dissenting:
I respectfully dissent from the opinion of the majority.
I believe that genuine issues of material facts still remain to be decided in this case. Appellant in his amended complaint alleged among the following negligent acts by appellees:
“a) That the said Defendants, or either of them, failed to appear and conduct a proper examination of the patient in the early stage of labor.
b) That the said Defendants, or either of them, failed to recognize dangers and complications evidenced by communications in reports of nurses aids, registered nurses and other personnel of the aforesaid hospital.
c) That the said Defendants, or either of them, failed to appear at the hospital and to take necessary steps to eliminate or reduce the possibility or probability of injuries to the fetus during labor period.
d) That the said defendants, or either of them, failed and committed unreasonable delay in diagnosing caesarian section as the necessary procedure in the delivery of the child.
<* # #
i) That the defendants failed to make proper diagnosis for the reasons and cause of delay of birth of the child.”
Appellant cites portions of Dr. DeVivo’s depositions which do establish controverted issues as to material facts.
As to the aforesaid alleged negligent acts, Dr. DeVivo testified as follows:
“A. No. I think the only question that one might raise is why the physicians were not available to examine the mother on the night of the admission and when there seemed to be some apparent fetal distress as reflected in the meconium-stained amniotic fluid. One should distinguish between the types of hospitals that are available. My experience is limited to a tertiary care facility, where we constantly have physicians of full-time staff and house staff in constant attendance, and I suspect that’s probably not the case at Alton Memorial Hospital. This may be very acceptable practice in a primary care facility such as Alton Memorial Hospital, for physicians to remain in contact with the nursing personnel as to the condition of any given patient at any point in time.
Q. What type of examination would the doctor have done if he had been in attendance when the woman came in with the leaking meconium-stained fluid?
A. I would presume he might have performed the same studies that he performed the next morning which ultimately led him to the decision to perform the cesarean section.”
Dr. DeVivo also testified that as best he could determine, the passage of the fluid was one of the reasons for ultimately deciding to perform a cesarean section over 17 hours later. He further testified that it would be important to know whether the infant’s heart was continuously monitored, even though that was not the general policy in 1969, because “a slowing of the heart rate may have occurred resulting in a reduction in blood flow to the brain in the fetus producing the distress that was described and the resulting staining of the amniotic fluid.” I believe that these portions of Dr. DeVivo’s depositions clearly demonstrate that these issues remain in controversy in this case.
It should be noted that summary judgment is a drastic and extreme measure. It is not to be granted casually, but only when it is clear that no evidence exists which would present a jury question. While much of Dr. DeVivo’s testimony was favorable to appellees, there still remain real questions as to whether appellees negligently failed to go to the hospital and examine Elizabeth Buck, to appreciate the extreme condition of both the mother and child, and to properly examine and treat them. Hence, appellant should be accorded his right to present these factual disputes to a jury for their resolution.
The ruling of the majority presents a matter of grave concern to me and one which the parties discuss by implication. It is one which this court apparently has not yet specifically addressed. It involves a matter of timing. More specifically, my concern centers around the point in time when a plaintiff must fulfill his burden of establishing every fact necessary to constitute his cause of action for medical malpractice.
We are here confronted with a case wherein appellant had a motion for summary judgment granted against him for failure to produce an expert witness who could establish the applicable medical standard of care to which appellees should be held and render an opinion, based on reasonable medical certainty, that they breached that standard. This motion was filed and granted during the course of discovery, which at that time had continued for approximately five years from the first date of filing a complaint. While this is the posture of the particular case at bar, the case could have presented itself had appellant failed to establish any element of his cause of action during the course of discovery, namely, the applicable standard of care, breach of that standard, breach as the proximate cause of his injury, and resultant damages.
It is well known that the scope of the Illinois discovery rules is broad. The wording of Supreme Court Rule 201(b) evidences this.
“(b) Scope of Discovery.
(1) Full Disclosure Required. Except as provided in these rules, a party may obtain by discovery full disclosure regarding any matter relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking disclosure or of any other party, including the existence, description, nature, custody, condition, and location of any documents or tangible things, and the identity and location of persons having knowledge of relevant facts. The word “documents,” as used in these rules, includes, but is not limited to, papers, photographs, films, recordings, memoranda, books, records, accounts, and communications.
