Cox v. Kaufman

• Decision Date: 19 April 1991
• Docket Number: No. 90-2628,90-2628
• Parties: , 156 Ill.Dec. 1031 Augusta COX, Plaintiff-Appellant, v. Alan KAUFMAN, M.D., Defendant-Appellee (William V. Garvin, D.O., and Donald G. Pelino, D.O., Defendants).
• Court: United States Appellate Court of Illinois

Page 1011

571 N.E.2d 1011

212 Ill.App.3d 1056, 156 Ill.Dec. 1031

Augusta COX, Plaintiff-Appellant, v. Alan KAUFMAN, M.D., Defendant-Appellee (William V. Garvin D.O., and Donald G. Pelino, D.O., Defendants).

No. 90-2628.

Appellate Court of Illinois First District, Sixth Division.

April 19, 1991.

Alan C. Mendelson, Chicago, for plaintiff-appellant.

Lord, Bissell & Brook, Chicago (Hugh C. Griffin, Marilee Clausing and Diane I. Jennings, of counsel), for defendant-appellee.

Justice LaPORTA delivered the opinion of the court:

Plaintiff, Augusta Cox, brought an action against defendant, Alan Kaufman, M.D., and codefendants, William V. Garvin, D.O., and Donald G. Pelino, D.O., seeking recovery for personal injuries allegedly sustained as a result of negligent medical treatment by them. The circuit court dismissed plaintiff's claims against defendant Kaufman, finding that she had failed to bring suit within the applicable limitations period under the Illinois Code of Civil Procedure. Plaintiff has appealed the dismissal of her claims against defendant Kaufman.

Plaintiff brought this action seeking damages for personal injuries allegedly suffered as a result of negligent medical treatment rendered to her by defendant Kaufman and codefendants Garvin and Pelino from September 1982 until May 1983. Defendants Garvin and Pelino resided in Illinois, had offices in both Indiana and Illinois, and were licensed to practice in both Indiana and Illinois. Garvin and Pelino provided treatment to plaintiff in Illinois and in Indiana.

Defendant Kaufman had an office and was licensed to practice in Indiana. Kaufman, a neurosurgeon, first saw plaintiff on September 9, 1982, for treatment of a back injury she had sustained several years earlier. Over the next several months, Kaufman performed three surgeries at St. Margaret's Hospital in Hammond, Indiana, in an attempt to alleviate plaintiff's complaints of back pain. All of Kaufman's treatment of plaintiff was rendered in Indiana. Plaintiff originally filed suit against codefendants Garvin and Pelino in Illinois within two years of the last date of their treatment of her. That lawsuit was voluntarily nonsuited and refiled on May 24, 1989 as Count I of the present action.

On September 13, 1984, plaintiff, pursuant to section 16-9.5-9-2 of the Indiana Medical Malpractice Act (Ind.Code Ann. § 16-9.5-9-1 et seq. (Burns 1983)), gave defendant Kaufman and St. Margaret's Hospital notice of her intent to pursue malpractice claims against them by filing a proposed complaint with the Indiana Insurance Commissioner for submission to a medical review panel. The Indiana statute requires a claimant to submit a malpractice claim to a medical review panel and obtain an opinion from the panel before instituting a court action.

Plaintiff's proposed complaint alleged that the surgeries performed by Kaufman were unnecessary and were negligently performed, causing permanent injury to plaintiff's back. In her proposed complaint, plaintiff sought compensation from the Indiana Patient's Compensation Fund.

The Indiana medical review panel proceedings took several years to complete, and on June 1, 1989, the three-member panel issued a unanimous opinion finding that the evidence did not support the conclusion that Kaufman had deviated from the applicable standard of care in treating plaintiff.

The Indiana statute provided that plaintiff could file suit in Indiana within 90 days of the issuance of the medical review panel's opinion. Plaintiff, however, intending to file suit in the United States District Court for the Northern District of Indiana based upon diversity of citizenship, hired a "skip-tracer" to ascertain the defendant's residence. On August 9, 1989, plaintiff learned that defendant resided in Illinois.

On August 16, 1989, within 90 days of the decision of the Indiana medical review panel, plaintiff filed an amended complaint in the circuit court of Cook County, Illinois, adding Kaufman as a defendant to the action already pending against codefendants Garvin and Pelino. Defendant Kaufman was served with summons on August 20, 1989. Plaintiff's complaint did not allege that defendant Kaufman was a "qualified health-care provider" under the Indiana Medical Malpractice Act and did not request damages from the Indiana Patient's Compensation Fund.

On November 2, 1989, defendant Kaufman filed an appearance and a motion to dismiss pursuant to section 2-619, asserting that plaintiff's action was barred by her failure to comply with the applicable statute of limitations, plaintiff had failed to attach a copy of the medical report to the complaint, and the action should be dismissed under the doctrine of forum non conveniens.

