Fruin v. Northwestern Medical Faculty Foundation, Inc.

• Decision Date: 23 February 1990
• Docket Number: No. 1-89-0663,1-89-0663
• Citation: 141 Ill.Dec. 667,194 Ill.App.3d 1061,551 N.E.2d 1010
• Parties: , 141 Ill.Dec. 667 Lisa FRUIN, Plaintiff-Appellant, v. NORTHWESTERN MEDICAL FACULTY FOUNDATION, INC., a corporation; Arthur De Boer, M.D., S.C., a corporation; Arthur De Boer, M.D., and Robert A. Miller, M.D., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 1010

551 N.E.2d 1010

194 Ill.App.3d 1061, 141 Ill.Dec. 667

Lisa FRUIN, Plaintiff-Appellant, v. NORTHWESTERN MEDICAL FACULTY FOUNDATION, INC., a corporation; Arthur De Boer, M.D., S.C., a corporation; Arthur De Boer, M.D., and Robert A. Miller, M.D. Defendants-Appellees.

No. 1-89-0663.

Appellate Court of Illinois First District, Sixth Division.

Feb. 23, 1990.

Rehearing Denied April 3, 1990.

Kenneth C. Chessick, M.D., S.C., Schaumburg (Kenneth C. Chessick and John W. Fisk, of counsel), for Lisa Fruin.

Hinshaw, Culbertson, Moelmann, Hoban & Fuller, Chicago (D. Kendall Griffith, Maxwell W. Griffin and Bruce L. Carmen, of counsel), for De Boer.

Cecil A. Partee, State's Atty., Chicago (Joan S. Cherry, Myra J. Brown, Helen Haynes, of counsel), for Miller.

Justice McNAMARA delivered the opinion of the court:

Plaintiff, Lisa Fruin, appeals from the order of the circuit court of Cook County dismissing with prejudice her complaint against defendants, Arthur DeBoer, M.D., S.C., Arthur DeBoer, M.D., and Robert A. Miller, M.D. The basis of the dismissal was that the complaint was signed and filed by an attorney who was not licensed to practice in Illinois.

Plaintiff's appeal arises from the following undisputed facts. On January 11, 1984, plaintiff underwent a surgical procedure for the implantation of a prosthetic aortic valve. The surgery was performed by Dr. DeBoer, and plaintiff was seen and treated by both Drs. DeBoer and Miller for post-operative care and examinations from January 21, 1984 through March 5, 1984. On March 27, 1985, plaintiff underwent emergency open-heart surgery.

On March 27, 1987, plaintiff filed a complaint alleging medical malpractice against Drs. DeBoer, Miller, and the Northwestern Medical Faculty Foundation. (Northwestern Medical has also been dismissed from the case but is not involved in this appeal.) Plaintiff's complaint alleged that Drs. DeBoer and Miller failed to prescribe an appropriate anticoagulation regime for plaintiff, and that this failure led to medical problems resulting in the required emergency open-heart surgery. Plaintiff further alleged that the first time she knew or should have known that she should have maintained an anticoagulation regime was on or about April 1, 1985. Thus, her complaint was filed four days before the expiration of the applicable statute of limitations. See Ill.Rev.Stat.1985, ch. 110, par. 13-212.

The complaint was signed and filed by Michael J. Colgan, an attorney licensed in Wisconsin, but not in Illinois. Colgan consulted with an Illinois law firm, and that firm prepared the initial pleadings. On August 17, 1987, after the statute of limitations had run, a supplemental appearance was filed on plaintiff's behalf by Kenneth C. Chessick, a licensed Illinois attorney. On January 6, 1988, Drs. DeBoer and Miller were served by alias summons. They filed a motion to dismiss and on February 6, 1989, the trial court granted the motion to dismiss with prejudice.

Plaintiff alleges that the unique circumstances of her case require this court to reverse the trial court's order of dismissal. Plaintiff notes that she did not know that Colgan was not licensed to practice in Illinois. Further, she points out that Colgan made reasonable and diligent efforts to secure the participation of Illinois counsel, and that she secured such participation by the entry of the supplemental appearance of licensed Illinois counsel. Finally, she observes that defendants have not suffered any prejudice as a result of the filing of the complaint by an attorney not licensed to practice in Illinois.

Absent leave of court pursuant to Supreme Court Rule 707, an attorney licensed to practice law in another state may not practice law in Illinois. (Lozoff v. Shore Heights, Ltd. (1976), 35 Ill.App.3d 697, 342 N.E.2d 475; 107 Ill.2d R. 707.) Generally, a pleading signed by a person not licensed to practice in Illinois is a nullity. (Marken Real Estate Management Corp. v. Adams (1977), 56 Ill.App.3d 426, 14 Ill.Dec. 139, 371 N.E.2d 1192; National Bank v. First Wisconsin National Bank (1977), 53 Ill.App.3d 482, 10 Ill.Dec. 633, 368 N.E.2d 119; Leonard v. Walsh (1966), 73 Ill.App.2d 45, 220 N.E.2d 57.) This rule applies even when subsequent court appearances are made by a duly licensed attorney. Housing Authority v. Tonsul (1983), 115 Ill.App.3d 739, 71 Ill.Dec. 369, 450 N.E.2d 1248; Marken Real Estate Management Corp. v. Adams.

Plaintiff notes,...