Prairie v. U. of Chicago Hospitals
Annotate this Case
FIRST DIVISION
July 27, 1998
No. 1-97-2146
ROBIN PRAIRIE,
Plaintiff-Appellant,
v.
UNIVERSITY OF CHICAGO HOSPITALS,
Defendant-Appellee. )
)
)
)
)
)
)
)
) Appeal from the
Circuit Court of
Cook County
No. 92 L 9693
Honorable
James F. Smith,
Judge Presiding.
JUSTICE GALLAGHER delivered the opinion of the court:
This is a medical malpractice action brought to recover
damages caused by the alleged negligence of a nurse who cared for
the plaintiff while she was a patient at the University of
Chicago Hospitals, the defendant in this case. This appeal
arises out of an order entered by the circuit court granting
summary judgment in favor of defendant. The trial court's
decision was based upon plaintiff's failure to obtain expert
testimony regarding the applicable standard of care and whether
it was breached by the defendant. Plaintiff contends that the
alleged negligence was so obvious as to be determinable by lay
persons, so that expert testimony is not required to establish
the standard of care. For the reasons stated below, we reverse
and remand this case to the circuit court for further
proceedings.
Before discussing the facts of the instant case, we set
forth the standard for our review of the trial court's grant of
summary judgment. "Since the entry of a summary judgment is not a
matter committed to the discretion of the trial court, a
reviewing court must independently examine the evidence presented
in support of and in opposition to a motion for summary
judgment." Groce v. South Chicago Community Hospital, 282 Ill.
App. 3d 1004, 1006, 669 N.E.2d 596, 598 (1996). Thus, appellate
review of an order granting summary judgment is de novo. Berlin
v. Sarah Bush Lincoln Health Center, 179 Ill. 2d 1, 7, 688 N.E.2d 106, 108 (1997); In re Estate of Hoover, 155 Ill. 2d 402, 615 N.E.2d 736 (1993).
Our supreme court has provided us with additional guidance
with respect to summary judgment proceedings:
"Although the use of a summary judgment procedure is
encouraged as an aid in expeditious disposition of a
lawsuit, it is a drastic means of disposing of
litigation and should only be allowed when the right of
the moving party is clear and free from doubt. ***
Furthermore, it is well established that in
deciding a motion for summary judgment, the court may
draw inferences from the undisputed facts. However,
where reasonable persons could draw divergent
inferences from the undisputed facts, the issue should
be decided by the trier of fact and the motion should
be denied." Loyola Academy v. S&S Roof Maintenance,
Inc., 146 Ill. 2d 263, 271-72, 586 N.E.2d 1211, 1215
(1992).
"Summary judgment is proper when the pleadings, depositions and
affidavits on file, construed in the light most favorable to the
nonmoving party, establish that there is no genuine issue of
material fact and that the moving party is entitled to a judgment
as a matter of law." Lajato v. AT&T, Inc., 283 Ill. App. 3d 126,
135, 669 N.E.2d 645, 651 (1996). With these principles in mind,
we have examined the pleadings, depositions and affidavits in
this case in the light most favorable to the plaintiff. We
conclude that summary judgment should be denied based upon the
following pertinent facts.
On August 2, 1990, plaintiff, Robin Prairie underwent back
surgery at the University of Chicago Hospitals, defendant in this
appeal. Plaintiff remained hospitalized until August 17, 1990.
From August 2, 1990 through August 4, 1990, the attending
physician ordered complete bed rest for the plaintiff. On August
4, 1990, the physician's order was changed to "increase activity,
up as tolerated with assist." On the same day, Nurse Sandra
Pullings, contrary to the physician's orders, changed plaintiff's
pain pump from 2.0 to .2 or .02. As a result, the pump did not
deliver a sufficient dosage of pain medication and plaintiff had
a very uncomfortable night. In fact, she did not fall asleep
until 6 a.m. the following morning. The pain pump was reset to
the proper dosage sometime between 8 a.m. and 9:40 a.m., at which
time plaintiff was finally able to fall into a deep sleep.
During her deposition, plaintiff testified as follows. On
August 5, 1990, she was awakened from her sleep at approximately
11 a.m. According to plaintiff's testimony, she was jarred awake
when Nurse Pullings bumped into plaintiff's bed. Nurse Pullings
told plaintiff that she had to get up and also that Nurse
Pullings had to make the bed. Plaintiff explained to Nurse
Pullings what had happened the previous night with her pain pump.
She also informed Nurse Pullings that she had not gotten any
sleep, that she was in a lot of pain and that she wanted to rest.
A dialogue ensued between the two during which time plaintiff
continued her pleas to stay in bed. Nurse Pullings told the
plaintiff she was sorry, but she had to make the bed.
At that point, Nurse Pullings proceeded to pull the
plaintiff up by her arm, whereupon plaintiff again pleaded with
her to leave her alone because she wanted to sleep. She also
told her that it hurt to have her arm pulled the way Nurse
Pullings was doing. Nurse Pullings let go of plaintiff's arm and
plaintiff lay back down on the bed. Nurse Pullings next pulled
plaintiff's feet so that they were hanging off the edge of the
bed. At that point, according to the plaintiff, her pain was
excruciating. She testified that she started to yell, to plead
with Nurse Pullings not to do what she was doing and told her
that it hurt. Nurse Pullings, insisting that plaintiff had to
get up and that Nurse Pullings had to make the bed, forced
plaintiff into a standing position, whereupon plaintiff, still in
a lot of pain, informed Nurse Pullings that she was going to
throw up or faint. Nurse Pullings then shoved plaintiff into a
straight back chair using her hands to press down hard on
plaintiff's shoulders. Plaintiff's pain was excruciating and she
again pleaded with Nurse Pullings and informed her that she was
going to faint. Nurse Pullings then took plaintiff's head and
forced it between her knees, at least down to her lap. At that
point, plaintiff felt excruciating pain in the middle of her
back. Nurse Pullings then raised the plaintiff back up.
Plaintiff's pain was excruciating. She wanted to try to get up,
but could not. She continued to plead with Nurse Pullings to put
her back in bed.
Nurse Pullings again informed plaintiff that she had to make
the bed. She ripped the sheet off the bed and used it to tie
plaintiff in the chair with a knot towards the back. Throughout
this event, plaintiff was under the assumption that Nurse
Pullings was a nurse's aid and not a nurse, based upon the fact
that she was not wearing a name tag, while all of the other
nurses were. Plaintiff tried to reach forward to push the
nurse's call button, whereupon Nurse Pullings kicked and pushed
the table out at the same time, away and out of the plaintiff's
grasp. Plaintiff informed Nurse Pullings that she wanted to call
the nurse. At this point, Nurse Pullings stated that she had to
get some sheets and she left the room for 10 minutes. She came
back and made the bed with a laboratory technician. Plaintiff
believed that the laboratory technician was Nurse Pullings'
friend because she had previously observed Nurse Pullings
complaining to the laboratory technician about her work schedule.