(2) Privilege and Work Product. All matters that are privileged against disclosure on the trial, including privileged communications between a party or his agent and the attorney for the party, are privileged against disclosure through any discovery procedure. Material prepared by or for a party in preparation for trial is subject to discovery only if it does not contain or disclose the theories, mental impressions, or litigation plans of the party’s attorney. The court may apportion the cost involved in originally securing the discoverable material, including when appropriate a reasonable attorney’s fee, in such manner as is just.” (Ill. Rev. Stat. 1977, ch. 110A, par. 201(b)(1), (2).)
The discovery provisions of both the Supreme Court Rules and the Civil Practice Act were designed to enlarge the scope of available discovery to enhance the genuine function of the trial as a means of ascertaining truth and to provide expeditious methods for the just disposition of litigation. (Stimpert v. Abdnour (1962), 24 Ill. 2d 26, 31, 179 N.E.2d 602; Bee Chemical Co. v. Service Coatings, Inc. (1969), 116 Ill. App. 2d 217, 223, 253 N.E.2d 512; Washburn v. Terminal R.R. Association (1969), 114 Ill. App. 2d 95, 102, 252 N.E.2d 389.) These procedural tools were enacted to educate the parties in advance of trial as to the actual value of their claims and defenses in order to enable them to better prepare for trial. (Monier v. Chamberlain (1966), 35 Ill. 2d 351, 221 N.E.2d 410; People ex rel. Terry v. Fisher (1957), 12 Ill. 2d 231, 236, 145 N.E.2d 588; Biehler v. White Metal Rolling and Stamping Corp. (1975), 30 Ill. App. 3d 435, 441-42, 333 N.E.2d 716.) However, the discovery rules “were also intended to have the equally important purpose of fixing the guidelines for a fair and orderly procedure by which discovery may be accomplished.” (Bruske v. Arnold (1968), 100 Ill. App. 2d 428, 433, 241 N.E.2d 191, aff'd (1970), 44 Ill. 2d 132, 254 N.E.2d 453, cert. denied (1970), 398 U.S. 905, 26 L. Ed. 2d 65, 90 S. Ct. 1697.) Therefore, discovery may not be used as a tactic to obstruct the trial process for such would violate the purpose of modern discovery principles. Slatten v. City of Chicago (1973), 12 Ill. App. 3d 808, 813, 299 N.E.2d 442.
Discovery depositions are taken mainly for eliciting information, committing witnesses to specific stories, and obtaining admissions from opposing parties rather than for gaining fully admissible testimony as in an evidence deposition. Supreme Court Rule 212 (Ill. Rev. Staff. 1977, ch. 110A, par. 212) clearly differentiates between these two deposition forms and there is no time limitation within which discovery must be completed. (Slatten v. City of Chicago (1973), 12 Ill. App. 3d 808, 811.) Therefore, acquisition of certain information vis-a-vis a discovery deposition lends itself to the discovery of facts and better preparation for trial but it is not a substitute for the actual trial wherein that same information is put to use in the disposition of issues which remain subject to resolution. (Simaitis v. Thrash (1960), 25 Ill. App. 2d 340, 348, 166 N.E.2d 306.) However, the procedure urged by appellees and adopted by the trial court and the majority attempts to convert the discovery deposition in a medical malpractice case into the equivalent of testimony given at trial with which the trier of fact can determine the ultimate outcome of the case — and this all prior to the occurrence of the actual trial through the use of summary judgment. This represents what I believe to be a gross misapprehension and application of summary judgment in a medical malpractice case.
The motion for summary judgment which was granted in the present case was filed subsequent to two discovery depositions of Dr. DeVivo being taken. Dr. DeVivo was named as an expert witness on behalf of plaintiff approximately four years from the first filing of a complaint. I have already noted that there are issues of fact which remain to be decided in this case due to these depositions, although Dr. DeVivo failed to establish the requisite standard of care to be applied in this case and any breach thereof. Therefore, summary judgment was improperly granted. But even assuming that there were no controverted issues of material fact which resulted from Dr. DeVivo’s testimony, I do not believe summary judgment would have been proper in this case.
