Cook v. Schwab Rehabilitation

• Decision Date: 28 September 1979
• Docket Number: No. 78-1689,78-1689
• Citation: 77 Ill.App.3d 245,395 N.E.2d 1100,32 Ill.Dec. 719
• Parties: , 32 Ill.Dec. 719 Robbie COOK, Administrator of the Estate of Katalina DeJon, Deceased, Plaintiff-Appellant, v. SCHWAB REHABILITATION, an Illinois Corporation and Gouri Chadhuri, M.D., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 1100

395 N.E.2d 1100

77 Ill.App.3d 245, 32 Ill.Dec. 719

Robbie COOK, Administrator of the Estate of Katalina DeJon Deceased, Plaintiff-Appellant, v. SCHWAB REHABILITATION, an Illinois Corporation and Gouri Chadhuri, M.D., Defendants-Appellees.

No. 78-1689.

Appellate Court of Illinois, First District, Fifth Division.

Sept. 28, 1979.

Marshall I. Teichner, Ltd., Chicago (Philip J. Rock, William P. Jones, Chicago, of counsel), for plaintiff-appellant.

French & Rogers, Chicago (Richard G. French, Timothy G. Keating, Chicago, of counsel), for defendants-appellees.

WILSON, Justice:

Plaintiff appeals the denial of his motion to vacate an order to dismiss his complaint against defendants for failure to answer interrogatories. The sole issue presented for review is whether the trial court's denial of plaintiff's motion to vacate was an abuse of discretion. We reverse and remand.

On November 11, 1976, plaintiff, Robbie Cook, was appointed Administrator of the Estate of Katalina DeJon. On November 24, 1976, he filed suit on behalf of the decedent against various defendants, including Schwab Rehabilitation Hospital and Dr. Gouri Chadhuri, alleging negligence and malpractice. Counts IV and V of the complaint contain the malpractice allegations involving the defendants, Schwab and Dr. Chadhuri.

The complaint alleged that on November 24, 1974, plaintiff's decedent sustained injuries as the result of a fall down a flight of stairs of a building owned by defendants, Adelor and Laura Storhaugh. In December 1974, the decedent was admitted to Schwab Rehabilitation Hospital (Schwab), under the care of Dr. Chadhuri, and was discharged and sent home on March 10, 1975 while suffering from pneumonia. She died on March 12. Specifically, Counts IV and V alleged that the decedent's death was a direct and proximate cause of the negligence of Schwab and Dr. Chadhuri in that they: (1) failed to provide proper medication; (2) failed to provide proper medical nursing supervision and care; (3) failed to provide proper care for plaintiff's decedent as a result of which she contracted a serious pneumonia; (4) failed and neglected to provide necessary physical examinations and doctor's care to decedent when she was obviously in need thereof; and (5) transferred decedent from Schwab to her home while she was suffering from an advanced case of pneumonia.

On May 11, 1977, plaintiff filed his answer to interrogatories propounded by defendants, Mel and Rosee Torres, which contained responses to 51 questions. On July 11, plaintiff filed his answer to interrogatories propounded by defendants, Adelor and Laura Storhaugh, which contained responses to 69 questions.

On August 1, plaintiff obtained a judgment against defendants, Schwab and Chadhuri for failure to appear or answer; however, that judgment was subsequently vacated. On September 12, defendants filed an appearance and interrogatories to be answered by plaintiff. Defendants filed their answer to the complaint on October 12. On November 15, the instant case was dismissed for want of prosecution based on plaintiff's attorney's failure to appear at a pretrial hearing; however, it was reinstated on December 14.

On June 2, 1978 defendants filed a motion to dismiss for failure to comply with discovery procedures. Attached to the motion was a letter dated March 27, 1978 which requested plaintiff's answers to the interrogatories filed on September 12, 1977. On June 2, 1978, following an Ex parte proceeding, the trial court dismissed plaintiff's cause of action as to defendants, Schwab and Chadhuri, pursuant to Illinois Supreme Court Rules 218 and 219(c). (Ill.Rev.Stat.1977, ch. 110A, par. 218 and 219(c).) On July 7, plaintiff filed a motion to vacate in addition to his answers to interrogatories; however, the motion was denied. Plaintiff now appeals that order.

OPINION

Plaintiff contends that the trial court's denial of his motion to vacate an order dismissing his complaint for failure to answer interrogatories was an abuse of discretion. He argues, and we agree, that the sanction imposed by the trial court was punitive in nature and the court's refusal to vacate the dismissal order was unjust under the circumstances presented herein.

In the recent decision of Swedien v. Hadley School For The Blind (1979), 70 Ill.App.3d 466, 27 Ill.Dec. 14, 388 N.E.2d 977, where this court faced a similar situation, we held that the trial court abused its discretion where it had dismissed plaintiff's suit for failure to comply with discovery procedures. There, plaintiff brought an action against defendant to recover the purchase price on a contract for the sale and installment of a sound system....