Licka v. William A. Sales, Ltd., 78-794

• Decision Date: 03 April 1979
• Docket Number: No. 78-794,78-794
• Citation: 70 Ill.App.3d 929,27 Ill.Dec. 212,388 N.E.2d 1261
• Parties: , 27 Ill.Dec. 212 Emil Thomas LICKA, Sr., Plaintiff-Appellant, v. The WILLIAM A. SALES, LTD., a corporation, Dr. Thomas Hall and Lutheran General Hospital, a corporation, Defendants, Dr. Thomas Hall, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 1261

388 N.E.2d 1261

70 Ill.App.3d 929, 27 Ill.Dec. 212

Emil Thomas LICKA, Sr., Plaintiff-Appellant, v. The WILLIAM A. SALES, LTD., a corporation, Dr. Thomas Hall and Lutheran General Hospital, a corporation, Defendants Dr. Thomas Hall, Defendant-Appellee.

No. 78-794.

Appellate Court of Illinois, First District, Second Division.

April 3, 1979.

Richard S. Fleisher, Karlin & Fleisher, Chicago, for plaintiff-appellant; Sidney Z. Karasik, Chicago, of counsel.

Neil K. Quinn, Pretzel, Stouffer, Nolan & Rooney, Chartered, Robert Marc Chemers, Chicago, for defendant-appellee; Joseph B. Lederleitner, Chicago, of counsel.

STAMOS, Presiding Justice:

Plaintiff, Emil Licka, appeals from a judgment of the circuit court of Cook County dismissing his medical malpractice action as to defendant, Dr. Thomas Hall. The issue on appeal is whether the trial court erred in dismissing the action on the grounds: (1) that the cause was barred by the applicable statute of limitations (Ill.Rev.Stat.1975, ch. 83, par. 22.1); and (2) that plaintiff failed to exercise reasonable diligence to obtain service on defendant, as required by Supreme Court Rule 103(b). Ill.Rev.Stat.1975, ch. 110A, par. 103(b).

Sometime in January of 1975, plaintiff filed a one-court complaint alleging that he was injured as a result of negligence on the part of employees of defendant William A. Sales, Ltd., who allegedly provided plaintiff with an unsafe loading dock, so as to make lifting materials from the dock hazardous. On February 11, 1976, plaintiff filed an amended complaint in three counts, adding Lutheran General Hospital and Dr. Thomas Hall as defendants in Counts II and III, respectively. The amended complaint essentially alleged that Lutheran General and Dr. Hall, were negligent in permitting to be performed and performing a laminectomy and fusion operation at the wrong location in plaintiff's spine. The operation was allegedly performed in October of 1973, more than two years prior to the filing of the amended complaint, but the amended complaint did not allege any time as to when plaintiff knew or reasonably could have discovered that he had been injured.

Plaintiff instructed the sheriff to serve summons on Lutheran General Hospital at its location in Park Ridge, Illinois, and Dr. Hall at a medical center with which he had been associated, located at 7255 N. Caldwell, Niles, Illinois. The sheriff made a return showing service upon the hospital but stating that he could not find Dr. Hall as Dr. Hall was no longer associated with the medical center. Plaintiff then placed an alias summons with the sheriff, directing him to serve Dr. Hall at the same address, but on March 12, 1976, it too was returned "not found" and with the notation that Dr. Hall was no longer with the center.

On March 25, 1976, the hospital answered the amended complaint as to Count II and pleaded as an affirmative defense that the action was not commenced within the time limited by law. Plaintiff filed a reply to the affirmative defense, denying it and further stating that the action was commenced within two years from the time that plaintiff knew or should have known of the malpractice.

On April 20, 1976, plaintiff filed a second amended complaint, ¹ additionally alleging in Counts II and III that from the time of the initial operation by Dr. Hall in October of 1973, plaintiff continued to suffer great pain in his back; however, it was not until May of 1975 that plaintiff was advised that further treatment of his back might be required. Plaintiff alleged that until he had obtained other medical treatment, he did not know nor could he have known of the wrongful acts committed by defendant. Plaintiff further alleged that his suit was filed within two years of his acquisition of such knowledge.

Defendant Lutheran General Hospital answered the second amended complaint and again pleaded the statute of limitations as an affirmative defense. The hospital is not involved in this appeal.

After plaintiff's first alias summons was returned with Dr. Hall not found, plaintiff's attorneys checked the telephone directories for Chicago and the surrounding suburbs, but Dr. Hall was not listed. Plaintiff also asserts that he was unable to locate Dr. Hall at Augustana Hospital, where plaintiff's family had previously been treated by Dr. Hall, but the record does not reveal what effort was made.

