                                       2014 IL App (1st) 131068
                                             No. 1-13-1068
                                       Opinion filed June 30, 2014
                                                                       Third Division
     ______________________________________________________________________________

                                                 IN THE

                                  APPELLATE COURT OF ILLINOIS

                                            FIRST DISTRICT

     ______________________________________________________________________________

     FROSINI XENIOTIS,                          )    Appeal from the Circuit Court
                                                )    of Cook County.
            Plaintiff-Appellant,                )
                                                )
     v.                                         )    No. 10 L 9078
                                                )
     CYNTHIA SATKO, D.D.S., M.S., P.C., d/b/a   )
     Satko Oral Surgery, and CYNTHIA            )    The Honorable
     SATKO, D.D.S.,                             )    Kathy M. Flanagan,
                                                )    Judge, presiding.
            Defendants-Appellees.               )
     ______________________________________________________________________________

            PRESIDING JUSTICE HYMAN delivered the judgment of the court, with opinion.
            Justices Pucinski and Mason concur in the judgment and opinion.


                                                  OPINION

¶1          This appeal involves two summary judgment rulings resolving the issue of informed

     consent in a dental malpractice suit. Frosini Xeniotis sued Dr. Cynthia Satko and her corporation

     for damages resulting from allegedly negligent dental implant surgery, which Xeniotis claims Dr.

     Satko performed without informed consent.

¶2           The trial court denied Xeniotis's motion for partial summary judgment on her informed

     consent allegation, and later granted Dr. Satko's motion for summary judgment on the same

     issue. Xeniotis dismissed the remaining counts of her complaint and filed this appeal.
     1-13-1068


¶3           On Xeniotis's motion, the court held: (i) neither the standard of disclosure nor expert

     medical evidence of Dr. Satko's failure to conform to that standard was established; and (ii) a

     factual issue existed as to whether the nature of the discussions between Dr. Satko and Xeniotis

     met the standard of care for disclosure and informed consent. We find both bases support the

     trial court's denial of Xeniotis's motion for partial summary judgment.

¶4          On Dr. Satko's motion for summary judgment, the trial court struck Xeniotis's expert's

     affidavit as an improper attempt to change his deposition testimony. The trial court then found

     that without expert testimony, Xeniotis could not establish the professional standard of

     disclosure for dental implant procedures or that Dr. Satko failed to conform to the professional

     standard of disclosure. Again, we agree with the trial court in striking the affidavit and granting

     Dr. Satko's motion for summary judgment on the issue of informed consent.

¶5                                             BACKGROUND

¶6          In August 2008, Xeniotis's general dentist referred her to Dr. Cynthia Satko, an oral

     surgeon, for an evaluation. Xeniotis sought treatment because of a unique configuration, which

     had no functional impact, but was not esthetically pleasing to her.          Xeniotis's left upper

     permanent tooth came in behind her primary (baby) tooth, which never fell out.

¶7          Xeniotis understood that to address her concerns, an oral surgeon would have to remove

     both her permanent tooth and the baby tooth. The issue was how the space left by their removal

     would be filled. Dr. Satko recommended an implant during the initial consultation with Xeniotis

     on August 7, 2008. An implant involves surgically inserting a titanium screw— the implant—

     into the supporting bone and attaching a small fake tooth, followed by a crown once the posts

     have integrated into the patient's jaw.

¶8                                             Implant Procedure


                                                      -2-
       1-13-1068


¶9               The next day, Dr. Satko extracted tooth number 6 (Xeniotis's permanent canine) and

       baby tooth designated "C." Dr. Satko then placed the implant next to the extraction site, as well

       as a bone graft.

¶ 10             Over the next year and a half, the implant posts failed to integrate into Xeniotis's jaw.

       Several attempts to replace the posts failed. Xeniotis contends that as a result, she suffered a

       permanent defect and injury to her upper jaw.

¶ 11                                            Procedural History

¶ 12             On August 6, 2010, Xeniotis filed a dental malpractice action against Dr. Satko and her

       practice. Xeniotis alleged that Dr. Satko failed to obtain her informed consent before performing

       the procedure, failed to perform the implant procedure in stages, negligently performed the

       implant surgery, and failed to recommend conservative measures. Xeniotis's counsel attached a

       an affidavit pursuant to section 2-622 of the Code of Civil Procedure (Code) to the complaint

       attesting that a consulting dentist, Dr. Arnold Gorchow, opined that Xeniotis received negligent

       care and that there was a reasonable and meritorious cause for filing the lawsuit. 735 ILCS 5/2-

       622 (West 2010). The affidavit contained no certification that as the consulting dentist Dr.