It is generally agreed, unless the matter is within the ken of the layman, that expert medical testimony is necessary to establish the appropriate and acceptable medical standard of care. (Borowski v. Von Solbrig (1975), 60 Ill. 2d 418, 423; Stevenson v. Nauton (1979), 71 Ill. App. 3d 831, 834, 390 N.E.2d 53; Crawford v. Anagnostopoulos (1979), 69 Ill. App. 3d 954, 960, 387 N.E.2d 1064; Carman v. Dippold (1978), 63 Ill. App. 3d 419, 425; Plost v. Louis A. Weiss Memorial Hospital (1978), 62 Ill. App. 3d 253, 257, 378 N.E.2d 1176; Schaefer v. Sippel (1978), 58 Ill. App. 3d 816, 819, 374 N.E.2d 1092.) Since plaintiff must adduce affirmative • evidence to establish each element of his case in order to prevail on his cause of action, it is settled that plaintiff has the burden of obtaining expert testimony sufficient to sustain his allegations. However, I do not believe a plaintiff has such a conclusive burden during the course of discovery and I would hold that a deposition of an expert witness indicating what the appropriate medical standard of care is and that the defendant doctor acted in accordance therewith, or that the expert cannot determine whether there was compliance with the applicable medical standard of care, should not automatically preclude the plaintiff on the ground of summary judgment from going to trial or at least from later obtaining an expert opinion which would establish this standard.
Several Illinois courts have addressed this problem in the past. In Sanders v. Frost (1969), 112 Ill. App. 2d 234, 251 N.E.2d 105, this court affirmed an order granting summary judgment in a medical malpractice case. At the time the trial court ruled on the motion it had before it the deposition of the defendants, Dr. Frost and Dr. Snow, and the deposition of Dr. Modert. Plaintiff had been under Dr. Frost’s care for a staphylococcus infection in his throat in November 1962. On July 15, 1963, plaintiff suffered severe injuries after being struck by an automobile. Dr. Modert testified that a wire in plaintiff’s pubic bone which was surgically inserted by the defendants in an operation performed on plaintiff after the accident was functioning as a foreign object in that the body defenses were setting up a reaction against this particular material, though it was the type of wire intended to be left in the body. Dr. Modert stated that this wire had nothing to do with a staph infection discovered near the surgical incision in the pelvic area. The court stated that the plaintiff’s allegations of the defendants’ lack of skill in the care and treatment of plaintiff required more than common knowledge and experience and thus were not within the common comprehension of laymen. Therefore, since the plaintiff failed to indicate that he had an expert medical opinion to sustain the charges in his complaint that defendant negligently performed the operation while a staph infection was present, or that he would be able to obtain such an opinion in the future, this court concluded that summary judgment was proper. We cautioned trial courts on entering summary judgments in this type of case because of the difficulty in securing the testimonial services of one medical professional against another.
Similarly, the court in the wrongful death case of Kwak v. St. Anthony De Padua Hospital (1977), 54 Ill. App. 3d 719, 369 N.E.2d 1346, affirmed the trial court’s grant of summary judgment in favor of defendant hospital where it was noted that the plaintiff’s expert at deposition had no specific criticism of the treatment or care rendered by the hospital personnel during plaintiff’s decedent relative’s stay there. In fact, the court pointed out that the expert contradicted some of the allegations in plaintiff’s complaint. Since “there was no other testimony that any such negligence was, as alleged by plaintiff, ‘a causal factor’ in bringing about the death of the decedent” (emphasis added), the court held that it was not error to grant summary judgment. 54 Ill. App. 3d 719, 727.
In Hill v. Lutheran Hospital (1978), 58 Ill. App. 3d 1003, 374 N.E.2d 1147, summary judgment was entered in favor of the defendant, Dr. Durkin, where the only expert opinion presented for consideration on the motion for summary judgment was an affidavit Sled by defendant Durkin as a medical expert in support of his own motion. In affirming the decision of the trial court, the court stated that the plaintiff failed to indicate that he had or expected to obtain expert medical testimony. Based on this and the fact that plaintiff had been given extensive continuances and opportunities to obtain a medical expert, summary judgment was proper. The Hill court noted, however, citing Sanders v. Frost, that because of the reluctance of the medical profession to testify against a fellow member, trial courts should be extremely cautious in entering summary judgments in malpractice cases, and that “if there is any sound basis to do so, a trial court should reject summary judgment in this type of case.” 58 Ill. App. 3d 1003, 1008.