Attorneys for plaintiff then contacted the Illinois Department of Registration and Education, which provided them with two addresses for Dr. Thomas Hall, 720 North Michigan Avenue, Chicago, Illinois, and 621 Broadway, Chesterton, Indiana. Plaintiff placed a second alias summons with the sheriff on May 14, 1976, directing him to serve Dr. Hall at 720 North Michigan Avenue in Chicago. The return of the sheriff, dated May 17, 1976, was marked "not found" and bore the notation that Dr. Hall had moved without leaving a forwarding address.

On June 16, 1976, plaintiff placed a third alias summons, this time with the sheriff of Porter County, Indiana, directing him to serve Dr. Thomas Hall at 621 Broadway in Chesterton, Indiana. Service was accomplished on a Dr. Thomas Hall on June 21, 1976. When Dr. Hall of Chesterton, Indiana, had neither appeared nor answered in response to plaintiff's summons, plaintiff's attorneys sent him a letter dated September 27, 1976, advising him that a default would be taken against him unless he appeared and answered within thirty days. In October of 1976, the Dr. Thomas Hall who had been served contacted plaintiff's attorneys and informed them that he was not the Dr. Thomas Hall who had treated plaintiff. Plaintiff's attorneys subsequently verified this fact.

In late December of 1976, an attorney for plaintiff contacted the attorneys for Lutheran General Hospital, who said that they were also attempting to determine the whereabouts of Dr. Hall, but had been unable to do so.

After several inquiries to the American Medical Association, in February of 1977 plaintiff finally obtained Dr. Hall's home address. A fourth alias summons was placed with the sheriff on March 1, 1977, directing him to serve Dr. Hall at his home at 821 Hudson in Glenview, Illinois. Defendant, the correct Dr. Thomas Hall, was so served on March 13, 1977.

Dr. Hall then moved to strike and dismiss the second complaint as to him, on the grounds that the alleged malpractice occurred in October of 1973; that plaintiff knew or should have known of his injuries at some time prior to April of 1974; and that the second amended complaint, filed April 20, 1976, was not filed within two years from the time plaintiff knew or should have known of his injuries and therefore the action was barred by the statute of limitations. See Ill. Rev.Stat.1975, ch. 83, par. 22.1; Lipsey v. Michael Reese Hospital (1970), 46 Ill.2d 32, 262 N.E.2d 450.

The motion also sought to dismiss the action as to Dr. Hall pursuant to Supreme Court Rule 103(b) (Ill.Rev.Stat.1975, ch. 110A, par. 103(b)), on the ground that plaintiff failed to exercise reasonable diligence in obtaining service on Dr. Hall. Dr. Hall filed an affidavit in support of this portion of the motion, averring the following: that he was not served with summons until March 13, 1977; that he did not become aware of the action until January or February of 1977, when he was served with a subpoena; that he has been a practicing physician in the Chicago area for over 25 years, and during the pendency of the action, he did not leave the Chicago area except for periodic two week vacations; that he resides at 821 Hudson in Glenview, Illinois, and has resided there for eight years; that at all relevant times he has kept an office in Chicago on North Michigan Avenue; that he is listed on the directory at Lutheran General Hospital and his home phone number is available at the hospital; and that he has never secreted himself during the pendency of this lawsuit in an effort to avoid service of summons.

Plaintiff filed a response to the motion to dismiss. In the response, plaintiff admitted that he knew or should have known of his injuries on or before April of 1974, ² but denied that his action was therefore barred by the statute of limitations. Plaintiff also asserted that under section 46(2) of the Civil Practice Act (Ill.Rev.Stat.1975, ch. 110, par. 46(2)), since Dr. Hall was named in plaintiff's first amended complaint, for purposes of the statute of limitations plaintiff's second amended complaint would relate back to the date the first amended complaint was filed, or February 11, 1976. Plaintiff's response also set forth the chronology of attempts to locate and serve Dr. Hall, supported by affidavits, essentially as we have outlined above.

After hearing argument, the transcript, if any, of which is not contained in the record, the trial court granted Dr. Hall's motion to dismiss the complaint as to him. The court dismissed the complaint with prejudice on the grounds of both the statute of limitations and the failure to exercise due diligence in obtaining service. The court also expressly found that there was no just reason to delay enforcement or appeal of the order. From this order, plaintiff appeals.

The first issue raised on appeal is whether the trial court erred in dismissing plaintiff's complaint as to Dr. Hall on the ground that plaintiff's action was barred under the statute of limitations. The statute of limitations applicable to plaintiff's malpractice claim is section 21.1 of the Limitations Act (Ill.Rev.Stat.1975, ch. 83, par. 22.1), which provides in relevant part:

"No action for damages for injury or death against any physician or hospital duly licensed under the laws of this State, * * * shall be brought more than 2 years after the date on which the claimant knew, or through the use of reasonable diligence should have known, * * * of the existence of the injury or death for which damages are sought in the action, * * * , but in no event shall...