BroMenn can be divided into

four general categories: (1) credentialing of Lange; (2) permitting Lange to perform the specific

procedure at issue in this case; (3) lack of informed consent; and (4) failure to make available a

holmium laser.

- 24 - ¶ 60 The tort of institutional negligence, also known as direct corporate negligence,

treats the hospital itself as the alleged tortfeasor. Under this tort theory, "a defendant hospital is

judged against what a reasonably careful hospital would do under the same circumstances."

Longnecker v. Loyola University Medical Center, 383 Ill. App. 3d 874, 885, 891 N.E.2d 954,

963 (2008) (citing Illinois Pattern Jury Instructions, Civil, No. 105.03.01 (1995)). Ordinarily, the

hospital's institutional duty of care is "administrative or managerial in character." Jones, 191 Ill.

2d at 291, 730 N.E.2d at 1128.

¶ 61 In Jones, the supreme court explained the principles underlying the tort of

institutional negligence:

"Underlying the tort of institutional negligence is a

recognition of the comprehensive nature of hospital operations

today. The hospital's expanded role in providing health care

services to patients brings with it increased corporate

responsibilities. As Darling [v. Charleston Community Memorial

Hospital, 33 Ill. 2d 326, 332, 211 N.E.2d 253, 257 (1965)],

explained: 'Present-day hospitals, as their manner of operation

plainly demonstrates, do far more than furnish facilities for

treatment. They regularly employ on a salary basis a large staff of

physicians, nurses[,] and intern[s], as well as administrative and

manual workers, and they charge patients for medical care and

treatment, collecting for such services, if necessary, by legal

action.' [Citation.] *** [I]n recognizing hospital institutional

- 25 - negligence as a cause of action, Darling merely applied principles

of common law negligence to hospitals in a manner that comports

with the true scope of their operations. [Citation.]" Id. at 292, 730

N.E.2d at 1128.

With these legal principles in mind, we turn now to plaintiffs' specific claims.

¶ 62 1. Credentialing of Lange

¶ 63 In Frigo v. Silver Cross Hospital & Medical Center, 377 Ill. App. 3d 43, 72, 876

N.E.2d 697, 723 (2007), the First District laid out the elements of proof required when a

plaintiff's claims of institutional negligence are premised upon the defendant hospital's negligent

credentialing of a treating physician:

"First, to prevail, the plaintiff must prove the hospital failed to

meet the standard of reasonable care in the selection of the

physician it granted medical staff privileges to whose treatment

provided the basis for the underlying medical malpractice claim.

Hospitals are required to exercise reasonable care in the granting of

medical staff privileges. 'Reasonable care' means that degree of

care, skill and judgment usually exercised under like or similar

circumstances by the average hospital. Expert testimony is

required to prove the applicable standard of care and whether that

standard was violated.

Second, the plaintiff must prove that, while practicing

pursuant to negligently granted medical staff privileges, the

- 26 - physician breached the applicable standard of care. Finally, the

plaintiff must prove that the negligent granting of medical staff

privileges was a proximate cause of the plaintiff's injuries."

¶ 64 In this case, plaintiffs alleged in their first amended complaint that BroMenn

committed institutional negligence by (1) "failing to properly credential, supervise, monitor[,]

and review the care and treatment by Dr. Lange so as to protect patients of [BroMenn], including

[Kathryn], from unsafe and unnecessary care"; (2) "permitting and credentialing Dr. Lange to use

[BroMenn's EHL] equipment in the care and treatment of [BroMenn's] patients, including

[Kathryn], when [BroMenn] knew or should have known that Dr. Lange had not been adequately

trained in the proper use and clinical appropriateness of the equipment"; and (3) "permitting and

credentialing Dr. Lange to practice at [BroMenn] when [BroMenn] knew or should have known

that Dr. Lange was unqualified, negligent, and/or otherwise unsuitable to exercise the privileges

granted."

