Bogseth v. Emanuel

• Decision Date: 15 April 1994
• Docket Number: No. 1-92-4385,1-92-4385
• Citation: 261 Ill.App.3d 685,633 N.E.2d 904,199 Ill.Dec. 108
• Parties: , 199 Ill.Dec. 108 Rosalie BOGSETH, as next friend of Larry Bogseth, Jr., a minor, Plaintiff-Appellee, v. Dr. B. EMANUEL, Dr. Nachman, Edgewater Operating Co., indv. and d/b/a Edgewater Medical Center and M. Simken, R.N., Defendant-Appellants.
• Court: United States Appellate Court of Illinois

Page 904

633 N.E.2d 904

261 Ill.App.3d 685, 199 Ill.Dec. 108

Rosalie BOGSETH, as next friend of Larry Bogseth, Jr., a minor, Plaintiff-Appellee, v. Dr. B. EMANUEL, Dr. Nachman, Edgewater Operating Co., indv and d/b/a Edgewater Medical Center and M. Simken R.N., Defendant-Appellants.

No. 1-92-4385.

Appellate Court of Illinois,

First District, Sixth Division.

April 15, 1994.

Mark C. Fedota, Timothy J. Mahoney, Timothy I. McArdle and Brinton & Fedota, Chicago, for defendants-appellants Dr. B. Emanuel and Dr. Nachman.

Lisa L. Lantero, Aries & Purmal, Chicago, for defendants-appellants Edgewater Medical Center and M. Simken.

William J. Sneckenberg & Associates, Chicago and Whalley & Kuchaes, Merrillville IN, for plaintiff-appellee (William J. Sneckenberg and Marshall P. Whalley, of counsel).

Justice McNAMARA delivered the opinion of the court:

This cause is before us on an interlocutory appeal certified to this court pursuant to Supreme Court Rule 308 (134 Ill.2d R. 308). At issue is whether plaintiff's medical malpractice complaint, which named as the only defendant "John Doe" and named numerous health care providers as respondents in discovery, satisfies the requirements of the respondents in discovery statute (Ill.Rev.Stat.1991, ch. 110, par. 2-402). The trial court denied defendants' motion to dismiss the action, and they appeal.

The relevant facts are as follows. On July 20, 1990, plaintiff, Larry Bogseth, Jr., a minor, by his mother and next friend, Rosalie Bogseth, filed a complaint naming as the sole defendant a fictitious individual called "John Doe" and 28 health care providers as respondents in discovery. Defendants, Doctors Benjamin Emanuel and Richard Nachman, Edgewater Operating Company, d/b/a Edgewater Medical Center, and Merle Simken, R.N., were four of the named respondents. Plaintiff's complaint was filed on the last day of the applicable statute of limitations (Ill.Rev.Stat.1991, ch. 110, par. 13-212(b)).

The complaint alleged that on January 23, 1975, Rosalie was admitted to Edgewater Medical Center and gave birth to plaintiff on that date. The named respondents were various health care providers who provided care prior to, during, and after plaintiff's birth. The complaint further alleged that during the period of hospitalization, plaintiff developed respiratory distress and the named respondents "cared for or should have cared for [plaintiff and Rosalie] immediately prior to, during and after the events which led to the respiratory distress." According to the complaint, plaintiff suffered permanent brain damage and cerebral palsy as a result of such distress.

Regarding the defendant, John Doe, plaintiff alleged in the complaint as follows:

"9. That JOHN DOE is an individual believed to have caused or contributed to Plaintiff's condition(s) and damages through various acts and omissions and breaches of legal duties owed to Plaintiff and which will be further delineated by the instant requested discovery.

* * * * * *

"12. That as a direct and proximate result of the negligent acts of JOHN DOE and potentially others Plaintiff has sustained significant and permanent disabling injuries which have caused and will in the future cause him to incur substantial sums * * * and will cause him to have suffered severe and significant mental anguish and pain and will in the future lose employment and income due to his permanent disabilities, along with other damages."

Plaintiff prayed for money damages against defendant, John Doe, in an amount in excess of $15,000.

After conducting discovery, plaintiff sought to convert respondent Doctors Emanuel and Nachman, Edgewater Medical Center, and Simken to defendants. On August 15, 1991, Doctors Emanuel and Nachman filed a motion to dismiss the complaint pursuant to section 2-619 of the Code of Civil Procedure (Ill.Rev.Stat.1991, ch. 110, par. 2-619), contending that the complaint was a nullity because it failed to name an actual defendant. On October 30, 1991, Edgewater Medical Center and Simken joined in the motion.