       Gorchow concluded that a reasonable health professional would have informed Xeniotis of the

       consequences of the dental implant procedure.              Also attached to the complaint was Dr.

       Gorchow's report in which he opined that Xeniotis's care should have been performed in several

       stages.

¶ 13             In her complaint, Xeniotis alleges Dr. Satko persuaded her during their initial

       consultation that she would be an excellent candidate for an implant and failed to disclose the

       realistic probability that the implant might fail.




                                                            -3-
       1-13-1068


¶ 14          Xeniotis ended her patient relationship with Dr. Satko in February 2010 and sought a

       second opinion from Dr. Gorchow at that time. Dr. Gorchow examined Xeniotis and identified a

       defect in her upper jaw as one of the largest he had ever seen.

¶ 15          During the litigation, Dr. Gorchow was deposed as a treating dentist under Illinois

       Supreme Court Rule 213(f)(2). Ill. S. Ct. R. 213(f)(2) (eff. Jan. 1, 2007). Xeniotis reserved the

       right to engage and retain Dr. Gorchow as a Rule 213(f)(3) expert witness. Ill. S. Ct. R.

       213(f)(3) (eff. Jan. 1, 2007).

¶ 16                                         Xeniotis's Deposition

¶ 17          At her deposition, Xeniotis acknowledged that since 2004, she had been continuously

       under medical care, had been hospitalized three times for her medical condition, and was taking

       medication.

¶ 18          During the summer of 2008, Dr. Kula recommended an implant procedure to Xeniotis.

       Xeniotis testified Dr. Kula explained the procedure and told her she would not have to worry

       about the implant becoming loose or falling apart. Dr. Kula referred Xeniotis to Dr. Satko.

¶ 19          On August 7, 2008, Xeniotis met with Dr. Satko.            During this initial consultation,

       Xeniotis filled out and signed an information sheet. Immediately above Xeniotis's signature, the

       form stated that the patient certified that he or she consented to the performance of whatever

       operation or treatment was deemed necessary or advisable. Xeniotis did not disclose that she

       was taking medication or under medical care.

¶ 20          Dr. Satko met with Xeniotis that day and discussed Xeniotis's goals, as well as the

       implant procedure. Xeniotis testified that Dr. Satko advised her that the implant would look

       good, be stable and last forever. Although Xeniotis remembered Dr. Satko discussing the

       implant procedure, as well as describing what she was going to do and her plan for the implant,


                                                       -4-
       1-13-1068


       Xeniotis could not recall the conversations. Xeniotis was unsure whether Dr. Satko provided

       information about possible complications of the implant procedure, but nevertheless denied that

       Satko informed her that the implant might fail.

¶ 21          Dr. Satko performed the extraction and implant surgery the following day.

¶ 22          Later, Dr. Kula advised Xeniotis that due to shifting, the implant would need to be

       removed. In October 2008, Dr. Satko removed Xeniotis's first implant. Satko advised Xeniotis

       that she would pack the area until it healed, about six months, and then insert another implant.

       Satko placed the second implant in 2009. Xeniotis did not recall anything Satko told her that

       day. Following the second implant, Dr. Kula again informed Xeniotis that the implant had

       shifted. Kula advised Xeniotis that the second implant would need to be removed as well and

       recommended putting in a bridge.

¶ 23                                       Dr. Satko's Deposition

¶ 24          Dr. Satko testified that she met Xeniotis on a referral from Dr. Kula. Xeniotis was

       concerned about her appearance and wanted an implant as quickly as possible. Satko testified

       her customary practice involved discussing all of the treatment options with a patient before

       deciding on a course of treatment. She recalled talking with Xeniotis about the alternatives to an

       implant, including a resin-bonded bridge, placement of a fake tooth, and braces. Xeniotis wanted

       the implant.

