dissenting:
I respectfully dissent.
The trial judge in this case made two incorrect rulings that would require this court to reverse the trial court. First, when the trial court denied Dr. Detorre’s motion in limine to bar plaintiffs expert, Dr. Gomez, from testifying against him on standard of care, the trial court abused its discretion in granting Dr. Detorre’s motion to dismiss the case with prejudice6 when plaintiff did not want to proceed further. “If a trial judge dismisses a plaintiff’s cause of action as a result of a refusal to proceed with trial due to the unavailability of a necessary witness, the proper order of dismissal is one for want of prosecution.” Farrar v. Jacobazzi, 245 Ill. App. 3d 26, 33 (1993).
Plaintiff complains in his brief and oral argument that it is unfair for the defense to file motions in limine to bar her sole expert witness on the day the case is assigned for immediate trial. Yet, not only is there no rule of law that prohibits that practice, lawyers normally file their motions to bar at that time, and the trial bar is well aware of that process. If a lawyer feels that he or she needs that disposition to occur earlier, a motion judge in Cook County could require a party to file such motions earlier on plaintiffs motion to do so. Plaintiff in this case made no motion to do so.
However, in a medical negligence case, when a plaintiff’s sole expert witness is barred from testifying against a defendant physician at the last moment, the plaintiff has no expert to proceed in order to make a prima facia case and the circumstances are the same as the unavailability of a necessary witness.7 Thus, the dismissal in the case at bar should have been “for want of prosecution.” “It is established law in Illinois that a trial judge does not have the power to dismiss a cause of action for want of prosecution with prejudice.” Farrar v. Jacobazzi, 245 Ill. App. 3d at 34; see also Kraus v. Metropolitan Two Illinois Center, 146 Ill. App. 3d 210, 212 (1986) (“a dismissal for want of prosecution *** is not an adjudication on the merits, does not prejudice the case of the party against whom it is entered, and does not bar a subsequent suit on the same issues”). Thus, the order should have been entered, without prejudice.
Second, the trial court erred in barring Dr. Gomez from testifying against Dr. Joyce, both as to standard of care8 and to causation. The trial court first determined that Dr. Gomez failed to “demonstrate his familiarity ‘with the methods, procedures and treatments ordinarily observed by’ similarly situated physicians such as Dr. Joyce.” McWilliams v. Detorre, 02 — L—12242 (Cook Co. Cir. Ct. October 17, 2006), quoting Alm v. Loyola, 373 Ill. App. 3d at 5. I agree with the majority that to satisfy the familiarity prong, the plaintiff had to demonstrate that Dr. Gomez, an oncologist, had familiarity with the generally accepted standard of care required to determine when a cancer biopsy should be performed. However, this court’s decision in Silverstein— and the long line of cases like it — directs the outcome in the case at bar. Silverstein, 317 Ill. App. 3d at 1007 (“The cases instruct us to look to the expert’s precise testimony and determine whether he qualifies as an expert in the kind of treatment criticized”); Rosenberg v. Miller, 247 Ill. App. 3d 1023, 1029, 1030-31 (1993) (a dentist was qualified to testify against a periodontist, where the deviation concerned something that “all dentists” should know); Gorman v. Shu-Fang Chen, M.D., Ltd., 231 Ill. App. 3d 982, 983-85, 988 (1992) (a plastic surgeon was qualified to testify against an orthopedic surgeon concerning his failure, in light of plaintiff’s swollen jaw, to X-ray and hence diagnose a jaw fracture); Rock v. Pickleman, 214 Ill. App. 3d 368, 370, 374 (1991) (an internist was qualified to testify against a surgeon concerning the surgeon’s postoperative management of the patient, because proper management did not require knowledge of surgical procedures); Smock v. Hale, 197 Ill. App. 3d 732, 739-40 (1990) (a doctor who was an expert in Crohn’s disease was qualified to testify against a family practitioner who supervised the pregnancy of a patient with Crohn’s disease); Petkus v. Girzadas, 177 Ill. App. 3d 323, 328 (1988) (a cardiologist was qualified to testify against an orthopedic surgeon concerning “the minimum standards applicable to any physician rendering post-operative care” to a patient with a heart condition).
