Stevenson v. Nauton

390 N.E.2d 53, 71 Ill. App. 3d 831, 28 Ill. Dec. 71, 1979 Ill. App. LEXIS 2552
CourtAppellate Court of Illinois
DecidedApril 23, 1979
Docket78-470
StatusPublished
Cited by44 cases

This text of 390 N.E.2d 53 (Stevenson v. Nauton) 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
Stevenson v. Nauton, 390 N.E.2d 53, 71 Ill. App. 3d 831, 28 Ill. Dec. 71, 1979 Ill. App. LEXIS 2552 (Ill. Ct. App. 1979).

Opinion

Mr. JUSTICE CAMPBELL

delivered the opinion of the court:

This is an appeal from an order of the circuit court of Cook County granting summary judgment in favor of the defendant, Ralph Nauton, M.D. The action was instituted by the plaintiff, Rachel W. Stevenson, for damages occasioned by the alleged negligence of the defendant in failing to diagnose and treat a suspected case of temporal arteritis. The defendant’s motion for summary judgment was granted by the trial court on the basis of the plaintiffs failure to make out a prima facie case as to the acceptable standard of care against which the defendant physician was to be measured. We affirm.

It appears that the plaintiff first came under the care of Dr. Nauton, an ear, nose and throat specialist, on July 23, 1973, at which time she complained to Dr. Nauton of an almost unbearable swelling in her jaws and temples accompanied by an inability to swallow. On August 9,1973, she complained to Dr. Nauton of double vision. She remained under the care of Dr. Nauton until August 14, 1973, at which time she went to another physician for treatment.

On July 30, 1975, the plaintiff filed a complaint alleging that the defendant was guilty of one or more of the following negligent acts and omissions:

(a) failing to take a proper, history from the plaintiff;

(b) failing to administer to the plaintiff the appropriate and necessary tests to determine her malady;

(c) failing to administer a Sed. Rate blood test when the symptoms described by the plaintiff would normally call for such a test;

(d) ignoring the plaintiff when she called on August 9,1973, advising the defendant that she was suffering from double vision. The plaintiff contends that as a direct and proximate result of these allegedly negligent acts and omissions of the defendant she lost vision in her left eye and remains sick and disabled.

On written answers to interrogatories filed on September 3,1976, the plaintiff listed nine physicians who had knowledge of her condition and treatment. On April 1, 1977, in an amendment to the interrogatory she listed one medical text upon which she intended to rely at the trial. The only indication in the record that a medical expert might be called at the trial to sustain the plaintiff’s allegations is the fact that the defendant took the deposition of a Dr. Peter Atchoo on August 24, 1977.

During the discovery deposition Dr. Atchoo, an eye specialist with offices in Pontiac, Michigan, testified that he had never seen an actual case of temporal arteritis but had treated patients suspected to have this condition. He suggested what he might have done had he been consulted by the plaintiff under the same circumstances presented to Dr. Nauton. He further stated that he could not form a definite opinion as to whether Dr. Nau ton’s treatment of the plaintiff was below acceptable medical standards.

The defendant then moved for summary judgment on September 6, 1977, upon the testimony of plaintiff’s selected expert witness. The defendant’s motion was granted on October 7, 1977, and the plaintiff’s petition for a rehearing was denied.

On appeal in this court the plaintiff argues that the trial court erred in granting summary judgment in favor of the defendant as there were genuine issues of material fact in the affidavits, pleadings and depositions on file in the cause. We recognize that where the pleadings, depositions and admissions on file, together with any affidavits and exhibits show that there is no genuine issue as to any material fact a motion for summary judgment is proper. Ill. Rev. Stat. 1975, ch. 110, par. 57; Kwak v. St. Anthony De Padua Hospital (1977), 54 Ill. App. 3d 719, 369 N.E.2d 1346; Carruthers v. B. C. Christopher & Co. (1974), 57 Ill. 2d 376, 313 N.E.2d 457; Barnes v. Washington (1973), 56 Ill. 2d 22, 305 N.E.2d 535.

In a medical malpractice case the burden is on the plaintiff to establish every fact necessary to sustain her cause of action. (Burrow v. Widder (1977), 52 Ill. App. 3d 1017, 368 N.E.2d 443; Gault v. Sideman (1963), 42 Ill. App. 2d 96, 191 N.E.2d 436.) “One element of a cause of action for medical malpractice is proof of the standard of care by which the defendant physician’s conduct is to be measured.” (Walski v. Tiesenga (1978), 72 Ill. 2d 249, 255, 381 N.E.2d 279, 282.) The Illinois Supreme Court in Borowski v. Von Solbrig (1975), 60 Ill. 2d 418, 423, 328 N.E.2d 301, stated that:

“Except in certain limited situations not pertinent here, the appellate decisions of this State have held that the plaintiff, by use of expert testimony, must establish the standards of care against which the defendant doctor’s conduct is to be measured. The plaintiff must then further prove by affirmative evidence that, judged in light of these standards, the doctor was unskillful or negligent and that his want of skill or care caused the injury to the plaintiff.”

(See Plost v. Louis A. Weiss Memorial Hospital (1978), 62 Ill. App. 3d 253, 378 N.E.2d 1176; Livengood v. Howard (1973), 11 Ill. App. 3d 1, 295 N.E.2d 736; Ybarra v. Cross (1974), 22 Ill. App. 3d 638, 317 N.E.2d 621; Estell v. Barringer (1972), 3 Ill. App. 3d 455, 278 N.E.2d 424; Sanders v. Frost (1969), 112 Ill. App. 2d 234, 251 N.E.2d 105; Newman v. Spellberg (1968), 91 Ill. App. 2d 310, 234 N.E.2d 152.) The court in Walski explained that:

“Generally, expert testimony is needed to support a charge of malpractice because jurors are not skilled in the practice of medicine and would find it difficult without the help of medical evidence to determine any lack of necessary scientific skill on the part of the physician.” Walski, at 256.

The plaintiff does not contest the general rule requiring expert testimony in medical malpractice cases. It is the plaintiff’s initial contention that the testimony of her expert witness Dr. Atchoo was sufficient to establish this standard of care. We disagree.

The expert’s statements as to what he would have done in the situation encountered by Dr. Nauton are irrelevant since the issue before the trial court was whether the defendant acted contrary to accepted or customary medical standards at that time and place. (Gorman v. St.

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Bluebook (online)
390 N.E.2d 53, 71 Ill. App. 3d 831, 28 Ill. Dec. 71, 1979 Ill. App. LEXIS 2552, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stevenson-v-nauton-illappct-1979.