¶ 25           Satko testified her custom and practice was to fully inform patients about all aspects of

       their care before getting their consent. Satko gave Xeniotis a brochure referencing that Satko

       would explain "what you can expect from the surgery, as well as long term risks, benefits, care

       options and complications so that you can make an informed decision regarding implant

       treatment." Satko would advise patients about what an implant is, how it will be placed, and the


                                                         -5-
       1-13-1068


       risks, complications, and alternatives to treatment. Also, she always provides her patients with

       an opportunity to ask questions and gave Xeniotis an opportunity to ask questions. Satko

       testified that after being fully informed, Xeniotis accepted the plan to move forward with the

       implant.

¶ 26          Satko recalled that during the initial consultation, Xeniotis completed and signed a

       patient information form seeking details of any medications being taken and the identity of all

       treating physicians. Xeniotis disclosed neither.

¶ 27          On August 8, 2008, Dr. Satko performed the extraction and implant surgery. She saw

       Xeniotis for a postoperative checkup on August 14. At that time, the site appeared fine. When

       Xeniotis returned on August 28, Satko did not like the way the site looked and advised Xeniotis

       of her concerns and of the possibility of a second procedure.

¶ 28          On October 7, 2008, Dr. Satko concluded Xeniotis's implant was failing. Dr. Satko

       removed the implant and replaced the graft. She advised Xeniotis that implants can fail at six to

       eight weeks. Satko could not determine why the implant failed and believed a second implant

       would be risky. Dr. Satko discussed the second implant with Xeniotis and asked Xeniotis what

       she wished to do. Xeniotis chose to proceed with the second implant.

¶ 29          After the first implant had been removed, the site looked "pretty good" and the soft tissue

       seemed to be healing. On January 30, 2009, Dr. Satko noted the bone graft at the location where

       the implant used to be was not taking. Xeniotis had chronic inflammation. Satko explained the

       options to Xeniotis—regrafting or giving the area more time to heal before placing the second

       implant.

¶ 30          Dr. Satko placed a second implant on March 13, 2009. At a follow-up appointment in

       April, Satko noted a fistulous tract, which indicated the implant area was not healing. Between


                                                          -6-
       1-13-1068


       May and August, measures were taken to help the area heal and save the second implant. In

       September, Dr. Satko was in touch with Dr. Kula to figure out why the implant was failing and

       the best course of action. During two office visits in October, Dr. Satko noted the area was still

       not healing. Satko recalled that on November 5, she discussed the second implant failure at

       length with Xeniotis. Satko removed the second implant in January 2010.

¶ 31           Satko testified that she fully complied with the standard of care throughout her treatment

       of Xeniotis. She opined that her treatment did not cause or contribute to Xeniotis's claimed

       injuries. According to Satko, even when a reasonably careful oral surgeon complies with the

       standard of care, a percentage of patients experience implant failure caused by an infection, a

       lack of blood supply to the area, nonintegration or healing of the implant, interference by

       medications with the implant integration, immune-compromised medical conditions, or poor

       nutrition.

¶ 32           Satko testified that if Xeniotis had informed her about the medications she was taking,

       Satko would not have found her to be a good candidate for implant surgery and would not have

       performed the procedure. The medications Xeniotis was taking were known to contribute to a

       lack of blood supply and lack of healing. And, she testified that had she known about Xeniotis's

       medical conditions, it is unlikely she would have recommended the procedure.

¶ 33                                  Dr. Arnold Gorchow's Deposition

¶ 34           Dr. Gorchow testified at his deposition that he is a general dentist who performs implant

       surgery. Gorchow saw Xeniotis on February 23, 2010, and inserted a partial denture. Gorchow

       reviewed Dr. Satko's records concerning her care of Xeniotis. Because he did not see the

       preoperative condition of Xeniotis, he could not opine whether Satko breached the standard of

       care. He agreed, however, that implants can fail absent a breach of the standard of care.


                                                      -7-
       1-13-1068


¶ 35          Gorchow stated that a clinical examination is vital in determining the reasonableness of a

       certain course of treatment. He could not give an opinion on whether Satko's treatment breached

       the standard of care because he did not know how much of a defect was present at the time she

       removed the two teeth. If there had not been a substantial defect, placing the implant at the same

       time would have been reasonable.

