Appeal from the Circuit Court of Sangamon County; the Hon.
Richard E. Mann, Judge, presiding.
JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:
On June 8, 1984, plaintiff, Claudia Ingle, filed suit in the circuit court of Sangamon County against defendants, St. John's Hospital, Hospital Sisters Health System, and several of her treating physicians, alleging various counts of medical malpractice. In her complaint, she named Drs. David Binstadt, Michael Snyder, Erwin Janzen, Phillip Williams, and Robert Winders, as respondents-in-discovery under section 2-402 of the Code of Civil Procedure. (Ill. Rev. Stat. 1983, ch. 110, par. 2-402.) On December 4, 1984, plaintiff filed a motion for leave to file an amended complaint naming Binstadt, Winders, Janzen, Williams, and Snyder as defendants. On December 5, 1984, the court allowed the motion as to Williams and Winders but denied it as to Binstadt, Janzen, and Snyder.
On January 7, 1985, plaintiff filed a motion requesting reconsideration of the December 5, 1984, ruling as it applied to the joinder of Binstadt and Snyder. On August 27, 1985, the trial court entered an order denying the January 7 motion and finding that there was no just reason to delay enforcement or appeal of that order. On September 10, 1985, plaintiff filed a notice of appeal purporting to appeal from the August 27 order denying reconsideration.
Section 2-402 of the Code of Civil Procedure permits plaintiffs in medical malpractice cases to name as respondents-in-discovery "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." (Ill. Rev. Stat. 1983, ch. 110, par. 2-402.) Such respondents-in-discovery are subject to giving discovery to plaintiffs to the same extent as defendants to the suit. A respondent-in-discovery may, upon his or her motion, be made a defendant in the action. The plaintiff may require such a respondent to be named as a defendant upon motion made within six months after the respondent-in-discovery has been so designated and upon a showing of probable cause of malpractice liability by such respondent.
Plaintiff maintains that the depositions and affidavits before the court when it ruled on her December 4, 1984, motion made a sufficient showing of probable cause that she had a valid claim against Binstadt and Snyder and that the court erred in denying her motion to name them as parties defendant. Binstadt and Snyder contend that the evidence before the court justified the court's determination that probable cause was not shown. They also assert that we do not have jurisdiction of this appeal, because plaintiff's notice of appeal was not timely filed. No court of review of this State has passed on the question of the sufficiency of proof to require the trial court to find probable cause under section 2-402. However, we hold that the proof was sufficient here. We also find the notice of appeal to have been timely filed. Accordingly, we reverse.
• 1 We consider first the question of our jurisdiction. The thrust of the contention of Binstadt and Snyder that the notice of appeal was untimely is that plaintiff's motion to reconsider was filed on January 7, 1985, which was more than 30 days after the trial court's judgment of December 5, 1984, denying plaintiff's motion to designate them as defendants. The short answer to defendants' contention is that plaintiff does not need to rely upon the pendency of the motion for reconsideration to stay the time for filing notice of appeal. That was filed within 30 days from the time the judgment of December 5, 1984, became appealable, August 27, 1985.
We begin our analysis of the appealability issue by noting that plaintiff's notice of appeal purported to be from the August 27, 1985, order denying its motion to reconsider. Under the rule set forth in Sears v. Sears (1981), 85 Ill.2d 253, 258, 422 N.E.2d 610, 612, an order denying a post-judgment motion is not appealable. Rather, if timely filed, the pendency of the post-judgment motion does serve to extend the time for filing notice of appeal from the underlying judgment. However, as that court explained, the underlying judgment and the post-judgment order are closely related, and an appeal from the underlying judgment would carry with it the ruling denying the post-judgment motion. Accordingly, we hold that we may treat the notice of appeal as a notice of appeal of the underlying judgment of December 5, 1984.
• 2 The December 5, 1984, judgment was final as to any claims plaintiff had against Binstadt and Snyder, but many other claims of plaintiff's against other parties remained pending. Accordingly, the appealability of that judgment was controlled by the terms of Supreme Court Rule 304(a) which provides that such a judgment is appealable only if a finding is made "that there is no just reason for delaying enforcement or appeal." (103 Ill.2d R. 304(a).) Here, the court made no finding in that regard as to the December 5, 1984, judgment but made such a finding as to the denial of the motion for reconsideration. The difference is subtle and obscure. Considering the language of Sears and consistent with our ruling in regard to the notice of appeal failing to name the proper order as that which was appealed, we treat the Rule 304(a) finding as having been intended to cover the judgment of December 5, 1984.
• 3, 4 Supreme Court Rule 304(a) further states that when the finding of appealability is made, "[t]he time for filing the notice of appeal shall run from the entry of the required finding." (103 Ill.2d R. 304(a).) Here, the judgment which was final as to some but not all parties was entered December 5, 1984, but that judgment did not become appealable until August 27, 1985, when the required finding was made. Notice of appeal was then filed on September 10, 1985, less than 30 days after the judgment became appealable.
Notably, Rule 304(a) further states that absent the finding making a judgment within its purview appealable, such a judgment "is subject to revision at any time before the entry of a judgment adjudicating all the claims, rights, and liabilities of all the parties." (103 Ill.2d R. 304(a).) Thus, when the motion to reconsider was filed on January 7, 1985, the trial court still had jurisdiction to entertain the motion. The pendency of such a motion may not have granted plaintiff any stay of time limit for filing notice of appeal, because the motion was not filed within 30 days of the judgment sought to be set aside as required by Supreme Court Rule 303 (103 Ill.2d R. 303) for such a stay. (See Wool v. La Salle National Bank (1980), 89 Ill. App.3d 560, 411 N.E.2d 1135.) Nevertheless, by the clear language of Rule 304(a), the trial court had jurisdiction to hear the motion and to rule on it on August 27, 1985. If the order denying that post-judgment motion is deemed the appropriate order from which to take appeal, notice of appeal from that order was filed within 30 days of its entry.
On the other hand, if we are correct in our determination that the denial of the post-judgment motion was not an appealable order but wrong in our determination to treat the notice of appeal and the Rule 304(a) finding as covering the December 5, 1984, judgment, the trial court has entered no appealable order, and the appeal must be dismissed and the case remanded. If that were done, the propriety of the denial of plaintiff's request to add the additional defendants would have to await either a proper 304(a) finding or the determination of all of the claims in the case.
With all of the foregoing considerations in mind, we deny the request of defendants that the appeal be dismissed.
We now turn to the merits of the appeal. Section 2-402 of the Code of Civil Procedure speaks in terms of respondents-in-discovery being joined as defendants "if the evidence discloses the existence of probable cause." (Ill. Rev. Stat. 1983, ch. 110, par. 2-402.) As we have indicated, no court of review of this State has passed on the question of what proof is necessary to show such "probable cause." However, in Clark v. Brokaw Hospital (1984), 126 Ill. App.3d 779, 467 N.E.2d 652, this court explained:
"The legislative history of section 2-402 indicates that its purpose was to provide plaintiff's attorneys with a means of filing medical malpractice suits without naming everyone in sight as a defendant. It was believed that the label of `defendant' in a medical malpractice suit contributed to the spiraling cost of medical malpractice insurance. See transcript of proceedings, ...