{ "id": 3498161, "name": "DOROTHY DUVALL, Plaintiff-Appellant, v. JAMES M. LAIDLAW et al., Defendants-Appellees", "name_abbreviation": "Duvall v. Laidlaw", "decision_date": "1986-03-13", "docket_number": "No. 4\u201485\u20140392", "first_page": "717", "last_page": "723", "citations": [ { "type": "official", "cite": "141 Ill. App. 3d 717" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "443 N.E.2d 774", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "111 Ill. App. 3d 169", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5438641 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/111/0169-01" ] }, { "cite": "396 N.E.2d 13", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "77 Ill. 2d 279", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5490810 ], "weight": 2, "pin_cites": [ { "page": "285" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/77/0279-01" ] }, { "cite": "486 N.E.2d 326", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "330" } ], "opinion_index": 0 }, { "cite": "138 Ill. App. 3d 629", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8499439 ], "weight": 2, "pin_cites": [ { "page": "636" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/138/0629-01" ] }, { "cite": "266 N.E.2d 137", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "131 Ill. App. 2d 61", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2903938, 2909055 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/131/0061-02", "/ill-app-2d/131/0061-01" ] }, { "cite": "455 N.E.2d 1096", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "118 Ill. App. 3d 1093", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5661880 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/ill-app-3d/118/1093-01" ] }, { "cite": "328 N.E.2d 301", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "60 Ill. 2d 418", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5416375 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/ill-2d/60/0418-01" ] }, { "cite": "381 N.E.2d 279", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "72 Ill. 2d 249", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5443658 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/ill-2d/72/0249-01" ] }, { "cite": "111 Ill. 2d 229", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3166688 ], "weight": 6, "pin_cites": [ { "page": "243" }, { "page": "247" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/111/0229-01" ] }, { "cite": "434 N.E.2d 50", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "105 Ill. App. 3d 521", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5472320 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/105/0521-01" ] } ], "analysis": { "cardinality": 657, "char_count": 12744, "ocr_confidence": 0.758, "pagerank": { "raw": 7.675893934375919e-08, "percentile": 0.4524868052152847 }, "sha256": "ba883b69e2f67b2502b4acabb333a0e5b43e6ce61b98568387b2d8a6631dbecc", "simhash": "1:30bf6c75ead7f343", "word_count": 1985 }, "last_updated": "2023-07-14T14:39:34.513048+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "DOROTHY DUVALL, Plaintiff-Appellant, v. JAMES M. LAIDLAW et al., Defendants-Appellees." ], "opinions": [ { "text": "JUSTICE MORTHLAND\ndelivered the opinion of the court:\nThe plaintiff appeals a Champaign County circuit court order granting summary judgment to the defendant physicians in this medical negligence action. We reverse and remand for trial.\nOn March 24, 1981, defendant physician James M. Laidlaw performed abdominal surgery on the plaintiff. Doctor Laidlaw released the plaintiff from the hospital on March 29, 1981, although records indicate she had a \u201clow-grade\u201d fever of 99 degrees Fahrenheit. The plaintiff apparently returned home to Dwight, a town approximately 125 miles from the hospital in Champaign where the surgery was performed.\nThe plaintiff returned to Champaign-Urbana on March 31, 1981, and Dr. Laidlaw examined her. The plaintiff had complained that her wound was draining. Dr. Laidlaw deposed that he opened the plaintiff\u2019s incision and drained fluid from the wound during this visit. The parties do not agree how much fluid was drained or what physical characteristics this fluid exhibited. Dr. Laidlaw did not have this fluid analyzed in a laboratory, did not prescribe antibiotics, and ordered no cultures or other tests. He did, however, suggest to the plaintiff that she apply honey to the wound to encourage healing.\nOn April 3, 1981, the plaintiff had a telephone conversation with Dr. Laidlaw. The substance of this telephone conversation is disputed, but apparently Duvall reported that the incision was still draining. The nature of this discharge and, equally important, the substance of the plaintiff\u2019s description of the wound drainage remains in dispute. Dr. Laidlaw did not see or speak to the plaintiff again until April 29, 1981, after she had been hospitalized for the infection which prompted this suit.\nOn April 6, 1981, and again on April 7, the plaintiff spoke by telephone with defendant physician Larry Lane. Dr. Lane was and is an associate of Dr. Laidlaw\u2019s at Christie Clinic in Champaign-Urbana. In response to the plaintiff\u2019s complaints of pain on April 6, Dr. Lane prescribed six tablets of a painkiller called Zomax. After further complaints during the April 7 telephone call, Dr. Lane prescribed Percodan, a more potent, narcotic, pain reliever, for the plaintiff.\nOn April 8, 1981, the day after Dr. Lane prescribed the Percodan, the plaintiff was admitted to St. James Hospital in Pontiac. At that time she suffered from an acute abdominal infection and pus was draining from her incision.