Higgens v. House

JUSTICE KNECHT

delivered the opinion of the court:

This is an appeal from the judgment of the circuit court of Coles County denying plaintiffs’ motion to set aside the summary judgment entered in defendant Dr. Stephen L. House’s favor in a medical malpractice action. See 735 ILCS 5/2 — 1203, 2 — 1005 (West 1994). Plaintiffs appeal, arguing substantial justice between the parties was not achieved when the trial court denied their motion to set aside the summary judgment. We affirm.

In May 1994, plaintiffs Tina and Ronald Higgens filed a complaint alleging medical malpractice against defendant and Sarah Bush Lincoln Health Center (Health Center). In January 1996, plaintiffs voluntarily dismissed the Health Center.

On numerous occasions in the course of the litigation, plaintiffs failed to comply with defendant’s discovery requests and identify their proposed expert opinion witness(es). Eventually, on March 29, 1996, the trial court held a case management conference and entered a case management order directing plaintiffs to disclose their opinion witnesses within 30 days and produce such witnesses for deposition by June 28, 1996. Plaintiffs failed to disclose their opinion witnesses as ordered and, in May 1996, defendant filed a motion for summary judgment, arguing this failure entitled him to judgment as a matter of law.

Defendant sent counsel for plaintiffs a copy of the motion for summary judgment and notice of the June 19, 1996, hearing date, yet counsel for plaintiffs did not file a response to the motion and failed to appear at the hearing. Accordingly, the trial court entered summary judgment in defendant’s favor on June 19, 1996. On July 18, 1996, counsel for plaintiffs filed a motion to set aside the summary judgment, stating he had overlooked the notice of the hearing date but did have an expert who was available for deposition. Counsel did not explain his failure to file a response to the motion for summary judgment. Following a September 1996 hearing, the trial court denied plaintiffs’ motion to set aside the summary judgment.

In their brief, plaintiffs contend the order of summary judgment was a default order, entered as a sanction for failing to attend the hearing on the summary judgment motion (see 735 ILCS 5/2— 1301(d) (West 1994)). They argue the trial court should have liberally construed their motion to set aside the order, as courts do when ruling on petitions to vacate default orders entered pursuant to section 2 — 1301 of the Code of Civil Procedure (Code).

It is possible to view the summary judgment order as a default order or a sanction for discovery abuse. However, plaintiffs’ failure to file a response to the motion or identify an expert witness by the hearing date also justified the entry of summary judgment on the merits of defendant’s motion.

Contrary to defendant’s assertion, section 2 — 1401 of the Code has no application to these facts because plaintiffs filed their motion to set aside the order of summary judgment within 30 days of its entry. 735 ILCS 5/2 — 1401 (West 1994). The trial court retained jurisdiction to set aside the summary judgment, a final order disposing of the litigation, for 30 days after its entry. Board of Managers of Dunbar Lakes Condominium Ass’n II v. Beringer, 94 Ill. App. 3d 442, 446, 418 N.E.2d 1099, 1102 (1981).

We approach plaintiffs’ motion to set aside the summary judgment as a motion to reconsider or vacate the judgment pursuant to section 2 — 1203 of the Code. 735 ILCS 5/2 — 1203 (West 1994). Such a motion invokes the sound discretion of the trial court, and absent a showing the trial court abused its discretion, we will not disturb the court’s ruling on review. See Freeman v. Augustine’s, Inc., 46 Ill. App. 3d 230, 236, 360 N.E.2d 1245, 1249 (1977). We need not address the question of whether the trial court could have chosen to impose a sanction against the plaintiffs or their counsel as a means to spur them to disclose the expert and comply with future court orders. Perhaps another trial judge would have proceeded in a different fashion. We must focus on what the trial court did and whether that was an abuse of discretion. The issue presented is whether the trial court abused its discretion in denying plaintiffs’ motion to set aside the summary judgment where plaintiffs failed to respond to the motion for summary judgment and offered no reasonable explanation for their failure to identify an expert witness until after the trial court entered summary judgment in defendant’s favor.

In a medical malpractice case, Illinois law mandates a plaintiff prove (1) the proper standard of care by which to measure the defendant’s conduct, (2) a negligent breach of the standard of care, and (3) resulting injury proximately caused by the defendant’s lack of skill or care. Gorman v. Shu-Fang Chen, M.D., Ltd., 231 Ill. App. 3d 982, 986, 596 N.E.2d 1350, 1353 (1992). Necessary to the establishment of a prima facie case of medical negligence is the presentation of expert testimony to establish the applicable standard of care, a deviation from the standard, and the resulting injury to the plaintiff. Addison v. Whittenberg, 124 Ill. 2d 287, 297, 529 N.E.2d 552, 556 (1988).