The First District again faced this situation in Stevenson v. Nauton. In Stevenson the plaintiff alleged that she suffered lost vision in her left eye as the result of the negligence of the defendant Dr. Nauton. Plaintiff listed nine physicians who had knowledge of her condition and treatment, but a discovery deposition of Dr. Atchoo, plaintiff’s only listed expert witness who was an eye specialist, was taken by the defendant. Dr. Atchoo stated he could not form a definite opinion as to whether Dr. Nauton’s treatment of the plaintiff fell below acceptable medical standards. Defendant subsequently moved for, and was granted, a summary judgment. On review, the court determined that the plaintiff had numerous opportunities to obtain an expert medical opinion to sustain her allegations, noting that approximately four years had elapsed between the commission of the alleged negligent acts and the granting of summary judgment. It added that there was no indication that plaintiff’s expert could have formed a definite opinion at trial or that other experts could have been obtained to testify as to the proper standard of care against which the defendant should have been judged. (71 Ill. App. 3d 831, 836.) Therefore, the court held that summary judgment was properly granted.
A review of the case law from other jurisdictions indicates that the majority of states that have recognized and discussed the question have found summary judgment to • be proper in these circumstances. In Goodman v. Emergency Hospital (Sup. Ct. 1978), 96 Misc. 2d 1116, 410 N.Y.S.2d 511, summary judgment was granted to the defendants because the plaintiff failed to produce a statement from any expert which would deny defendants’ contention that their treatment was in accordance with standards in the professional community. Similarly an affidavit by the defendant doctor setting forth his qualifications and stating that there was no nexus between the injury complained of and Ms care of the plaintiff has been held sufficient to grant summary judgment. (Jackson v. Tucker (1988), 118 Ga. App. 693, 165 S.E.2d 466. Contra, Brooks v. Serrano (Fla. App. 1988), 209 So. 2d 279 (affidavit of defendant doctor that he performed his services skillfully and in accordance with accepted community standards held insufficient to warrant summary judgment in her favor); Sanchez v. Wade (Tex. Civ. App. 1974), 514 S.W.2d 812 (uncontradicted affidavit of defendant doctor held insufficient to show no genuine issue of material fact).) Most courts state the general rale that expert testimony is ordinarily required in a medical malpractice case and, in opposing a summary judgment motion, the plaintiff has the responsibility of presenting proof that he will be able to present evidence at trial that will demonstrate that the defendant doctors were negligent. Pendleton v. Cilley (1978), 118 Ariz. 84, 574 P.2d 1303; Riedisser v. Nelson (1975) , 111 Ariz. 542, 534 P.2d 1052; Morrell v. St. Lukes Medical Center (1976) , 27 Ariz. App. 486, 556 P.2d 334; Abernethy v. Smith (1972), 17 Ariz. App. 363, 498 P.2d 175; accord, Thomas v. Berrios (Fla. App. 1977), 348 So. 2d 905; accord, Devine v. Queens Medical Center (1978), 59 Haw. 50, 574 P.2d 1352; accord, Bowman v. Henard (Tenn. 1977), 547 S.W.2d 527; Swanson v. Brigham (1977), 18 Wash. App. 647, 571 P.2d 217; Shoberg v. Kelly (1969), 1 Wash. App. 673, 463 P.2d 280. But see Adamski v. Tacoma General Hospital (1978), 20 Wash. App. 98, 579 P.2d 970 (summary judgment improper where defendants failed to put forward any proof of their exercise of due care within the appropriate medical standard but insisted that plaintiff produce a medical expert).
The general assumption underlying the Illinois and majority view is that the plaintiff has, at the time defendant moves for summary judgment, produced the most favorable expert witness he will be able to find. If he does not have an expert witness at that point in discovery, the courts are skeptical that he will be able to find one later. However, these courts are in effect telling the plaintiff that he cannot merely be diligent in searching for an expert to support his case, but that he must find one or be able to convince the court that he will be able to before the defendant moves for summary judgment, and that the expert witness will sustain his allegations, or else he will suffer dismissal. One can easily imagine, then, a plaintiff’s attorney postponing the filing of a complaint in order to first search for an expert witness who is willing to testify, in effect conducting what was intended to be accomplished during discovery for fear that if he does not the defendant will move for summary judgment and the case will be dismissed because he will be unable to rebut an affidavit or deposition of the defendant doctor. This is not the result the broad rules of discovery were meant to accomplish. As discussed above, they were not enacted to require the parties to prove their case before trial, but to promote full disclosure of facts in order to narrow the litigation to the genuine issues of the case and thereby facilitate the fair, prompt, and inexpensive disposition of the lawsuit. I do not believe that a deposition or an affidavit of an expert witness indicating that the defendant doctor acted in accordance with the appropriate medical standards should automatically preclude the plaintiff from going to trial or at least from subsequently obtaining an expert opinion that will establish the requisite standard.