When the laboratory technician and Nurse Pullings finished making
plaintiff's bed, Nurse Pullings put the plaintiff back in bed.
Plaintiff was crying.
Nurse Pullings' note in plaintiff's medical chart concerning
the incident in question, while not as detailed, is corroborative
of plaintiff's testimony. Nurse Pullings noted that plaintiff
stated she was uncomfortable, stated she did not want to sit up
in the chair, and stated that she wanted to return to bed. The
note also states that the plaintiff was screaming at her and the
laboratory technician, was uncooperative and informed the service
that she wanted a different nurse.
To recover damages in a medical malpractice action, a
plaintiff must establish the following three elements: (1) the
proper standard of care, (2) a deviation from that standard, and
(3) an injury proximately caused by that deviation. Purtill v.
Hess, 111 Ill. 2d 229, 489 N.E.2d 867 (1986). The general rule
is that expert testimony is required to establish these elements
when the assessment of the alleged negligence requires knowledge,
skill, or training in a technical area outside the comprehension
of lay persons. Schindel v. Albany Medical Corp., 252 Ill. App.
3d 389, 395-96, 625 N.E.2d 114 (1993). This appeal is limited to
the issue of whether expert testimony is required here to
establish the first two elements - the standard of care and a
breach of that standard - since plaintiff has procured expert
testimony regarding the third element of proximate cause. The
rationale for the requirement of expert testimony is that "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
[or any other health care provider]." Walski v. Tiesenga, 72 Ill. 2d 249, 256, 381 N.E.2d 279, 282 (1978). "In other words, the
subject matter is so complicated that laypersons are not in an
adequate position to assess whether a breach of duty has
occurred." Schindel v. Albany Medical Corp, 252 Ill. App. 3d 389,
395, 625 N.E.2d 114, 119 (1993).
An exception to the general rule that expert testimony is
required in a medical malpractice case has been recognized in
those cases where the conduct is so grossly negligent or the
treatment so common that a layman may understand the conduct
without the necessity of expert testimony to establish the
standard of care and its breach. Walski v. Tiesenga, 72 Ill. 2d 249, 381 N.E.2d 279 (1978). Plaintiff contends that Nurse
Pullings' conduct here constituted grossly apparent negligence
warranting the application of this "gross negligence" or "common
knowledge" exception.[fn1] Defendant counters with the argument
that Nurse Pullings' conduct in the instant case involved the
exercise of professional judgment necessitating expert testimony
to establish whether she deviated from the standard of care.
Plaintiff has failed to procure expert testimony to establish the
standard of care and its breach as to the defendant hospital.
Thus, the sole issue before this court is whether the alleged
negligence on the part of the hospital nurse was so grossly
apparent or within the common knowledge of the lay person that a
breach of duty can be determined without the aid of expert
testimony.
In order to determine whether this exception applies in the
instant case, we must ascertain what conduct on defendant's part
is alleged to constitute gross negligence. We begin our analysis
by considering those issues framed by the plaintiff's amended
complaint. Count II of plaintiff's amended complaint alleged
that the defendant hospital was negligent by and through the
actions of its agents, specifically, a nurse later determined to
be Nurse Sandra Pullings, who took the plaintiff out of her
hospital bed against her wishes despite orders in the chart
prohibiting such behavior. The complaint further contained
specific allegations that the nurse "insisted that the plaintiff
get out of bed against her wishes and then abruptly pulled,
pushed, and maneuvered the plaintiff out of bed, forcing her into
a straight-back chair, and left her tied up for some period of
time in said chair." We also consider those evidentiary
materials that were before the trial court in support of and in
opposition to the motion for summary judgment. In passing upon
the motion for summary judgment, the trial court had before it
the pleadings, the deposition testimony of plaintiff's causation
expert, the affidavit and deposition testimony of Nurse Pullings,
Nurse Pullings' note in plaintiff's medical chart pertaining to
the incident in question, and the deposition testimony of
plaintiff which described her version of the facts, particularly
the conduct alleged to constitute gross negligence. The court
also had before it materials relevant to the codefendant
physician who was subsequently dismissed from the case, including
court documents evidencing the numerous continuances granted to
plaintiff in her unceasing and ultimately fruitless effort to
obtain an expert witness to support her allegations against the
codefendant physician; those materials are irrelevant to this
appeal.
The cases that discuss the "gross negligence" or "common
knowledge" exception generally, but not always, involve
physicians. Most cases involve complicated procedures performed
by a physician or other health care provider. As a result,
expert testimony is usually required because the procedure is so
complicated that lay persons, unskilled in the practice of
medicine, cannot assess whether a breach of duty has occurred.
A plaintiff typically seeks to recover for "an unfortunate
result which occurred as a result of an act that was an implicit
part of the accepted procedure." (Emphasis added.) Newman v.
Spellberg, 91 Ill. App. 2d 310, 320, 234 N.E.2d 152, 157 (1968).
Nevertheless, as explained in the Newman decision, even where a
case involves a complicated procedure, expert testimony may not
be required when the act alleged to be negligent is not an
implicit part of the procedure. Newman, 91 Ill. App. 2d 310, 234 N.E.2d 152. Although the Newman case involved a physician and a
complicated procedure performed by the physician, namely a
gastroscopic examination, the court nevertheless applied the
gross negligence exception where the physician lifted the patient
during the procedure for a purpose unrelated to the procedure
itself. The court determined that the plaintiff had presented
evidence of the proper standard of care by the defendant doctor's
testimony regarding the standard procedure for the performance of
the gastroscopic examination. Plaintiff, however, furnished
additional evidence of an extraneous act. This extraneous act
was that of lifting the patient's body, presumably done for the
purpose of demonstrating the process of the gastroscopic
examination to an intern. The court described this additional
evidence of the extraneous act, which had been provided by the
plaintiff's testimony, "as if it were evidence that the doctor
had blinded the patient by sticking his finger in his eye during
the course of a gastroscopic examination." Newman v. Spellberg,
91 Ill. App. 2d 310, 320, 234 N.E.2d 152, 157 (1968). This
extraneous act of lifting the patient's body for the purpose of
educating an intern on the procedure, which was foreign to the
standard procedure of performing a gastroscopic examination,
constituted a deviation from the standard of care.
