Hugley v. Alcaraz

• Decision Date: 30 May 1986
• Docket Number: No. 84-3094,84-3094
• Citation: 98 Ill.Dec. 584,144 Ill.App.3d 726,494 N.E.2d 706
• Parties: , 98 Ill.Dec. 584 Annie HUGLEY, Administrator of the Estate of Horace Hugley, Deceased, Plaintiff-Appellee, v. R.V. ALCARAZ, M.D., et al., Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 706

494 N.E.2d 706

144 Ill.App.3d 726, 98 Ill.Dec. 584

Annie HUGLEY, Administrator of the Estate of Horace Hugley Deceased, Plaintiff-Appellee, v. R.V. ALCARAZ, M.D., et al., Defendants-Appellants.

No. 84-3094.

Appellate Court of Illinois First District, Fifth Division.

May 30, 1986.

Cassiday, Schade & Gloor (Joseph A. Camarra, Kevin G. Burke, of counsel), Chicago, for defendants-appellants.

Leonard M. Ring & Associates (Leonard M. Ring, Debra A. Thomas), Chicago, for plaintiff-appellee.

Justice MURRAY delivered the opinion of the court:

This interlocutory appeal is before us pursuant to our granting of defendant Dr. R.V. Alcaraz' petition for leave to appeal. (87 Ill.2d R. 308.) Defendant appeals from an order of the circuit court of Cook County denying his motion to dismiss a medical malpractice action filed by plaintiff Annie Hugley. The issue certified to this court is whether plaintiff's right to refile an action within one year, pursuant to section 13-217 of the Illinois Code of Civil Procedure (the Code), following a voluntary dismissal overcomes her failure to name Alcaraz as a defendant within the statutory period prescribed in section 13-212 and her failure to change Alcaraz' status from a "respondent in discovery" to that of a defendant in the original action filed by her pursuant to section 2-402 of the Code. Ill.Rev.Stat.1983, ch. 110, pars. 13-217, 13-212, 2-402.

The pertinent uncontested facts are as follows. Plaintiff filed her original action on February 6, 1981, alleging medical negligence in the treatment of her deceased husband on February 7, 1979. Plaintiff named Drs. Serafin Ilagan, Ismael Angulo and R.V. Alcaraz as "respondents in discovery" pursuant to section 2-402 of the Code which permits a plaintiff filing a medical malpractice action to name persons as respondents in discovery whom the plaintiff believes have information essential to the determination of who should be named as additional defendants. (Ill.Rev.Stat.1983, ch. 110, par. 2-402.) Alcaraz was plaintiff's decedent's treating physician.

Plaintiff obtained service of summons on Drs. Ilagan and Angulo, but not Dr. Alcaraz. Ilagan and Angulo subsequently filed motions to dismiss them from plaintiff's suit based on plaintiff's failure to comply with the requirements of the respondent in discovery statute; plaintiff failed to name them as defendants, based on probable cause, within six months after naming them as respondents in discovery. The trial court granted their motions on September 21, 1981.

On December 9, 1983, plaintiff voluntarily dismissed her action pursuant to section 2-1009 of the Code. (Ill.Rev.Stat.1983, ch. 110, par. 2-1009.) She subsequently refiled the action on February 4, 1984, pursuant to section 13-217 (Ill.Rev.Stat.1983, ch. 110, par. 13-217), naming Alcaraz as a defendant for the first time. In response, Alcaraz filed a motion to dismiss, alleging plaintiff's failure to comply with the applicable statute of limitations prescribed in section 13-212 of the Code. (Ill.Rev.Stat.1983, ch. 110, par. 13-212.) Alcaraz contended that plaintiff failed to bring an action against him within two years of the date of the occurrence (February 7, 1979), or within two years of the date of discovery (February 6, 1981) or within four years of the date of the occurrence (February 7, 1979).

Alcaraz further alleged that plaintiff failed to comply with the respondent in discovery statute; she failed to serve him with summons, to move to name him as a defendant within the statutory six-month period and to provide evidence of probable cause to support a motion to name him as a defendant. As a final ground for dismissal, Alcaraz also contended plaintiff was estopped from naming him as a defendant in her refiled action based on the court's dismissal of Drs. Ilagan and Angulo from the original action because of her failure to comply with the respondent in discovery statute.