¶ 65 Initially, we note that plaintiffs have not even attempted to argue on appeal that

BroMenn knew or should have known Lange (1) had not been adequately trained in the proper

use and clinical appropriateness of EHL or (2) was unqualified, negligent, and/or otherwise

unsuitable to exercise the privileges granted. (Plaintiffs have likely not made these arguments

because the record contains no evidence whatsoever to support them.) Plaintiffs have offered no

evidence pertaining to Lange's performance history, peer-review assessments, or any other such

information that BroMenn allegedly had—or should have had—which would have put them on

notice of Lange's allegedly negligent treatment of patients.

¶ 66 In support of their conclusory contention that BroMenn negligently credentialed

- 27 - Lange, plaintiffs rely exclusively upon Copeland's (1) section 2-622 report and (2) deposition

testimony. As already stated, we will not consider the unsworn, unsupported opinions contained

in Copeland's section 2-622 report for purposes of our summary judgment determination. As to

Copeland's deposition testimony, plaintiffs' argument on appeal consists merely of a citation to a

portion of the deposition transcript that they assert contains "a lengthy discussion on the issue of

negligent credentialing." We have thoroughly reviewed that portion of the transcript and,

although it does include a discussion about credentialing, it actually reveals that Copeland knew

nothing about BroMenn's credentialing of Lange, much less whether it was negligent. In fact,

Copeland admitted, "I don't know enough about BroMenn's credentialing." Simply put, nothing

in the record provides any factual support for plaintiffs' claims regarding BroMenn's alleged

negligent credentialing of Lange. Accordingly, the trial court properly granted summary

judgment for BroMenn as to those claims.

¶ 67 2. Permitting the Specific Procedure at Issue

¶ 68 Plaintiffs also alleged in their complaint that BroMenn committed institutional

negligence by permitting Lange to perform a ureteroscopy and EHL upon Kathryn "when

[BroMenn], through its agents, employees, and servants knew or should have known that such

procedure[s were] not clinically indicated or otherwise necessary." In support of this claim,

plaintiffs rely exclusively upon Copeland's section 2-622 report. However, not only is

Copeland's report not properly before the court (as we have already explained), it does not even

support plaintiffs' claim.

¶ 69 Citing to the first page of Copeland's section 2-622 report, plaintiffs assert in their

brief on appeal that "Copeland is of the opinion that permitting a surgeon to perform unnecessary

- 28 - procedures violates the hospital's standard of care." We have reviewed the cited portion of

Copeland's report and find no such opinion contained therein. (In fact, the term "standard of

care" appears nowhere on the cited page.) Copeland does state, "[i]n my opinion, BroMenn

allowed Dr. Lange to proceed with a surgical procedure on [Kathryn] when said procedure was

not clinically indicated or necessary." But this statement reveals nothing about the standard of

care applicable to a claim of institutional negligence. As the supreme court has explained, a

hospital's duty of care under the tort of institutional negligence is ordinarily "administrative or

managerial in character." Jones, 191 Ill. 2d at 291, 730 N.E.2d at 1128. If simply "allowing" a

physician to perform procedures on its premises renders a hospital institutionally liable whenever

that physician commits malpractice, then the tort of institutional negligence would be rendered a

tort of strict liability.

¶ 70 Plaintiffs have offered no evidence that any agent, employee, or servant of

BroMenn knew or should have known that a ureteroscopy or EHL were not clinically indicated

or necessary. Although plaintiffs have never expressly stated what they believe BroMenn should

have done differently in this case, the only logical inference from their argument is that BroMenn

should have appointed some type of agent—presumably, a fully trained and licensed urologist—

to oversee Lange's treatment of Kathryn and to veto the allegedly negligent course of treatment

that Lange chose to undertake. Under plaintiffs' theory of liability, we can think of no other way

for a hospital to ensure that a physician practicing on its premises does not perform a procedure

that is "not clinically indicated or necessary." Of course, the law does not impose such a duty on

hospitals. See Alford v. Phipps, 169 Ill. App. 3d 845, 857-58, 523 N.E.2d 563, 571 (1988) ("As

a general rule, the decision to treat a patient in a particular matter is a medical question entirely

- 29 - within the discretion of the treating physician, not the hospital [citation], and traditionally it has

been held that a hospital is not liable for acts of one who renders medical care as an independent

agent outside the control of the hospital [citation]."); see also Pickle v. Curns, 106 Ill. App. 3d

734, 739, 435 N.E.2d 877, 881-82 (1982) ("We do not recognize the existence of a duty on the

part of the hospital's administration to insure that each of its staff physicians will always perform

his duty of due care to his patient. [Citation.] *** '[A] hospital will not be held liable for an act

of malpractice performed by an independently retained healer, unless it had reason to know the

act of malpractice would take place ***.' " (quoting Fiorentino v. Wenger, 19 N.Y.2d 407, 414

(1967))).