¶ 36                                      Summary Judgment Motions

¶ 37                           Xeniotis's Motion for Partial Summary Judgment

¶ 38          Xeniotis filed a motion for partial summary judgment on subparagraph 8(p) of her

       complaint, in which she alleged a lack of informed consent. In response, Dr. Satko argued that

       the report of the reviewing professional, as required under section 2-622(d) of the Code, did not

       support a claim based on the failure to obtain informed consent and, thus, that claim should be

       dismissed. Satko further contended summary judgment should be denied because: (i) there was

       no expert testimony to establish that Dr. Satko failed to conform to the professional standard for

       disclosure for dental implant procedures; (ii) there is a question of fact as to whether informed

       consent was obtained; (iii) Xeniotis provided inaccurate historical information creating a

       question of fact as to whether Dr. Satko could have obtained informed consent; and (iv) the

       alleged failure to disclose did not cause injury to Xeniotis. Xeniotis replied that no expert

       witness was required because the procedure was cosmetic.

¶ 39          The trial court concluded that the attorney's affidavit and physician's report violated

       section 2-622(d), in that Gorchow provided no criticisms of Satko's duty to disclose or her failure

       to do so. Nonetheless, because Dr. Satko answered the complaint, the court held she could not

       challenge Xeniotis's pleading for failure to state a cause of action.




                                                        -8-
       1-13-1068


¶ 40          The trial court denied Xeniotis's motion for partial summary judgment, holding that

       questions of fact existed as to what information regarding the risks of and alternatives to the

       implant procedure were given to Xeniotis and whether any information could be considered

       sufficient to meet the standard of care for disclosure. The court also ruled that the standard of

       care of informed consent and the adequacy of Dr. Satko's disclosure had to be shown by expert

       evidence.

¶ 41                             Dr. Satko's Motion for Summary Judgment

¶ 42          On September 4, 2012, Dr. Satko, in a motion for summary judgment, argued: (i)

       Xeniotis's section 2-622 report did not support a claim for lack of informed consent; (ii) Xeniotis

       failed to establish the standard for disclosure through expert testimony; and (iii) the facts

       presented during the depositions showed that informed consent had been obtained.

¶ 43          Xeniotis responded by attaching the affidavit of Dr. Gorchow. In his affidavit, Dr.

       Gorchow attested he was now of the opinion that Dr. Satko breached the standard of care

       because her records failed to describe "the risks of failure or other complications of the implant

       procedure." Dr. Satko replied and included a motion to strike Dr. Gorchow's affidavit as an

       improper attempt to change his deposition testimony.

¶ 44          The trial court struck Dr. Gorchow's affidavit, in part, because it contradicted his

       deposition testimony. The court found significant Dr. Gorchow's review of Dr. Satko's records

       on Xeniotis's care at the time of his deposition and that "despite that review, [Gorchow] did not

       have an opinion regarding informed consent."

¶ 45          The court held that without Dr. Gorchow's affidavit, Xeniotis had no support for the

       failure to obtain informed consent claim. Accordingly, the trial court granted summary judgment

       in favor of Dr. Satko on the issue of informed consent.


                                                       -9-
       1-13-1068


¶ 46          On February 14, 2013, Xeniotis filed a motion to vacate the court's order granting

       summary judgment in favor of Dr. Satko and a motion to reconsider and clarify. Xeniotis

       requested an opportunity to be heard on Dr. Satko's motion to strike. Xeniotis argued the trial

       court erroneously concluded that copies of deposition transcripts had not been attached to Dr.

       Gorchow's affidavit. In her motion to reconsider, Xeniotis did not challenge the other bases for

       the trial court's grant of summary judgment in favor of Dr. Satko. That same day, Xeniotis

       requested a voluntary dismissal of her action.

¶ 47          The trial court denied Xeniotis's motion to vacate, but granted her motion to clarify. In

       its order, the trial court acknowledged it had full deposition transcripts of Xeniotis and Dr. Satko

       when it considered the parties' briefs on Dr. Satko's motion for summary judgment. The court

       voluntarily dismissed the case without prejudice.

¶ 48                                             ANALYSIS

¶ 49          Summary judgment is proper where there are no genuine issues of material fact and the

       moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005 (West 2010). The

       trial court may grant summary judgment after considering "the pleadings, depositions,

       admissions, exhibits, and affidavits on file in the case" and construing that evidence in favor of

       the nonmoving party. Purtill v. Hess, 111 Ill. 2d 229, 240 (1986). Summary judgment aids in

       the expeditious disposition of a lawsuit, but it is a drastic measure that should be allowed only

       "when the right of the moving party is clear and free from doubt." Id. If the plaintiff fails to

       establish any element of his or her claim, summary judgment is appropriate. Pyne v. Witmer,

       129 Ill. 2d 351, 358 (1989). We review the trial court's decision to grant summary judgment de

       novo. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102 (1992).




