{ "id": 2599848, "name": "MARION JOSEPH GALVIN, Plaintiff-Appellant, v. DAVID OLYSAV, Defendant-Appellee", "name_abbreviation": "Galvin v. Olysav", "decision_date": "1991-04-25", "docket_number": "No. 5\u201488\u20140758", "first_page": "399", "last_page": "406", "citations": [ { "type": "official", "cite": "212 Ill. App. 3d 399" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "117 N.E.2d 74", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "80" }, { "page": "80" } ], "opinion_index": 0 }, { "cite": "2 Ill. 2d 74", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 12121670 ], "weight": 2, "pin_cites": [ { "page": "84" }, { "page": "83" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/2/0074-01" ] }, { "cite": "381 N.E.2d 809", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "pin_cites": [ { "page": "812" }, { "page": "812" } ], "opinion_index": 0 }, { "cite": "64 Ill. App. 3d 587", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3334189 ], "weight": 3, "pin_cites": [ { "page": "590" }, { "page": "590" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/64/0587-01" ] }, { "cite": "483 F. Supp. 581", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 4129886 ], "pin_cites": [ { "page": "585" } ], "opinion_index": 0, "case_paths": [ "/f-supp/483/0581-01" ] }, { "cite": "493 N.E.2d 6", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "pin_cites": [ { "page": "12" }, { "page": "12" }, { "page": "12" } ], "opinion_index": 0 }, { "cite": "143 Ill. App. 3d 479", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5667015 ], "weight": 3, "pin_cites": [ { "page": "487-88" }, { "page": "487-88" }, { "page": "487-88" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/143/0479-01" ] }, { "cite": "368 N.E.2d 573", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "576" }, { "page": "576" } ], "opinion_index": 0 }, { "cite": "53 Ill. App. 3d 57", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3395319 ], "weight": 2, "pin_cites": [ { "page": "60" }, { "page": "60" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/53/0057-01" ] }, { "cite": "79 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3070998 ], "pin_cites": [ { "page": "10" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/79/0001-01" ] }, { "cite": "500 N.E.2d 138", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "149 Ill. App. 3d 268", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3459664 ], "weight": 2, "pin_cites": [ { "page": "272-73", "parenthetical": "Barry, J., dissenting" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/149/0268-01" ] }, { "cite": "560 N.E.2d 586", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "589-90" } ], "opinion_index": 0 }, { "cite": "137 Ill. 2d 284", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3251657 ], "weight": 2, "pin_cites": [ { "page": "292-94" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/137/0284-01" ] }, { "cite": "489 N.E.2d 867", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "pin_cites": [ { "page": "870" }, { "page": "870" }, { "page": "872" } ], "opinion_index": 0 }, { "cite": "111 Ill. 2d 229", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3166688 ], "weight": 6, "pin_cites": [ { "page": "240" }, { "page": "240" }, { "page": "240" }, { "page": "240" }, { "page": "240" }, { "page": "241-42" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/111/0229-01" ] } ], "analysis": { "cardinality": 710, "char_count": 15360, "ocr_confidence": 0.775, "pagerank": { "raw": 6.007314048253232e-08, "percentile": 0.3728064840845933 }, "sha256": "f1fe256ed6f3acb9a06c8a4345adc9165130d356578924c400760b81b50efa40", "simhash": "1:9a9682d60f573075", "word_count": 2586 }, "last_updated": "2023-07-14T15:59:33.778469+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "MARION JOSEPH GALVIN, Plaintiff-Appellant, v. DAVID OLYSAV, Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE GOLDENHERSH\ndelivered the opinion of the court:\nPlaintiff, Marion Joseph Galvin, appeals the judgment of the circuit court of Christian County granting the motion for summary judgment of defendant, Dr. David Olysav. In this cause, plaintiff argues that summary judgment was improperly granted as there exists a genuine issue of material fact. We reverse and remand.\nPlaintiff injured his right arm and the lower portion of his left leg in a traffic accident in December 1981. St. John\u2019s Hospital in Springfield admitted him, and he was subsequently attended to by defendant. Medical personnel X-rayed the upper portion of his arm and lower portion of his leg. The X rays revealed fractures of his right humerus and left malleolus. Plaintiff was placed in a short leg cast and hanging arm cast.