We believe that the situation presented here is comparable
to that present in the Newman case. We note certain distinctions
with respect to the three elements of a medical malpractice case,
standard of care, deviation from that standard and proximate
cause, discussed above. In Newman, the first element, the
standard of care, was established by the expert testimony of the
defendant doctor, while the second and third elements, a
deviation from that standard and proximate cause, were
established under the gross negligence exception. In the instant
case, expert testimony with respect to the third element,
proximate cause, is present, but not with respect to the first
two elements. These distinctions, however, are not critical.
Nurse Pullings' actions here involved carrying out a
physician's order to increase the plaintiff's activity as
tolerated with assistance. Nonetheless, plaintiff provided
testimony that Nurse Pullings' actions may have been done for the
purpose of making the plaintiff's bed, which can properly be
characterized as an act extraneous to the procedure of carrying
out the physician's order in question. Plaintiff provided
testimony regarding how she was handled by Nurse Pullings,
including the fact that she was pulled, the fact that she was
forced, the fact that she was shoved and the fact that she was
tied up. Throughout all of this, it is undisputed that Nurse
Pullings was also engaged in the act of bedmaking. Thus, any
acts that were done for the purpose of bedmaking are analogous to
the physician's act in Newman of lifting the patient's body for
the purpose of educating an intern. Educating an intern may
constitute a legitimate activity on the part of the physician,
but acts done in furtherance of that activity cannot be said to
constitute an implicit part of a gastroscopic examination.
Similarly, making a patient's bed may constitute a legitimate
activity on the part of a nurse, but acts done in furtherance of
that activity also cannot be said to constitute an implicit part
of assisting a post-operative patient to increase his or her
activity as tolerated. Plaintiff's testimony here established a
breach of duty, just as the plaintiff's testimony in Newman
established causation. At the very least, it created a genuine
issue of material fact as to whether the nurse was carrying out
the physician's order in the first place or merely engaged in her
bedmaking duties.
Even assuming that bedmaking was not the sole reason for
Nurse Pullings actions, and that she was implementing the
physician's order to increase plaintiff's activity, we emphasize
that the order contained the explicit admonition that the
plaintiff's activity was to be increased "as tolerated." The
physician intended no activity other than that which the
plaintiff tolerated. Common sense tells us that whether an
individual tolerates something is always subjective in part.
Assuming a patient is otherwise mentally competent, as was the
case here, the determination of whether an activity is tolerated
by a patient will always depend in part on the patient's
judgment. This is no less true merely because the assessment of
patient tolerance may require additional professional judgment,
for example, an objective evaluation of the patient's vital
signs.
While we certainly recognize that in those instances where a
patient may be subjectively tolerating something, the assessment
of the patient's objective tolerance, such as the evaluation of
the patient's vital signs, might be beyond the skill of the
average lay person and would require knowledge, skill or training
in a technical area outside the comprehension of lay persons,
that is not the situation which was present in the instant case.
The conduct of Nurse Pullings here in which she compelled the
plaintiff to get out of bed against her wishes and then forced
her to sit up in a chair, despite the fact that the patient was
uncooperative, screaming, and crying out in pain, is not such
that a nursing degree is required to evaluate its
inappropriateness. Under the particular circumstances of this
case, where there was no immediate emergency situation or other
exigent circumstances, the negligence alleged, if true, is
grossly apparent to a lay person. Even a lay person could
determine that the plaintiff was not "tolerating" the activity.
We also find unpersuasive the defendant's contentions that a
jury would be unable to assess whether Nurse Pullings' actions
were negligent unless they understood (1) why increasing activity
was important for post-operative patients, (2) what a nurse
should consider tolerable for a post-laminectomy patient, (3) the
medical benefits of getting a patient up after surgery to prevent
potential complications, such as pneumonia, which might arise
when a patient lies on her back for an extended period of time
and (4) the medical benefits of getting a patient up after
surgery to speed recovery. We point out that plaintiff is not
challenging the appropriateness of the physician's order to
increase plaintiff's activity as tolerated or even a nurse's
decision to implement the order. Likewise, a plaintiff who sues
when a physician leaves a sponge in him during an operation is
not necessarily challenging the importance of the surgery.
Rather, here, it is the gross negligence exhibited on the part of
the health care provider while performing these duties that is
challenged.
The essence of plaintiff's argument is that under the
particular circumstances here, Nurse Pullings' conduct
constituted gross negligence. The essence of defendant's
argument apparently is that a patient's subjective evaluations of
whether he or she can tolerate something should never be
considered. While concerns about potential complications that
might arise if a patient refuses to cooperate in his or her
treatment might require communication and encouragement on the
part of a nurse, even a lay person can understand that such
concerns do not justify the forcible removal of a patient from
her bed against her wishes. More importantly, nothing in the
record indicates that these potential complications were imminent
or that plaintiff was in immediate danger or at risk of
developing any complications if her request to be let alone at
that moment had been respected. Even if a patient were at risk
for future complications, this does not give a health care
provider a license to force medical treatment and ignore a
patient's exercise of the right to refuse medical treatment, as
will be discussed later in this opinion.
We also take note of the fact that the order in question
stated that the plaintiff's activity was to be increased, not
only "as tolerated," but also "with assist." "With assist"
clearly means that the patient was to get up of her own volition.
At most, it allows the nurse to assist a patient who is in the
process of trying to increase his or her activity. It is
impossible to characterize Nurse Pullings' coercive actions, as
described by the plaintiff, as "assistance."
We are not saying that every physician's order that includes
the "as tolerated" caveat will always be such that its
implementation will not require professional judgment and
possibly expert testimony to determine whether the appropriate
standard of care was met. We hold, however, that under the
particular circumstances of this case, the alleged negligence is
so grossly apparent that a lay person can readily appraise it
using his or her everyday knowledge.
Defendant submits that the only evidence as to the standard
of care that existed in this case comes from Nurse Pullings, who
testified in the affidavit in support of her motion that she is
familiar with the standard of care and that she complied with it.
Although Nurse Pullings opined in her affidavit that she did not
deviate from the applicable nursing standard of care in her care
of plaintiff, she also denied that she "mistreated, abused, or
manhandled" plaintiff. Due to this latter statement, rather than
establishing that her treatment complied with the applicable
standard of care, Nurse Pullings' affidavit, when considered in
concert with plaintiff's deposition testimony, creates triable
issues of material fact as to whether Nurse Pullings deviated
from the applicable standard of care as a result of gross
negligence. Plaintiff clearly showed that a contrary version of
events exists than that stated by Nurse Pullings that she did not
mistreat or abuse plaintiff. Plaintiff's version unequivocally
described Nurse Pullings' actions as mistreatment and abuse. The
existence of this factual controversy alone would preclude
summary judgment, since it is not the duty of a court to resolve
disputed factual matters or make credibility determinations. See
Winston & Strawn v. Nosal, 279 Ill. App. 3d 231, 664 N.E.2d 239
(1998).