                                                        -10-
       1-13-1068


¶ 50          In Illinois, before obtaining a patient's consent, doctors have a common law duty to

       inform the patient of the foreseeable risks and results of a surgical procedure, and the reasonable

       alternatives to that procedure. See Davis v. Kraff, 405 Ill. App. 3d 20, 28-29 (2010) (citing

       Coryell v. Smith, 274 Ill. App. 3d 543, 546 (1995)). A doctor must disclose the risks that a

       reasonable medical professional would have disclosed under similar circumstances. Guebard v.

       Jabaay, 117 Ill. App. 3d 1, 6 (1983).

¶ 51           In a malpractice action based on the doctrine of informed consent, the plaintiff must

       plead and prove four essential elements: "(1) the physician had a duty to disclose material risks;

       (2) he failed to disclose or inadequately disclosed those risks; (3) as a direct and proximate result

       of the failure to disclose, the patient consented to treatment she otherwise would not have

       consented to; and (4) plaintiff was injured by the proposed treatment." Coryell, 274 Ill. App. 3d

       at 546. The failure of the physician to conform to the professional standard of disclosure must be

       proven by expert medical evidence and the failure to disclose must have proximately caused the

       plaintiff's injury. Guebard, 117 Ill. App. 3d at 6.

¶ 52                      Denial of Xeniotis's Motion for Partial Summary Judgment

¶ 53          The trial court denied Xeniotis's motion on two bases. Dr. Satko contends that either of

       those two bases, standing alone, was sufficient to deny Xeniotis's motion for partial summary

       judgment. We agree.

¶ 54                   Failure to Offer Expert Medial Testimony as to the Standard of Care

¶ 55          The trial court held that Xeniotis failed to support her informed consent claim with expert

       medical testimony as required by law.

¶ 56           In her brief, Xeniotis contends that "expert testimony is not required to prove proximate

       cause in a case involving an elective, cosmetic procedure." Xeniotis cites two cases, Zalazar v.


                                                       -11-
       1-13-1068


       Vercimak, 261 Ill. App. 3d 250 (1993), and Smith v. Marvin, 377 Ill. App. 3d 562 (2007), as

       support for her position.

¶ 57          As Dr. Satko points out, however, that was not a basis on which the trial court denied

       Xeniotis's motion. Rather, the trial court specifically agreed with Xeniotis's position that expert

       testimony is not required to prove proximate cause in an informed consent case.

¶ 58          The court ruled, however, that expert medical testimony was required to establish the

       standard of care with respect to the necessary disclosures and Dr. Satko's beach of that standard.

       Xeniotis does not challenge this basis for the trial court's decision and, therefore, under Illinois

       Supreme Court Rule 341, she has forfeited her right to do so. Ill. S. Ct. R. 341(h)(7) (eff. July 1,

       2007) ("Points not argued are waived and shall not be raised in the reply brief, in oral argument,

       or on petition for rehearing.").

¶ 59          The trial court's determination that the required disclosure, and whether that disclosure

       was adequate, must be shown by expert evidence conforms to well-settled law on the burden of

       proof in an informed consent claim. See Guebard v. Jabaay, 117 Ill. App. 3d 1, 6 (1983)

       (physician's failure to conform to standard of care must be proven by expert evidence; absence

       such evidence, no liability); see also Magana v. Elie, 108 Ill. App. 3d 1028, 1032 (1982); Taber

       v. Riordan, 83 Ill. App. 3d 900, 904 (1980).

¶ 60          Xeniotis failed to offer expert evidence establishing the standard of care against which

       Satko's disclosure of the risks and alternatives to treatment was to be measured and, therefore, as

       a matter of law, she has no right to present her allegations of medical negligence to a jury. See

       McWilliams v. Dettore, 387 Ill. App. 3d 833, 845 (2009) ("Before a medical negligence case ***

       can reach a jury, a plaintiff must [establish] *** the standard of care against which the conduct of

       the defendant doctor may be measured." (citing Walski v. Tiesenga, 72 Ill. 2d 249, 255 (1978))).


