Hinkle v. Henderson
| Decision Date | 07 March 1997 |
| Docket Number | No. 93-1438.,93-1438. |
| Citation | 956 F.Supp. 1430 |
| Parties | Tomra HINKLE, et al., Plaintiffs, v. William HENDERSON, M.D., Defendant. |
| Court | U.S. District Court — Central District of Illinois |
Lance Wittry, Indianapolis, IN, for plaintiffs.
Richard Stites, Livingston, Barger, Brandt & Schroeder, Bloomington, IL, for defendant.
ORDER
Before the Court are Plaintiff Tomra Hinkle's Objection [Doc. # 68] and Defendant William Henderson's Objection [Doc. # 67] to the Report and Recommendation of the Magistrate Judge [Doc. # 66] recommending that Defendant's Motion to Dismiss [Docs. # 4, 8, 16] be granted and that Plaintiff's Complaint be dismissed without prejudice. Pursuant to 28 U.S.C. § 636(b)(1)(C) and Fed.R.Civ.P. 72(b)1 the Court shall make a de novo determination of those portions of the Report and Recommendation to which objections were made.
Tomra Hinkle was born prematurely on January 23, 1984. As a result, she suffers from retinopathy of prematurity and is blind. Plaintiffs allege that the medical malpractice of William Henderson, M.D. ("Henderson"), who provided Tomra's mother with obstetrical and prenatal care in 1983 and early 1984, caused Tomra's injury. On January 23, 1992, only one day before the expiration of the statutory repose period for actions by minors, 735 ILCS 5/13-212(b), Tomra Hinkle and her parents, Patricia and Thomas Hinkle, filed a complaint in the Circuit Court of Cook County. However, no service was effected or attempted on Henderson or on any of the other named defendants. Rather, after eight months in the circuit court, Plaintiffs moved for a voluntary dismissal under 735 ILCS 5/2-1009. The court granted the motion and dismissed the case without prejudice on September 24, 1992.
On August 17, 1993, within one year of the voluntary dismissal, Plaintiff refiled their Complaint in federal court1 and effected service on Henderson within eight days. Plaintiffs' ability to refile the suit outside of the limitations period is based on the Illinois savings statute, 735 ILCS 5/13-217, which gives plaintiffs one year in which to bring a new suit following a voluntary dismissal.
The sworn and undisputed testimony of Henderson2 establishes that since 1967, he has maintained an office in two different locations in Bloomington, Illinois, and has had at least one listed phone number for this office. He has also had medical privileges at two Bloomington-Normal hospitals, including the hospital where Patricia Hinkle was initially admitted before transfer. Those hospitals had access to telephone numbers and addresses where he could be reached. Henderson has also continuously maintained his registration as a medical doctor with the State of Illinois.
On June 18, 1985, Patricia Hinkle's attorney, Edward R. Durree, sent a written request to Henderson for "photocopies of your entire records for this patient."3 A handwritten notation states that the records were sent on July 16, 1985. On February 25, 1992, Patricia Hinkle wrote a letter to Henderson requesting that her medical records be forwarded to Attorney Curtis B. Ross "as soon as possible."4 A note at the bottom of the letter indicated that Patricia Hinkle had telephoned Henderson's office and discovered that her records were located in the collection files. Henderson authorized that these records be sent, and a notation on the letter indicates that they were sent on March 3, 1992.
Henderson's malpractice insurance carrier requires him to provide it with copies of all medical authorization requests from lawyers which "have a tone of a malpractice suit." Henderson testified that the two requests described above might have raised a "red flag" to him because Patricia. Hinkle's medical records indicated "that there might have been something that she did not feel was kosher." At one point in his deposition, he even said that he was "sure that [the insurance carrier] had already been notified" prior to Patricia Hinkle's letter. However, Henderson also testified that he had no actual knowledge whether he had submitted either of these requests to his malpractice insurance carrier at the time he received them. The insurance carrier confirmed that it received no notification of the pending lawsuit prior to November 22, 1993.5 In addition, from 1983 until July 20, 1993, there was no written or other indication in Henderson's claim or underwriting files of any potential malpractice claim being made either by Patricia or Tomra Hinkle. Henderson swore that he had never heard of the instant lawsuit until November 22, 1993, when his attorney informed him about it.
Plaintiffs' Complaint in this Court is in two counts. In Count One, Plaintiff Tomra Hinkle, a minor, by her mother and next friend, seeks compensatory damages for injuries allegedly caused by Defendant. In Count Two, Plaintiffs Patricia and Thomas Hinkle, Tomra's parents, individually seek compensatory damages arising from Tomra's injuries.