¶ 71 In this case, the record contains no evidence that BroMenn knew or should have

known that Lange was anything less than fully qualified to treat patients in accordance with the

applicable standard of medical care. Although Copeland briefly suggested at his August 2012

deposition that the BroMenn nurse present during the April 8, 2008, procedure should have

"questioned" Lange's decision to use EHL (whatever that means), Copeland also testified that the

manner of dealing with an unexpected complication of surgery "is a surgical decision, not a

nursing decision." Moreover, Cone—a registered nurse—testified in her affidavit that it would

be entirely inconsistent with both the scope of nursing practice and the applicable standard of

care for an attending nurse to attempt to interfere with a surgeon, in the midst of an ongoing

surgery, from doing what the surgeon deemed medically necessary to address an unexpected

complication. The record before us presents no genuine issue of material fact to warrant a trial

on plaintiffs' claims that BroMenn breached the standard of care by allowing Lange to perform

the procedures at issue in this case. Accordingly, the trial court properly granted summary

- 30 - judgment for BroMenn as to those claims.

¶ 72 3. Lack of Informed Consent

¶ 73 Plaintiffs alleged in their complaint that BroMenn committed institutional

negligence by (1) "permitting Dr. Lange to perform [EHL] upon [Kathryn], utilizing equipment

provided by [BroMenn], when *** [Kathryn] had not given informed consent to such treatment";

(2) "failing to follow and enforce its own policies and procedures with respect to obtaining

informed consent"; and (3) "failing to afford [Kathryn] her rights, under the Medical Patient

Rights Act."

¶ 74 We note that plaintiffs also claimed BroMenn failed to (1) "follow and enforce the

accreditation standards of the Joint Commission with respect to obtaining informed consent" and

(2) "afford [Kathryn] her rights under the Patient Self-Determination Act of 1990." However,

plaintiffs' brief is completely devoid of any discussion, citations, or argument relating to the Joint

Commission or the Patient Self-Determination Act. Accordingly, plaintiffs have forfeited these

claims by failing to argue them. Ill. S. Ct. R. 341(h)(7) (eff. Feb. 6, 2013).

¶ 75 In support of their three remaining informed-consent claims, plaintiffs essentially

present the same two-part argument: (1) because the informed-consent documents that Kathryn

signed did not specifically mention EHL, Kathryn did not consent to Lange's use of EHL; and (2)

because BroMenn's policy required physicians to obtain informed consent from patients,

BroMenn committed institutional negligence by failing to ensure that Lange obtained informed

consent from Kathryn. The record provides no support for these claims.

¶ 76 Again in their brief to this court, plaintiffs rely primarily upon Copeland's section

2-622 report in support of their informed-consent claims. Specifically, plaintiffs cite Copeland's

- 31 - conclusory opinion that "BroMenn deviated from the medical standard of care by allowing

[Kathryn] to undergo a surgical procedure without first obtaining [her] informed consent."

However, Copeland did not state this opinion in his deposition, nor does such an opinion—or

any evidence supporting such an opinion—appear elsewhere in the record.