                                                        -12-
       1-13-1068


¶ 61                                    Existence of a Question of Fact

¶ 62          As a second basis to deny Xeniotis's motion for partial summary judgment, the trial court

       held that a question of fact existed as to the nature of the discussions between Satko and Xeniotis

       concerning the risks and alternatives of the implant procedure.

¶ 63          The record supports the trial court's conclusion. Xeniotis testified at her deposition that

       Dr. Satko discussed the implant procedure with her. She could not recall the substance of her

       conversation with Dr. Satko, but acknowledged that she spoke with Dr. Satko about her

       treatment plan. Satko testified she gave Xeniotis a patient brochure and explained the various

       treatment options, risks, complications, and alternatives to an implant procedure. Dr. Satko

       testified it was her practice to fully inform patients about the care and treatment she planned

       before getting their consent. Dr. Satko recalled discussing the treatment options with Xeniotis,

       including a resin-bonded bridge, the placement of a fake tooth, or braces. Dr. Satko testified she

       "spent a long time talking to [Xeniotis] about the different options and[] then *** let her talk and

       see what she wanted."

¶ 64          The record supports the trial court's conclusion that a question of fact exists concerning

       whether Dr. Satko informed Xeniotis of the risks and alternatives of the implant procedure.

       Hence, the trial court properly denied Xeniotis's request for partial summary judgment.

¶ 65          Although Xeniotis failed to challenge either of these bases on which the trial court denied

       her motion for partial summary judgment and, therefore, forfeited her right to do so, even had

       she challenged the merits, as we have explained, she would not prevail. The trial court properly

       denied her motion for partial summary judgment.

¶ 66                         Grant of Dr. Satko's Motion for Summary Judgment




                                                      -13-
       1-13-1068


¶ 67           With respect to Dr. Satko's summary judgment motion, Xeniotis only takes issue with

       one basis for the court's ruling—the court's order striking Dr. Gorchow's affidavit.

¶ 68           There is a split of authority on the question of what standard of review to apply to a trial

       court's ruling on a motion to strike an affidavit. This court applied a de novo standard in

       reviewing a trial court's ruling on a motion to strike an affidavit in conjunction with a motion for

       summary judgment (Collins v. St. Paul Mercury Insurance Co., 381 Ill. App. 3d 41, 46 (2008)),

       whereas our supreme court applied an abuse of discretion standard in the same circumstances (In

       I.C. Estate of Hoover, 155 Ill. 2d 402, 420 (1993)). Our supreme court considered the trial

       court's ruling to be an evidentiary one, subject to its discretion. Hoover, 155 Ill. 2d at 420. In

       Jackson v. Graham, 323 Ill. App. 3d 766, 774 (2001), the Fourth District acknowledged this split

       and held, "when the trial court rules on a motion to strike a Rule 191 (Ill. S. Ct. R. 191 (eff. Aug.

       1, 1992)) affidavit in conjunction with a summary judgment motion, we review de novo the trial

       court's ruling on the motion to strike."

¶ 69                Under either standard, the trial court appropriately struck Dr. Gorchow's affidavit.

¶ 70           The trial court's decision to strike Dr. Gorchow's affidavit as a change in testimony

       complies with Illinois law. See Morris v. Margulis, 197 Ill. 2d 28, 37 (2001) (submission of

       affidavit inconsistent with individual's earlier deposition testimony will not prevent summary

       judgment); see also Vesey v. Chicago Housing Authority, 145 Ill. 2d 404, 421-22 (1991)

       (nonmovant cannot use affidavit to contradict earlier deposition testimony to place material facts

       in issue).

¶ 71           The trial court properly struck Dr. Gorchow's affidavit as an improper attempt to change

       his deposition testimony. At the time of his deposition, Gorchow testified he had no opinion

       regarding whether Dr. Satko informed Xeniotis of the foreseeable risks and results of an implant


                                                        -14-
       1-13-1068


       procedure before obtaining her consent. He said he had reviewed Xeniotis's dental records and

       could not say if Dr. Satko breached the standard of care because he did not see Xeniotis before

       the procedure. Gorchow testified that a clinical examination before the procedure was necessary

       to make this determination.

¶ 72          Xeniotis contends that Dr. Gorchow's affidavit was a "supplementation" to the

       deposition, but it is no such thing. Actually, the affidavit is an alteration of Dr. Gorchow’s

       earlier opinion because he still had no knowledge about Xeniotis's preoperative condition, a fact

       he testified was necessary before he could opine about the care she received.