\nOn October 22, 1982, the plaintiff filed a complaint in Champaign County circuit court alleging that Drs. Laidlaw and Lane had been negligent in failing to diagnose and treat her post-operative infection promptly and in giving her advice over the telephone. This conduct allegedly breached the defendants\u2019 duty to treat the plaintiff with the degree of skill appropriate for \u201cobstetrician-gynecologists practicing in the United States.\u201d The plaintiff filed an amended complaint and the two defendants answered on October 12,1983.\nOn April 11, 1985, after the parties and the plaintiff\u2019s expert witness had been deposed, the defendants filed a motion for summary judgment. The defendants accompanied their motion with their affidavits which assert that the care they had deposed to giving the plaintiff conformed to the standard of care applicable in Champaign-Urbana. The defendants\u2019 motion also asserted that the plaintiff\u2019s expert, Dr. Charles C. Bird, was unfamiliar with the standard of care in Champaign-Urbana or similar communities and that he improperly relied upon a \u201cnational\u201d standard of care in disagreeing with the treatment given to the plaintiff by the defendants.\nThe defendant Laidlaw is board-certified in obstetrics and gynecology in Canada and has practiced in the State of Illinois since 1962. Dr. Laidlaw\u2019s certification in Canada was transferred to the United States and he is, in addition, a fellow of the American College of Surgeons and the American College of Obstetrics and Gynecology. The defendant Lane is board-certified in the State of Illinois, specializing in obstetrics and gynecology. The plaintiff\u2019s expert, Dr. Charles C. Bird, is board-certified in obstetrics and gynecology and has practiced in and around Evanston for most of his career. In addition to his private practice, Dr. Bird lectures in obstetrics and gynecology as an assistant professor at Northwestern University Medical School.\nIn his deposition, Dr. Bird stated his belief that the defendants did not adhere to the proper standard of care in treating the plaintiff. Specifically, Dr. Bird pointed to Dr. Laidlaw\u2019s action in releasing the plaintiff from the hospital while she maintained a low-grade fever as well as his failure to run tests or administer antibiotics when the plaintiff returned on March 31 with wound drainage still present. Dr. Lane was negligent, the plaintiff\u2019s expert believes, in prescribing Percodan over the telephone.\nDr. Laidlaw conceded during his deposition that should clinical signs of infection be present in a wound, such as bloody or odorous discharge, further tests would be appropriate. However, Dr. Laidlaw disputed the plaintiff\u2019s claim that prior to his examination of her on March 31, the discharge from her wound was \u201cpungent in smell, [and] it was sticky and off-color brownish.\u201d\nIn stating his opinion about the defendants\u2019 adherence to proper medical practice, Dr. Bird relied upon what he believed to be a national standard for determining proper conduct under these circumstances. Dr. Bird conceded that he had never been to Champaign-Urbana, nor did he personally know any physician practicing in those cities. Nevertheless, Dr. Bird stated he believed himself familiar with practice in smaller Illinois communities, such as Champaign-Urbana, through his contact with physicians practicing in similar cities at various professional meetings. In addition, the plaintiff\u2019s expert suggested that his role in educating physicians who might eventually practice in cities similar to Champaign-Urbana afforded him a basis for judging the performance of physicians in the defendants\u2019 circumstances.\nOn May 23, 1985, the circuit court entered summary judgment for the defendants on the basis that the plaintiff\u2019s expert was not competent to testify under the strictures of Illinois\u2019 \u201csimilar locality\u201d rule. In this appeal, the plaintiff argues that her expert is competent to testify, thus, his deposition presents sufficient indication of a material issue of fact to withstand a motion for summary judgment. In addition, the plaintiff suggests that Dr. Laidlaw\u2019s own deposition testimony satisfactorily establishes a material issue of fact regarding his treatment of the plaintiff. Finally the plaintiff urges this court to overrule the \u201csimilar locality\u201d rule for expert witnesses in medical negligence cases.\nIn medical malpractice cases, as in others, summary judgment should be granted only where no genuine issue remains as to any material fact. The court must make this determination from the affidavits, depositions, admissions, exhibits, and pleadings in the case. The court must construe the evidence strictly against the moving party and liberally in favor of the opponent. (Stringer v. Zacheis (1982), 105 Ill. App. 3d 521, 434 N.E.2d 50.) An affidavit supporting or opposing a motion for summary judgment (Ill. Rev. Stat. 1983, ch. 110, par. 2 \u2014 1005), must indicate that the affiant would be competent to testify if called upon to do so. Purtill v. Hess (1986), 111 Ill. 2d 229.