Summary action for failure to adduce expert testimony has been addressed in Illinois in the context of Supreme Court Rule 219(c) sanctions. (Ill. Rev. Stat. 1977, ch. 110A, par. 219(c).) That rule provides that the trial court may, on motion, enter any order that it determines is proper when a party unreasonably refuses to comply with a discovery provision of the Supreme Court Rules or any order of the court entered under those provisions. I believe the following case analysis involving sanctions for failure to identify and adduce expert testimony is beneficial for an understanding of my position with respect to the granting of summary judgment in similar situations.
In Schaefer v. Sippel, the plaintiff’s case was dismissed pursuant to Supreme Court Rule 219(c) for failure to disclose any expert witness, even though the plaintiff informed the court that he had not yet been able to engage any expert witnesses. The court held that the dismissal was improper for the following reasons:
“We can find no precedent for requiring that plaintiff be able to prove a prima facie case at the time a pretrial conference is held. As the court recently stated in the medical malpractice case of Simpson v. Johnson (1977), 45 Ill. App. 3d 789, 797, 360 N.E.2d 144, 150:
‘Although we do not commend the practice, there is no rule prohibiting either party from first engaging an expert after the trial has commenced * ° V (Emphasis added.)
While the Simpson court went on to indicate that, absent a good reason for employment of an expert at such a late date, the trial court should not permit him to testify, we believe the principle expressed in the foregoing excerpt to be applicable to the case at bar. Plaintiff had as of March 1 been unable to obtain an expert, but it is possible that he could have had such an expert by the time the trial of this cause occurred. Indeed, plaintiff could, as he indicated to the trial court, rely on the adverse testimony of the defendant doctors as an adequate means of providing the needed expert testimony. See Casey v. Penn (1977), 45 Ill. App. 3d 1068, 362 N.E.2d 1373; Anderson v. Martzke (1970), 131 Ill. App. 2d 61, 266 N.E.2d 137.” 58 Ill. App. 3d 816, 820.
In Treadwell v. Chiakmakis (1978), 61 Ill. App. 3d 125, 377 N.E.2d 1164, the court was confronted with a case wherein it was disclosed at a pretrial conference that the defense counsel had informally contacted the two expert witnesses plaintiff listed in response to an interrogatory. These two experts apparently indicated to the defense attorney that they had never agreed to serve as experts and that they had no opinion as to defendant’s negligence, after having allegedly agreed to testify for plaintiff. The trial court granted defendant’s motion for summary judgment and refused to rescind a sanction order closing discovery. The appellate court criticized the granting of summary judgment, recognizing the real possibility that “[o]ften a witness is found during trial and the court may allow his testimony by giving the opponent an opportunity to take his deposition even during trial.” (61 Ill. App. 3d 125, 129.) Therefore, summary judgment was improvidently granted because there was no deliberate refusal to comply with discovery and plaintiff was apparently surprised by her witness’ unexpected refusal to testify.
In a thorough discussion, the court in Plost v. Louis A. Weiss Memorial Hospital held that an order limiting plaintiff to expert witnesses listed in answers to interrogatories was “improper because new witnesses may be found during trial and can be used by giving the opposition an opportunity to depose the witness before he is called to testify, if it does not interfere with the trial.” (62 Ill. App. 3d 253, 256.) This order was entered October 6,1976, a few days before the scheduled trial on October 14 or 15,1976, at which time it was disclosed that one of the four experts had died. On October 8, defendants filed motions to dismiss the cause for plaintiff’s failure to produce an expert witness. Defendants argued that the other three listed expert witnesses had indicated in a letter to the trial court that they would not testify. Plaintiff’s counsel indicated that he had learned of the death one day prior to the hearing and had attempted to contact the other three experts for the two months previous but without success. Therefore, plaintiff filed a motion for a 60-day continuance.
The First District Appellate Court was appreciative of plaintiff’s dilemma, and after noting that this was a probable case for expert testimony, went on to state:
“Proceeding to trial without an expert in a case where the facts of the injury are not such as to warrant the inference of due care to laymen means probable defeat. However, it is possible for a plaintiff to extract enough admissions from the defendant doctors, under section 60 cross-examination to meet the requirement of expert testimony and thereby make out a prima facie case.” (62 Ill. App. 3d 253, 258.)
