Watkins v. Ingalls Mem'l Hosp.

• Decision Date: 26 April 2018
• Docket Number: & 1–17–0964 (cons.),1–17–0782,Nos. 1–16–3275,s. 1–16–3275
• Citation: 2018 IL App (1st) 163275,105 N.E.3d 789
• Parties: Johnnie WATKINS, as Guardian of the Estate of Johnnice Ford, a Disabled Person, Plaintiff–Appellant, v. INGALLS MEMORIAL HOSPITAL, a Corporation, Ingalls Health System, a Corporation, South Suburban Neurology, Ltd., a Corporation, Marvin Zelkowitz, M.D., Saif Nazir, M.D., and Larry Foster, M.D., Defendants–Appellees.
• Court: United States Appellate Court of Illinois

2018 IL App (1st) 163275

105 N.E.3d 789

Johnnie WATKINS, as Guardian of the Estate of Johnnice Ford, a Disabled Person, Plaintiff–Appellant,

v.INGALLS MEMORIAL HOSPITAL, a Corporation, Ingalls Health System, a Corporation, South Suburban Neurology, Ltd., a Corporation, Marvin Zelkowitz, M.D., Saif Nazir, M.D., and Larry Foster, M.D., Defendants–Appellees.

Nos. 1–16–3275

1–17–0782

& 1–17–0964 (cons.)

Appellate Court of Illinois, First District, Fourth Division.

Rule 23 filed March 15, 2018

Motion to Publish Granted April 19, 2018

Opinion filed April 26, 2018

Susan E. Loggans & Associates (Susan E. Loggans and Patrick Condron, of counsel), and Law Office of Harry C. Lee (Harry C. Lee and Debra A. Thomas, of counsel), both of Chicago, for appellant.

Donohue Brown Mathewson & Smyth, LLC, of Chicago (Karen Kies DeGrand, John M. McGarry, and Amanda Balen, of counsel), for appellees Ingalls Memorial Hospital and Ingalls Health System.

Pretzel & Stouffer, Chtrd. (Scott L. Howie, of counsel), and Steptoe & Johnson, LLP (James A. Christman and Caroline E. Carlson, of counsel), both of Chicago, for appellees South Suburban Neurology, Ltd., and Marvin Zelkowitz.

Nora & Partners, LLP, of Chicago (Robert L. Nora, Taylor V. Nora, and Elizabeth M. Polit, of counsel), for other appellees.

PRESIDING JUSTICE BURKE delivered the judgment of the court, with opinion.

¶ 1 On August 20, 2010, Johnnice Ford filed a complaint in the circuit court of Cook County "individually, and as mother and next best friend of Jaiyana Ford, a minor." In her complaint, Ford alleged medical malpractice against various medical professionals, including each of the defendants here. Ford contended that the defendants negligently failed to diagnose and treat her during her September 2008 visit to Ingalls Memorial Hospital. The complaint was filed shortly before the expiration of the two-year statute of limitations period applicable to medical malpractice actions under section 13–212(a) of the Code of Civil Procedure (Code) ( 735 ILCS 5/13–212(a) (West 2008) ). On September 14, 2010, the circuit court granted Ford's motion to voluntarily dismiss the complaint. On July 15, 2014, plaintiff, Johnnie Watkins, "as Guardian of the Estate of Johnnice Ford, a disabled person," filed a complaint in the circuit court, naming as defendants Ingalls Memorial Hospital and Ingalls Health System (collectively, Ingalls) and Bari Parks–Ballard, M.D. The allegations in the complaint largely mirrored the allegations raised in the 2010 complaint concerning Ford's treatments at Ingalls Memorial Hospital in September 2008. Ingalls filed a motion to dismiss, but before the circuit court could address plaintiff's complaint, the case was removed to federal court by the Unites States of America, which substituted itself as defendant for Dr. Parks–Ballard, who was a federal employee. The federal district court dismissed the case, finding that plaintiff had failed to exhaust her administrative remedies. Plaintiff never sought to transfer the remaining state law claims against Ingalls to the circuit court.

¶ 2 In September 2015, plaintiff filed a complaint in the federal district court for the northern district of Illinois against the United States, as the principal of Dr. Parks–Ballard. Plaintiff alleged negligence against the United States for the treatment provided to Ford at Ingalls in September 2008, echoing the claims from the 2010 and 2014 complaints. The federal district court granted the United States's motion to dismiss the complaint, and the United States Court of Appeals for the Seventh Circuit affirmed that ruling.

¶ 3 On January 21, 2016, plaintiff filed the instant action, the fourth complaint concerning the same operative facts and cause of action. The principal allegations of the complaint once again concerned Ford's treatment at Ingalls in September 2008. All defendants moved to dismiss the action under section 2–619 of the Code ( 735 ILCS 5/2–619 (West 2014) ), chiefly contending that the action was barred by the statute of limitations, the statute of repose, and the refiling limitation of section 13–217 of the Code ( 735 ILCS 5/13–217 (West 1994) ).¹ Ingalls also contended that the conduct of plaintiff's attorneys was sanctionable under Illinois Supreme Court Rule 137 (eff. July 1, 2013). The circuit court granted defendants' motions, finding that the 2016 complaint was an unpermitted refiling of the original action. The court determined that the 2014 complaint was the one, and only, refiling of the 2010 action permitted pursuant to section 13217. The court also found that plaintiff's claims were barred by res judicata . The court subsequently denied Ingalls motion for Rule 137 sanctions.

