The opinion of the court was delivered by: Justice Fitzgerald
Docket No. 96931-Agenda 23-September 2004.
In this medical malpractice case, the circuit court of Winnebago County denied plaintiff's request to substitute counsel immediately preceding arguments on defendant's motion for summary judgment, granted defendant's motion for summary judgment, and subsequently denied plaintiff's motion to reconsider. Plaintiff appealed these rulings, and the appellate court affirmed. No. 2-01-1386 (unpublished order under Supreme Court Rule 23). We allowed plaintiff's petition for leave to appeal. 177 Ill. 2d R. 315. The principal issue we consider in this case is whether the trial court abused its discretion in denying substitution of counsel prior to arguments on defendant's motion for summary judgment.
In September 1996, defendant, Dr. Robert Eichmann, a board-certified specialist in obstetrics and gynecology, performed abdominal surgery on plaintiff, Janet Sullivan. Sullivan experienced complications following surgery, including a perforated bowel. In September 1998, Sullivan filed a medical malpractice complaint against Dr. Eichmann, and alleged that Dr. Eichmann's negligent conduct caused her medical complications. A letter attached to the complaint, signed by Dr. Harrith M. Hasson, provided that Dr. Eichmann deviated from the standard of care during his treatment of Sullivan. See 735 ILCS 5/2-622 (West 1998). At the time of filing her complaint, Sullivan was represented by trial counsel Gregory Barrett.
Subsequently, the parties conducted discovery. Several times during discovery, court orders were amended to extend the time to disclose and depose fact and expert witnesses. The trial court repeatedly ordered Sullivan to formally disclose the name of her expert and the expert's opinions, and to make the expert available to be deposed. On February 15, 2001, during a routine status hearing, Barrett informed the court that Dr. Hasson was withdrawing as an expert and was not willing to testify that Dr. Eichmann was negligent. Barrett requested additional time to seek a new expert. The court granted the request, and ordered Sullivan to disclose an expert and answer all interrogatories by March 19, 2001. Sullivan did not comply with the trial court's order. On April 6, 2001, Dr. Eichmann filed his "Combined Motions to Dismiss and/or for Summary Judgment." Pursuant to Supreme Court Rule 219, Dr. Eichmann sought the dismissal of Sullivan's complaint due to Sullivan's failure to comply with the trial court's discovery orders. See 166 Ill. 2d R. 219(c). Alternatively, Dr. Eichmann sought summary judgment as a matter of law because Sullivan failed to identify or provide the opinion of an expert witness who would state that Dr. Eichmann deviated from the standard of care. See 735 ILCS 5/2-1005 (West 2002). Dr. Eichmann argued that without an expert Sullivan was not able to establish a prima facie case of medical negligence.
On May 4, 2001, the motion for summary judgment was heard by the trial court. A court reporter was not present during the hearing and, therefore, the record does not contain a transcript. However, Sullivan's motion to reconsider and petition for leave to appeal to this court, together with Dr. Eichmann's brief to this court and the transcript from the hearing on Sullivan's motion to reconsider, provide a sketch of what transpired on May 4, 2001. The transcript discloses that Sullivan's new counsel, Michael Holoka, provided an oral account of what occurred in court on May 4, 2001. Dr. Eichmann did not contest the facts as orally detailed by Sullivan's attorney. Further, Dr. Eichmann did not contest the facts as outlined by Sullivan in her petition for leave to appeal to this court or during oral argument before this court. It is evident, therefore, that the following occurred on May 4, 2001.