The court concluded that the denial of plaintiff’s request for a continuance and the dismissal for want of prosecution denied plaintiff “his fundamental right to present his cause of action,” for section 60 or cross-examination of defendant’s experts might be “the most viable way to proceed for a plaintiff who has no willing medical expert.” (62 Ill. App. 3d 253, 258.) The denial to plaintiff of the use of these methods due to discovery limitations was an abuse of discretion the court said; he should have the opportunity to search for an additional expert and should not be limited to those experts he listed in his answers to interrogatories.
A. dismissal order was also the subject of a reversal in Bell v. Board of Education of City of Chicago (1979), 67 Ill. App. 3d 402, 385 N.E.2d 84. There a complaint alleged both the negligent striking of plaintiff with a stick as well as wilful and wanton conduct. Confused over whether the dismissal order granted summary judgment or involuntary dismissal pursuant to Supreme Court Rule 219(c), the court acknowledged the significance to the trial court of plaintiff’s failure to obtain an expert witness (physician) to testify at trial. However, the court, relying on Schaefer v. Sippel, noted:
“[While] failure to procure an expert in a case of this nature may prove detrimental to plaintiff we do not believe that the pretrial absence of an ‘obtained’ expert can be fatal to plaintiff’s action. Perhaps plaintiff could continue to construct his prima facie case until trial commenced. There is a possibility of obtaining an expert by the time the trial of the cause occurs. We find no reason for compelling plaintiff to reflect an ability to prove his case prior to trial.” (67 Ill. App. 3d 402, 404-05.)
Therefore, the trial court improperly dismissed plaintiff’s case, whatever its grounds. Summary judgment could not be used to deny plaintiff’s aforesaid fundamental right to present a cause of action where a material dispute may exist, nor would a Rule 219(c) dismissal be proper, since it would act as a punishment rather than an order insuring both discovery and a trial on the merits. 67 Ill. App. 3d 402, 405.
Most recently, the Second District reviewed this dilemma in Mendelson v. Feingold (1979), 69 Ill. App. 3d 227, 387 N.E.2d 363. In that case plaintiff’s complaint was dismissed as a sanction for allegedly failing to abide by the trial court’s discovery order which essentially required that plaintiff engage a medical expert, submit to his examination, furnish defendants with his medical report and also obtain a detailed medical report setting forth the expected content of the expert’s testimony, his opinion regarding the negligence of defendant and the basis for that opinion. The case was dismissed pursuant to Supreme Court Rule 219(c) even though plaintiff complied with the order. The court discussed Schaefer v. Sippel and noted that the plaintiff in the case before it had been prevented by dilatory tactics from deposing either defendant or two other treating physicians.
“The effect of the series of orders entered by the trial court was to require plaintiffs to obtain a medical expert witness who would state in writing that defendant was negligent in his treatment of Mr. Mendelson before plaintiffs would be allowed to proceed with their own discovery. Such orders are without authority under the discovery rules and the Civil Practice Act and effectively precluded the plaintiffs from establishing any part of the expert testimony which might be required in the trial of this case through testimony of defendant or the treating physicians. See Plost v. Louis Weiss Memorial Hospital (1978), 62 Ill. App. 3d 253, 378 N.E.2d 1176.” (69 Ill. App. 3d 227, 234.)
The court rejected any suggestion that “the plaintiff in a malpractice action must establish at the discovery stage that he will be able to sustain the allegations of the complaint at trial.” (69 Ill. App. 3d 227, 235.) It finally concluded that while the granting of summary judgment was not before it “that had the court granted summary judgment without first permitting plaintiff to depose defendant and the two treating physicians such judgment would necessarily be set aside as erroneous.” 69 Ill. App. 3d 227, 235.
While these cases are not strictly controlling because their principal consideration is not a summary judgment entered pursuant to section 57 of the Civil Practice Act, the reasoning developed by these courts is persuasive in addressing the question of whether a plaintiff must produce an expert witness who will sustain his allegations prior to trial. These cases correctly note that a party is not required to establish a prima facie case at any pretrial stage. Discovery is for discovering matters relevant to the case; trial is for the trying of that entire case. As in most medical malpractice cases, this particular case is one which calls for expert testimony. Any plaintiff in such a cause of action has numerous options by which to establish this case. An expert witness who will give testimony can be utilized. If no such witness can be found prior to trial, plaintiff may establish the necessary elements to sustain his cause of action by cross-examining the defendants or by using section 60 of the Civil Practice Act. (Ill. Rev. Stat. 1977, ch. 110, par. 60.) And at any time, either prior to or during trial, plaintiff may locate an expert witness who would be willing to testify. These alternatives reflect recognized procedures for proving one’s case at trial, and that is the only place the case need be sustained.