Assuming that defendant does not dispute the facts as
presented by plaintiff in her deposition, we conclude that
defendant was not entitled to summary judgment as a matter of
law. At the preliminary stage of a summary judgment proceeding,
the nonmoving party is not required to prove his case, but must
simply present some factual basis that would support his or her
claim. See, e.g., Taliaferro v. One Grand Place Venture, 256
Ill. App. 3d 429, 432, 628 N.E.2d 815, 818 (1993). Plaintiff has
done so here. "All reasonable inferences must be drawn in favor
of the party opposing the summary judgment motion. [Citation.]"
Taliaferro v. One Grand Place Venture, 256 Ill. App. 3d 429, 433,
628 N.E.2d 815, 818 (1993). Here, the alleged conduct on the part
of Nurse Pullings was sufficiently blatant such that lay persons,
relying on their common knowledge, could legitimately infer
negligence.
Though not necessary to our determination of this case,
which has been decided upon other grounds, and although not
raised by the plaintiff, our independent review of the record has
disclosed the existence of another genuine issue of material
fact. Interestingly, Nurse Pullings testified in her deposition,
when asked the meaning of the physician's order in question, that
if a patient would complain of a lot of pain, she would not get
that patient out of bed if the patient were having a problem.
Yet that is precisely what plaintiff testified Nurse Pullings
did. It is unclear from the phraseology of the question and
answer whether plaintiff's counsel was attempting to establish
what Nurse Pullings did on the day in question or whether he was
attempting to establish the standard of care. Under the first
scenario, a fact question was created. Under the second
scenario, plaintiff arguably obtained expert testimony on the
standard of care. Where a plaintiff fails to obtain her own
expert witness to testify as to the standard of care, the
testimony of the defendant practitioner may be sufficient to
establish the applicable standard of care. Novey v. Kishwaukee
Community Health Services Center, 176 Ill. App. 3d 674, 679, 531 N.E.2d 427, 430 (1988), citing Walski v. Tiesenga, 72 Ill. 2d 249, 381 N.E.2d 279 (1978). Plaintiff, however, failed to use
this testimony as expert testimony. Nevertheless, this failure
does not defeat plaintiff's action because we have already
determined that expert testimony is not required here to
establish either the standard of care or the deviation from that
standard of care in view of the gross negligence exhibited by
Nurse Pullings.
Our decision in this case also comports with an important
public policy of this state. In Illinois, a competent person has
a common law right to refuse all types of medical treatment of
any kind, including life-saving or life-sustaining procedures. In
re Estate of Longeway, 133 Ill. 2d 33, 44-45, 549 N.E.2d 292, 297
(1989). This common law right is rooted in the "sacred" right to
"personal inviolability." Longeway, 133 Ill. 2d at 44, 549 N.E.2d at 297. This right has also been statutorily recognized.
755 ILCS 40/5 (West 1996); see also In re Brown, 294 Ill. App. 3d
159, 689 N.E.2d 397, 403 (1997). Our supreme court has stated
that "[l]acking consent, a physician cannot force medical care
upon a patient, even in life-threatening situations." Longeway,
133 Ill. 2d at 45, 549 N.E.2d at 297. This same principle holds
true for nonphysician health care professionals.
We acknowledge that the cases discussing this right to
refuse medical treatment typically arise in the context of the
State seeking to impose medical treatment upon a patient, often
involve terminally ill patients or patients who lack decisional
capacity, and generally involve more invasive "treatment" than
that in the present case, e.g., blood transfusions,
electroconvulsive shock treatment, or insertion of a feeding
tube. Thus, the present case presents entirely different issues
from those found in these cases. Nevertheless, the underlying
principle of a patient's dignity is no less germane to the
instant case. A mentally competent patient, such as the
plaintiff here, has not only the capacity, but the right, to make
a reasoned decision regarding his or her need for medical
treatment.
Knowing interference with this right to refuse medical
treatment is a battery. Cohen v. Smith, 269 Ill. App. 3d 1087,
1095, 648 N.E.2d 329, 335 (1995). Certainly, it appears that
plaintiff could have brought an action for battery, but did not
do so. Defendant asserts that plaintiff here sought to recast
her theory of liability from negligence to an intentional tort
only after summary judgment was entered. This assertion is
incorrect. Plaintiff's theory of liability remains one of
negligence. She alleges that Nurse Pullings' conduct, which
arguably rises to the level of a battery, also constitutes gross
negligence recognizable by a lay person. Furthermore, an action
premised on a theory of battery was merely an alternative theory
plaintiff could have pursued and not her only theory. See, e.g.
Ramos v. Pyati, 179 Ill. App. 3d 214, 227, 534 N.E.2d 472, 479
(1989); cf. Wegman v. Pratt, 219 Ill. App. 3d 883, 579 N.E.2d 1035 (1991) (intentional act of shooting could also constitute
negligence in determining proper amount of force to use in self-
defense).
We believe that it is incumbent upon us to note that
defendant has raised numerous contentions in its response brief
which we do not believe plaintiff has addressed in her reply
brief. This court's independent research, rather than
plaintiff's reply brief, has assisted it in deciding which of
defendant's contentions are meritorious and which are incorrect.
Plaintiff's reply brief, on the other hand, reads more like a
closing argument replete with rhetorical questions pertaining to
"humanity," "common sense" and plaintiff's right to "her day in
court." While these are valid policy concerns, this court needs
no admonitions as to how it should perform its duties. The
purpose of briefs is to aid this court in arriving at a proper
determination of the issues by providing legal support for one's
arguments. This reviewing court is "entitled to have the issues
clearly defined, to be cited pertinent authorities and [is] not a
depository in which an appellant is to dump the entire matter of
pleadings, court action, argument and research as it were upon
the court. [Citation.]" Thanopoulos v. Pickens, 87 Ill. App. 3d
906, 909, 409 N.E.2d 477, 479 (1980).
We conclude that summary judgment was improperly entered in
favor of defendant because reasonable minds could draw different
inferences from the undisputed facts as to whether defendant
deviated from the applicable standard of care. The alleged
negligence here was so grossly apparent that a breach of duty
could be determined without the use of expert testimony.
Additionally, we conclude that genuine issues of material fact
exist as to whether Nurse Pullings mistreated or abused the
plaintiff. The issue of defendant's negligence should be
determined by the trier of fact.
Reversed and remanded.
O BRIEN and O MARA FROSSARD, JJ., concur.
[fn1]Our review of the case law shows that this exception is
sometimes referred to in the singular, while other times is
described as two different exceptions, i.e. "gross negligence" or
"common knowledge" exceptions. Semantics aside, the inquiry is
whether a lay person can readily appraise the alleged negligence
using his or her everyday knowledge.