\nIn a medical negligence case, the plaintiff must prove the proper standard of care against which the defendant physician\u2019s conduct must be measured and a negligent failure to comply with this standard. The plaintiff must also prove that injury proximately resulted from the defendant\u2019s negligence. (Walski v. Tiesenga (1978), 72 Ill. 2d 249, 381 N.E.2d 279; Borowski v. Von Solbrig (1975), 60 Ill. 2d 418, 328 N.E.2d 301.) Evidence concerning the standard of care may come from the defendant. Metz v. Fairbury Hospital (1983), 118 Ill. App. 3d 1093, 455 N.E.2d 1096; Anderson v. Martzke (1970), 131 Ill. App. 2d 61, 266 N.E.2d 137.\nIn determining the appropriate standard of care, Illinois follows the \u201csimilar locality\u201d rule. This rule requires physicians to possess and apply the knowledge, skill, and care which a reasonably well-qualified physician in the \u201csame or similar community\u201d would bring to a similar case. Purtill v. Hess (1986), 111 Ill. 2d 229; Thompson v. Webb (1985), 138 Ill. App. 3d 629, 486 N.E.2d 326.\nSupreme Court Rule 191 (87 Ill. 2d R. 191) requires that an affidavit supporting or opposing a motion for summary judgment affirmatively establish an expert\u2019s qualifications and competency to testify. This foundation includes the fact that the expert is a licensed member of the school of medicine about which he proposes to express an opinion. (Dolan v. Galluzzo (1979), 77 Ill. 2d 279, 396 N.E.2d 13.) The expert must also demonstrate that he is:\n\u201c[Fjamiliar with the methods, procedures, and treatments ordinarily observed by other physicians, in either the defendant physician\u2019s community or a similar community. [Citations.] Once the former requirement has been satisfied, \u2018it lies within the sound discretion of the trial court to determine if the witness is qualified [and competent] to [state his opinion] as an expert regarding the standard of care.\u2019 Dolan v. Galluzzo (1979), 77 Ill. 2d 279, 285.\u201d (Purtill v. Hess (1986), 111 Ill. 2d 229, 243.)\nThis court has noted that the meaning of the term \u201clocality\u201d is not precise and varies with the facts of a particular case. Moreover, \u201cthe locality which applies to a defendant should not be narrowed any further than is necessary to promote the rationale for the rule ***.\u201d (Thompson v. Webb (1985), 138 Ill. App. 3d 629, 636, 486 N.E.2d 326, 330.) Specifically, medical facilities, specialists, and other special assistance may be present for an urban practitioner, but unavailable to the rural physician. \u201cThe physician\u2019s professional conduct must be judged in light of the conditions and facilities with which he must work. If a plaintiff\u2019s expert is familiar with the standards of care applicable to conditions and facilities available to the defendant doctor, then he is qualified to testify.\u201d (Purtill v. Hess (1986), 111 Ill. 2d 229, 247.) Finally, if the standards upon which an expert bases his opinion are national or international in scope, familiarity with such standards permits the expert to testify competently notwithstanding his unfamiliarity with practice in a particular community. Purtill v. Hess (1986), 111 Ill. 2d 229; Hunter v. Sukkar (1982), 111 Ill. App. 3d 169, 443 N.E.2d 774.\nUnder the foregoing authority, we conclude the trial court erred in granting summary judgment for the defendants. The plaintiff\u2019s expert based his opinions concerning the defendants\u2019 conduct on a standard which he stated to be uniform throughout the country. In addition, he suggested he had reason to believe that all obstetrician-gynecologists were made aware of these standards during their medical training. This foundation sufficed to show the competency of the expert\u2019s testimony for purposes of deciding a motion for summary judgment. In addition, Dr. Bird\u2019s questions concerning the defendants\u2019 conduct relate to their actions in treating the plaintiff rather than to the availability of specialized facilities or personnel. Accordingly, the \u201csimilar locality\u201d rule was not implicated under the present circumstances.\nIn addition, Dr. Laidlaw\u2019s statement that odorous or discolored wound discharge would necessitate treatment adequately established the standard of care for purposes of summary judgment. Taken with the plaintiff\u2019s disputed assertion that such symptoms were present when the defendants examined her and counselled her by telephone, a triable issue of fact undoubtedly remains. This factual dispute is peculiarly suited for determination at trial, and summary judgment was clearly inappropriate.\nIn light of our disposition, we do not address the plaintiff\u2019s contention that the similar locality rule should be abolished in Illinois. However, we note that the Illinois Supreme Court squarely rejected this argument in Purtill v. Hess (1986), 111 Ill. 2d 229.\nFor the foregoing reasons, we reverse the judgment of the Champaign County circuit court and remand this cause for trial on the merits.\nReversed and remanded.\nWEBBER and GREEN, JJ., concur.", "type": "majority", "author": "JUSTICE MORTHLAND" } ], "attorneys": [ "Donald A. Shapiro, of Donald A. Shapiro, Ltd., of Chicago, for appellant.", "Todd M. Tennant, of Dobbins, Fraker, Tennant, Joy & Perlstein, of Champaign, for appellees." ], "corrections": "", "head_matter": "DOROTHY DUVALL, Plaintiff-Appellant, v. JAMES M. LAIDLAW et al., Defendants-Appellees.\nFourth District\nNo. 4\u201485\u20140392\nOpinion filed March 13, 1986.\nDonald A. Shapiro, of Donald A. Shapiro, Ltd., of Chicago, for appellant.\nTodd M. Tennant, of Dobbins, Fraker, Tennant, Joy & Perlstein, of Champaign, for appellees." }, "file_name": "0717-01", "first_page_order": 739, "last_page_order": 745 }