APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE JUDITH N. COHEN, JUDGE PRESIDING.
Rehearing Denied September 21, 1995. Petition for Leave to Appeal Denied January 31, 1996.
The Honorable Justice Rizzi delivered the opinion of the court: Greiman, P.j., and Cerda, J., concur.
The opinion of the court was delivered by: Rizzi
The Honorable Justice RIZZI delivered the opinion of the court:
Plaintiff, Diane E. Kirk, as Independent Administrator of the Estate of Jerome Kirk, deceased, filed this medical malpractice suit alleging wrongful death and survival actions against defendants Michael Reese Hospital and Medical Center, Dr. Charles Campbell, Dr. LaFontaine, Dr. Vitullo, and Dr. B. Zahed. The trial court granted summary judgment in favor of all defendants. *fn1 Plaintiff filed a motion to vacate and reconsider the summary judgment, which was denied. Plaintiff appeals from the denial of her motion to vacate and reconsider the summary judgment. We vacate the summary judgment and remand with directions.
This suit was originally filed on behalf of Jerome Kirk, a minor, by his mother and next friend, Diane Kirk, on December 13, 1983. The suit alleged that the defendants were guilty of medical malpractice involving an operative procedure that was performed on Jerome Kirk's heart in March of 1982. Jerome Kirk died during the course of the litigation, and a Second Amended Complaint was filed on October 26, 1987, naming as plaintiff, Diane E. Kirk, as Independent Administrator of the Estate of Jerome Kirk, deceased. The Second Amended Complaint alleges wrongful death and survival actions.
One of the defendants filed a motion for summary judgment alleging that the plaintiff failed to identify an expert witness who could establish that the defendant had breached the appropriate standard of care during treatment of the decedent. The other defendants joined in the motion for summary judgment. Each of the defendants filed affidavits to support summary judgment, stating that they had complied with the applicable standard of care in their treatment of the decedent. Plaintiff was given 90 days to file a response to the motion for summary judgment, and the flatter was set for hearing on April 4, 1991.
On April 3, 1991, plaintiff presented an emergency motion to voluntarily dismiss the case without prejudice pursuant to 735 ILCS 5/2-1009 (West 1992). The trial court continued the motion to April 4, when the motion for summary judgment was set for hearing. On April 4, the trial court decided to hear the motion for summary judgment prior to hearing plaintiff's motion for a voluntary dismissal. See Gibellina v. Handley (1989), 127 Ill. 2d 122, 535 N.E.2d 858, 129 Ill. Dec. 93.
At the hearing on April 4, 1991, plaintiff's counsel advised the trial court that he did not have an expert witness to testify againstthe defendants, and he represented to the trial court that there was no certainty that an expert could be identified at any time in the near future. The trial court then entered summary judgment in favor of the defendants for the reason that plaintiff did not have an expert witness to testify against defendants.
On May 2, 1991, plaintiff filed an emergency motion for substitution of attorneys and for leave to file instanter plaintiff's motion to vacate and reconsider the summary judgment. The motion for substitution of attorneys was allowed, and plaintiff's present counsel substituted for her previous counsel. Plaintiff was also granted leave to file her motion to vacate and reconsider the summary judgment. After a hearing, the trial court denied plaintiff's motion to vacate and reconsider the summary judgment; it is this order that is the subject matter of this appeal.
Plaintiff's motion is supported by the affidavit of her present counsel. His affidavit states that he was retained by plaintiff following the entry of the April 4, 1991 order of summary judgment; that he provided the medical records regarding the decedent minor Jerome Kirk to Dr. Aladin Mariano, M.D.; that on or about April 25, 1991, he received the opinions of Dr. Mariano regarding the care and treatment received by the decedent minor, as reflected in Dr. Mariano's accompanying affidavit; that Dr. Mariano did not formulate his opinions in this case, and had no opinions in this case prior to the April 4, 1991 hearing, and his opinions regarding same were unavailable to plaintiff or her prior counsel before that time.
Plaintiff's motion states, in part, as follows:
3. That plaintiff's current counsel has secured the testimony of a licensed physician and surgeon practicing in the specialty of cardiovascular and thoracic surgery who will testify as to deviations from the standard of care by defendants, and as to issues of proximate cause and damages.
4. That attached hereto as Exhibit "B" and incorporated herein, is the affidavit of Aladin Mariano, M.D. ...