I recognize, of course, the existence and utility of summary judgment. Its function, as noted above, is to grant judgment when no facts are disputed or could be disputed by a jury, and where the moving party is clearly entitled to judgment as a matter of law. Summary judgment was granted here apparently because the trial court believed that Dr. DeVivo’s deposition testimony did not establish the requisite standard of medical care, defendant’s breach thereof, or present any other disputable facts. However, there do remain issues as to material facts in this case. And even if, as a result of Dr. DeVivo’s testimony, there did not, I do not believe that summary judgment would have been proper under the circumstances of this case.
Those cases discussed above wherein summary judgment was granted, i.e., Sanders v. Frost, Kwak v. St. Anthony DePadua Hospital, Hill v. Lutheran Hospital and Stevenson v. Nauton, all had one important factor missing which is present in the case at bar. All of those cases discussed the fact that not only did the plaintiff fail to show at the time of the hearing on summary judgment that he had an expert witness who could testify as to defendant’s negligence, but that he also could not show that he could obtain such testimony in the future. These are not the circumstances of the present case. Here appellant listed the names of three expert witnesses in his answers to interrogatories. The deposition of only one was taken. No one knows, particularly the defendants, what these witnesses can testify to. Moreover, plaintiff filed a motion for reconsideration subsequent to summary judgment being granted alleging that he had certain additional information and evidence on the question of the negligence of defendants, that this evidence would consist of additional testimony of Dr. DeVivo who could and would establish defendants’ negligence and that this information had come to plaintiff’s attention only on the night prior to the hearing on the motion for summary judgment. This motion for reconsideration was set for hearing on December 22, 1978. On December 20, 1978, plaintiff filed a motion for continuance on the grounds that Dr. DeVivo was leaving St. Louis Children’s Hospital for another job which would take him permanently out of St. Louis and that another deposition of Dr. DeVivo could not be taken prior to December 22. However, the trial court denied both motions on December 22. The trial court denied plaintiff’s request without the benefit of knowing what the alleged additional testimony by Dr. DeVivo was and the effect it would have. Therefore, it cannot be said that plaintiff could not present expert testimony necessary to establish defendant’s negligence.
There are numerous other reasons why that line of cases culminating in Stevenson v. Nauton should not be followed here. First, the fact that the trial court did not have before it any testimony given by Doctors Dodge and Pretsky, the other two expert witnesses listed by plaintiff, should have been enough to preclude the granting of summary judgment. Plaintiff had done his part in fulfilling the discovery requested by defendants by giving the identity of his experts. The defendants, in order to properly argue that plaintiff did not have and apparently could not obtain expert testimony to sustain his cause of action, should have taken the depositions of the other two experts, or have them testify under subpoena at the motion hearing, in order to dispel the potential impact they might have on the case and for the trial court to properly rule on the motion. This is so because plaintiff is under no duty to defend defendants’ case for them. Therefore it cannot be said that plaintiff would be unable to adduce expert testimony that defendants had breached the appropriate standard of medical care.
Second, it is well recognized that the plaintiff in a medical malpractice case is often unable to find a medical expert willing to testify against a fellow physician. (L’Orange v. Medical Protective Co. (6th Cir. 1968), 394 F.2d 57; Huffman v. Lindquist (1951), 37 Cal. 2d 465, 484, 234 P.2d 34, 46 (Carter, J., dissenting); Berkey v. Anderson (1969), 1 Cal. App. 3d 790, 798, 82 Cal. Rptr. 67, 72-73; Cline v. Lund (1973), 31 Cal. App. 3d 755, 107 Cal. Rptr. 629; Hill v. Lutheran Hospital (1978), 58 Ill. App. 3d 1003,1009; Sanders v. Frost (1969), 112 Ill. App. 2d 234, 241.) The result of the so-called “conspiracy of silence” is that a plaintiff with a meritorious cause of action is often unable to acquire expert witnesses to help establish his case. The Illinois courts have recognized this dilemma which a plaintiff faces and have accordingly advised trial courts to exercise extreme caution in granting a summary judgment. (Hill v. Lutheran Hospital; Sanders v. Frost.) Consistent therewith, the appellate court must be satisfied that we are not sanctioning a procedure fraught with the possibility of denying to appellant and future litigants their fundamental rights to have access to the courts, present their cases, and obtain remedies. (111. Const. 1970, art. I, §12.) However, that is surely the result if we turn appellant out of court on the basis of deposition testimony of one medical expert who could not render a definitive opinion, particularly when he had two other experts waiting in the wings whose opinions no one yet knows. I refuse to endorse such a procedure.