¶ 73          Moreover, in his affidavit, Dr. Gorchow never opined that Dr. Satko deviated from the

       standard of care in her disclosures to Xeniotis about the risks and alternatives to the procedure.

       His opinion addresses only the care Xeniotis received, not what she was told before she elected

       to proceed with the implant procedure.

¶ 74           The record supports the trial court's determination that Dr. Gorchow affidavit fails to

       raise a question of fact with respect to Dr. Satko's motion for summary judgment.

¶ 75          After the trial court struck Dr. Gorchow's affidavit, Xeniotis had no expert testimony on

       the informed consent claim. Because the alleged failure of a medical professional to conform to

       the standard of disclosure in an informed consent case must be proven by expert medical

       evidence (Jabaay, 117 Ill. App. 3d at 6 ), Xeniotis's failure to provide this evidence entitled Dr.

       Satko to summary judgment as a matter of law.

¶ 76          Xeniotis contends she was improperly denied an opportunity to respond to Dr. Satko's

       motion to strike Dr. Gorchow's affidavit. In support, she cites Silverstein v. Brander, 317 Ill.

       App. 3d 1000 (2000), and Peterson v. Randhava, 313 Ill. App. 3d 1 (2000).




                                                      -15-
       1-13-1068


¶ 77          Silverstein is factually distinct. There, the defendant moved verbally on the day of trial to

       bar the plaintiff's expert from testifying. Silverstein, 317 Ill. App. 3d at 1003. The next day, the

       plaintiff filed a written response. Id. After that, the defendant filed a written motion for

       summary judgment. Id. The trial court denied the plaintiff's request for additional time to

       respond to the defendant's motion for summary judgment and set the motion for hearing less than

       one day after the defendant presented it. Id. at 1003-04. On appeal, this court held that the

       defendant failed to comply with Cook County Circuit Court Rule 2.1(e) (eff. July 1, 1976),

       which prohibits a hearing on a motion for summary judgment until 10 days after service of the

       motion. Id. at 1008.

¶ 78          Peterson, the second case Xeniotis relies on, is also factually distinct. In Peterson, the

       plaintiff argued the trial court erred by sua sponte changing the defendant's motion for sanctions

       into a motion for summary judgment. Peterson, 313 Ill. App. 3d at 13. On appeal, this court

       determined, just as we did in Silverstein, that the trial court's procedure failed to comply with

       Cook County Circuit Court Rule 2.1(e). Id.

¶ 79          Xeniotis, on the other hand, was given sufficient notice of Dr. Satko's motion for

       summary judgment. She had nearly three months to respond to the motion with an expert's

       supporting affidavit. Xeniotis chose to attach the affidavit of Dr. Gorchow, an affidavit that

       contradicted his deposition testimony. Her decision to file Dr. Gorchow's affidavit rather than an

       affidavit of a health professional whose opinion would not be subject to a motion to strike does

       not support a finding that she was denied an opportunity to respond. Just because her response

       was ineffective does not mean she was not afforded the opportunity to respond.

¶ 80          Dr. Gorchow's affidavit was first filed in response to Dr. Satko's motion for summary

       judgment. Dr. Satko challenged the propriety of Dr. Gorchow's affidavit in her reply in support


                                                      -16-
       1-13-1068


       of her motion for summary judgment. This was Dr. Satko's first opportunity to challenge the

       affidavit. Dr. Satko challenged the affidavit because Dr. Gorchow was attempting to alter his

       earlier deposition testimony through the contradictory affidavit.         Because this basis was

       incurable by Xeniotis, she cannot claim prejudice based on the alleged denial of an opportunity

       to cure the defect.

¶ 81                                            CONCLUSION

¶ 82          As a matter of law, Xeniotis failed to state a claim for lack of informed consent.

¶ 83          The trial court properly struck Dr. Gorchow's affidavit as an improper attempt to change

       his deposition testimony. In a medical malpractice case, the plaintiff bears the burden of proving

       the elements of her cause of action, including the proper standard of care against which to

       measure the physician's conduct. Xeniotis's unsupported allegation that Dr. Satko failed to

       disclose the risks and alternatives of the implant surgery in violation of the standard of care could

       not support her motion for summary judgment or defeat Dr. Satko's where Xeniotis failed to

       offer any expert evidence as to the standard of care.

¶ 84          Affirmed.




                                                       -17-
