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05/28/97 TINA E. HIGGENS AND RONALD HIGGENS v. DR.

May 28, 1997

TINA E. HIGGENS AND RONALD HIGGENS, PLAINTIFFS-APPELLANTS,
v.
DR. STEPHEN L. HOUSE, DEFENDANT-APPELLEE, AND SARAH BUSH LINCOLN HEALTH CENTER, DEFENDANT.



Appeal from Circuit Court of Coles County. No. 94L52. Honorable Paul C. Komada, Judge Presiding.

As Corrected July 29, 1997.

Honorable James A. Knecht, J., Honorable Rita B. Garman, J. - Concur, Honorable Robert W. Cook, J. - Dissent. Justice Knecht delivered the opinion of the court.

The opinion of the court was delivered by: Knecht

The Honorable Justice KNECHT delivered the opinion of the court:

This is an appeal from the judgment of the circuit court of Coles County denying plaintiffs' motion to set aside the summary judgment entered in defendant Dr. Stephen L. House's favor in a medical malpractice action. See 735 ILCS 5/2-1203, 2-1005 (West 1994). Plaintiffs appeal, arguing substantial justice between the parties was not achieved when the trial court denied their motion to set aside the summary judgment. We affirm.

In May 1994, plaintiffs Tina and Ronald Higgens filed a complaint alleging medical malpractice against defendant and Sarah Bush Lincoln Health Center (Health Center). In January 1996, plaintiffs voluntarily dismissed the Health Center.

On numerous occasions in the course of the litigation, plaintiffs failed to comply with defendant's discovery requests and identify their proposed expert opinion witness(es). Eventually, on March 29, 1996, the trial court held a case management conference and entered a case management order directing plaintiffs to disclose their opinion witnesses within 30 days and produce such witnesses for deposition by June 28, 1996. Plaintiffs failed to disclose their opinion witnesses as ordered and, in May 1996, defendant filed a motion for summary judgment, arguing this failure entitled him to judgment as a matter of law.

Defendant sent counsel for plaintiffs a copy of the motion for summary judgment and notice of the June 19, 1996, hearing date, yet counsel for plaintiffs did not file a response to the motion and failed to appear at the hearing. Accordingly, the trial court entered summary judgment in defendant's favor on June 19, 1996. On July 18, 1996, counsel for plaintiffs filed a motion to set aside the summary judgment, stating he had overlooked the notice of the hearing date but did have an expert who was available for deposition. Counsel did not explain his failure to file a response to the motion for summary judgment. Following a September 1996 hearing, the trial court denied plaintiffs' motion to set aside the summary judgment.

In their brief, plaintiffs contend the order of summary judgment was a default order, entered as a sanction for failing to attend the hearing on the summary judgment motion (see 735 ILCS 5/2-1301(d) (West 1994)). They argue the trial court should have liberally construed their motion to set aside the order, as courts do when ruling on petitions to vacate default orders entered pursuant to section 2-1301 of the Code of Civil Procedure (Code).

It is possible to view the summary judgment order as a default order or a sanction for discovery abuse. However, plaintiffs' failure to file a response to the motion or identify an expert witness by the hearing date also justified the entry of summary judgment on the merits of defendant's motion.

Contrary to defendant's assertion, section 2-1401 of the Code has no application to these facts because plaintiffs filed their motion to set aside the order of summary judgment within 30 days of its entry. 735 ILCS 5/2-1401 (West 1994). The trial court retained jurisdiction to set aside the summary judgment, a final order disposing of the litigation, for 30 days after its entry. Board of Managers of Dunbar Lakes Condominium Ass'n II v. Beringer, 94 Ill. App. 3d 442, 446, 418 N.E.2d 1099, 1102, 50 Ill. Dec. 105 (1981).

We approach plaintiffs' motion to set aside the summary judgment as a motion to reconsider or vacate the judgment pursuant to section 2-1203 of the Code. 735 ILCS 5/2-1203 (West 1994). Such a motion invokes the sound discretion of the trial court, and absent a showing the trial court abused its discretion, we will not disturb the court's ruling on review. See Freeman v. Augustine's, Inc., 46 Ill. App. 3d 230, 236, 360 N.E.2d 1245, 1249, 4 Ill. Dec. 870 (1977). We need not address the question of whether the trial court could have chosen to impose a sanction against the plaintiffs or their counsel as a means to spur them to disclose the expert and comply with future court orders. Perhaps another trial judge would have proceeded in a different fashion. We must focus on what the trial court did and whether that was an abuse of discretion. The issue presented is whether the trial court abused its discretion in denying plaintiffs' motion to set aside the summary judgment where plaintiffs failed to respond to the motion for summary judgment and offered no reasonable explanation for their failure to identify an expert witness until after the trial court entered summary judgment in defendant's favor.

In a medical malpractice case, Illinois law mandates a plaintiff prove (1) the proper standard of care by which to measure the defendant's conduct, (2) a negligent breach of the standard of care, and (3) resulting injury proximately caused by the defendant's lack of skill or care. Gorman v. Shu-Fang Chen, M.D., Ltd., 231 Ill. App. 3d 982, 986, 596 N.E.2d 1350, 1353, 173 Ill. Dec. 471 (1992). Necessary to the establishment of a prima facie case of medical negligence is the presentation of expert testimony to establish the applicable standard of care, a deviation from the standard, and the resulting injury to the plaintiff. Addison v. Whittenberg, 124 Ill. 2d 287, 297, 529 N.E.2d 552, 556, 124 Ill. Dec. 571 (1988).

The disposition of a medical malpractice claim by summary judgment is appropriate when no genuine issue of material fact remains to be resolved; accordingly, when a defendant files a summary judgment motion and affidavit establishing he was not negligent, it is incumbent on the plaintiff to substantiate his allegations of negligence through expert testimony. Brandeis v. Salafsky, 206 Ill. App. 3d 31, 35-36, 563 N.E.2d 1026, 1029, 150 Ill. Dec. 899 (1990). Where a plaintiff has failed to show the present ability to offer such expert testimony, summary judgment in a defendant's favor is appropriate. Purtill v. ...


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