In Silverstein, we reversed the trial court’s determination that plaintiff’s expert, an internist, was unqualified to criticize the defendant physiatrist concerning her care and treatment of plaintiff, with the medication Indocin, after plaintiffs hip replacement surgery. Silverstein, 317 Ill. App. 3d at 1007-08. The expert’s testimony concerned defendant’s medical management of plaintiff after surgery and defendant’s prescription of the drug Indocin — areas in which the expert had considerable experience. Silverstein, 317 Ill. App. 3d at 1007-08. The negligence claim turned on whether the defendant physiatrist should have recognized that plaintiff had symptoms of an ulcer after taking Indocin. Silverstein, 317 Ill. App. 3d at 1002. We found the expert sufficiently familiar with the adverse effects of the medication — symptoms which “all physicians, including physiatrists” knew of, and were expected to recognize. Silverstein, 317 Ill. App. 3d at 1007.
The majority attempts to distinguish Silverstein from this case, claiming that a biopsy is a surgical procedure and that only another surgeon can testify about whether a surgeon breached the standard of care: (1) by failing to perform a biopsy, in light of plaintiffs abnormal lymph nodes, disclosed in both the mammogram and the CT scan; (2) by failing to inform the patient about the findings of both her mammogram and her CT scan; and (3) by failing to suggest to plaintiff that she should obtain a second opinion concerning the biopsy. It is well established that an expert does not have to be in the same specialized field, in order to render an opinion about the appropriate standard of care. Alm, 373 Ill. App. 3d at 5 (“a plaintiffs medical expert need not have the same specialty or subspecialty as the defendant doctors”), citing Jones v. Young, 154 Ill. 2d 39, 43 (1992); see also 735 ILCS 5/8 — 2501(a) (West 2006) (board certification in the same specialty is only one factor for a trial court to consider). Even the radiologist at the hospital where the mammogram was taken warned both defendant physicians that a biopsy was necessary. In Silverstein, plaintiffs expert was not in the same specialized field as the defendant physician, but had “considerable” experience with the medication that was prescribed. Silverstein, 317 Ill. App. 3d at 1007. In the case at bar, plaintiffs expert was not in the same specialty field as the surgeon, but he is a cancer specialist (oncologist) and knew from his training and daily dealings with surgeons that a biopsy was required under the applicable standard of care for all physicians. Silverstein, 317 Ill. App. 3d at 1007 (“all physicians” are expected to know certain things). The majority states that “neither the plaintiffs nor the dissent quotes Dr. Gomez’s ‘precise testimony’ that in their judgment qualifies Dr. Gomez ‘as an expert in the kind of treatment criticized.’ ” 387 Ill. App. 3d at 850 n.4, quoting Silverstein, 317 Ill. App. 3d at 1007. The precise testimony, quoted by plaintiffs in their briefs, is Dr. Gomez’s description of his training and experience, as well as his almost daily dealings with surgeons, concerning questions just like the one at issue here, namely, when to do a biopsy. In addition, Dr. Gomez took two rotating internships that included surgery, and it is common knowledge that surgeons confer with oncologists on cancer matters. It is common knowledge in today’s world that the only sure way to determine whether tissue is cancerous is to take a biopsy. Anything less is no more than Russian roulette. Somers, 373 Ill. App. 3d at 90 (if “ ‘the physician’s negligence is so grossly apparent or the treatment so common as to be within the everyday knowledge of a layperson,’ ” expert medical testimony is not required to establish either the standard of care or a deviation from it), quoting Sullivan, 209 Ill. 2d at 112, quoting Purtill v. Hess, 111 Ill. 2d 229, 242 (1986). But even more important, one does not need an expert to inform a jury that a patient has a right to be advised of a physician’s findings, especially abnormal lymph nodes. The fact that this oncologist did not perform biopsies does not make him unqualified as an expert; it only goes to the weight of his testimony.
