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Prather v. Decatur Memorial Hospital





APPEAL from the Circuit Court of Macon County; the Hon. DONALD W. MORTHLAND, Judge, presiding.


Rehearing denied June 2, 1981.


Summary judgment for the doctor.

We affirm.

Mrs. Prather sued the three named defendants for medical malpractice that resulted in injuries to her husband. Dr. Velek — one of the defendants — moved for summary judgment. The motion was granted and plaintiff appeals pursuant to Supreme Court Rule 304(a) (73 Ill.2d R.304(a)).

This action commenced long ago with the filing of a complaint on October 1, 1976. The complaint was dismissed on motion because an excessive ad damnum was pleaded (see Ill. Rev. Stat. 1979, ch. 110, par. 39). This court reversed and our mandate issued on October 3, 1977. Plaintiff's amended complaint was filed February 26, 1979. After answering, Dr. Velek filed a motion to compel disclosure of expert witnesses on May 30, 1979, and a notice of hearing on June 4, 1979. The motion was heard as scheduled on July 13, 1979. Plaintiff did not appear, but defense counsel represented that counsel for plaintiff had no objections to the motion. The trial judge ordered disclosure by October 1, 1979, of:

"All experts and witnesses on behalf of Plaintiffs in the trial of this cause and any persons whose names and current addresses are not so disclosed are hereby barred from testifying on trial herein on behalf of Plaintiffs."

Before the order was entered, plaintiff had furnished on June 25, 1979, the names of two doctors, Trangoth and Howell, as experts.

The cause was set for trial, but then continued on plaintiff's motion. On June 9, 1980, defendant moved for summary judgment and attached to the motion Velek's sworn statement. On June 18, 1980, the case was allotted for jury trial to commence August 18. On June 20, 1980, plaintiff filed an objection to the summary judgment motion and a motion for relief from the July 17, 1979, "disclosure of experts" order. The motion for relief claimed that plaintiff needed more time to develop her case, had obtained the services of an expert, had received information from the expert, and defendant would not be prejudiced by the granting of relief. On June 20, 1980, plaintiff also filed a motion for leave to file a second amended complaint, with the proposed amended complaint attached. The amendment contained one additional allegation of negligence against Dr. Velek.

Also on June 20, 1980, plaintiff filed a "certificate of compliance" stating that a four-page medical report by Paul B. Myers, M.D., dated May 27, 1980, had been sent to all counsel of record. On June 24, defendant moved to strike the certificate and the report, and objected to plaintiff's motion for relief. The trial judge denied plaintiff's motion for relief and stated that the disclosure order had stood for almost a year, that it was properly entered and that plaintiff had given no good reason for relief. The trial judge vacated the August jury trial setting at plaintiff's request and took under advisement the motion for leave to file a second amended complaint.

Plaintiff filed a motion to reconsider the denial of her motion for relief on July 2, 1980. Counsel's affidavit was attached to the motion. In it, counsel claimed that: plaintiff was not in wilful or vexatious violation of a court order; plaintiff had sought the aid of the American Association of Medico Legal Consultants in procuring expert witnesses; plaintiff had mistaken one expert as willing to testify when in fact the witness was only willing to evaluate the case, and had immediately sought another expert who would testify; a doctor who would testify was found, a report was received, and it was immediately forwarded to counsel and court. Defendant objected to the motion for reconsideration. On July 23, 1980, after hearing, the trial judge granted Dr. Velek's motion for summary judgment and entered a written order on July 31, 1980.

On August 8, 1980, plaintiff filed an affidavit as an "offer of proof." The affidavit was by Dr. Paul B. Myers. However, we take this offer of proof as applicable to only the remaining two defendants in the case because plaintiff did not ask for any relief from the written order entered July 31, 1980. Indeed, since plaintiff's notice of appeal was dated August 27, and her amended notice of appeal was dated September 8, these notices of appeal would be void as premature if it had been argued that reconsideration was sought because the trial court's first order after July 31 is dated September 9, 1980.

• 1-4 Having stated the pertinent portions of the quite involved procedural history of the case, we now turn to the summary judgment issue. The rule is quite familiar. Summary judgment should be granted only where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. The court must consider the pleadings, exhibits, and affidavits and construe them strictly against the moving party and liberally in favor of the opponent. The right of the moving party must be free of doubt. (Peterson v. B/W Controls, Inc. (1977), 50 Ill. App.3d 1026, 366 N.E.2d 144.) Where facts contained in an affidavit in support of a motion for summary ...

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