Sullivan's original trial counsel, Barrett, appeared at the summary judgment hearing. Sullivan herself was not personally present. Additionally, a new attorney, Michael Holoka, of the law firm of Kralovec, Jambios & Schwartz, appeared at the hearing. Prior to the arguments, Holoka tendered to the court a document entitled "Substitution of Attorneys," which appears in the record. The document, signed by Sullivan and a member of Holoka's law firm, designated the firm of Kralovec, Jambois & Schwartz as Sullivan's new attorneys. The document was also signed by Barrett and purported to withdraw Barrett's law firm from the matter. Holoka informed the court that he did not have an expert affidavit available with him in court, but that he had retained an expert who would testify that Dr. Eichmann deviated from the standard of care in his treatment of Sullivan. Holoka provided the name of the expert to both defense counsel and the court. Holoka explained that because he was only retained in mid-April, and the expert was also newly retained, he was not able to obtain the new expert's opinion in writing prior to the hearing. Defense counsel objected to the substitution and argued that, absent an expert's counteraffidavit, substitution should be denied. The trial court denied Sullivan's substitution request, and proceeded to hear the motion for summary judgment. Defense counsel presented the motion, Barrett informed the court that he had no response to the motion, and the court entered summary judgment in favor of Dr. Eichmann. The order provided in part:
"There is no genuine dispute as to any material fact and that defendant is entitled to summary judgment as a matter of law. By reason of the granting of defendant's motion for summary judgment, defendant's motion to dismiss, with prejudice, pursuant to section 2-619 of the Illinois Code of Civil Procedure and SCR 219(c) is moot.
Substitution of counsel should not be allowed to delay the entry of an order allowing defendant's dispositive motion but defendant has no objection to the substitution with respect to any post- judgment proceedings."
This same order allowed Holoka's substitution for purposes of any postjudgment proceedings. On May 23, 2001, Sullivan filed a motion for reconsideration. The motion explained that a personal tragedy impaired Barrett's ability to represent her in the matter. Sullivan attached to the motion her own affidavit providing that Barrett first informed her on April 11, 2001, "that he did not have enough time to retain an expert" to oppose summary judgment and that she immediately sought other counsel to represent her. Sullivan also attached to the motion an amended answer to Dr. Eichmann's Supreme Court Rule 213 interrogatories, as well as a report, affidavit, and curriculum vitae of her new expert witness, Dr. Howard Topel. Dr. Topel's affidavit stated that he received materials regarding Sullivan's medical condition on April 17, 2001, reviewed the materials, and orally communicated his opinion to Sullivan's attorney on May 2, 2001: Dr. Topel's opinion was that Dr. Eichmann did not meet the standard of care required in the pertinent medical field. The motion informed defense counsel and the court that Dr. Topel was prepared to proceed with his deposition, and dates were tendered for the taking of his deposition.
The court denied the motion to reconsider and entered the following written memorandum of decision:
"I have considered at great length the arguments of counsel and tried very hard to weigh the equities involved. I will first say that I disagree with the procedural history as recited by Mr. Holoka. I did not do so on the record because I did not see the value in doing so in the limited time available.
However, my recollection of the history of this case is that the plaintiff's counsel who preceded Mr. Holoka on the file appeared at or near the discovery cut off and indicated that his expert now declined to testify. The clear implication was not that it was now inconvenient due to delays as suggested by Mr. Holoka, but that he now declined to swear that there was negligence. It was further suggested that counsel felt finding an expert would be difficult but that he would like the discovery date extended in order to try to find someone who `would be willing to testify on her behalf.' Again, the implication was that he doubted that anyone would be found for that purpose. The time to disclose came and went without an expert having been found. The summary judgment motion was thirty days later and there was no sworn attestation to the availability of an expert. The motion to reconsider is denied."
The appellate court affirmed the trial court. No. 2-01-1386 (unpublished order under Supreme Court Rule 23). The appellate court noted that leave is not required when an attorney seeks to enter an appearance. The appellate court declined, however, to consider whether the trial court erred in denying the motion for substitution because the record on appeal was inadequate to determine "the precise nature" of what occurred during the proceedings. The appellate court noted Sullivan's various failures to meet discovery deadlines and held that "lacking any record from the hearing, we must presume that the trial court's order denying plaintiff's request to substitute attorneys was in conformity with the law and supported by the record." No. 2-01-1386, citing Webster v. Hartman, 195 Ill. 2d 426, 433-34 ...