¶ 77 The document that Kathryn signed prior to her April 8, 2008, procedure—entitled,

"Acknowledgement of Informed Consent to Operation or Procedure"—included the following

paragraph:

"3. I am aware that during the course of the authorized

procedure, unexpected conditions may be revealed that require an

procedure different than stated in paragraph #1. I, therefore,

authorize the above named physician and selected assistant(s) to

perform such surgical and/or medical procedures as necessary in

his/her professional judgment. I am aware that the practice of

medicine and surgery is not an exact science, and I acknowledge

that no guarantees have been made to me as to the results of the

¶ 78 Although plaintiffs rely heavily upon Copeland's purported "expert" opinion that

Kathryn's agreement to the above paragraph does not demonstrate her agreement to the use of

EHL, it does not take an expert to understand that the above paragraph authorized Lange, if he

deemed it necessary in his professional judgment, to perform a procedure not specifically listed

in the consent form. After all, it should not take a medical expert to interpret a document that is

- 32 - intended to be read and understood by a patient. During summary judgment proceedings and on

appeal in this case, plaintiffs have essentially ignored the consent form and offered no evidence

(other than the inadmissible, conclusory opinions in Copeland's section 2-622 report) to suggest

that "performance of a procedure different than stated in paragraph #1" did not encompass

Lange's use of EHL to fragment the stone after it became stuck. Plaintiffs also ignore—and by

that we mean they simply do not address—the following testimony from Copeland's deposition:

"[COPELAND]: *** I am fully cognizant of the fact that

[informed consent] doesn't cover every single thing that you might

do. And certainly when you're in the operating room a

circumstance may arise that may include your desire or necessity

to do something that was not on the sheet. And Dr. Lange talked

about that, and I agree with that within the proper standard of care.

[COUNSEL]: So if you run into certain complications and,

you know, there's a way to maybe help you get around those

complications or problems, it may be permissible to go ahead and

do some additional procedure even if you haven't talked with your

patient about it ahead of time; is that fair to say?

[COPELAND]: Yes."

¶ 79 Plaintiffs further cite BroMenn's written policy regarding informed consent,

which requires physicians to document, before a procedure, the "complete name of the

procedure" and the "complete name of possible additional procedures." However, even

assuming arguendo that Lange violated this policy by failing to document EHL as a possible

- 33 - procedure, plaintiffs have entirely failed to establish any nexus between Lange's alleged violation

of the policy and BroMenn's institutional duty of care to Kathryn. Plaintiffs cite the following

"hospital responsibilities" set forth in the policy:

"1. Maintain evidence of informed consent.

2. The hospital may obtain verification of the patient's

informed consent through use of the consent form when necessary.

3. Verify that consent has been given voluntarily.

4. Report questions of patient competency to the physician.

5. Verify that the physician/patient communication took

place.

6. Provide a witness to the identity of the consent giver."

Although plaintiffs have cited these policy provisions in their brief, they have not identified

which of these provisions (if any) BroMenn violated in this case. Assuming arguendo that

Lange's use of EHL was contrary to the informed consent Kathryn provided before the

procedure, plaintiffs have not even attempted to explain how BroMenn fits into the picture.

Should BroMenn have somehow known ahead of time that Lange would deviate from the

informed consent and perform an unauthorized procedure? Plaintiffs have not only failed to

provide evidence that BroMenn's acts or omissions regarding informed consent amounted to

institutional negligence, they have not even presented a theory of liability. As with most of the

claims against BroMenn at issue in this case, plaintiffs have essentially interpreted the tort of

institutional negligence as placing a strict-liability burden upon BroMenn to ensure that none of

the physicians practicing on its premises deviate from the medical standard of care. Because the

- 34 - law does not place such a burden on hospitals, the trial court properly granted summary

judgment to BroMenn regarding plaintiffs' informed-consent claims.

¶ 80 4. Failure To Make Available a Holmium Laser

¶ 81 Finally, plaintiffs alleged that BroMenn committed institutional negligence by (1)

"failing to provide necessary and standard equipment to Dr. Lange, including a Holmium laser,"

and (2) "permitting Dr. Lange to proceed with surgery upon [Kathryn] when Dr. Lange knew

that a *** Holmium laser was not available."