The disposition of a medical malpractice claim by summary judgment is appropriate when no genuine issue of material fact remains to be resolved; accordingly, when a defendant files a summary judgment motion and affidavit establishing he was not negligent, it is incumbent on the plaintiff to substantiate his allegations of negligence through expert testimony. Brandeis v. Salafsky, 206 Ill. App. 3d 31, 35-36, 563 N.E.2d 1026, 1029 (1990). Where a plaintiff has failed to show the present ability to offer such expert testimony, summary judgment in a defendant’s favor is appropriate. Purtill v. Hess, 111 Ill. 2d 229, 250, 489 N.E.2d 867, 876 (1986); Smock v. Hale, 197 Ill. App. 3d 732, 741, 555 N.E.2d 74, 80 (1990).

Because plaintiffs failed to file a response to the motion for summary judgment, there was no genuine issue of material fact on the issue of medical malpractice, i.e., plaintiffs had not disclosed the expert required to establish the essential elements of their claim. In these circumstances, the court could grant the motion as a matter of law. Brandeis, 206 Ill. App. 3d at 36-37, 563 N.E.2d at 1029; Diggs v. Suburban Medical Center, 191 Ill. App. 3d 828, 834, 548 N.E.2d 373, 377-78 (1989).

When counsel for plaintiffs did not appear at the hearing on the motion for summary judgment, the trial court had defense counsel contact plaintiffs’ attorney. Counsel for plaintiffs indicated he inadvertently missed the hearing date, yet he did not assure the court he could produce an expert witness. We conclude the trial court’s entry of summary judgment was proper.

Whether the trial court’s ruling on a motion to reconsider or vacate a judgment achieved substantial justice between the litigants is a relevant inquiry in assessing whether the trial court abused its discretion in ruling on the motion. See Mryszuk v. Hoyos, 228 Ill. App. 3d 860, 863, 593 N.E.2d 900, 902 (1992). A reviewing court should determine whether, under the circumstances, it would have been reasonable to compel the nonmoving party to go to trial on the merits of the case. Mryszuk, 228 Ill. App. 3d at 863, 593 N.E.2d at 902. Plaintiffs argue, because their expert witness has now been disclosed and is available for deposition, a trial on the merits could go forward in a timely manner and without prejudice to defendant. However, examining plaintiffs’ lack of diligence throughout the discovery process in pursuing this claim, we conclude it would not be reasonable to compel defendant to proceed to trial.

In September 1995, defendant served plaintiffs with interrogatories regarding expert witnesses pursuant to Supreme Court Rule 220. 134 Ill. 2d R. 220 (repealed eff. January 1, 1996). Plaintiffs failed to answer defendant’s interrogatories and, in October 1995, defendant sent plaintiffs a letter pursuant to Supreme Court Rule 201(k), requesting compliance with his written discovery requests. 134 Ill. 2d R. 201(k). Plaintiffs did not respond to the letter and defendant filed a motion to compel in November 1995. The motion to compel was cancelled and plaintiffs agreed to disclose their expert witness(es) by January 31, 1996. Plaintiffs failed to disclose their expert(s) by that date.

In January or February 1996, defendant served plaintiffs with supplemental interrogatories pursuant to the recently amended Supreme Court Rule 213. 166 Ill. 2d R. 213. Plaintiffs did not answer the supplemental interrogatories or defendant’s request for production. Defendant sent plaintiffs another letter pursuant to Rule 201(k) and, in April 1996, filed another motion to compel.

The parties attended a case management conference in March 1996 and, as stated, plaintiffs failed to comply with the case management discovery order entered following the conference. Counsel for plaintiffs admits he has no compelling excuse for not complying with the trial court’s case management order regarding the disclosure of expert witnesses. Counsel states he was in contact with the intended expert witness regarding this case long before the complaint was filed but follow-up with the expert became difficult due to the expert’s move to a new Florida office.

As mentioned above, plaintiffs were notified of defendant’s motion for summary judgment and of the hearing date for the motion yet filed no response to the motion and missed the hearing date. Counsel assures us his failures to identify an expert witness and to attend the hearing on the motion for summary judgment were inadvertent and there was no wilful or intentional attempt to ignore the trial court’s orders.

We have already concluded the trial court correctly entered summary judgment in defendant’s favor. We conclude further the trial court’s denial of plaintiffs’ motion to set aside the summary judgment was proper in light of the lack of diligence in the prosecution of this case. Counsel for plaintiffs urges us to reverse the trial court’s ruling so his clients will not be punished for his errors. Counsel’s failure to exercise care in the handling of this case is not a proper basis for us to reverse the trial court’s judgment. See People v. Mamolella, 42 Ill. 2d 69, 72, 245 N.E.2d 485, 487 (1969). For nearly three years, defendant has expended resources in defending this action. Allowing plaintiffs to proceed to a trial on the merits, merely because they should not be penalized for the omissions of their own attorney, "would be visiting the sins of plaintiffls’] lawyer upon the defendant.” (Emphasis in original.) Link v. Wabash R.R. Co., 370 U.S. 626, 634 n.10, 8 L. Ed. 2d 734, 740 n.10, 82 S. Ct. 1386, 1390 n.10 (1962).

For the above reasons, the judgment of the circuit court is affirmed.

Affirmed.

CARMAN, J., concurs.