Galvin v. Olysav

571 N.E.2d 218, 212 Ill. App. 3d 399, 156 Ill. Dec. 631, 1991 Ill. App. LEXIS 676
CourtAppellate Court of Illinois
DecidedApril 25, 1991
Docket5-88-0758
StatusPublished
Cited by6 cases

This text of 571 N.E.2d 218 (Galvin v. Olysav) 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
Galvin v. Olysav, 571 N.E.2d 218, 212 Ill. App. 3d 399, 156 Ill. Dec. 631, 1991 Ill. App. LEXIS 676 (Ill. Ct. App. 1991).

Opinion

JUSTICE GOLDENHERSH

delivered the opinion of the court:

Plaintiff, Marion Joseph Galvin, appeals the judgment of the circuit court of Christian County granting the motion for summary judgment of defendant, Dr. David Olysav. In this cause, plaintiff argues that summary judgment was improperly granted as there exists a genuine issue of material fact. We reverse and remand.

Plaintiff injured his right arm and the lower portion of his left leg in a traffic accident in December 1981. St. John’s Hospital in Springfield admitted him, and he was subsequently attended to by defendant. Medical personnel X-rayed the upper portion of his arm and lower portion of his leg. The X rays revealed fractures of his right humerus and left malleolus. Plaintiff was placed in a short leg cast and hanging arm cast.

Within three days after the injury, plaintiff complained to defendant of pain in his right wrist and hand. He repeated those complaints on various occasions. No X rays of the hand and wrist were taken, however, until nearly a year and a half later. At that time plaintiff was diagnosed as having right carpal instability. Plaintiff alleges that because of the delayed timing of defendant’s diagnosis, a surgical procedure called a carpal roll fusion of the carpas and scaphocapital lunate bones was necessary. Plaintiff now has a fused wrist with a decreased range of motion. He maintains that earlier diagnosis and treatment would have prevented the need for the surgery.

On April 6 and May 25, 1988, Dr. Forbes McMullin was deposed by attorneys for both parties. On June 2, 1988, defendant filed his motion for summary judgment, alleging that plaintiff’s use of expert testimony and Dr. McMullin’s evidence deposition fail to meet the burden of establishing a prima facie case against defendant. In particular, defendant argues that plaintiff failed to show that an act or failure to act was the proximate cause of plaintiff’s injury. On August 31, 1988, the circuit court granted defendant’s motion.

“A defendant may, at any time, move *** for a summary judgment in his or her favor as to all or any part of the relief sought against him or her.” (Ill. Rev. Stat. 1987, ch. 110, par. 2—1005(b).) However, as the supreme court noted in Purtill v. Hess (1986), 111 Ill. 2d 229, 240, 489 N.E.2d 867, 870, although the use of summary judgment is to be encouraged as an aid to the expeditious disposition of a lawsuit, it is a drastic means of disposing of litigation and should be allowed only when the right of the moving party is clear and free from doubt.

“In determining the existence of a genuine issue of material fact, courts must consider the pleadings, depositions, admissions, exhibits, and affidavits on file in the case and must construe them strictly against the movant and liberally in favor of the opponent.” 111 Ill. 2d at 240, 489 N.E.2d at 870.

Our supreme court has clarified the appropriate standard to be applied in summary judgments in Gatlin v. Ruder (1990), 137 Ill. 2d 284, 560 N.E.2d 586. The court stated:

“Our first concern is with the standard the appellate court applied in reviewing the motion to vacate summary judgment. The appellate court, citing Russell [v. Subbiah (1986), 149 Ill. App. 3d 268, 500 N.E.2d 138], held: ‘[T]he plaintiff must prove that it is more probably true than not true that the defendant’s negligence was a proximate cause of the plaintiff’s injury.’ Although Russell concerned a summary judgment motion and thus appears to support the holding of the appellate court in the case at bar, we disagree with the standard employed by Russell and the appellate court. The Russell standard accurately reflects a plaintiff’s burden of proof at trial, but incorrectly sets forth a party’s burden on a summary judgment motion. A motion for summary judgment can only succeed ‘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.’ (Ill. Rev. Stat. 1987, ch. 110, par. 2—1005(c); see Purtill v. Hess (1986), 111 Ill. 2d 229, 240; see also Russell, 149 Ill. App. 3d at 272-73 (Barry, J., dissenting).) The court must construe the evidence ‘strictly against the movant and liberally in favor of the opponent.’ (Purtill, 111 Ill. 2d at 240.) Summary judgment ‘is a drastic means of disposing of litigation and therefore should be allowed only when the right of the moving party is clear and free from doubt.’ (Purtill, 111 Ill. 2d at 240.) ***
Applying the standard established by the statute and Purtill, we hold that an issue of material fact with regard to Ruder’s negligence arose as a result of Niswander’s [Kenneth Niswander, M.D., a professor at the University of California at Davis medical school] deposition. Our duty is not to judge the strength of Niswander’s deposition as evidence or to weigh the credentials, credibility and testimony of Niswander against those of Ruder and Raimondi [Anthony Raimondi, M.D., a pediatric neurosurgeon]. We must decide whether Niswander’s deposition presented evidence that Ruder may have proximately caused Gatlin’s injuries; we hold it did. Certainly proximate cause is an issue of material fact in a negligence suit. Niswander’s affidavit did not alter his deposition. The trier of fact should merely consider the affidavit with all of the other evidence in the case. When a circuit court, in considering a motion for summary judgment, weighs the deposition of a witness presented by the opponent to the motion with a subsequently obtained affidavit of that witness by the movant, the court, in effect, admits an issue of material fact exists. A court cannot decide factual disputes as a matter of law. (See Spidle v. Steward (1980), 79 Ill. 2d 1, 10.) For these reasons, Gatlin’s motion to vacate summary judgment should have been granted.” (137 Ill. 2d at 292-94, 560 N.E.2d at 589-90.)

For our review of the trial court’s judgment, we will use the standard in Gatlin.

In a medical malpractice action, the plaintiff has the burden of establishing the appropriate standard against which the defendant’s conduct is to be measured, a deviation from that standard, and that the deviation proximately caused the plaintiff’s injuries. (Purtill v. Hess, 111 Ill. 2d at 241-42, 489 N.E.2d at 872; Walski v. Tiesenga (1977), 53 Ill. App. 3d 57, 60, 368 N.E.2d 573, 576.) In this case, a question exists only as to the last element — proximate cause. In addition, the only evidence offered to meet the proximate cause burden is the evidence deposition of Dr. McMullin. We agree with the First District Appellate Court in Northern Trust Co. v. Louis A. Weiss Memorial Hospital (1986), 143 Ill. App. 3d 479, 487-88, 493 N.E.2d 6, 12, when it held, “ ‘[ejvidence which shows to a reasonable certainty that negligent delay in diagnosis or treatment *** lessened the effectiveness of treatment is sufficient to establish proximate cause.’ ” 143 Ill. App.

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Bluebook (online)
571 N.E.2d 218, 212 Ill. App. 3d 399, 156 Ill. Dec. 631, 1991 Ill. App. LEXIS 676, Counsel Stack Legal Research, https://law.counselstack.com/opinion/galvin-v-olysav-illappct-1991.