Henderson moved to dismiss on two alternative grounds. First, he argued that the Illinois savings statute was inapplicable to the medical malpractice limitations statute. This Court agreed and dismissed the case on that ground, Hinkle ex rel. Hinkle v. Henderson, 896 F.Supp. 190 (C.D.Ill.1995), but was reversed by the Seventh Circuit Court of Appeals. Hinkle ex rel. Hinkle v. Henderson, 85 F.3d 298, (7th Cir.1996). Henderson's second ground, which the Court now considers on remand, is that Plaintiffs failed to comply with Illinois Supreme Court Rule 103(b) by failing to diligently serve him in this matter.
Prior to ruling on the Rule 103(b) matter, the Magistrate Judge allowed the parties to brief the new issue of whether the tolling statute for actions by persons "under a legal disability," 735 ILCS 5/13-212(c), applies here. In his Report and Recommendation, the Magistrate Judge recommended that Plaintiffs' Complaint be dismissed without prejudice pursuant to Rule 103(b) but intimated that Plaintiffs might be allowed to refile their Complaint on the basis of 735 ILCS 5/13-212(c). Into this procedural morass of Illinois statutory law, the Court now proceeds.
In analyzing a motion to dismiss for failure to state a claim under Fed.R.Civ.P. 12(b)(6), the Court must take the well-pleaded allegations of the Complaint as true and draw all reasonable inferences in favor of the plaintiff. Baxter Healthcare Corp. v. O.R. Concepts. Inc., 69 F.3d 785, 787 (7th Cir.1995). Such a motion will only be granted where it appears beyond a doubt that the plaintiff can prove no set of facts in support of her claim which would entitle her to relief. Lashbrook v. Oerkfitz, 65 F.3d 1339, 1343 (7th Cir.1995). The parties agree that Illinois law controls this diversity dispute.
There is an interplay of at least four statutes and rules in this case: sections 2-1009, 13-212, and 13-217 of the Illinois Code of Civil Procedure and Illinois Supreme Court Rule 103(b). The relevant text of these statutes and rules is set forth below in the sequence in which they shall be discussed:
The plaintiff may, at any time before trial or hearing begins, upon notice to each party who has appeared or each such party's attorney, and upon payment of costs, dismiss his or her action or any part thereof as to any defendant, without prejudice, by order filed in the cause.
In [] actions [] where the time for commencing an action is limited, [and] the action is voluntarily dismissed by the plaintiff, [] whether or not the time limitation for bringing such action expires during the pendency of such action, the plaintiff [] may commence a new action within one year or within the remaining period of limitation, whichever is greater, [] after the action is voluntarily dismissed by the plaintiff..
If the plaintiff fails to exercise reasonable diligence to obtain service prior to the expiration of the applicable statute of limitations, the action as a whole or as to any unserved defendant may be dismissed without prejudice. If the failure to exercise reasonable diligence to obtain service occurs after the expiration of the applicable statute of limitations, the dismissal shall be with prejudice. In either case the dismissal may be made on the application of any defendant or on the court's own motion.
(b) [N]o action for damages for injury [] against any physician [] duly licensed under the laws of this State, whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought more than 8 years after the date on which occurred the act or omission or occurrence alleged in such action to have been the cause of such injury [] where the person entitled to bring the action was, at the time the cause of action accrued, under the age of 18 years
(c) If the person entitled to bring an action described in this Section is, at the time the cause of action accrued, under a legal disability other than being under the age of 18 years, then the period of limitations does not begin to run until the disability is removed.
In a series of cases, the Illinois Supreme Court has attempted to define the boundaries of reasonably diligent service under Illinois Supreme Court Rule 103(b). Like the instant case, many of these cases focus on the effect of Rule 103(b) where a plaintiff voluntarily dismisses her case pursuant to 735 ILCS 5/2-1009 or has her case involuntarily dismissed for lack of prosecution and then refiles it under 735 ILCS 5/13-217.
In Aranda v. Hobart Manf. Corp., 66 Ill.2d 616, 6 Ill.Dec. 849, 850, 363 N.E.2d 796, 797 (1977), the plaintiff's first suit was dismissed for lack of prosecution two months before the statute of limitations expired. Over the next two months, the plaintiff attempted to serve the defendants but that attempt was quashed because the original suit had already...
To continue reading
Request your trial