The majority based its opinion on Dr. Gomez’s “concession” that surgeons may disagree with him and that the surgeon, with the patient, is the “ultimate” decisionmaker. 387 Ill. App. 3d at 838, 847. This description distorts Dr. Gomez’s actual testimony.9 Rock, 214 Ill. App. 3d at 373 (a doctor’s statements must be read in context). Dr. Gomez testified repeatedly that no surgeon had ever disagreed with his assessment about the need to do a biopsy. When opposing counsel asked, “[a]nd sometimes the surgeons do not do the biopsy,” Dr. Gomez replied emphatically, “[n]ot in any case [where] I’ve been present.” When opposing counsel asked what Dr. Gomez would do if, in a hypothetical case, some surgeon in the future did disagree, Dr. Gonzalez testified that, in that event, he would obtain a second opinion. The “ultimate” language quoted by the majority originally came from opposing counsel. Counsel asked: “The ultimate decision-maker between whether to perform a biopsy or not, that’s between the surgeon and the patient, correct?” Dr. Gomez answered: “The ultimate, yeah, supposed to.” Dr. Gomez subsequently clarified his answer, explaining that the patient was the ultimate decisionmaker. Dr. Gomez stated: “I want to add to the last statement about the biopsy, the patient in this situation has to be agreeable to have the biopsy, approved by him. You know, I would never make a decision for my patient.”
The majority then concluded that, since Dr. Gomez “conceded” in his discovery deposition that the “ultimate” determination to perform a biopsy is made between the surgeon and the patient, Dr. Gomez cannot opine that the failure to perform a biopsy is a breach of the standard of care, because he is not a surgeon. The majority and the trial court apparently believe that there is some “magic” in the decisionmaking process of a surgeon that only another surgeon can testify to. A biopsy is no more than a cutting and taking of a sample of tissue to discern cancer and its severity. When Dr. Gomez testified that the “ultimate” determination to perform a biopsy is made between the surgeon and the patient, he was referring to the fact that the patient must consent to the process; and in order to consent, the patient must be made aware of the findings that suggest a biopsy — findings that this patient was never told, according to plaintiffs’ account of what occurred in this case.
Since the trial court erred in granting the motion in limine, we must vacate the dismissal order, which resulted from this error. Rock, 214 Ill. App. 3d at 377 (since the summary judgment order resulted from the trial court’s error in striking plaintiffs medical expert, the summary judgment order had to be reversed).
Plaintiffs failure to satisfy the statutory requirements of notice and costs was not an absolute bar to a voluntary dismissal. See 387 Ill. App. 3d at 852, citing Valdovinos, 328 Ill. App. 3d at 265. In Valdovinos, this court held that we would excuse “plaintiffs’ failure to strictly comply with the requirements of section 2 — 1009” where no prejudice resulted. Valdovinos, 328 Ill. App. 3d at 267-68. In Valdovinos, we held that no prejudice resulted, where defendants “were given an opportunity to respond to the plaintiffs’ motion despite the lack of notice,” and where the court’s dismissal order directed plaintiffs to subsequently “pay costs and expenses to the defendants.” Valdovinos, 328 Ill. App. 3d at 267-68.
The majority is at a loss about how to properly characterize the trial court’s order regarding the motion in limine. On the one hand, the majority opinion states that our review of this order should be de novo, because the order was tantamount to a summary judgment order. 387 Ill. App. 3d at 844. On the other hand, the majority opinion states later that the motion in limine was not “the equivalent of a motion for summary judgment,” for notice purposes. 387 Ill. App. 3d at 850.
The majority stated: “In their main brief, the plaintiffs do not include an excerpt from the voir dire examination of Dr. Gomez that they claim satisfied the familiarity prong regarding the standard of care applicable to Dr. Joyce.” 387 Ill. App. 3d at 845. That statement is factually wrong. Plaintiffs include an extensive excerpt from the voir dire examination of Dr. Gomez on page 14 of their brief, which they state shows that Dr. Gomez was “familiar” with the standard of care required of surgeons.
The majority also stated that “Dr. Gomez cited no scientific support for his position” concerning causation. 387 Ill. App. 3d at 851. However, what Dr. Gomez actually stated during his discovery deposition was that his opinion was based on his extensive reading and experience over the last 30 years, and that he could not then recall precisely the names of texts. His opinion to a reasonable degree of medical certainty was that there was no question that the patient’s immune system had been compromised and that the immunosuppression enhanced her chances for developing a secondary malignancy.