Third, I note that the depositions of defendants were not taken and therefore the trial court granted summary judgment without benefit of hearing their expert opinions. While plaintiff might be faulted for not deposing defendants, he need only establish a prima facie case at trial. This is why the court in Mendelson v. Feingold held that granting summary judgment without first hearing from defendants would have been erroneous. A plaintiff may elect, by choice or necessity, to proceed under section 60 of the Civil Practice Act at trial, which provides in pertinent part:
“Upon the trial of any case any party thereto 0 * * may be called and examined as if under cross-examination at the instance of any adverse party.” (Ill. Rev. Stat. 1977, ch. 110, par. 60.)
Or the standard of care may be established by cross-examination of the defendant or his witnesses. In either case, it is possible that appellants could extract enough admissions from appellees to establish the applicable medical standard of care and their breach thereof to make out a prima facie case of liability. These practices have been absolutely sanctioned by our courts. Walski v. Tiesenga (1978), 72 Ill. 2d 249, 259, 381 N.E.2d 279; Plost v. Louis A. Weiss Memorial Hospital (1978), 62 Ill. App. 3d 253, 258; Schaefer v. Sippel, 58 Ill. App. 3d 816, 820; Casey v. Penn (1977), 45 Ill. App. 3d 573, 360 N.E.2d 93, aff'd on rehearing (1977), 45 Ill. App. 3d 1068, 362 N.E.2d 1373; Anderson v. Martzke (1970), 131 Ill. App. 2d 61, 65; Comte v. O’Neil (1970), 125 Ill. App. 2d 450, 261 N.E.2d 21; Gorman v. St. Francis Hospital (1965), 60 Ill. App. 2d 441, 445, 208 N.E.2d 653.
Furthermore, defendants must show that they are entitled to a summary judgment as a matter of law. In order to do so, they must adduce evidentiary facts which negate the existence. of any genuine dispute as to a material fact and present a case free from doubt. Without the benefit of an affidavit or deposition from them, which rebuts inferences favorable to plaintiff, they have not met their burden of showing entitlement to summary judgment. Dakovitz v. Arrow Road Construction Co. (1975), 26 Ill. App. 3d 56, 64, 324 N.E.2d 444.
Fourth, I reiterate that there is no rule prohibiting either party from first engaging an expert after trial has commenced. (Simpson v. Johnson (1977), 45 Ill. App. 3d 789, 797; Burns v. West Chemical Products, Inc. (1973), 12 Ill. App. 3d 947, 956, 299 N.E.2d 455; Karris v. Goldman (1969), 118 Ill. App. 2d 85, 92, 254 N.E.2d 605.) While this rule is not commended, the Illinois courts have allowed an llth-hour expert to testify where plaintiff was diligent in his search for an expert but was unable to engage one prior to trial. The interests of justice outweigh the possible inconvenience to the parties under such circumstances.
I note, finally, that appellees have throughout this case urged that appellant has been dilatory in pursuing discovery. The trial court expressly considered the fact that the case had been pending over five years at the time appellant’s motion for reconsideration was denied. While I in no way countenance extended delays in the pursuit and disposition of cases, I also note appellees’ failure to depose all of appellant’s expert witnesses and failure to petition the trial court for any formal relief pursuant to Supreme Court Rules 219(c) and (d) (Ill. Rev. Stat. 1977, ch. 110A, pars. 219(c), (d)). I believe the proper solution for any solicitude regarding delay would be setting the case for trial rather than dismissing it via summary judgment. In that way, appellant would not be erroneously punished for his failure to obtain expert testimony and to establish a prima facie case at the time of the motion hearing, when the proper time for such action is the threshold moment of trial.
Therefore, I would reverse the judgment of the circuit court and remand this cause for further proceedings.