¶ 4 On appeal, plaintiff asserts that the circuit court erred in granting defendants' motions to dismiss where there was a question of fact as to whether Ford was under a mental disability

at the time the 2010 complaint was filed, rendering that action a nullity and tolling the limitations periods. Plaintiff also contends that she was not appointed as Ford's guardian until 2015, and thus lacked the authority to bring the 2014 complaint on Ford's behalf. Plaintiff therefore asserts that the 2016 action was not barred by section 13–217 because it was the first new action brought against these defendants by Ford or on her behalf. Plaintiff also asserts that the doctrines of collateral estoppel and res judicata do not bar her claims. Ingalls contends that the circuit court erred in denying its motion for sanctions. For the reasons discussed below, we affirm the judgment of the circuit court.

¶ 5 I. BACKGROUND

¶ 6 A. The 2010 Complaint

¶ 7 On August 20, 2010, Ford filed a complaint in the circuit court "individually, and as mother and next best friend of Jaiyana Ford, a minor." Ford named as defendants all of the defendants in the case at bar and other medical professionals. In her complaint, Ford alleged that, on August 20, 2008, the physician defendants rendered medical care to her while she was pregnant. On September 10, 2008, Ford checked into the emergency room at Ingalls. During the course of Ford's treatment at Ingalls, she underwent an emergency caesarean section

. Ford was later transferred to another hospital and diagnosed with Wernicke's Encephalopathy, Dry Beriberi, and Pseudobulbar palsy. Ford asserted that the physicians at Ingalls failed to properly diagnose and treat her, which directly caused her serious medical conditions, rendering her disabled. Ford contended that since her treatment at Ingalls, she had been "lethargic, bedridden, and incapable of fully caring for herself, and require[d] constant care and attention."

¶ 8 Ford's attorney attached an affidavit to the complaint, stating that he had recently obtained Ford's complete medical records and required time to have the records reviewed by proper medical professionals. Ford's attorney maintained that he was therefore unable to comply with section 2–622 of the Code ( 735 ILCS 5/2–622 (West 2008) ) as required for medical malpractice actions. On September 14, 2010, Ford voluntarily dismissed the action without prejudice, and the circuit court permitted her "leave to re-file within one year."

¶ 9 B. 2014 Complaint

¶ 10 Nearly four years later, on July 15, 2014, plaintiff filed a complaint in the circuit court "as Guardian of the Estate of Johnnice Ford, a disabled person." In this action, plaintiff named only Ingalls and Dr. Bari Parks–Ballard as defendants. In the complaint, plaintiff contended that on September 10, 2008, Ford received treatment at Ingalls by Dr. Parks–Ballard. Plaintiff contended that Dr. Parks–Ballard negligently failed to properly care for and treat Ford, resulting in her current medical conditions. One of plaintiff's attorneys attached an affidavit to the complaint, averring that counsel was unable to obtain a consultation as required by section 2–622 of the Code ( 735 ILCS 5/2–622 (West 2014) ) because "the statute of limitations would impair the action and the consultation required could not be obtained before the expiration of the statute of limitations." Ingalls filed a motion to dismiss the complaint, but before the trial court could rule on the motion, the United States removed the case to federal court, substituting itself as defendant in place of Dr. Parks–Ballard, a federal employee. The United States District Court for the Northern District of Illinois subsequently dismissed the action because plaintiff failed to exhaust her administrative remedies before filing suit. Watkins v. Ingalls Memorial Hospital , No. 14–CV–08417, 2015 WL 7722730 (N.D. Ill. Jan. 27, 2015). Plaintiff never sought to transfer the remaining state law claims against Ingalls to the circuit court.

¶ 11 C. 2015 Complaint

¶ 12 On September 16, 2015, plaintiff filed a complaint "as Guardian of the Estate of Johnnice Ford, a disabled person" in the United States District Court for the Northern District of Illinois against the United States, as the principal of Dr. Parks–Ballard. As in the 2014 complaint, plaintiff claimed Dr. Parks–Ballard committed malpractice in failing to treat and diagnose Ford at Ingalls on September 18, 2008. The district court granted the United States' motion to dismiss the complaint, finding that the claim was time barred under the Federal Tort Claims Act (FTCA) ( 28 U.S.C. § 2675 (2012) ) statute of limitations. Watkins v. United States , No. 15-CV-8350, 2016 WL 1435704 (N.D. Ill. Apr. 12, 2016). The court stated that the issue was determining when plaintiff's claim accrued and that "the 2010 lawsuit against Dr. Parks–Ballard resolves any doubt about whether Ford (and by extension Plaintiff) knew of the doctor-related cause of her injuries. Her claims thus accrued, at the latest , by August 20, 2010." (Emphasis in original.) Id. at *2. The court found that despite plaintiff's claims that Ford's disability tolled the limitations period, Ford's filing of the 2010 complaint "indisputably establishes that Plaintiff...