July 27, 1998
No. 1-97-2146
ROBIN PRAIRIE,
Plaintiff-Appellant,
v.
UNIVERSITY OF CHICAGO HOSPITALS,
Defendant-Appellee. )
)
)
)
)
)
)
)
) Appeal from the
Circuit Court of
Cook County
No. 92 L 9693
Honorable
James F. Smith,
Judge Presiding.
JUSTICE GALLAGHER delivered the opinion of the court:
This is a medical malpractice action brought to recover
damages caused by the alleged negligence of a nurse who cared for
the plaintiff while she was a patient at the University of
Chicago Hospitals, the defendant in this case. This appeal
arises out of an order entered by the circuit court granting
summary judgment in favor of defendant. The trial court's
decision was based upon plaintiff's failure to obtain expert
testimony regarding the applicable standard of care and whether
it was breached by the defendant. Plaintiff contends that the
alleged negligence was so obvious as to be determinable by lay
persons, so that expert testimony is not required to establish
the standard of care. For the reasons stated below, we reverse
and remand this case to the circuit court for further
proceedings.
Before discussing the facts of the instant case, we set
forth the standard for our review of the trial court's grant of
summary judgment. "Since the entry of a summary judgment is not a
matter committed to the discretion of the trial court, a
reviewing court must independently examine the evidence presented
in support of and in opposition to a motion for summary
judgment." Groce v. South Chicago Community Hospital, 282 Ill.
App. 3d 1004, 1006, 669 N.E.2d 596, 598 (1996). Thus, appellate
review of an order granting summary judgment is de novo. Berlin
v. Sarah Bush Lincoln Health Center, 179 Ill. 2d 1, 7, 688 N.E.2d 106, 108 (1997); In re Estate of Hoover, 155 Ill. 2d 402, 615 N.E.2d 736 (1993).
Our supreme court has provided us with additional guidance
with respect to summary judgment proceedings:
"Although the use of a summary judgment procedure is
encouraged as an aid in expeditious disposition of a
lawsuit, it is a drastic means of disposing of
litigation and should only be allowed when the right of
the moving party is clear and free from doubt. ***
Furthermore, it is well established that in
deciding a motion for summary judgment, the court may
draw inferences from the undisputed facts. However,
where reasonable persons could draw divergent
inferences from the undisputed facts, the issue should
be decided by the trier of fact and the motion should
be denied." Loyola Academy v. S&S Roof Maintenance,
Inc., 146 Ill. 2d 263, 271-72, 586 N.E.2d 1211, 1215
(1992).
"Summary judgment is proper when the pleadings, depositions and
affidavits on file, construed in the light most favorable to the
nonmoving party, establish that there is no genuine issue of
material fact and that the moving party is entitled to a judgment
as a matter of law." Lajato v. AT&T, Inc., 283 Ill. App. 3d 126,
135, 669 N.E.2d 645, 651 (1996). With these principles in mind,
we have examined the pleadings, depositions and affidavits in
this case in the light most favorable to the plaintiff. We
conclude that summary judgment should be denied based upon the
following pertinent facts.
On August 2, 1990, plaintiff, Robin Prairie underwent back
surgery at the University of Chicago Hospitals, defendant in this
appeal. Plaintiff remained hospitalized until August 17, 1990.
From August 2, 1990 through August 4, 1990, the attending
physician ordered complete bed rest for the plaintiff. On August
4, 1990, the physician's order was changed to "increase activity,
up as tolerated with assist." On the same day, Nurse Sandra
Pullings, contrary to the physician's orders, changed plaintiff's
pain pump from 2.0 to .2 or .02. As a result, the pump did not
deliver a sufficient dosage of pain medication and plaintiff had
a very uncomfortable night. In fact, she did not fall asleep
until 6 a.m. the following morning. The pain pump was reset to
the proper dosage sometime between 8 a.m. and 9:40 a.m., at which
time plaintiff was finally able to fall into a deep sleep.
During her deposition, plaintiff testified as follows. On
August 5, 1990, she was awakened from her sleep at approximately
11 a.m. According to plaintiff's testimony, she was jarred awake
when Nurse Pullings bumped into plaintiff's bed. Nurse Pullings
told plaintiff that she had to get up and also that Nurse
Pullings had to make the bed. Plaintiff explained to Nurse
Pullings what had happened the previous night with her pain pump.
She also informed Nurse Pullings that she had not gotten any
sleep, that she was in a lot of pain and that she wanted to rest.
A dialogue ensued between the two during which time plaintiff
continued her pleas to stay in bed. Nurse Pullings told the
plaintiff she was sorry, but she had to make the bed.
At that point, Nurse Pullings proceeded to pull the
plaintiff up by her arm, whereupon plaintiff again pleaded with
her to leave her alone because she wanted to sleep. She also
told her that it hurt to have her arm pulled the way Nurse
Pullings was doing. Nurse Pullings let go of plaintiff's arm and
plaintiff lay back down on the bed. Nurse Pullings next pulled
plaintiff's feet so that they were hanging off the edge of the
bed. At that point, according to the plaintiff, her pain was
excruciating. She testified that she started to yell, to plead
with Nurse Pullings not to do what she was doing and told her
that it hurt. Nurse Pullings, insisting that plaintiff had to
get up and that Nurse Pullings had to make the bed, forced
plaintiff into a standing position, whereupon plaintiff, still in
a lot of pain, informed Nurse Pullings that she was going to
throw up or faint. Nurse Pullings then shoved plaintiff into a
straight back chair using her hands to press down hard on
plaintiff's shoulders. Plaintiff's pain was excruciating and she
again pleaded with Nurse Pullings and informed her that she was
going to faint. Nurse Pullings then took plaintiff's head and
forced it between her knees, at least down to her lap. At that
point, plaintiff felt excruciating pain in the middle of her
back. Nurse Pullings then raised the plaintiff back up.
Plaintiff's pain was excruciating. She wanted to try to get up,
but could not. She continued to plead with Nurse Pullings to put
her back in bed.
Nurse Pullings again informed plaintiff that she had to make
the bed. She ripped the sheet off the bed and used it to tie
plaintiff in the chair with a knot towards the back. Throughout
this event, plaintiff was under the assumption that Nurse
Pullings was a nurse's aid and not a nurse, based upon the fact
that she was not wearing a name tag, while all of the other
nurses were. Plaintiff tried to reach forward to push the
nurse's call button, whereupon Nurse Pullings kicked and pushed
the table out at the same time, away and out of the plaintiff's
grasp. Plaintiff informed Nurse Pullings that she wanted to call
the nurse. At this point, Nurse Pullings stated that she had to
get some sheets and she left the room for 10 minutes. She came
back and made the bed with a laboratory technician. Plaintiff
believed that the laboratory technician was Nurse Pullings'
friend because she had previously observed Nurse Pullings
complaining to the laboratory technician about her work schedule.