¶ 82 In their brief to this court, plaintiffs' entire argument regarding these claims

consists of the following single paragraph (which is word-for-word identical to the argument in

plaintiffs' response to BroMenn's motion for summary judgment):

"[BroMenn] protested that a Holmium laser could have

been available if Dr. Lange had requested the device in advance of

the procedure. [Citation to BroMenn's summary judgment

memorandum.] But again, [BroMenn's] protestations do not

support summary judgment. Essentially, [BroMenn] pointed its

finger at Dr. Lange, implying it was his fault (Dr. Lange), and not

their fault that a Holmium laser was not available. That question,

of course, was for the jury to figure out. BroMenn cannot escape

liability by pointing its finger at Dr. Lange where Dr. Copeland has

opined that it was a breach of the standard of care for BroMenn not

to have available a Holmium laser when this non-emergent

surgical procedure was permitted to take place in the BroMenn

- 35 - facility. [Citation to Copeland's section 2-622 report.] [BroMenn]

went to great lengths in its memorandum to argue that BroMenn

had no obligation to have the equipment available absent a

physician request. But again, this was an issue for the jury to

decide."

¶ 83 In support of its motion for summary judgment in this case, BroMenn offered

Cone's opinion that the applicable standard of care did not require BroMenn to own and make

readily available a holmium laser. Instead, hospitals typically avoid the expense of purchasing

such specialized equipment by using third-party providers to supply the equipment on a case-by-

case basis. Instead of offering evidence to rebut Cone's opinion that BroMenn did not breach the

standard of care, plaintiffs essentially rested on their pleadings and argued that the issue was for

the jury to decide. However, "[i]f the party moving for summary judgment supplies facts that, if

not contradicted, would warrant judgment in its favor as a matter of law, the opposing party

cannot rest on its pleadings to create a genuine issue of material fact." Abrams v. City of

Chicago, 211 Ill. 2d 251, 257, 811 N.E.2d 670, 674 (2004). Here, plaintiffs provided no

evidence that the applicable institutional standard of care required BroMenn to determine, in

advance of and independent from Lange's determination, all the pieces of specialized equipment

that might be necessary during the April 8, 2008, procedure, including equipment—such as a

holmium laser—that would be useful only if an unexpected complication arose. In other words,

plaintiffs have failed to provide a factual basis for their institutional-negligence claims against

BroMenn relating to the availability of a holmium laser. Accordingly, the trial court properly

granted summary judgment to BroMenn.

- 36 - ¶ 84 Because plaintiffs failed to establish any evidentiary basis for their claims of

institutional negligence against BroMenn, the trial court properly granted BroMenn's motion for

summary judgment. Having so concluded, we need not address the trial court's additional

finding that plaintiffs failed to establish the element of proximate cause.

¶ 85 III. EPILOGUE

¶ 86 As a final matter, we note that the trial court in this case would have been better

served had the attorneys on both sides appropriately addressed and resolved the glaring

evidentiary deficiencies present during summary judgment proceedings. As we have extensively

discussed throughout this opinion, plaintiffs' fundamental contention—namely, that summary

judgment is not appropriate because genuine issues of material fact exist—has been based mostly

upon evidence that was inadmissible for purposes of summary judgment. In response to

plaintiffs' reliance upon improper evidence, BroMenn should have moved to strike the improper

evidence for purposes of summary judgment. Had BroMenn done so, the record on appeal

would have reflected (much to this court's benefit) which specific pieces of evidence the court

either relied upon or chose to disregard for purposes of its summary judgment ruling. But

because the court was not presented with such a motion, we are left to review the court's

judgment without the benefit of knowing the exact evidence upon which the court based that

judgment. Thus, our resolution of this case required striking a balance between two

considerations, both of which are important to the sound administration of justice.

¶ 87 On the one hand, an important component of our adversarial system is the general

understanding that the trial court will give evidence that has been presented without objection its

full probative effect. " 'No duty rests upon the court to rule out evidence to which there might be

- 37 - some objection; making appropriate objections is the function of the party opposing its

admission.' " People v. Parcel of Property Commonly Known as 1945 North 31st Street,

Decatur, Macon County, Illinois, 217 Ill. 2d 481, 503, 841 N.E.2d 928, 941 (2005) (quoting Hill

v. Meister, 133 Ill. App. 2d 678, 682, 273 N.E.2d 643, 646 (1971)). This principle allows parties

and courts of review to consider the legal issues without speculating as to the evidentiary basis of

the judgment under review.

