specially concurring in part and dissenting in part:
I agree with the majority “that summary judgment *** was appropriate in this case because the Good Samaritan statute is applicable.” (176 Ill. App. 3d at 916.) The Good Samaritan statute (Ill. Rev. Stat. 1987, ch. 111, par. 4400 — 30) provides:
“Any person licensed pursuant to this Act or any person licensed to practice the treatment of human ailments in any other state or territory of the United States, except a person licensed to practice midwifery, who in good faith and without prior notice of the illness or injury provides emergency care without fee to a person, shall not, as a result of his acts or omissions, except wilful or wanton misconduct on the part of such person, in providing such care, be liable for civil damages.” (Emphasis added.)
The defendant, Dr. William D. Matviuw, and the emergency care he provided in the case at bar came within the expressed purview of the foregoing statute. There was no dispute that Dr. Matviuw provided the emergency care to the Johnsons in “good faith.” Nor was there any debate that he did so “without prior notice of the illness or injury” of the Johnsons. For Dr. Matviuw to “be liable for civil damages” for the emergency care he provided the Johnsons, his acts or omissions of misconduct must have been wilful or wanton. Plaintiff made no such allegations against him. Plaintiff’s complaint simply charged Dr. Matviuw with mere negligence. Plaintiff did not allege that any of the acts or omissions of misconduct by Dr. Matviuw in his emergency treatment and care of the Johnsons was wilful or wanton. For this reason, plaintiff’s complaint did not allege a cause of action against Dr. Matviuw and the trial court properly entered summary judgment in his favor.
Because Dr. Matviuw and the emergency treatment he provided in the case at bar came within the purview of the Good Samaritan statute and plaintiff’s complaint did not allege a cause of action against him, our affirmance of the entry of summary judgment in Dr. Matviuw’s favor on that ground appropriately disposes of the instant appeal. It is, therefore, unnecessary to decide plaintiff’s additional assertions that “(1) summary judgment was improper since Dr. Matviuw’s affidavit was conclusory and self-serving,” and “(2) summary judgment was premature since plaintiff’s experts had not yet been deposed.” Consequently, the majority needlessly decides that “plaintiff was given a fair opportunity to contradict Dr. Matviuw’s affidavit, and that the trial court’s entry of summary judgment for defendant [on that basis] was not an abuse of discretion” (176 Ill. App. 3d at 915) and to which I dissent.
I wholeheartedly agree with the majority’s observation that “[o]ne of the major concerns of courts regarding a rush to summary judgment in a malpractice case is the difficulty plaintiffs [and defendants] may have in obtaining a medical expert to testify against one in the same profession.” (176 Ill. App. 3d at 915.) The rigors and perplexities of the plaintiff and defendant medical malpractice trial attorneys are diverse, extremely unique, demanding and vexatious. Although they may not be legally entitled to any special considerations, in my judgment the conduct of these attorneys, or any other attorney for that matter, should not be construed to deny their clients their rightful day in court on a hearing on the merits of the clients’ claims by a fact finder, unless such attorney’s conduct clearly and unequivocally demands such denial. Plaintiff’s attorneys’ conduct in the case at bar does not demand such denial.
In the case at bar, no discovery schedule was set, and the majority correctly observes that plaintiff’s attorney “did not violate any discovery orders.” (Emphasis added.) (176 Ill. App. 3d at 914.) As the majority additionally correctly observes, plaintiff’s attorney “disclosed his expert witnesses to all defense counsel” (176 Ill. App. 3d at 914) and the scheduled date for their depositions and affidavits.
Dr. Matviuw’s motion for summary judgment was predicated on Dr. Matviuw’s contention that he was not liable under the Good Samaritan statute and on Dr. Matviuw’s affidavit and deposition that his treatment of the Johnsons was medically proper. In response to Dr. Matviuw’s motion for summary judgment, plaintiff’s attorney moved to strike Dr. Matviuw’s affidavit as insufficient. Plaintiff’s attorney also contended that the Good Samaritan statute was inapplicable. The majority aptly points out that “[t]he record indicates that [plaintiff's attorney] intended to stand on his assertions of an insufficient affidavit and inapplicability of the [Good Samaritan] statute.” (176 Ill. App. 3d at 914-15.) Had plaintiff’s attorney prevailed on either contention, counteraffidavits by plaintiff would not have been necessary at that stage of the proceedings.
The trial court rejected plaintiff’s contention that Dr. Matviuw’s affidavit was insufficient and that the Good Samaritan statute was inapplicable. Thereupon, plaintiff’s attorney requested a continuance to obtain affidavits from his previously disclosed expert witnesses. The trial court denied the request and entered summary judgment for Dr. Matviuw. In my judgment, the trial court abused its discretion in so doing. (Hansbrough v. Kosyak (1986), 141 Ill. App. 3d 538, 490 N.E.2d 181.) Plaintiff’s attorney did in fact depose his two expert witnesses within six weeks after summary judgment was entered. It does not appear from the record before us that plaintiff’s attorney’s conduct in the case at bar demanded the drastic result of denying his client his rightful day in court on a full hearing on the merits of his claim by the appropriate fact finder. In my judgment, it was improper and an abuse of discretion for the trial court on the facts in the instant case to defeat that right of plaintiff by the entry of summary judgment for defendant. I therefore dissent.