When the laboratory technician and Nurse Pullings finished making
plaintiff's bed, Nurse Pullings put the plaintiff back in bed.
Plaintiff was crying.
Nurse Pullings' note in plaintiff's medical chart concerning
the incident in question, while not as detailed, is corroborative
of plaintiff's testimony. Nurse Pullings noted that plaintiff
stated she was uncomfortable, stated she did not want to sit up
in the chair, and stated that she wanted to return to bed. The
note also states that the plaintiff was screaming at her and the
laboratory technician, was uncooperative and informed the service
that she wanted a different nurse.
To recover damages in a medical malpractice action, a
plaintiff must establish the following three elements: (1) the
proper standard of care, (2) a deviation from that standard, and
(3) an injury proximately caused by that deviation. Purtill v.
Hess, 111 Ill. 2d 229, 489 N.E.2d 867 (1986). The general rule
is that expert testimony is required to establish these elements
when the assessment of the alleged negligence requires knowledge,
skill, or training in a technical area outside the comprehension
of lay persons. Schindel v. Albany Medical Corp., 252 Ill. App.
3d 389, 395-96, 625 N.E.2d 114 (1993). This appeal is limited to
the issue of whether expert testimony is required here to
establish the first two elements - the standard of care and a
breach of that standard - since plaintiff has procured expert
testimony regarding the third element of proximate cause. The
rationale for the requirement of expert testimony is that "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
[or any other health care provider]." Walski v. Tiesenga, 72 Ill. 2d 249, 256, 381 N.E.2d 279, 282 (1978). "In other words, the
subject matter is so complicated that laypersons are not in an
adequate position to assess whether a breach of duty has
occurred." Schindel v. Albany Medical Corp, 252 Ill. App. 3d 389,
395, 625 N.E.2d 114, 119 (1993).
An exception to the general rule that expert testimony is
required in a medical malpractice case has been recognized in
those cases where the conduct is so grossly negligent or the
treatment so common that a layman may understand the conduct
without the necessity of expert testimony to establish the
standard of care and its breach. Walski v. Tiesenga, 72 Ill. 2d 249, 381 N.E.2d 279 (1978). Plaintiff contends that Nurse
Pullings' conduct here constituted grossly apparent negligence
warranting the application of this "gross negligence" or "common
knowledge" exception.[fn1] Defendant counters with the argument
that Nurse Pullings' conduct in the instant case involved the
exercise of professional judgment necessitating expert testimony
to establish whether she deviated from the standard of care.
Plaintiff has failed to procure expert testimony to establish the
standard of care and its breach as to the defendant hospital.
Thus, the sole issue before this court is whether the alleged
negligence on the part of the hospital nurse was so grossly
apparent or within the common knowledge of the lay person that a
breach of duty can be determined without the aid of expert
testimony.
In order to determine whether this exception applies in the
instant case, we must ascertain what conduct on defendant's part
is alleged to constitute gross negligence. We begin our analysis
by considering those issues framed by the plaintiff's amended
complaint. Count II of plaintiff's amended complaint alleged
that the defendant hospital was negligent by and through the
actions of its agents, specifically, a nurse later determined to
be Nurse Sandra Pullings, who took the plaintiff out of her
hospital bed against her wishes despite orders in the chart
prohibiting such behavior. The complaint further contained
specific allegations that the nurse "insisted that the plaintiff
get out of bed against her wishes and then abruptly pulled,
pushed, and maneuvered the plaintiff out of bed, forcing her into
a straight-back chair, and left her tied up for some period of
time in said chair." We also consider those evidentiary
materials that were before the trial court in support of and in
opposition to the motion for summary judgment. In passing upon
the motion for summary judgment, the trial court had before it
the pleadings, the deposition testimony of plaintiff's causation
expert, the affidavit and deposition testimony of Nurse Pullings,
Nurse Pullings' note in plaintiff's medical chart pertaining to
the incident in question, and the deposition testimony of
plaintiff which described her version of the facts, particularly
the conduct alleged to constitute gross negligence. The court
also had before it materials relevant to the codefendant
physician who was subsequently dismissed from the case, including
court documents evidencing the numerous continuances granted to
plaintiff in her unceasing and ultimately fruitless effort to
obtain an expert witness to support her allegations against the
codefendant physician; those materials are irrelevant to this
appeal.
The cases that discuss the "gross negligence" or "common
knowledge" exception generally, but not always, involve
physicians. Most cases involve complicated procedures performed
by a physician or other health care provider. As a result,
expert testimony is usually required because the procedure is so
complicated that lay persons, unskilled in the practice of
medicine, cannot assess whether a breach of duty has occurred.
A plaintiff typically seeks to recover for "an unfortunate
result which occurred as a result of an act that was an implicit
part of the accepted procedure." (Emphasis added.) Newman v.
Spellberg, 91 Ill. App. 2d 310, 320, 234 N.E.2d 152, 157 (1968).
Nevertheless, as explained in the Newman decision, even where a
case involves a complicated procedure, expert testimony may not
be required when the act alleged to be negligent is not an
implicit part of the procedure. Newman, 91 Ill. App. 2d 310, 234 N.E.2d 152. Although the Newman case involved a physician and a
complicated procedure performed by the physician, namely a
gastroscopic examination, the court nevertheless applied the
gross negligence exception where the physician lifted the patient
during the procedure for a purpose unrelated to the procedure
itself. The court determined that the plaintiff had presented
evidence of the proper standard of care by the defendant doctor's
testimony regarding the standard procedure for the performance of
the gastroscopic examination. Plaintiff, however, furnished
additional evidence of an extraneous act. This extraneous act
was that of lifting the patient's body, presumably done for the
purpose of demonstrating the process of the gastroscopic
examination to an intern. The court described this additional
evidence of the extraneous act, which had been provided by the
plaintiff's testimony, "as if it were evidence that the doctor
had blinded the patient by sticking his finger in his eye during
the course of a gastroscopic examination." Newman v. Spellberg,
91 Ill. App. 2d 310, 320, 234 N.E.2d 152, 157 (1968). This
extraneous act of lifting the patient's body for the purpose of
educating an intern on the procedure, which was foreign to the
standard procedure of performing a gastroscopic examination,
constituted a deviation from the standard of care.
