The first count of plaintiff's second amended complaint is against Norwegian American Hospital. Counts II and III allege a cause of action jointly against Dr. Bascon and Dr. Botuyan. The second count was based on negligence and the third count was based on res ipsa loquitur. In granting Dr. Bascon's motion for summary judgment, the trial court relied on Beckwith v. Boynton (1924), 235 Ill. App. 469, in holding that the attending physician could not be strictly or vicariously liable for the surgical procedure selected by the specialist, Dr. Botuyan. The trial court concluded that the plaintiff's cause of action was based upon the choice of surgical procedure and the surgery itself, because in her complaint the plaintiff alleged that the negligence occurred on June 1, 1979, the date of the surgery. Additionally, the trial court concluded that summary judgment was proper because there was not any allegation or proof of independent negligence on the part of Dr. Bascon.

He also stated that Dr. Bascon did not transfer the patient to him. Defendant relies primarily on Beckwith v. Boynton (1924), 235 Ill. App. 469, to assert that he cannot be held liable for the acts of a surgeon. The Beckwith case, however, is distinguishable, for there the defendant was a family physician who acted as a "Good Samaritan" in arranging for the surgery of a minor girl.

Some courts have held that a physician who has advised his patient that an operation should be performed by another is not to be held liable for the surgeon's negligence; in some of the cases the physician not only selected the surgeon but was either present or assisted in some way at the operation. Brossard v. Koop (1937), 200 Minn. 410, 274 N.W. 241; Shannon v. Ramsey (1934), 288 Mass. 543, 193 N.E. 235; Beckwith v. Boynton (1924), 235 Ill. App. 469; Robinson v. Crotwell (1911), 175 Ala. 194, 57 So. 23; Brown v. Bennett (1909), 157 Mich. 654, 122 N.W. 305. On the other hand, there are a number of courts which have held that the one physician is a joint tort-feasor with the other and is liable for his negligence when there is a concert of action and a common purpose existing between the two doctors.

Shelton v. Hacelip, 167 Ala. 217, 51 So. 937; Hamrick v. Shipp, 169 Ala. 171, 52 So. 932; Woodlawn Inf. v. Byers, 216 Ala. 210, 112 So. 831; Dabney v. Briggs, 219 Ala. 127, 121 So. 394; Geier v. Howells, 47 Colo. 345, 107 P. 255, 27 L.R.A. (N.S.) 786; Hoffman v. Watkins, 78 Wn. 118, 138 P. 664; Moore v. Smith, 215 Ala. 592, 111 So. 918; Carraway v. Graham, 218 Ala. 458, 118 So. 807. The testimony of experts was necessary to show what constituted reasonable care and skill. Ewing v. Goode (C. C.) 78 F. 442, 444; Norkett v. Martin, 63 Colo. 220, 165 P. 256; Nelson v. Sandell, 202 Iowa, 109, 209 N.W. 440, 441, 46 A.L.R. 1447; Beckwith v. Boynton, 235 Ill. App. 469. A physician is justified in accepting as correct the diagnosis or preliminary examination of another physician of good repute.

ment); Manley v. Coleman, 19 Ohio App. 284, 286-291 (1924) (family physician assisting in operation jointly liable with surgeon when sponge was left in patient's abdomen; family physician admitted that he assisted in removing sponges); cf. Mayer v. Hipke, 183 Wis. 382, 197 N.W. 333 (1924) (physicians not liable where neither physician negligent; negligence by others during an operation at which they were not involved); Brossard v. Koop, 274 N.W. 241, 242-243 (Minn. 1937) (plaintiff's physician, who was not a surgeon but who administered ether during operation, not liable for negligence of the surgeons who left gauze pack in plaintiff's body, even though plaintiff's physician recommended the surgeons, and paid them from funds he collected from plaintiff); Shannon v. Ramsey, 193 N.E. 235, 238 (Mass. 1934) (plaintiff's physician not liable for "any act or omission" by specialist whom physician brought in to consult and assist in connection with plaintiff's treatment); Beckwith v.Boynton, 235 Ill. App. 469, 1924 WL 3713 at *8-10 (1924) (no joint liability among physicians sharing operation responsibilities; none of physicians negligent); Robinson v. Crotwell, 57 So. 23, 28 (Ala. 1911) (physician participating in operation by giving anesthetic not responsible for alleged negligence of surgeon); Brown v. Bennett, 122 N.W. 305, 306-307 (Mich. 1909) (surgical pad left in patient; patient's physician, who assisted the operating surgeon, not liable for the alleged negligence of surgeon even though patient's physician paid surgeon from money given to physician for that purpose by patient's family).