¶ 88 On the other hand, we also recognize that summary judgment proceedings serve a

fundamentally different purpose than evidentiary hearings. Summary judgment does not call

upon the trial court to weigh evidence and determine who wins a case, but instead, to determine

whether the case should go to trial at all. Pielet v. Pielet, 2012 IL 112064, ¶ 53, 978 N.E.2d

1000 ("[T]he purpose of summary judgment is not to try questions of fact but simply to

determine if triable questions of fact exist."). In making the summary judgment determination,

the court is to consider the pleadings, depositions, admissions on file, and the affidavits. 735

ILCS 5/2-1005(c) (West 2012). The rules of form and substance that govern pleadings,

depositions, admissions, and affidavits in the summary judgment context (for example, Rule

191(a)) help to ensure that the facts and opinions presented to the court will be admissible at

trial, thereby allowing the court to determine whether a trial is actually warranted. In Allen v.

Meyer, 14 Ill. 2d 284, 292, 152 N.E.2d 576, 580 (1958), the supreme court explained that the

summary judgment determination affects more than the interests of the parties before the court:

"Summary judgment procedure is an important tool in the

administration of justice. Its use in a proper case, wherein is

presented no genuine issue as to any material fact, is to be

- 38 - encouraged. The benefits of summary judgment in a proper case

inure not only to the litigants, in the saving of time and expenses,

but to the community in avoiding congestion of trial calendars and

the expenses of unnecessary trials."

¶ 89 Given the purpose of summary judgment, a party's failure to object when the

other party cites clearly inadmissible facts or opinions does not mean that the trial court must

accept those facts or opinions and set the case for trial if they create issues of material fact. It

would be a disservice to both the parties and the judicial system as a whole if the court were to

base its summary judgment ruling on inadmissible evidence. Although the better practice is for

the opposing party to raise the appropriate objection, either through a motion to strike or

otherwise, courts should not be expected to undertake the time and expense of a trial merely

because of one party's failure to act as a meaningful adversary when summary judgment is at

issue. However, when the court does choose to disregard certain facts or opinions in the absence

of an objection and ruling thereon, the court should make a record of its doing so—either orally

or in a written order—so that a reviewing court will know the evidentiary basis upon which the

court entered summary judgment.

¶ 90 Likewise, the parties would be better suited in summary judgment proceedings—

and on appeal from summary judgment rulings—by explicitly listing in their summary judgment

pleadings the specific facts and evidentiary materials upon which they are relying. In Simmons

v. Reichardt, 406 Ill. App. 3d 317, 323, 943 N.E.2d 752, 757 (2010), this court suggested that

counsel should adopt a checklist, similar to the rules that attorneys must follow in summary

judgment proceedings held in federal court, to minimize or eliminate deficiencies in summary

- 39 - judgment pleadings. For instance, local rule 7.1(D)(1)(b) of the United States District Court,

Central District of Illinois, requires a party filing a motion for summary judgment to include a

section setting forth the undisputed material facts, as follows: "List and number each undisputed

material fact which is the basis for the motion for summary judgment. Include as exhibits to the

motion all relevant documentary evidence. For each fact asserted, provide citations to the

documentary evidence that supports it, appropriately referencing the exhibit and page." C.D. Ill.

Ct. R. 7.1(D)(1)(b) (eff. Jan. 20, 2010). The rules also require a response to a motion for

summary judgment to list, among other things, the (1) undisputed material facts and (2) disputed

material facts, which "must be supported by evidentiary documentation referenced by specific

page." C.D. Ill. Ct. R. 7.1(D)(2)(b)(2) (eff. Jan. 20, 2010). Following such procedures in Illinois

courts, although not mandatory, would help ensure that the trial court and courts of review do not

overlook evidentiary materials that a party has deemed relevant to the summary judgment

determination.