We believe that the situation presented here is comparable
to that present in the Newman case. We note certain distinctions
with respect to the three elements of a medical malpractice case,
standard of care, deviation from that standard and proximate
cause, discussed above. In Newman, the first element, the
standard of care, was established by the expert testimony of the
defendant doctor, while the second and third elements, a
deviation from that standard and proximate cause, were
established under the gross negligence exception. In the instant
case, expert testimony with respect to the third element,
proximate cause, is present, but not with respect to the first
two elements. These distinctions, however, are not critical.
Nurse Pullings' actions here involved carrying out a
physician's order to increase the plaintiff's activity as
tolerated with assistance. Nonetheless, plaintiff provided
testimony that Nurse Pullings' actions may have been done for the
purpose of making the plaintiff's bed, which can properly be
characterized as an act extraneous to the procedure of carrying
out the physician's order in question. Plaintiff provided
testimony regarding how she was handled by Nurse Pullings,
including the fact that she was pulled, the fact that she was
forced, the fact that she was shoved and the fact that she was
tied up. Throughout all of this, it is undisputed that Nurse
Pullings was also engaged in the act of bedmaking. Thus, any
acts that were done for the purpose of bedmaking are analogous to
the physician's act in Newman of lifting the patient's body for
the purpose of educating an intern. Educating an intern may
constitute a legitimate activity on the part of the physician,
but acts done in furtherance of that activity cannot be said to
constitute an implicit part of a gastroscopic examination.
Similarly, making a patient's bed may constitute a legitimate
activity on the part of a nurse, but acts done in furtherance of
that activity also cannot be said to constitute an implicit part
of assisting a post-operative patient to increase his or her
activity as tolerated. Plaintiff's testimony here established a
breach of duty, just as the plaintiff's testimony in Newman
established causation. At the very least, it created a genuine
issue of material fact as to whether the nurse was carrying out
the physician's order in the first place or merely engaged in her
bedmaking duties.
Even assuming that bedmaking was not the sole reason for
Nurse Pullings actions, and that she was implementing the
physician's order to increase plaintiff's activity, we emphasize
that the order contained the explicit admonition that the
plaintiff's activity was to be increased "as tolerated." The
physician intended no activity other than that which the
plaintiff tolerated. Common sense tells us that whether an
individual tolerates something is always subjective in part.
Assuming a patient is otherwise mentally competent, as was the
case here, the determination of whether an activity is tolerated
by a patient will always depend in part on the patient's
judgment. This is no less true merely because the assessment of
patient tolerance may require additional professional judgment,
for example, an objective evaluation of the patient's vital
signs.
While we certainly recognize that in those instances where a
patient may be subjectively tolerating something, the assessment
of the patient's objective tolerance, such as the evaluation of
the patient's vital signs, might be beyond the skill of the
average lay person and would require knowledge, skill or training
in a technical area outside the comprehension of lay persons,
that is not the situation which was present in the instant case.
The conduct of Nurse Pullings here in which she compelled the
plaintiff to get out of bed against her wishes and then forced
her to sit up in a chair, despite the fact that the patient was
uncooperative, screaming, and crying out in pain, is not such
that a nursing degree is required to evaluate its
inappropriateness. Under the particular circumstances of this
case, where there was no immediate emergency situation or other
exigent circumstances, the negligence alleged, if true, is
grossly apparent to a lay person. Even a lay person could
determine that the plaintiff was not "tolerating" the activity.
We also find unpersuasive the defendant's contentions that a
jury would be unable to assess whether Nurse Pullings' actions
were negligent unless they understood (1) why increasing activity
was important for post-operative patients, (2) what a nurse
should consider tolerable for a post-laminectomy patient, (3) the
medical benefits of getting a patient up after surgery to prevent
potential complications, such as pneumonia, which might arise
when a patient lies on her back for an extended period of time
and (4) the medical benefits of getting a patient up after
surgery to speed recovery. We point out that plaintiff is not
challenging the appropriateness of the physician's order to
increase plaintiff's activity as tolerated or even a nurse's
decision to implement the order. Likewise, a plaintiff who sues
when a physician leaves a sponge in him during an operation is
not necessarily challenging the importance of the surgery.
Rather, here, it is the gross negligence exhibited on the part of
the health care provider while performing these duties that is
challenged.
The essence of plaintiff's argument is that under the
particular circumstances here, Nurse Pullings' conduct
constituted gross negligence. The essence of defendant's
argument apparently is that a patient's subjective evaluations of
whether he or she can tolerate something should never be
considered. While concerns about potential complications that
might arise if a patient refuses to cooperate in his or her
treatment might require communication and encouragement on the
part of a nurse, even a lay person can understand that such
concerns do not justify the forcible removal of a patient from
her bed against her wishes. More importantly, nothing in the
record indicates that these potential complications were imminent
or that plaintiff was in immediate danger or at risk of
developing any complications if her request to be let alone at
that moment had been respected. Even if a patient were at risk
for future complications, this does not give a health care
provider a license to force medical treatment and ignore a
patient's exercise of the right to refuse medical treatment, as
will be discussed later in this opinion.
We also take note of the fact that the order in question
stated that the plaintiff's activity was to be increased, not
only "as tolerated," but also "with assist." "With assist"
clearly means that the patient was to get up of her own volition.
At most, it allows the nurse to assist a patient who is in the
process of trying to increase his or her activity. It is
impossible to characterize Nurse Pullings' coercive actions, as
described by the plaintiff, as "assistance."
We are not saying that every physician's order that includes
the "as tolerated" caveat will always be such that its
implementation will not require professional judgment and
possibly expert testimony to determine whether the appropriate
standard of care was met. We hold, however, that under the
particular circumstances of this case, the alleged negligence is
so grossly apparent that a lay person can readily appraise it
using his or her everyday knowledge.
Defendant submits that the only evidence as to the standard
of care that existed in this case comes from Nurse Pullings, who
testified in the affidavit in support of her motion that she is
familiar with the standard of care and that she complied with it.
Although Nurse Pullings opined in her affidavit that she did not
deviate from the applicable nursing standard of care in her care
of plaintiff, she also denied that she "mistreated, abused, or
manhandled" plaintiff. Due to this latter statement, rather than
establishing that her treatment complied with the applicable
standard of care, Nurse Pullings' affidavit, when considered in
concert with plaintiff's deposition testimony, creates triable
issues of material fact as to whether Nurse Pullings deviated
from the applicable standard of care as a result of gross
negligence. Plaintiff clearly showed that a contrary version of
events exists than that stated by Nurse Pullings that she did not
mistreat or abuse plaintiff. Plaintiff's version unequivocally
described Nurse Pullings' actions as mistreatment and abuse. The
existence of this factual controversy alone would preclude
summary judgment, since it is not the duty of a court to resolve
disputed factual matters or make credibility determinations. See
Winston & Strawn v. Nosal, 279 Ill. App. 3d 231, 664 N.E.2d 239
(1998).
