Illinois Appellate Court Finds that Witness Affidavit in Contradiction to Sworn Deposition Testimony Cannot be Used as a Basis to State a Claim

On Aug. 7, 2008, Frosini Xeniotis was evaluated by an oral surgeon, Dr. Cynthia Satko. One of Xeniotis’s baby teeth had never fallen out, and her adult tooth had grown in behind it. The result was just simply “not aesthetically pleasing” to Xeniotis.

Xeniotis was referred to Dr. Satko by her primary dentist. To improve the condition, an oral surgeon would have to remove both the baby tooth and the adult tooth and fill the remaining space. Dr. Satko recommended an implant during this initial consultation.

The procedure described by Dr. Satko involved surgically inserting a titanium screw into the bone and then attaching an artificial tooth to the screw. Under the best of circumstances, this procedure would have been followed by a dental crown. Xeniotis agreed with the plan, and the next day Dr. Satko removed the two teeth and inserted the implant. Over the following year and half, the artificial tooth failed to fully afix into Xeniotis’s jaw.

On Oct. 7, 2008, Dr. Satko removed the implant and after consulting with Xeniotis, proceeded to install a second implant on March 13, 2009. Again, Xeniotis’s jaw failed to heal and on Nov. 5, 2009, Dr. Satko and Xeniotis discussed the second implant’s failure. The second implant was removed in January 2010. In February 2010, Xeniotis ended her patient relationship with Dr. Satko and spoke to a different oral surgeon, Dr. Arnold Gorchow.

On Aug. 6, 2010, Xeniotis filed a dental malpractice case against Dr. Satko claiming that she had chosen not to obtain informed consent before performing the procedure, chose not to perform the procedure in stages, negligently performed a surgery and “failed to recommend conservative methods.”

Attached to the complaint was the affidavit of Dr. Gorchow stating that Xeniotis had received negligent care and that she had a reasonable and meritorious case for filing the lawsuit sounding in dental malpractice. In addition to Dr. Gorchow’s affidavit, this second dentist also attached a report concluding that the surgery should have been performed in several stages.

Xeniotis said at her deposition that Dr. Satko had failed to warn her of the possibilities of failure and testified further that she had not been told of the risks. Dr. Satko testified that Xeniotis had been fully informed of the alternatives and risks, including receiving a brochure about the possible care options and complications.

Dr. Satko moved for summary judgment on the issue of informed consent noting that Dr. Gorchow, in his deposition, stated that he “did not have an opinion regarding informed consent” and that he could not determine if Dr. Satko breached the standard of care because he did not know Xeniotis’ pre-operative condition.

Xeniotis responded to the motion by attaching an affidavit from Dr. Gorchow indicating that he now believed Dr. Satko had breached the standard of care because her records failed to describe the risks of failure for the oral surgery or other complications.

Dr. Satko moved to strike the affidavit as an improper attempt to change deposition testimony of Dr. Gorchow. The circuit court judge agreed by striking the affidavit and granting Dr. Satko summary judgment on the informed consent issue, as no expert witness had been presented to argue that informed consent was not given. From that order, Xeniotis appealed.

On appeal, the appellate court noted that Xeniotis did not challenge the ruling that an expert witness was required, but merely claimed that she had adequately presented one by presenting Dr. Gorchow.

The appellate court determined that Dr. Gorchow’s affidavit was not relying on the discovery of new evidence about Xeniotis’s pre-operative condition, but was simply attempting to change the deposition testimony that he had given. To counter that argument, Xeniotis claimed that she was not given sufficient time to present an expert to the court, but the court noted that she had three months to produce an expert’s affidavit, and that she instead chose to submit Dr. Gorchow’s reversal of his deposition testimony, which was properly ruled inadmissible.

As a result, the Illinois Appellate Court affirmed the trial judge’s order granting summary judgment.

Frosini Xeniotis v. Cynthia Satko, DDS, 2014 IL App (1st) 131068 (June 30, 2014).

Kreisman Law Offices has been handling medical malpractice cases, birth injury cases and medical device defect cases for individuals and families who have been harmed, injured or died as a result of the carelessness or negligence of a medical provider for more than 38 years in and around Chicago, Cook County and its surrounding areas, including Merrionette Park, Hanover Park, Harwood Heights, Harvey, Justice, Kenilworth, LaGrange Park, Lemont, Deerfield, Crete, Crestwood, Cicero, Calumet City, Chicago Heights, Forest Park, Glenview, Orland Park, Olympia Fields, Oak Forest, North Riverside, Northfield, Park Ridge, Streamwood, Summit, Tinley Park, Western Springs, Wheeling, Willow Springs, Wilmette and Worth, Ill.

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