¶ 91 In Evans, 399 Ill. App. 3d at 251, 925 N.E.2d at 1277, this court explained the

proper procedure to be used when a party seeks to bar the trial court from considering certain

evidence for purposes of summary judgment. We began by noting that "asking the trial court not

to consider certain evidence when it resolves a motion for summary judgment must be based

upon more than mere musings *** at the time the motion is heard." Id. Instead, if a party

intends to preclude the court's consideration of certain evidence for purposes of summary

judgment, the party should file an appropriate motion to that effect in advance of the hearing so

that both the court and the opposing party will be put on notice of that position. Id. The

procedure proceeds, as follows:

- 40 - "Then, the better practice would be for the matter to be litigated in

a separate, formal hearing prior to the summary-judgment hearing

itself. Alternatively, if the court believes the evidentiary matter at

issue is not complicated, then the court in its discretion may

address that matter immediately prior to the summary-judgment

hearing or during that hearing itself, provided, of course, that the

opposing party has received sufficient notice of the motion.

Further, the moving party should seek—and the trial court should

provide—a definitive ruling on the evidentiary matter at issue.

Following this procedure would not only make for a better record

at the trial level, it would also provide courts of review with a clear

picture of (1) the parties' positions at trial and (2) the trial court's

ruling.

If the evidentiary matter at issue is more involved, then the

party seeking to bar the trial court's consideration of the evidence

should make a motion to strike or bar the evidence and set the

matter for a hearing prior to the hearing on the motion for

summary judgment. This would be the preferred course, for

instance, if a party wished to challenge expert testimony proffered

by the other side in a summary-judgment context." Id. at 251-52,

925 N.E.2d at 1277.

¶ 92 In this case, for example, under the procedure laid out in Evans, BroMenn should

- 41 - have moved to strike Copeland's section 2-622 report and plaintiffs' references thereto for

purposes of the court's summary judgment determination. Although a motion to strike a section

2-622 report for purposes of summary judgment should not be necessary in most cases, plaintiffs'

unambiguous reliance upon the report during summary judgment proceedings should have raised

red flags for BroMenn, signaling that the court was being asked to deny BroMenn's motion based

upon improper evidence. Despite the court's ultimately ruling in BroMenn's favor, BroMenn's

failure to object to the improper evidence left the record silent as to whether the court actually

considered or disregarded Copeland's inadmissible opinions. If the court in this case did

disregard Copeland's section 2-622 report for purposes of summary judgment, some such

indication in the record would have been useful for our review.

¶ 93 To be clear, the principles of forfeiture can apply in the summary judgment

context, and parties are generally bound by their failure to object to improper evidence. See,

e.g., Arnett v. Snyder, 331 Ill. App. 3d 518, 523, 769 N.E.2d 943, 947 (2001) ("[T]he general rule

is the sufficiency of affidavits cannot be tested for the first time on appeal where no objection

was made by a motion to strike, or otherwise, in the trial court."). Nonetheless, under our de

novo review of the trial court's judgment in this case, we have chosen to adhere to the command

of section 2-1005(c) of the Code and chosen not to consider facts or opinions that do not come

from the pleadings, depositions, admissions on file, or affidavits. It was plaintiffs' heavy reliance

upon improper facts and opinions, coupled with BroMenn's failure to object, which merited our

additional commentary regarding the better practice in summary judgment proceedings.

¶ 94 IV. CONCLUSION

¶ 95 For the reasons stated, we affirm the trial court's judgment.

- 42 - ¶ 96 Affirmed.

¶ 97 JUSTICE TURNER, specially concurring.

¶ 98 I agree the trial court's judgment should be affirmed for the reasons adequately

and correctly expressed by the majority's discussion and analysis in paragraphs 58 to 84.

However, I find the majority's discussion in paragraphs 40 to 57 and its "Epilogue" advisory in

nature and, thus, a questionable undertaking for an intermediate court of review. While I do

agree Copeland's section 2-622 report did not qualify as an affidavit under Rule 191(a), this issue

was not presented for our review. Instead of moving to strike the report on that basis, BroMenn's

counsel successfully opted to discredit Copeland by demonstrating his sworn testimony in his

deposition did not support the opinions he expressed in his section 2-622 report. That conclusion

is essentially the one the majority ultimately reaches in paragraphs 58 to 84, and I see no reason

to critique or second-guess counsel's winning strategy.

- 43 -