\nWithin three days after the injury, plaintiff complained to defendant of pain in his right wrist and hand. He repeated those complaints on various occasions. No X rays of the hand and wrist were taken, however, until nearly a year and a half later. At that time plaintiff was diagnosed as having right carpal instability. Plaintiff alleges that because of the delayed timing of defendant\u2019s diagnosis, a surgical procedure called a carpal roll fusion of the carpas and scaphocapital lunate bones was necessary. Plaintiff now has a fused wrist with a decreased range of motion. He maintains that earlier diagnosis and treatment would have prevented the need for the surgery.\nOn April 6 and May 25, 1988, Dr. Forbes McMullin was deposed by attorneys for both parties. On June 2, 1988, defendant filed his motion for summary judgment, alleging that plaintiff\u2019s use of expert testimony and Dr. McMullin\u2019s evidence deposition fail to meet the burden of establishing a prima facie case against defendant. In particular, defendant argues that plaintiff failed to show that an act or failure to act was the proximate cause of plaintiff\u2019s injury. On August 31, 1988, the circuit court granted defendant\u2019s motion.\n\u201cA defendant may, at any time, move *** for a summary judgment in his or her favor as to all or any part of the relief sought against him or her.\u201d (Ill. Rev. Stat. 1987, ch. 110, par. 2\u20141005(b).) However, as the supreme court noted in Purtill v. Hess (1986), 111 Ill. 2d 229, 240, 489 N.E.2d 867, 870, although the use of summary judgment is to be encouraged as an aid to the expeditious disposition of a lawsuit, it is a drastic means of disposing of litigation and should be allowed only when the right of the moving party is clear and free from doubt.\n\u201cIn determining the existence of a genuine issue of material fact, courts must consider the pleadings, depositions, admissions, exhibits, and affidavits on file in the case and must construe them strictly against the movant and liberally in favor of the opponent.\u201d 111 Ill. 2d at 240, 489 N.E.2d at 870.\nOur supreme court has clarified the appropriate standard to be applied in summary judgments in Gatlin v. Ruder (1990), 137 Ill. 2d 284, 560 N.E.2d 586. The court stated:\n\u201cOur first concern is with the standard the appellate court applied in reviewing the motion to vacate summary judgment. The appellate court, citing Russell [v. Subbiah (1986), 149 Ill. App. 3d 268, 500 N.E.2d 138], held: \u2018[T]he plaintiff must prove that it is more probably true than not true that the defendant\u2019s negligence was a proximate cause of the plaintiff\u2019s injury.\u2019 Although Russell concerned a summary judgment motion and thus appears to support the holding of the appellate court in the case at bar, we disagree with the standard employed by Russell and the appellate court. The Russell standard accurately reflects a plaintiff\u2019s burden of proof at trial, but incorrectly sets forth a party\u2019s burden on a summary judgment motion. A motion for summary judgment can only succeed \u2018if 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.\u2019 (Ill. Rev. Stat. 1987, ch. 110, par. 2\u20141005(c); see Purtill v. Hess (1986), 111 Ill. 2d 229, 240; see also Russell, 149 Ill. App. 3d at 272-73 (Barry, J., dissenting).) The court must construe the evidence \u2018strictly against the movant and liberally in favor of the opponent.\u2019 (Purtill, 111 Ill. 2d at 240.) Summary judgment \u2018is a drastic means of disposing of litigation and therefore should be allowed only when the right of the moving party is clear and free from doubt.\u2019 (Purtill, 111 Ill. 2d at 240.) ***\nApplying the standard established by the statute and Purtill, we hold that an issue of material fact with regard to Ruder\u2019s negligence arose as a result of Niswander\u2019s [Kenneth Niswander, M.D., a professor at the University of California at Davis medical school] deposition. Our duty is not to judge the strength of Niswander\u2019s deposition as evidence or to weigh the credentials, credibility and testimony of Niswander against those of Ruder and Raimondi [Anthony Raimondi, M.D., a pediatric neurosurgeon]. We must decide whether Niswander\u2019s deposition presented evidence that Ruder may have proximately caused Gatlin\u2019s injuries; we hold it did. Certainly proximate cause is an issue of material fact in a negligence suit. Niswander\u2019s affidavit did not alter his deposition. The trier of fact should merely consider the affidavit with all of the other evidence in the case. When a circuit court, in considering a motion for summary judgment, weighs the deposition of a witness presented by the opponent to the motion with a subsequently obtained affidavit of that witness by the movant, the court, in effect, admits an issue of material fact exists. A court cannot decide factual disputes as a matter of law. (See Spidle v. Steward (1980), 79 Ill. 2d 1, 10.) For these reasons, Gatlin\u2019s motion to vacate summary judgment should have been granted.\u201d (137 Ill. 2d at 292-94, 560 N.E.2d at 589-90.)\nFor our review of the trial court\u2019s judgment, we will use the standard in Gatlin.