Greenberg v. Michael Reese Hospital

396 N.E.2d 1088, 78 Ill. App. 3d 17, 33 Ill. Dec. 364, 1979 Ill. App. LEXIS 3500
CourtAppellate Court of Illinois
DecidedSeptember 25, 1979
Docket78-926
StatusPublished
Cited by4 cases

This text of 396 N.E.2d 1088 (Greenberg v. Michael Reese Hospital) 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
Greenberg v. Michael Reese Hospital, 396 N.E.2d 1088, 78 Ill. App. 3d 17, 33 Ill. Dec. 364, 1979 Ill. App. LEXIS 3500 (Ill. Ct. App. 1979).

Opinion

Mr. PRESIDING JUSTICE STAMOS

delivered the opinion of the court:

Six plaintiffs, whose claims have been consolidated for purposes of appeal, filed complaints alleging that therapeutic radiation treatments administered by Michael Reese Hospital resulted in tumorous growths in the area of their thyroid glands. Plaintiffs predicate their cause of action on three theories — straight negligence, res ipsa loquitur and products/ strict liability. The trial judge ruled in favor of defendant Michael Reese, granting summary judgment on the negligence theory and dismissing the res ipsa loquitur and products liability counts. From these rulings, plaintiffs appeal.

During the 1940’s and 1950’s, upon referral by a family doctor or pediatrician, Michael Reese Hospital provided radiation therapy to children to treat and hopefully to cure hypertrophic lymphoid tissue of the pharnyx, an inflammatory and infectious throat ailment commonly known as enlarged tonsils and adenoids. Irradiation to shrink diseased tonsils and to eliminate infection had been developed in the 1920’s as an alternative to surgical treatment. The deposition of defendant’s medical expert explains that surgery, prior to the medical developments of the 1950’s, ran the risk of anesthesia reaction, hemorrhage and infection (antibiotics were not generally available until the 1950’s). Thus, radiation therapy was viewed as a “less risky” option.

In 1950, a study reported on 28 cases of thyroid cancer in children, 9 of whom had received radiation treatments, and concluded that a cause and effect relationship was not established. (Duffy & Fitzgerald, Thyroid Cancer in Childhood and Adolescence: A Report of 28 cases, 3 Cancer 1018 (Nov. 1950).) Notwithstanding this early report, subsequent studies debated the connection between radiation treatment and tumorous growths. Even though Michael Reese did not feel that a connection had been proved conclusively, the treatments were stopped.

In 1974, acting at the impetus of a University of Chicago study (Degroot & Paloyan, Thyroid Carcinoma and Radiation: A Chicago Endemic, 225 Jour. Amer. Med. Ass’n 487 (1973)), Michael Reese began a recall program for adults who had received the X-ray treatments as children. During examinations of the six plaintiffs represented herein, thyroid tumors, both benign and malignant, were found. Thereafter plaintiffs brought this action alleging that Michael Reese knew or should have known that the treatment was experimental and could result in unexpected side effects. Further, plaintiffs contended that there were studies available to the medical profession which suggested the potential dangers of this therapy; plaintiffs submitted the affidavit of a health physicist, Eli A. Port, to support their claims. Port’s qualifications included training and education in radiological health physics and a Ph.D. dissertation on Benefit vs. Risk in Pediatric Radiology. Michael Reese countered with an affidavit from Lionel Cohen, M.D., a radiation therapist, who is presently chairman of the Department of Radiation Oncology at Michael Reese Medical Center. Dr. Cohen’s deposition, taken by plaintiffs, was submitted by Michael Reese in support of its contention that the use of therapeutic radiation to shrink tonsils was appropriately within the standard of care at the time of these treatments. Based upon the contents of Dr. Cohen’s affidavit and deposition, the court below entered summary judgment in favor of Michael Reese on count I (negligence), and granted Michael Reese’s motions to dismiss as to count II (res ipsa) and count III (products liability).

I.

Plaintiff’s initial contention is that the trial court erred in granting summary judgment on the negligence count. Under section 57 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 57), a motion for summary judgment is properly granted where 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.” Negligence issues generally are not susceptible to summary judgment (Roucher v. Traders & General Insurance Co. (5th Cir. 1956), 235 F.2d 423, 424), because it is the specific function of the jury to determine whether the applicable standard of care has been breached. (See Illinois Pattern Jury Instructions, Civil, No. 10.01 (2d ed. 1971) (hereinafter IPI Civil); Note, Summary Judgment in Medical Malpractice Actions, 7 Ga. St. Bar J. 470 (1971).) The applicable standard of care for these ordinary negligence cases has been labeled as that of the reasonable or prudent man, and further, as “a personification of a community ideal of reasonable behavior, determined by the jury’s social judgment.” (Prosser, Torts §32, at 151 (4th ed. 1971).) In malpractice cases however, the standard of care against which professional negligence must be measured is generally outside the common knowledge of the jury. Thus the rule has developed that plaintiff, except in the common knowledge or gross negligence situations (Walker v. Rumer (1978), 72 Ill. 2d 495, 381 N.E.2d 689), must offer expert medical testimony concerning the applicable standard of care in the community (Stevenson v. Nauton (1979), 71 Ill. App. 3d 831, 834, 390 N.E.2d 53, and cases cited therein), in order to meet his burden of going forward with the evidence. (Borowski v. Von Solbrig (1975), 60 Ill. 2d 418, 328 N.E.2d 301; see generally Walski v. Tiesenga (1978), 72 Ill. 2d 249, 256-57, 381 N.E.2d 279, and cases cited therein; Stogsdill v. Manor Convalescent Home, Inc. (1976), 35 Ill. App. 3d 634, 662, 343 N.E.2d 589.) Accordingly, where the issue is breach of standard of care and plaintiff has failed to establish the standard by means of the affidavit or deposition of a doctor, summary judgment may be appropriately granted. Furthermore, if the defendant subsequently introduces expert medical testimony, it will suffice to set the standard of care in the absence of proper contradictory evidence by plaintiff. Where these circumstances exist, the court, as a matter of law, may grant summary judgment to the defendant. (See, e.g., Coleman v. Verson Allsteel Press Co. (1978), 64 Ill. App. 3d 974, 980, 382 N.E.2d 36; Gordon v. Oak Park School District No. 97 (1974), 24 Ill. App. 3d 131, 135, 320 N.E.2d 389.) Citing these cases, and using the above reasoning, Michael Reese contends that the trial court properly granted summary judgment because the affidavit and deposition of Dr. Cohen, Reese’s medical expert, standing uncontroverted by any other “medical expert,” is conclusive as to the relevant standard of care. On the other hand, plaintiffs assert that the affidavit of their expert, Eli Port, should be considered as evidence of standard of care sufficient, at a minimum, to create a factual dispute.

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Bluebook (online)
396 N.E.2d 1088, 78 Ill. App. 3d 17, 33 Ill. Dec. 364, 1979 Ill. App. LEXIS 3500, Counsel Stack Legal Research, https://law.counselstack.com/opinion/greenberg-v-michael-reese-hospital-illappct-1979.