McGowan v. Torres

540 N.E.2d 517, 184 Ill. App. 3d 589, 132 Ill. Dec. 777, 1989 Ill. App. LEXIS 846

• Court: Appellate Court of Illinois
• Decided: June 7, 1989
• Docket: No. 1—87—0631
• Status: Published

Opinions

JUSTICE RIZZI

delivered the opinion of the court:

This is a medical malpractice action brought against defendants Carlos E. Torres, M.D., Angel C. Lugay, M.D., Robert C. Olson, executor of the estate of James Olson, M.D., deceased, Manchar L. Jethani, M.D., and MacNeal Memorial Hospital Association. Plaintiffs complaint alleges that he suffered serious brain damage because the defendants failed to properly diagnose and treat his bacterial meningitis. Defendants Torres and Lugay, who practiced together as pediatricians, filed a motion for summary judgment. Doctor Lugay subsequently withdrew his motion. Affidavits, deposition transcripts, interrogatories, and other documents were filed by the parties. The trial court granted defendant Torres’ motion for summary judgment and plaintiff appeals. The other named defendants remain as parties to this action. We reverse and remand.

Plaintiff, Joseph McGowan, was born November 25, 1978. On November 29, 1979, he was hospitalized at MacNeal Memorial Hospital. For the duration of this hospital stay, Joseph was under the care of Dr. Olson, who discharged him on December 3,1979.

On December 4, 1979, Dr. Torres examined Joseph at the office which he shared with Dr. Lugay. His examination revealed that Joseph was suffering from vomiting, diarrhea and fever of unknown origin. Dr. Torres ordered a blood and urine test, and examined Joseph to determine whether or not he was exhibiting any of the physical signs of meningitis such as stiff neck or extremities. According to Dr. Torres these tests were negative.

On December 5, 1979, Joseph’s parents took him to the emergency room of MacNeal Memorial Hospital. The emergency room records indicate that Joseph was still suffering from vomiting and fever. Neither Dr. Torres nor Dr. Lugay saw Joseph on the day of his emergency room visit. Joseph was examined by the pediatric resident on duty and readmitted to MacNeal Memorial Hospital on December 5. Doctors Torres and Lugay were listed as his attending physicians. Dr. Torres examined Joseph in the hospital on December 6. He thereafter noted in the medical record that Joseph was doing fine. Dr. Torres saw Joseph again on December 8 and noted that he was “doing much better.” He also ordered a urine culture test. On December 9, Dr. Torres saw Joseph and noted that he was suffering from diarrhea. He prescribed some medication, a soft diet and requested that a stool culture be performed. On December 11, Joseph was discharged from the hospital by Dr. Lugay. Dr. Torres wrote the discharge summary which indicated that Joseph was suffering from viral gastroenteritis. On December 18, 1979, Dr. Torres performed a follow-up examination of Joseph in his office. He noted that Joseph was doing much better and that his physical examination was normal. Dr. Torres did not see Joseph again after his visit.

In May of 1980, Joseph exhibited symptoms of speech and language delay. His parents also reported that Joseph was having episodes of high temperature and hyperactivity. In September of 1980, Joseph was suffering from behavioral problems and screaming spells. By October of 1986, Joseph was diagnosed as severely physically and mentally disabled. According to Dr. Robert Mendelsohn, a medical expert hired by the plaintiffs, Joseph’s medical condition was the result of brain damage caused by untreated bacterial meningitis.

Kathleen McGowan filed the malpractice action on behalf of her son Joseph. After the lawsuit was filed, Lugay and Torres had a pediatrician review the medical records concerning Joseph’s hospitalization and treatment. The defendants’ expert opined that the treatment rendered by Doctors Lugay and Torres was consistent with the generally accepted standards of patient care for the greater Chicago area.

Plaintiff had the medical records examined by her medical expert who stated that in his opinion the care and treatment rendered by the defendants was not consistent with the generally accepted standards of patient care for the greater Chicago area. Dr. Robert Mendelsohn stated that Doctors Lugay and Torres should have performed a spinal tap to test for meningitis at the beginning of Joseph’s December 5, 1979, hospitalization. After reviewing the affidavits, depositions, and hearing oral argument, the trial court granted Torres’ motion for summary judgment. This appeal followed.

The sole issue before us is whether there is a genuine issue of material fact as to the liability of Torres for the failure to diagnose and treat Joseph’s bacterial meningitis during his December 5, 1979, hospital admission.

Summary judgment is appropriate 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 judgment as a matter of law. (Lane v. City of Harvey (1988), 178 Ill. App. 3d 270, 273, 533 N.E.2d 75, 78; Ill. Rev. Stat. 1985, ch. 110, par. 2 — 1005(c).) Evidence in support of the motion must be strictly construed against the moving party and summary judgment should be denied where reasonable persons could arrive at different conclusions. (Petkus v. Girzadas (1988), 177 Ill. App. 3d 323, 327, 532 N.E.2d 333, 336.) An order granting summary judgment must be reversed if a reviewing court determines that an issue of material fact exists. Arnold v. Village of Chicago Ridge (1989), 181 Ill. App. 3d 778, 785.

After reviewing the pleadings and the documents strictly against Torres, we conclude that a genuine issue of material fact remains. Doctors Torres and Lugay were Joseph’s attending physicians during his December 5, 1979, hospitalization. Reasonable persons could draw different conclusions as to who was responsible for the failure to diagnose and treat Joseph’s bacterial meningitis during that hospital admission. Thus, a triable issue of fact exists as to the liability of defendant Torres, which precludes summary judgment.

The summary judgment in favor of defendant Torres is, therefore, reversed and the case is remanded to the trial court for further.proceedings.

Reversed and remanded.

WHITE, J., concurs.

McNAMARA, J.,

* specially concurs.

Justice McNamara participated in this opinion prior to his assignment to the sixth division.