dissenting:
I disagree with the majority’s conclusion that defendant Ruder was not entitled to summary judgment in his favor, and for that reason I respectfully dissent.
The plaintiff brought the present negligence action against Dr. Bernard Ruder and Riverside Medical Center for injuries the plaintiff allegedly sustained during or following the time of his birth. Defendant Ruder subsequently moved for summary judgment, relying in part on statements of the plaintiff’s expert witness, Dr. Anthony Raimondi, that the plaintiff’s injury did not occur at birth and that defendant Ruder exercised due care in his delivery of the child. The trial judge granted summary judgment in defendant Ruder’s favor. The plaintiff later moved for reconsideration on the basis that new evidence — the deposition of the hospital’s expert witness, Dr. Kenneth Niswander — indicated that the plaintiff’s injury occurred during delivery. In response to the plaintiff’s motion, counsel for defendant Ruder submitted an affidavit by Dr. Niswander denying that he believed that defendant Ruder had been negligent. The trial judge denied the motion for reconsideration, and that judgment was affirmed by the appellate court.
Relying on the doctrine of res ipsa loquitur, the plaintiff contends that a question of fact is now raised by the combination of Dr. Niswander’s deposition testimony concerning the possible cause of the child’s injury and Dr. Raimondi’s statements that the injury could not have occurred in the absence of negligence.
Res ipsa loquitur affords an inference of negligence. The doctrine is not applicable unless the plaintiff demonstrates that he was injured “ ‘(1) in an occurrence that ordinarily does not happen in the absence of negligence, [and] (2) by an agency or instrumentality within the defendant’s exclusive control.’ ” (Spidle v. Steward (1980), 79 Ill. 2d 1, 5.) Whether res ipsa loquitur is available in a particular case is a question of law to be determined by the court. (Imig v. Beck (1986), 115 Ill. 2d 18, 27; see Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1113 (in action for medical malpractice, court to determine whether doctrine of res ipsa loquitur is applicable).) I would conclude in the present case that the doctrine was not applicable to defendant Ruder and that it did not later become available through the deposition testimony of Dr. Niswander.
The testimony used by the plaintiff to establish the applicability of the res ipsa loquitur doctrine also demonstrated that the doctrine could not properly be asserted against defendant Ruder. The plaintiff’s expert witness, Dr. Raimondi, believed that the plaintiff’s skull fracture could not have occurred in the absence of negligence. Dr. Raimondi also stated that the fracture did not occur during delivery. Thus, at the time defendant Ruder moved for summary judgment, Dr. Raimondi had effectively eliminated use of the res ipsa loquitur doctrine against defendant Ruder, and there was no evidence of any specific act of negligence on the part of that defendant. The trial judge correctly granted defendant Ruder’s motion for summary judgment.
I do not believe that Dr. Niswander’s subsequent statements concerning the causation of the skull fracture made the res ipsa loquitur doctrine applicable to defendant Ruder or constituted new evidence of specific acts of negligence by him. In his deposition, Dr. Niswander stated his belief that the plaintiff’s skull fracture most likely resulted from the natural forces of labor. Dr. Niswander also stated that the fracture could have been caused by the obstetrician’s efforts to manipulate the child’s head, an action Dr. Ruder admittedly may have performed. Dr. Niswander did not say, however, that such conduct, assuming it occurred, was negligent. In a later affidavit, filed in response to the plaintiff’s request for reconsideration, Dr. Niswander expressly stated that he did not believe that defendant Ruder had been negligent and, moreover, that any suggestion that the witness did find fault with the obstetrician’s conduct was a misrepresentation of his views.
Unlike Kolakowski v. Voris (1980), 83 Ill. 2d 388, cited by the plaintiff, there is not in the present case specific evidence of negligence in addition to the inference of negligence provided by the res ipsa loquitur doctrine. The plaintiff’s own expert had stated that defendant Ruder was not negligent and that the plaintiff’s injury did not occur during delivery. Thus, I do not believe that a question of fact concerning defendant Ruder’s conduct was raised by defendant Riverside’s subsequent theory that the plaintiff’s injury did in fact occur during delivery. Had Riverside’s expert stated that the accident occurred while the plaintiff was under defendant Ruder’s control and either that Ruder’s conduct was negligent (a specific act of negligence) or that the injury could not have occurred without negligence (res ipsa again), then, of course, the motion for reconsideration would have stood in a different light. Dr. Niswander believed not only that the injury occurred during birth, but also that the obstetrician was not negligent in his conduct. Accordingly, it cannot be said that defendant Ruder’s conduct raises a question of fact either under a theory of specific negligence, or under a theory resting on the inference of negligence afforded by the res ipsa loquitur doctrine.
A question of fact remains whether defendant Riverside was negligent in its care of the child following the delivery. That determination will require consideration of whether the plaintiff’s injury occurred following the delivery, during the time he was under the control of the hospital rather than of defendant Ruder, and, if so, whether the hospital employees were negligent. The plaintiff’s expert has stated that the skull fracture would not ordinarily occur in the absence of negligence. If different evidence shows that the accident occurred while the child was under defendant Ruder’s control, then the plaintiff’s res ipsa loquitur theory against Riverside will, of course, fail. No such evidence was presented here.
On this record, defendant Ruder was entitled to summary judgment, in light .of the testimony of the plaintiff’s own expert limiting application of the res ipsa loquitur theory to defendant Riverside and absolving defendant Ruder of negligence; Dr. Niswander’s later statements did not provide the plaintiff with any further evidence in support of his claim against the obstetrician. Accordingly, I dissent from the majority’s contrary holding.
JUSTICE RYAN joins in this dissent.