The trial court denied Alcaraz' motion based on its determination that, pursuant to Aranda v. Hobart Manufacturing Corp. (1977), 66 Ill.2d 616, 6 Ill.Dec. 849, 363 N.E.2d 796, a plaintiff has an absolute right to refile an action any time within one year following a voluntary dismissal, irrespective of his failure to exercise reasonable diligence to obtain service on a defendant prior to the expiration of the applicable statute of limitations, as provided by section 13-217 of the Code (Ill.Rev.Stat.1983, ch. 110, par. 13-217). Alcaraz subsequently filed a motion to certify this issue to our court. The trial court granted the motion, and we granted Alcaraz' petition for leave to appeal pursuant to Supreme Court Rule 308. 87 Ill.2d R. 308.

This case arises as a result of the difference in the way the legislature and the courts treat medical malpractice causes from other types of negligence actions. In no other field of law is there a creature known as a "respondent in discovery." This creature is the nucleus of the issue raised here. We, therefore, must determine to what extent Alcaraz' status as a defendant in plaintiff's refiled action was affected by his initial status as a respondent in discovery and plaintiff's failure to name him as a defendant in that action within the six-month statutory period. An understanding of that status and our disposition of this matter requires a verbatim statement of the various applicable statutes.

The statute providing for respondents in discovery is found in section 2-402 of the Code. It provides as follows:

"Medical malpractice respondents in discovery. The plaintiff in any action based on an allegation of negligence in the performance of health care services may designate as respondents in discovery in his or her pleading those individuals, 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 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 named a respondent in discovery may upon his or her own motion be made a defendant in the action, in which case the provisions of this Section are no longer applicable to that person.

A copy of the complaint shall be served on each person named as a respondent in discovery.

Each respondent in discovery shall be paid expenses and fees as provided for witnesses.

A person 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." (Ill.Rev.Stat.1983, ch. 110, par. 2-402.)

The statute of limitations referred to in the respondent in discovery statute is found in section 13-212 of the Code. It provides as follows:

"Physician or hospital. No action for damages for injury or death against any physician, dentist, registered nurse or hospital 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 2 years after the date on which the claimant knew, or through the use of reasonable diligence should have known, or received notice in writing of the existence of the injury or death for which damages are sought in the action, whichever of such date occurs first, but in no event shall such action be brought more than 4 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 or death except as provided in Section 13-215 of this Act.

If the person entitled to bring the action is, at the time the cause of action occurred, under the age of 18 years, or under legal disability or imprisoned on criminal charges, the period of limitations does not begin to run until the disability is removed." (Ill.Rev.Stat.1983, ch. 110, par. 13-212.)

The statute authorizing the voluntary dismissal of a cause by a plaintiff is governed by section 2-1009 of the Code. It provides as follows:

"Voluntary dismissal. (a) 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. Thereafter the plaintiff may dismiss, only on terms fixed by the court (1) upon filing a stipulation to that effect signed by the defendant, or (2) on motion specifying the ground for dismissal, which shall be supported by affidavit or other proof. After a counterclaim has been pleaded by a defendant no dismissal may be had as to the defendant except by the defendant's consent.

(b) Counterclaimants and third-party plaintiffs may dismiss upon the same terms and conditions as plaintiffs." (Ill.Rev.Stat.1983, ch. 110, par. 2-1009.)

The statute authorizing a party to commence a new action within one year, thereby extending the period of limitations, is found in section 13-217 of the Code. It provides as follows:

"Reversal or dismissal. In the actions specified in Article XIII of this Act [footnote omitted] or any other act or contract where the time for commencing an action is limited, if judgment is entered for the plaintiff but reversed on appeal, or if there is a verdict in favor of the plaintiff and, upon a motion in arrest of judgment, the judgment is entered against the plaintiff, or the action is voluntarily dismissed by the plaintiff, or the action is dismissed for want of prosecution, or the action is dismissed by a United States District Court for lack of jurisdiction, then, whether or not the time...