On February 27, 1992, the trial court heard oral arguments on respondents' motion to dismiss and on plaintiff's motion to convert. In support of his motion, plaintiff presented the affidavits of two medical experts who indicated that defendants (then respondents in discovery) breached the applicable standard of care and that the breach of care caused plaintiff to suffer permanent brain damage. Plaintiff's counsel further advised the court that since filing the complaint, he had acquired medical records, depositions and compliance with various production requests which were given to the reviewing experts in formulating their opinions. The court found that there was probable cause to convert Doctors Emanuel and Nachman, Edgewater Medical Center, and Simken from respondents to defendants.

As to defendants' motion to dismiss, plaintiff's counsel explained that he could have named all of the respondents as defendants when the complaint was initially filed but did not because he wanted to avoid the lengthy and difficult process of "trying to figure out who * * * the proper defendants [were]," which, in his view, was "exactly what the statute was designed to prevent." The trial court agreed with plaintiff. In rendering its decision, the court stated:

"[I]n the nature of the thought process of respondent in discovery, it would seem that why would there have to be at least one known defendant if the thought for a respondent in discovery is to not sue anybody unless there's some discovery involved that you could make a good-faith pleading on."

Accordingly, the court granted plaintiff's motion to convert pursuant to section 2-402 and denied defendants' motion to dismiss.

In relevant part, section 2-402 provides as follows:

"The plaintiff in any civil action may designate as respondents in discovery in his or her pleading those individuals or other entities, other than the named defendants, believed by the plaintiff to have information essential to the determination of who should properly be named as additional defendants in the action.

Persons or entities so named as respondents in discovery shall be required to respond to discovery by the plaintiff in the same manner as are defendants and may, on motion of the plaintiff, be added as defendants if the evidence discloses the existence of probable cause for such action.

* * * * * *

A person or entity named as a respondent in discovery in any civil action may be made a defendant in the same action at any time within 6 months after being named as a respondent in discovery, even though the time during which an action may otherwise be initiated against him or her may have expired during such 6 month period." (Emphasis added.) Ill.Rev.Stat.1991, ch. 110, par. 2-402.

The precise issue presented in this case--whether "John Doe" may properly be considered a "named defendant" under section 2-402--is one of first impression in this state. Defendants contend that plaintiff's complaint was a nullity because it failed to name as the defendant an existing person or entity. Plaintiff contends, on the other hand, that the spirit and purpose of the statute allows the naming of a John Doe defendant where, as here, the complaint alleged actionable conduct and monetary damages were sought.

In support of their contention, defendants cite Volkmar v. State Farm Mutual Automobile Insurance Co. (1982), 104 Ill.App.3d 149, 60 Ill.Dec. 250, 432 N.E.2d 1149 and Bavel v. Cavaness (1973), 12 Ill.App.3d 633, 299 N.E.2d 435. In both cases, the court dealt with the legal proposition that the capacity to be sued exists only in persons in being and not in those who are dead or who have not yet been born. The court held that proceedings instituted against an individual who was deceased at the time the suit was filed were a nullity. Such proceedings were, in the court's view, void ab initio and did not invoke the jurisdiction of the trial court. Volkmar, 104 Ill.App.3d at 151, 60 Ill.Dec. at 252, 432 N.E.2d at 1151; Bavel, 12 Ill.App.3d at 637, 299 N.E.2d at 438.

We do not disagree with the Volkmar and Bavel holdings. However, we do not consider them to be controlling in the present case because neither case called into play section 2-402. While, as Volkmar and Bavel make clear, jurisdiction to sue unknown or fictitious persons is not conferred by the common law, it may be conferred by some express statute. (Hailey v. Interstate Machinery Company (1984), 121 Ill.App.3d 237, 76 Ill.Dec. 709, 459 N.E.2d 346.) The question thus becomes whether section 2-402 may be interpreted as conferring such jurisdiction.

Section 2-402 is susceptible to two differing, and in our view, reasonable interpretations with respect to the meaning of the term "named defendant." Defendants interpret the statute as requiring at least one identifiable health care provider who is charged with medical negligence to be named as a defendant. Plaintiff, on the other hand, interprets the statute as not requiring an identifiable health care defendant, so long as actionable conduct is alleged and monetary relief is sought in the complaint. We have previously held that a statute is ambiguous when it is capable of being understood by reasonably well-informed persons in two or more different senses. (Hyatt Corp. v. Sweet (1992), 230 Ill.App.3d 423, 171 Ill.Dec. 723, 594 N.E.2d 1243.) Such is the case here. We find nothing in the language of section 2-402 which suggests that the legislature intended to limit "named defendants" solely to identifiable health care providers. Because nothing in the statute's language precludes an action against a fictitious defendant, it is appropriate for us to examine sources other than the language for evidence of the legislature's intent.

It is well-settled that the primary rule of statutory construction is to ascertain and effectuate the intent of the legislature. (In re Marriage of Logston (1984), 103 Ill.2d...