Assuming that defendant does not dispute the facts as
presented by plaintiff in her deposition, we conclude that
defendant was not entitled to summary judgment as a matter of
law. At the preliminary stage of a summary judgment proceeding,
the nonmoving party is not required to prove his case, but must
simply present some factual basis that would support his or her
claim. See, e.g., Taliaferro v. One Grand Place Venture, 256
Ill. App. 3d 429, 432, 628 N.E.2d 815, 818 (1993). Plaintiff has
done so here. "All reasonable inferences must be drawn in favor
of the party opposing the summary judgment motion. [Citation.]"
Taliaferro v. One Grand Place Venture, 256 Ill. App. 3d 429, 433,
628 N.E.2d 815, 818 (1993). Here, the alleged conduct on the part
of Nurse Pullings was sufficiently blatant such that lay persons,
relying on their common knowledge, could legitimately infer
negligence.
Though not necessary to our determination of this case,
which has been decided upon other grounds, and although not
raised by the plaintiff, our independent review of the record has
disclosed the existence of another genuine issue of material
fact. Interestingly, Nurse Pullings testified in her deposition,
when asked the meaning of the physician's order in question, that
if a patient would complain of a lot of pain, she would not get
that patient out of bed if the patient were having a problem.
Yet that is precisely what plaintiff testified Nurse Pullings
did. It is unclear from the phraseology of the question and
answer whether plaintiff's counsel was attempting to establish
what Nurse Pullings did on the day in question or whether he was
attempting to establish the standard of care. Under the first
scenario, a fact question was created. Under the second
scenario, plaintiff arguably obtained expert testimony on the
standard of care. Where a plaintiff fails to obtain her own
expert witness to testify as to the standard of care, the
testimony of the defendant practitioner may be sufficient to
establish the applicable standard of care. Novey v. Kishwaukee
Community Health Services Center, 176 Ill. App. 3d 674, 679, 531 N.E.2d 427, 430 (1988), citing Walski v. Tiesenga, 72 Ill. 2d 249, 381 N.E.2d 279 (1978). Plaintiff, however, failed to use
this testimony as expert testimony. Nevertheless, this failure
does not defeat plaintiff's action because we have already
determined that expert testimony is not required here to
establish either the standard of care or the deviation from that
standard of care in view of the gross negligence exhibited by
Nurse Pullings.
Our decision in this case also comports with an important
public policy of this state. In Illinois, a competent person has
a common law right to refuse all types of medical treatment of
any kind, including life-saving or life-sustaining procedures. In
re Estate of Longeway, 133 Ill. 2d 33, 44-45, 549 N.E.2d 292, 297
(1989). This common law right is rooted in the "sacred" right to
"personal inviolability." Longeway, 133 Ill. 2d at 44, 549 N.E.2d at 297. This right has also been statutorily recognized.
755 ILCS 40/5 (West 1996); see also In re Brown, 294 Ill. App. 3d
159, 689 N.E.2d 397, 403 (1997). Our supreme court has stated
that "[l]acking consent, a physician cannot force medical care
upon a patient, even in life-threatening situations." Longeway,
133 Ill. 2d at 45, 549 N.E.2d at 297. This same principle holds
true for nonphysician health care professionals.
We acknowledge that the cases discussing this right to
refuse medical treatment typically arise in the context of the
State seeking to impose medical treatment upon a patient, often
involve terminally ill patients or patients who lack decisional
capacity, and generally involve more invasive "treatment" than
that in the present case, e.g., blood transfusions,
electroconvulsive shock treatment, or insertion of a feeding
tube. Thus, the present case presents entirely different issues
from those found in these cases. Nevertheless, the underlying
principle of a patient's dignity is no less germane to the
instant case. A mentally competent patient, such as the
plaintiff here, has not only the capacity, but the right, to make
a reasoned decision regarding his or her need for medical
treatment.
Knowing interference with this right to refuse medical
treatment is a battery. Cohen v. Smith, 269 Ill. App. 3d 1087,
1095, 648 N.E.2d 329, 335 (1995). Certainly, it appears that
plaintiff could have brought an action for battery, but did not
do so. Defendant asserts that plaintiff here sought to recast
her theory of liability from negligence to an intentional tort
only after summary judgment was entered. This assertion is
incorrect. Plaintiff's theory of liability remains one of
negligence. She alleges that Nurse Pullings' conduct, which
arguably rises to the level of a battery, also constitutes gross
negligence recognizable by a lay person. Furthermore, an action
premised on a theory of battery was merely an alternative theory
plaintiff could have pursued and not her only theory. See, e.g.
Ramos v. Pyati, 179 Ill. App. 3d 214, 227, 534 N.E.2d 472, 479
(1989); cf. Wegman v. Pratt, 219 Ill. App. 3d 883, 579 N.E.2d 1035 (1991) (intentional act of shooting could also constitute
negligence in determining proper amount of force to use in self-
defense).
We believe that it is incumbent upon us to note that
defendant has raised numerous contentions in its response brief
which we do not believe plaintiff has addressed in her reply
brief. This court's independent research, rather than
plaintiff's reply brief, has assisted it in deciding which of
defendant's contentions are meritorious and which are incorrect.
Plaintiff's reply brief, on the other hand, reads more like a
closing argument replete with rhetorical questions pertaining to
"humanity," "common sense" and plaintiff's right to "her day in
court." While these are valid policy concerns, this court needs
no admonitions as to how it should perform its duties. The
purpose of briefs is to aid this court in arriving at a proper
determination of the issues by providing legal support for one's
arguments. This reviewing court is "entitled to have the issues
clearly defined, to be cited pertinent authorities and [is] not a
depository in which an appellant is to dump the entire matter of
pleadings, court action, argument and research as it were upon
the court. [Citation.]" Thanopoulos v. Pickens, 87 Ill. App. 3d
906, 909, 409 N.E.2d 477, 479 (1980).
We conclude that summary judgment was improperly entered in
favor of defendant because reasonable minds could draw different
inferences from the undisputed facts as to whether defendant
deviated from the applicable standard of care. The alleged
negligence here was so grossly apparent that a breach of duty
could be determined without the use of expert testimony.
Additionally, we conclude that genuine issues of material fact
exist as to whether Nurse Pullings mistreated or abused the
plaintiff. The issue of defendant's negligence should be
determined by the trier of fact.
Reversed and remanded.
O BRIEN and O MARA FROSSARD, JJ., concur.
[fn1]Our review of the case law shows that this exception is
sometimes referred to in the singular, while other times is
described as two different exceptions, i.e. "gross negligence" or
"common knowledge" exceptions. Semantics aside, the inquiry is
whether a lay person can readily appraise the alleged negligence
using his or her everyday knowledge.
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