\nIn a medical malpractice action, the plaintiff has the burden of establishing the appropriate standard against which the defendant\u2019s conduct is to be measured, a deviation from that standard, and that the deviation proximately caused the plaintiff\u2019s injuries. (Purtill v. Hess, 111 Ill. 2d at 241-42, 489 N.E.2d at 872; Walski v. Tiesenga (1977), 53 Ill. App. 3d 57, 60, 368 N.E.2d 573, 576.) In this case, a question exists only as to the last element \u2014 proximate cause. In addition, the only evidence offered to meet the proximate cause burden is the evidence deposition of Dr. McMullin. We agree with the First District Appellate Court in Northern Trust Co. v. Louis A. Weiss Memorial Hospital (1986), 143 Ill. App. 3d 479, 487-88, 493 N.E.2d 6, 12, when it held, \u201c \u2018[ejvidence which shows to a reasonable certainty that negligent delay in diagnosis or treatment *** lessened the effectiveness of treatment is sufficient to establish proximate cause.\u2019 \u201d 143 Ill. App. 3d at 487-88, 493 N.E.2d at 12, quoting James v. United States (N.D. Cal. 1980), 483 F. Supp. 581, 585.\nIn reading Dr. McMullin\u2019s deposition, we note but do not rule on the objections of defendant. We read the deposition as a whole as did the circuit court.\nIn the deposition, on direct examination by plaintiff\u2019s attorney, Dr. McMullin was asked:\n\u201cQ. Doctor, in the course of your treatment of Marion Joseph Galvin, did you come to an opinion as to whether Dr. David Olysav\u2019s treatment of Joe Galvin was in keeping with the standard of care required of an orthopedic surgeon in Springfield, Illinois at the time of his rendering such treatment?\n* * *\nA. It was based \u2014 it was my opinion that based on what the patient told me, he either may continue complaining of pain in his wrist over a period of time and no X-rays of that wrist that I could see were documented as being taken, that this was not in keeping with proper medical care.\nQ. And your opinion was to a reasonable degree of medical certainty, is that right, Doctor?\nA. Yes.\n* * *\nQ. Doctor, based on your training and experience and your treatment of Joe Galvin including your review of his medical records, do you have an opinion to a reasonable degree of medical certainty whether Joe Galvin\u2019s chance for a better result would have been better if the diagnosis of carpal instability would have been made on or before January the 18th of 1982?\n* * *\nA. Yes, if he had had the diagnosis made earlier and if a repair and reconstruction had been performed and if it were suecessful, his wrist would be better than it would be had he had to have an arthrodesis.\nQ. And the arthrodesis is what he ended up having, is that correct?\nA. Yes.\n* * *\nQ. Doctor, do you have an opinion as to whether the chance for a better result would have been different depending on the time of diagnosis of such hypothetical injury [similar to plaintiff]?\n* * *\nA. If one can repair or reconstruct the ligaments more stable, the bones of the joint, the wrist joint stable, one will have a better functioning wrist than if one goes ahead and has to end up fusing certain various other bones.\u201d\nReading the deposition in a light most favorable to the nonmoving party, it is clear that plaintiff met the burden of proof by the introduction of the above-quoted deposition. The expert/doctor testified to a reasonable degree of medical certainty that defendant proximately caused plaintiff\u2019s injury. Plaintiff certainly introduced evidence sufficient to show, to a reasonable degree of medical certainty, that negligent delay in diagnosis or treatment lessened the effectiveness of treatment.\nDefendant argues, based on the cross-examination, that the doctor could not or would not testify \u201cto a reasonable degree of medical certainty.\u201d It is apparent that Dr. McMullin was confused about the distinction between possibilities and a reasonable degree of medical certainty. For instance, the doctor was asked:\n\u201cQ. Okay. I understand you\u2019ve talked about possibilities and likelihoods, Doctor, but my question is whether or not you can say to a reasonable degree of medical certainty that a wrist injury would have been diagnosed?\n* * *\nA. You\u2019re asking me a question of \u2014 two questions, one, is it possible, and the other question you\u2019re asking me, what is my reasonable degree of medical certainty, and my reasonable degree of medical certainty is that there would have been some abnormalities shown on those X-rays, had they been taken.\u201d\nLater, the following exchange occurred:\n\u201cA. He could have been one of those 40 or 50 percent that failed, and he would still end up having a fusion.\nQ. Okay. Can you testify to a reasonable degree of medical certainty that a ligament reconstruction operation would have been successful on Marion Joseph Galvin?\nA. You\u2019re asking me a question, again, using medical certainty and then possibilities. I think the possibilities are 40 percent that it would be successful. I can\u2019t say whether he would be one of those 40 percent that was successful or not.