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Whitley v. Lutheran Hospital

OPINION FILED JULY 11, 1979.

JOE L. WHITLEY, PLAINTIFF-APPELLEE,

v.

LUTHERAN HOSPITAL ET AL., DEFENDANTS. — (E.D. LARDNER, M.D., RESPONDENT-APPELLANT.)



APPEAL from the Circuit Court of Rock Island County; the Hon. WILBUR S. JOHNSON, Judge, presiding.

MR. JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:

Rehearing denied August 15, 1979.

This case is on an interlocutory appeal certified to this court pursuant to Supreme Court Rule 308. At issue is the interpretation of a new section of the Civil Practice Act, specifically section 21.1. The text of the section follows:

"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 pleading those individuals, other than the named defendants, believed by him 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discovery may upon his own motion be made a defendant in the action, in which case the provisions of this Section are no longer applicable to that person.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 respondent in discovery in any civil action may be made a defendant in the same action at any time within 6 months after he is named as a respondent in discovery, even though the time during which an action may otherwise be initiated against him may have expired during such 6 month period." (Ill. Rev. Stat. 1977, ch. 110, par. 21.1.)

No published opinion by the courts> of this State has directly considered the ramifications of this recent, unique, statutory addition.

A review of the history of this controversy can begin on October 5, 1975, the date on which the plaintiff Joe L. Whitley submitted to surgery performed by Dr. E.D. Lardner at Lutheran Hospital in Moline, Illinois. According to allegations in a complaint filed in the Circuit Court of Rock Island County on October 5, 1977, that surgery was less than successful. The complaint was indeed a creature of statute, in that it named 17 respondents in discovery, including as one Dr. Lardner, but no defendants, as that term was understood at common law. Dr. Lardner was served as required by section 21.1. Thereafter he appeared specially to quash the service and to contest the jurisdiction of the court, citing as grounds plaintiff's failure to name a defendant in the complaint. *fn1

In response plaintiff sought and was granted leave to file an amended complaint. Such a complaint was filed on November 7, 1977, naming Lutheran Hospital as a defendant and again naming Dr. Lardner and sixteen others as respondents in discovery. Following a hearing on November 8, 1977, Dr. Lardner's special appearance was denied and he was ordered to comply with discovery procedures as required by section 21.1.

Subsequently plaintiff again sought and was granted leave to amend his complaint. When such amended complaint was filed on December 14, 1977, it named in addition to the hospital six other defendants as well as three respondents in discovery. As before, Dr. Lardner was named as a respondent in discovery. Finally, on February 17, 1978, without notice to any party or respondent, the plaintiff filed a count IX to the second amended complaint which named Dr. E.D. Lardner as a defendant. The plaintiff did not file a motion for leave, nor did the court enter any order permitting it.

After summons was served ordering Dr. Lardner to answer or otherwise appear, he filed a special appearance and moved to quash the summons, claiming that count IX against him was filed without order or permission of court and therefore no valid action was pending against him. On August 21, 1978, the Circuit Court denied the special appearance and motion to quash filed by Dr. Lardner, but made the ...


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