APPEAL from the Circuit Court of Cook County; the Hon. MINOR
K. WILSON, Judge, presiding.
MR. JUSTICE DIERINGER DELIVERED THE OPINION OF THE COURT:
___ N.E.2d ___ This is an appeal from an order of the circuit court of Cook County dismissing, without prejudice, a medical malpractice action, brought by Henry Plost (hereinafter called "the plaintiff") for want of prosecution. The basis of the dismissal was the plaintiff's failure to proceed to trial after his motion for a continuance, to allow the plaintiff to search for a medical expert, was denied.
The issues presented for review are (1) whether the trial court properly dismissed the plaintiff's cause of action for want of prosecution, and (2) whether the trial court properly denied the defendants' motion to dismiss with prejudice based on the plaintiff's alleged willful failure to comply with pretrial procedure and the rules of discovery.
On February 24, 1972, through March 6, 1972, the plaintiff was hospitalized in Louis A. Weiss Memorial Hospital, under the care of Dr. Leon B. Bobrow, for the purpose of undergoing tests and observation to determine whether or not the appellant had any physical disorder in the rectal area. The plaintiff was released from the hospital, from under the appellee's hospital and doctor's care due to the fact the appellees were unable to determine any physical disorder on the part of the plaintiff. Subsequent to that time, it was discovered the plaintiff was suffering from carcenoma of the rectum, commonly referred to as rectal cancer, and the defendants failed to diagnose and treat plaintiff's ailments as such.
On July 13, 1973, the plaintiff filed a complaint for malpractice against Drs. Louis Fishkin and Leon B. Bobrow and Louis A. Weiss Memorial Hospital (herein called "the defendants"). An answer was filed on behalf of each of the defendants, and discovery was initiated. On July 30, 1976, this cause was called for trial and for the hearing of several pending motions for summary judgment, based upon the grounds the plaintiff has no medical experts to testify as to the alleged malpractice of the defendants. The pending motions to dismiss by the defendants were continued to August 17, 1976, at which time the plaintiff's attorneys were to produce the names of their medical experts.
On August 17, 1976, the plaintiff's attorneys submitted answers to supplemental interrogatories which listed those experts who may be called upon to testify at trial as follows: J.A. Raskin, M.D.; J. Martin Lebowitz, M.D.; S.J. Pastorelle, M.D. and George Block, M.D. At that time it was also represented by attorneys for the plaintiff a report regarding Dr. Pastorelle's opinion and conclusion regarding medical malpractice was prepared and given to each of the defendants. The case was then continued for hearing until September 7, 1976.
1 On September 7, 1976, an order was entered continuing the matter until October 6, 1976, for a status call and for the purpose of allowing the defendants to take depositions of Drs. Block, Lebowitz and Raskin. On October 6, 1976, an order was entered limiting the plaintiff to those experts listed in his answers to interrogatories. We hasten to point out this order is a primary cause of the plaintiff's difficulty in presenting his claim. An order limiting witnesses is 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. The better practice is to depose the witness after court hours.
As of October 6, 1976, the attorneys for the defendants no longer indicated the desire to take the deposition of the three doctors in question and the case was tentatively set for trial on October 14, or October 15, 1976.
On October 8, 1976, this cause was set for trial due to a change in the trial court's schedule. On October 8, 1976, attorneys for the defendants presented motions to dismiss plaintiff's cause of action for failure to produce an expert witness. The attorneys for the defendants maintained Drs. Block, Raskin and Lebowitz would not testify as experts in the case pursuant to a letter written to Judge Canel dated August 23, 1976; and the plaintiff's attorney was unable to produce Dr. Pastorelle to testify. The attorney for the plaintiff filed an affidavit on October 8, 1976, in which he stated for a period of approximately the last six months he had spoken with Drs. Lebowitz, Block and Raskin concerning the status of this case, and subsequent to the letter written to Judge Canel concerning the testimony of these doctors, he had attempted on several occasions to contact those doctors with no success. In addition to the aforementioned motions and affidavits, the plaintiff's attorneys filed an additional affidavit in which he stated his expert witness, Dr. S.J. Pastorelle, died in September of 1976 with the plaintiff's attorneys' first knowledge of the doctor's death coming on October 7, 1976. Finally, the attorneys for the plaintiff filed a motion for a 60-day continuance based upon the fact his expert medical witness had died, with the first knowledge of the doctor's death coming to the plaintiff's attorneys on October 7, 1976.
On October 8, 1976, a hearing was held at which time the aforementioned motions were heard. An order was entered denying the plaintiff's motion for continuance, denying defendants' motion to dismiss, dismissing the cause of action for want of prosecution, and granting the defendants leave to file their petitions for fees and costs.
On October 25, 1976, a second hearing was held concerning the defendants' pending motions for fees and costs. An order was entered stipulating to the death of Dr. S.J. Pastorelle as being on August 19, 1976; allowing the defendants' motions for bill of cost, but staying execution pending the outcome of this appeal; and denying defendants' motion for fees. From this order and the order of October 8, 1976, this appeal is taken.
The plaintiff maintains the trial court was in error for dismissing his cause of action for want of prosecution. Put another way, the plaintiff claims the court erred in denying his motion for a continuance.
2 The record reveals on August 17, 1976, the plaintiff, during discovery, produced to the defendants the names of the plaintiff's four possible medical witnesses. On October 6, 1976, and a few days prior to the schedule trial, the court entered an order limiting the plaintiff to those four experts listed in his answers to interrogatories. As previously mentioned, we feel this order led to the improper result in this case. A trial court should not and cannot properly close discovery as to a party's witnesses or limit a party's witnesses to those previously disclosed, even during trial.
During inquiry with regard to taking depositions the defendants discovered one of the plaintiff's expert witnesses (Dr. Pastorelle) had died and the other three doctors indicated a desire not to testify. At the October 8, 1976 hearing the plaintiff indicated his first knowledge of Dr. Pastorelle's death had come just one day prior to the hearing and he had attempted, on several occasions, within the previous two months, to contact the other three doctors listed as possibly testifying, but had no success in ...