APPEAL from the Circuit Court of Cook County; the Hon. DAVID
CANEL, Judge, presiding.
MR. JUSTICE LINN DELIVERED THE OPINION OF THE COURT:
Plaintiff, Evelyn Treadwell, brought a malpractice action against defendant, Dr. John Chiakmakis. Plaintiff contends she suffered disability by virtue of the negligence of the defendant in his care and treatment of her. The trial court entered summary judgment in favor of the defendant.
From that order the plaintiff now appeals.
We reverse the summary judgment entered by the trial court.
Plaintiff's complaint alleged that in May of 1971, defendant, a duly licensed podiatrist, performed surgery upon her for the treatment of a hammer toe condition. The surgical procedures performed were described as bilateral bunionectomies with arthroplasties of the lesser digits. *fn1 It was also alleged in plaintiff's complaint that approximately 1 1/2 years after the operation plaintiff discovered that the toes upon which defendant had performed surgery were elongated, that she could not move them, and that as a result of that condition she experienced great pain and discomfort.
The record further discloses that, on January 16, 1973, plaintiff visited another physician, Dr. Garry Isenstadt, for treatment. In a written report, Dr. Isenstadt diagnosed plaintiff's state as an "overcorrection" of the hammer toe condition. He noted in his report that plans were being made to perform "corrective" surgery. In April of 1973, this surgery was performed by Dr. Isenstadt. Plaintiff alleges that the subsequent surgery did not correct the alleged injury caused by defendant. Plaintiff's complaint charged that she had suffered a permanent disability because defendant allegedly conducted the surgery negligently and failed to render proper postoperative care. Defendant denied these allegations in his answer to the complaint.
On May 11, 1976, the trial court entered an order scheduling a pretrial conference for May 25, 1976, and directed that discovery be completed by that date. At the pretrial conference it was disclosed that although plaintiff had completed answers to defendant's supplementary interrogatories on May 10, 1976, these answers had not been filed with the court or provided to defense counsel. The trial court thereupon ordered plaintiff to file her answers with the court within seven days and further ordered that the pretrial conference be continued to June 14, 1976.
Plaintiff complied with this order. In response to defendant's inquiry for the names of "all experts and/or treating or consulting doctors who would testify for the plaintiff at trial," plaintiff provided the names of Dr. Garry Isenstadt and Dr. Jerome Frankel. Previously, in an answer to defendant's earlier interrogatories, these doctors had been named by plaintiff as her treating physicians.
Without notice to plaintiff's counsel, defendant's counsel contacted both of these physicians by telephone purportedly for the purpose of arranging to take their depositions. As a result of these conversations, defendant's counsel produced signed statements by Dr. Isenstadt and Dr. Frankel indicating that they had never agreed to serve as experts for anyone in the instant case, that they had never discussed the case with plaintiff's attorneys, that they knew nothing about previous treatment rendered to plaintiff other than the fact that there was prior surgery, and that they had no opinion with regard to the propriety of the prior surgery or with regard to any alleged malpractice.
On June 20, 1976, defendant filed a motion for summary judgment. He argued that since Drs. Isenstadt and Frankel, plaintiff's purported expert witnesses, had denied that they had agreed to be expert witnesses and stated that they held no opinion regarding the defendant's actions, plaintiff would be unable to produce evidence of defendant's alleged negligence through expert testimony and thus would be unable to present her case at the time of trial.
In plaintiff's answer to the motion for summary judgment, it was stated the "[p]laintiff will furnish at the trial of this cause sufficient proof to establish liability of the defendant under the rules of evidence and under the laws of the state of Illinois." Plaintiff requested that the court rescind its order closing discovery to permit the plaintiff an opportunity to rehabilitate Drs. Isenstadt and Frankel as experts to testify on her behalf or to show the availability of other expert testimony. The trial court refused this request and granted defendant's motion for summary judgment.
1, 2 Rule 219 of the Illinois Supreme Court Rules, governing pretrial procedures, provides:
"If a party * * * unreasonably refuses to comply with any provision of Rules 201 through 218, or fails to comply with any order entered under these rules, the court * * * may enter, in addition to remedies elsewhere specifically provided, such orders ...