Moriarity v. Rockford Health Systems, Inc.

JUSTICE McLAREN, specially concurring:

By mechanically yet inconsistently applying some general rules of summary judgment jurisprudence, and ignoring others, the majority creates an outcome that distorts the very rules that it claims to follow. While I concur in the ultimate decision reversing the grant of summary judgment, I disagree with the analysis of the majority that fails to find a genuine issue of material fact as to whether an emergency existed to warrant the grant of summary judgment by the trial court.

The majority correctly states the general rule that, when an averment made in an affidavit or deposition in support of a summary judgment motion is not controverted in a counteraffidavit or counterdeposition, the averment will be taken as true, and summary judgment may properly be granted “even if supported by nothing more than a defendant-doctor’s uncontradicted averments.” (Emphasis added.) 365 Ill. App. 3d at 387. The majority also correctly notes that Dr. Proust’s deposition testimony was not contradicted by a counteraffidavit or counterdeposition submitted by plaintiff. However, the majority fails to recognize that this general rule has no application in this case; while Dr. Proust’s averments were not contradicted in another deposition or affidavit, they were controverted by evidence submitted by defendants themselves.

Dr. Proust’s Emergency Department Report states that Allen arrived at the emergency department at 2:45 a.m. During his deposition, however, Dr. Proust was shown an “E.D.” nursing assessment that contained triage notes timed at 1:15 a.m. Allen was treated at approximately 3:27 a.m. Therefore, Allen was in the hospital either less than 45 minutes or more than 2 hours before she was treated. This is not a de minimis discrepancy of a couple of minutes, and we cannot overlook its impact on whether there is a genuine issue of material fact regarding the existence of a medical emergency in this case.

Time is a constituent element of an emergency. If this was an emergency situation, why was Allen not treated for more than two hours? Even a 45-minute wait to begin treatment raises a question about the existence of an emergency. In any event, defendants have not made clear the exact time frame involved in this case. With the appropriate time frame in doubt, any opinion from anyone, medical doctor or layman, is pure speculation. If Dr. Proust had reconciled this discrepancy and testified that an emergency existed despite the discrepancy, then there would not be a material issue of fact. By itself, this unreconciled discrepancy of 90 minutes creates a genuine issue of material fact (even in the absence of a counteraffidavit or counter-deposition filed by plaintiff).

This court has long held that, even if a party opposing a motion for summary judgment fails to file a counteraffidavit, the movant is not entitled to summary judgment unless his motion and supporting affidavits establish his right to summary judgment as a matter of law. See Rumford v. Countrywide Funding Corp., 287 Ill. App. 3d 330, 335 (1997); Pease v. International Union of Operating Engineers Local 150, 208 Ill. App. 3d 863, 874 (1991). The majority has created new law; not only does it require a question of fact to exist based on the totality of the pleadings and the testimonial evidence, it requires the party opposing a summary judgment motion to controvert in its own evidence all that is contained in the movant’s pleadings and evidence, even if the movant’s own submissions are inconsistent and create a material question of fact. The majority also ignores the general rules of summary judgment jurisprudence that: (1) the pleadings, depositions, admissions, and affidavits are to be strictly construed against the movant and liberally in favor of the nonmoving party; and (2) summary judgment should be granted only where there is no genuine issue of material fact and where the right of the moving party is clear and free from doubt. See Burns v. Grezeka, 155 Ill. App. 3d 294, 297 (1987). A movant’s pleadings and evidence are to be construed against the movant; if an inconsistency or material discrepancy exists in these submissions, there is no requirement that the respondent must additionally create a discrepancy in his own submissions. Furthermore, the right of the moving party must be clear and free from doubt; how can the movant’s right be free from doubt if the movant himself creates a doubt by submitting inconsistent material evidence and an opinion that does not address the inconsistency? The majority has flipped the burden of proof from the movant to the respondent and has recast the law to allow summary judgment despite inconsistencies or contradictions contained in the movant’s portion of the record. The majority further increases the newly created burden on the respondent by requiring that a respondent controvert expert medical opinion with a counteraffidavit or counterdeposition containing its own expert testimony. See 365 Ill. App. 3d at 388. Expert testimony is not required to controvert the underlying facts upon which an expert medical opinion is based. A doctor may testify in a deposition that, in his expert medical opinion, a shot of penicillin was the proper medical response to a list of symptoms presented and a given diagnosis. However, such evidence does not require expert medical testimony to controvert when the patient entered the emergency room or whether the doctor who administered the shot looked in the patient’s file, where the patient’s allergy to penicillin was clearly noted. In this case, the underlying fact of when Allen arrived in the emergency room is at issue. Allen was not required to controvert this fact, since it was controverted by defendants’ own evidence. Furthermore, such a fact need not be controverted by expert medical testimony, as the majority claims, in order to create doubt as to the right to summary judgment.

The majority’s error continues throughout its analysis, affecting the issues of obtaining Allen’s consent or the consent of a surrogate. Again, because of the inconsistencies in defendants’ evidence, we do not know when the “emergency” arose; consequently, it is also unclear as to whether Allen was incompetent to refuse treatment at 1:15, 2:45, or 3:27 a.m. The timing of the “emergency” as related to Allen’s competency also affects whether a surrogate’s consent could have been sought and obtained. Without a fixed time line, Dr. Proust’s opinions are nothing more than speculation, and genuine issues of material fact abound.

The majority fails to address, let alone reconcile, these underlying questions of fact. While the majority reaches a “correct” outcome by reversing the grant of summary judgment and remanding this case for further proceedings, its improper analysis distorts the law of summary judgment. I submit that the defect in the analysis of the majority disposition will be made apparent to the trial court if the jury is not allowed to determine if an emergency existed but is allowed to consider the discrepancy in the length of time contained in the record in determining whether defendants failed to timely act to obtain the consent of a surrogate. The majority has already determined that, despite two time frames, the emergency was established as a matter of law. Apparently, the jury will have to decide whether the emergency was a “big” emergency or a “little” emergency. I submit that the jury should decide whether there was an emergency and what the proper time frame was to measure any and all acts of defendants alleged to have been improper.

Therefore, because I disagree with the analysis of the majority determining that an emergency was established as a matter of law, I specially concur with the majority opinion that determines that the judgment should be reversed and the cause remanded to the trial court for further proceedings.