In Reed the fact that the attending physician made a provisional diagnosis before referral, continued to see the patient while she was in the hospital, and charged for those visits, was not enough to make the physician vicariously liable for the negligence of the surgeon, "when he was neither present during the surgery nor recommended the proposed treatment." Reed, 124 Ill.2d at 400, 530 N.E.2d at 423; see also Beckwith v. Boynton (1924), 235 Ill. App. 469 (general practitioner recommended surgery, recommended the surgeon, was present during the surgery, but charged no fee; held, no vicarious liability). An argument can be made for vicarious liability in this case.

In some of these cases, the physician not only selected the surgeon but was either present or assisted in some way at the operation. Brossard v. Koop, 1937, 200 Minn. 410, 274 N.W. 241; Shannon v. Ramsey, 1934, 288 Mass. 543, 193 N.E. 235; Beckwith v. Boynton, 1924, 235 Ill. App. 469; Robinson v. Crotwell, 1911, 175 Ala. 194, 57 So. 23; Brown v. Bennett, 1909, 157 Mich. 654, 122 N.W. 305. There are, on the other hand, many courts which have held that one physician is a joint tortfeasor with the other and is liable for his actions when there is a concert of action and a common purpose existing between the two doctors.

The fact that a patient died under such circumstances does not raise any presumption of negligence or lack of skill on his part. Hoover v. Buckman, 194 Ill. App. 308; Edwards v. Uland, 193 Ind. 376, 140 N.E. 546; Moore v. Smith, 215 Ala. 592, 111 So. 918; McGraw v. Kerr, 23 Colo. App. 163, 128 P. 870; King v. Belmore, 248 Mass. 108, 142 N.E. 911; Loudon v. Scott, 58 Mont. 645, 194 P. 488, 12 A.L.R. 1487; Hoffman v. Watkins, 78 Wn. 118, 138 P. 664; Miller v. Toles, 183 Mich. 252, 150 N.W. 118, L.R.A. 1915C, 595; Woodlawn Infirmary v. Byers, 216 Ala. 210, 112 So. 831; Beckwith v. Boynton, 235 Ill. App. 469; Wilt v. McCallum, 214 Mo. App. 321, 253 S.W. 156; Niebel v. Winslow, 88 N.J.L. 191, 95 A. 995; Kuehnemann v. Boyd, 193 Wis. 588, 214 N.W. 326, 215 N.W. 455; McCoy v. Buck, 87 Ind. App. 433, 157 N.E. 456, 160 N.E. 46; Nixon v. Pfabler, supra; Blodgett v. Nevius, 189 Ill. App. 544; Wilkins v. Ferrell, 10 Tex. Civ. App. 231, 30 S.W. 450."

The fact that a patient died under such circumstances does not raise any presumption of negligence or lack of skill on his part. Hoover v. Buckman, 194 Ill. App. 308; Edwards v. Uland, 193 Ind. 376, 140 N.E. 546; Moore v. Smith, 215 Ala. 592, 111 So. 918; McGraw v. Kerr, 23 Colo. App. 163, 128 P. 870; King v. Belmore, 248 Mass. 108, 142 N.E. 911; Loudon v. Scott, 58 Mont. 645, 194 P. 488, 12 A.L.R. 1487; Hoffman v. Watkins, 78 Wn. 118, 138 P. 664; Miller v. Toles, 183 Mich. 252, 150 N.W. 118, L.R.A.1915C, 595; Woodlawn Infirmary v. Byers, 216 Ala. 210, 112 So. 831; Beckwith v. Boynton, 235 Ill. App. 469; Wilt v. McCallum, 214 Mo.App. 321, 253 S.W. 156; Niebel v. Winslow, 88 N.J.Law 191, 95 A. 995; Kuehnemann v. Boyd, 193 Wis. 588, 214 N.W. 326, 215 N.W. 455; McCoy v. Buck, 87 Ind. App. 433, 157 N.E. 456, 160 N.E. 46; Nixon v. Pfahler, supra [ 279 Pa. 377, 124 A. 130]; Blodgett v. Nevius, 189 Ill. App. 544; Wilkins v. Ferrell, 10 Tex. Civ. App. 231, 30 S.W. 450."

Before a recovery could be had against defendant, it must be shown that his treatment was improper or negligent, not merely that he was mistaken, or that his treatment resulted injuriously to plaintiff. In Beckwith v. Boynton, 235 Ill. App. 469, the court uses this language: "In an action against a physician for malpractice in the treatment of plaintiff's limb, it is not sufficient for plaintiff to show the facts surrounding the injury to the limb, the subsequent treatment, and the ultimate loss of the limb, but there must be expert testimony tending to show malpractice, or the jury may not draw inferences of negligence of the surgeon." Quinn v. Donovan, 85 Ill. 194. Numerous other cases, both in this and other jurisdictions, hold to this doctrine.