\nQ. Okay. The standard that we\u2019re dealing with here, by law, is testimony to a reasonable degree of medical certainty, and that is why I ask the question in that way, so let me reask it, if I may\u2014\nA. That\u2019s a silly question, because I told you, the statistics are 40 percent, and whether or not you\u2019re a medical doctor or giving medical certainty or not, the statistics are still going to change \u2014 not change. So it\u2019s going to be 40 percent or so that he\u2019s going to be successful and sixty percent that he\u2019s not.\nQ. Okay. My question is, Doctor, can you testify to a reasonable degree of medical certainty that a ligament reconstruction operation would have been successful on Marion Galvin?\nA. I can testify that he had a 40 percent chance; that\u2019s all I can testify. I can\u2019t say that it would be a hundred percent successful.\n* * *\nA. Again I\u2019ll say that I cannot be a hundred percent medically certain that this would not be the same wrist fusion had the diagnosis been made earlier.\nQ. I\u2019m not asking for a hundred percent certainty, Doctor, I\u2019m asking for any degree of medical certainty. Can you testify with any degree of medical certainty that the treatment of or failure to treat Marion Joseph Galvin was the cause of his current condition?\n* * *\nA. Again, we\u2019re getting into semantics; I know this is a way that the law likes to become involved in things.\nThe way you state your question, I have to answer it honestly, and I\u2019d have to say that I can\u2019t be a hundred percent medically certain, because that\u2019s the way medicine is. I guess I just can\u2019t say anything different.\u201d\nDefendant alleges that because the doctor testified in terms of percentages and did not repeat the magical incantation \u201creasonable degree of medical certainty,\u201d his testimony is insufficient to show proximate cause. In Wise v. St. Mary\u2019s Hospital (1978), 64 Ill. App. 3d 587, 381 N.E.2d 809, this court made clear:\n\u201cWhile medical testimony is usually couched in terms of art such as \u2018based upon a reasonable degree of medical certainty,\u2019 etc., it is not objectionable for the medical expert to testify in terms of percentages so long as it is clear that the opinion expressed is not the product of mere speculation or conjecture.\u201d (64 Ill. App. 3d at 590, 381 N.E.2d at 812.)\nIn light of the fact that Dr. McMullin testified on direct examination that his opinion was based on a reasonable degree of medical certainty, and on cross-examination merely restated his testimony in terms of percentages, it is clear that his opinion is not the product of mere speculation or conjecture. Dr. McMullin\u2019s testimony is sufficient to show proximate cause.\nThe cross-examination goes to the weight to be given the medical testimony. It does not, however, go to the reasonable degree of medical certainty standard. Although Dr. McMullin restated his prior direct examination testimony in terms of percentages, he never retracted his assertion that defendant failed to meet the appropriate standard of care or that defendant\u2019s deviation from that standard proximately caused plaintiff\u2019s injuries. Furthermore, he never retracted his statement that the delay in diagnosis or treatment lessened the effectiveness of treatment. Therefore, plaintiff made a prima facie case of medical malpractice. See Walski, 53 Ill. App. 3d at 60, 368 N.E.2d at 576; Northern Trust, 143 Ill. App. 3d at 487-88, 493 N.E.2d at 12.\nThe existence of proximate cause is a question for the jury. (Ney v. Yellow Cab Co. (1954), 2 Ill. 2d 74, 84, 117 N.E.2d 74, 80; Wise, 64 Ill. App. 3d at 590, 381 N.E.2d at 812.) Moreover, the amount of weight given to any testimony is within the province of the jury. Questions or issues which would cause reasonable men to arrive at different results are for the jury alone to decide. 2 Ill. 2d at 83, 117 N.E.2d at 80.\nFor the foregoing reasons, the judgment of the circuit court of Christian County is reversed and the cause remanded for further proceedings.\nReversed and remanded.\nRARICK, P.J., and CHAPMAN, J., concur.", "type": "majority", "author": "JUSTICE GOLDENHERSH" } ], "attorneys": [ "Robert Beyers, of Champaign, and Francis Lynch, of Springfield, for appellant.", "Heyl, Royster, Voelker & Allen, of Peoria (Gary M. Peplow and Karen L. Kendall, of counsel), for appellee." ], "corrections": "", "head_matter": "MARION JOSEPH GALVIN, Plaintiff-Appellant, v. DAVID OLYSAV, Defendant-Appellee.\nFifth District\nNo. 5\u201488\u20140758\nOpinion filed April 25, 1991.\nRobert Beyers, of Champaign, and Francis Lynch, of Springfield, for appellant.\nHeyl, Royster, Voelker & Allen, of Peoria (Gary M. Peplow and Karen L. Kendall, of counsel), for appellee." }, "file_name": "0399-01", "first_page_order": 421, "last_page_order": 428 }