On June 26, 1990, the trial court granted defendant's motion to dismiss, finding that plaintiff's action was barred by her failure to bring suit within the limitations period set forth in section 13-212 of the Illinois Code of Civil Procedure (Ill.Rev.Stat.1989, ch. 110, par. 13-212). In a separate order, the court found that its decision was final and that there was no just cause to delay its enforcement or appeal.

Plaintiff has appealed the dismissal of her claims against defendant Kaufman.

The Indiana legislature enacted the Indiana Medical Malpractice Act (Ind.Code Ann. § 16-9.5-1 et seq. (Burns 1983)) (Act) in response to a perceived crisis in the availability and cost of medical malpractice insurance coverage which affected the availability of health-care services to the citizens of that State. (Winona Memorial Foundation v. Lomax (Ind.App.1984), 465 N.E.2d 731, 739.) The Act establishes a procedure which must be followed in pursuing a malpractice claim against a health-care provider who qualifies under the Act. To qualify for the protection of the Act, a health-care provider must file proof of financial responsibility with the Indiana Commissioner of Insurance and must pay an annual surcharge levied by the Commissioner. (Ind.Code Ann. § 16-9.5-4-1 (Burns 1983).)

The Act specifies that a malpractice claimant must submit a proposed complaint to a medical review panel and obtain the opinion of that panel before commencing a legal action against a qualified health-care provider. (Ind.Code Ann. § 16-9.5-9-2 (Burns 1983).) The purpose of this panel procedure is to provide for the obtaining of an expert opinion prior to the commencement of litigation on the probable liability of the health-care provider. Hines v. Elkhart General Hospital (7th Cir.1979), 603 F.2d 646.

The medical review panel consists of an attorney, who acts in an advisory capacity only, and three health-care providers, who actually consider and pass upon the claimant's complaint against the defendant health-care provider. (Ind.Code Ann. §§ 16-9.5-9-3, 16-9.5-9-7 (Burns 1983).) The panel is required to express its expert opinion as to whether or not the evidence supports the conclusion that the defendant or defendants acted or failed to act within the appropriate standards of care as charged in the complaint. Ind.Code Ann. § 16-9.5-9-7 (Burns 1983).

The panel makes no findings as to damages, and its opinion is not binding on the litigants. After the panel issues its written conclusion, the plaintiff may proceed to litigate the claim in court. The report of the panel is admissible as evidence in subsequent litigation, but is not conclusive and either party may call any member of the panel as a witness at trial. (Ind.Code Ann. § 16-9.5-9-9 (Burns 1983).) The Indiana statute also imposes a $500,000 limit on the total amount of damages a claimant may recover by way of settlement or litigation from a qualified health-care provider. A health-care provider qualified under the Indiana statute may not be held liable for an amount in excess of $100,000 for an occurrence of malpractice, and any amount of damages in excess of that $100,000 is to be paid from the patient's compensation fund, subject to the limit of $500,000 on the total recovery. Ind.Code Ann. § 16-9.5-2-2 (Burns 1983).

The filing of a proposed complaint tolls the applicable statute of limitations until 90 days after the claimant had been given the medical review panel's opinion. (Ind.Code Ann. § 16-9.5-9-1(b) (Burns 1983).)

The Indiana Supreme Court has held that compliance with the review panel procedure is jurisdictional and a condition precedent to the maintenance of a civil action and that a court must dismiss a malpractice complaint against a health-care provider if the plaintiff has not complied with the statute. Johnson v. St. Vincent Hospital, Inc. (1980), 273 Ind. 374, 404 N.E.2d 585.

The issues before this court are whether plaintiff's claims are barred by her failure to bring suit within the applicable limitations period set forth in section 13-202 of the Illinois Code of Civil Procedure (Ill.Rev.Stat.1989, ch. 110, par. 13-202), and whether the filing of a proposed complaint with the Indiana Insurance Commissioner for submission to a medical review panel tolled the Illinois statute of limitations.

We initially note that because defendant is not licensed to practice in Illinois, section 13-212 of the Illinois Code of Civil Procedure (Ill.Rev.Stat.1989, ch. 110, par. 13-212), which sets out the limitations period for bringing actions against physicians and health-care providers licensed to practice in Illinois, is inapplicable to the case at bar. Consequently, the time for filing plaintiff's action in Illinois is governed by section 13-202 of the Illinois Code of Civil Procedure (Ill.Rev.Stat.1989, ch. 110, par. 13-202).

Section 13-202 provides in relevant part that "[a]ctions for damages for an injury to the person * * * shall be commenced within 2 years next after the cause of action accrued." (Ill.Rev.Stat.1989, ch. 110, par. 13-202.) A cause of action accrues when the plaintiff knows or has reason to know that he or she has an injury and that the injury was probably caused by the wrongful acts of another. Nolan v....