Appeal from the Circuit Court of Cook County; the Hon. William
R. Quinlan, Judge, presiding.
JUSTICE WHITE DELIVERED THE OPINION OF THE COURT:
Blanca Flores, as special administrator of the estate of Guadalupe Flores, sued several persons, alleging that they committed acts of medical negligence which caused Guadalupe's death. She also named several other persons, including Dr. Jitenbdue Parmer and Dr. Bruno Cortis, as respondents in discovery. She subsequently sought leave to add Parmer and Cortis as defendants. Parmer and Cortis moved for dismissal from the lawsuit because plaintiff did not move to add them as defendants within six months of naming them as respondents in discovery, as required by section 2-402 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2-402). The trial court granted Parmer's and Cortis' motions, and plaintiff appeals.
Guadalupe Flores died on July 29, 1982. His widow, Blanca Flores, and their five children, then between 6 and 12 years of age, survived him. Blanca filed her four-count complaint on November 14, 1983. In counts I and II, she sought recovery for Guadalupe's pain and suffering, and for his funeral expenses. In counts III and IV she sought recovery under the Wrongful Death Act (Ill. Rev. Stat. 1983, ch. 70, par. 1 et seq.). On April 9, 1984, the trial court granted plaintiff leave to file an amended complaint naming Parmer and Cortis, along with several other persons, as respondents in discovery pursuant to section 2-402 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2-402). Plaintiff moved to add Parmer and Cortis as defendants on November 19, 1984. Parmer moved to dismiss plaintiff's motion. On January 24, 1985, while both plaintiff's and Parmer's motions were pending, plaintiff moved for leave to file a second amended complaint and for leave to add Parmer and Cortis as new defendants, or in the alternative, for leave to add them as defendants under section 2-402. The trial court granted plaintiff's motion to file a second amended complaint and add Parmer and Cortis as new defendants, but it did not decide whether the cause was barred against these defendants by the operation of section 2-402.
On February 22, 1985, Parmer again moved for dismissal from the case on the grounds that he was not made a defendant within six months of being named as a respondent in discovery. On April 8, 1985, Cortis moved for dismissal from the case on substantially the same grounds as Parmer advanced. At a hearing on the motion, the court asked Parmer's attorney about the statute of limitations applicable to each count of the complaint. The attorney stated that there was a two-year limitations period for the wrongful death action, but for the other counts, "the statute of limitations is somewhat longer * * *. I believe that it's a four or five year statute of limitations. And we are not making any contention with respect to that." Counsel for Cortis adopted the arguments of Parmer's counsel. The trial court granted the motions of both defendants.
Plaintiff contends that the trial court erred in interpreting section 2-402 as an absolute bar to all attempts to join respondents in discovery as defendants more than six months after they are named as respondents in discovery. Section 2-402 provides in relevant part:
"Persons * * * 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 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.
• 1 The section clearly grants a plaintiff the right to make a respondent in discovery a new defendant in a cause of action after the limitations period for that cause has run, if plaintiff moves to name him as a defendant within six months after naming him as a respondent in discovery. (Clark v. Brokaw Hospital (1984), 126 Ill. App.3d 779, 782-83, 467 N.E.2d 652.) Defendants claim that the statute also implies that plaintiffs have no right to name new defendants in a cause of action more than six months after plaintiffs named the proposed defendants as respondents in discovery, even if the statute-of-limitations period for the cause of action has not run.
• 2, 3 Our interpretation of section 2-402 is guided by the general principle that our first duty is to give effect to the legislature's intent, and in so doing, we must look first to the language of the statute itself. (In re Marriage of Logston (1984), 103 Ill.2d 266, 277, 469 N.E.2d 167.) We will not read into a statute words which are neither expressly included in the statute nor found therein by fair implication. (People ex rel. Nelson v. Olympic Hotel Building Corp. (1950), 405 Ill. 440, 448, 91 N.E.2d 597.) We construe statutes in light of the objectives the legislature sought to achieve in enacting the legislation. Gill v. Miller (1983), 94 Ill.2d 52, 56, 445 N.E.2d 330.
• 4 The words of the statute do not require the construction defendants urge upon us. Section 2-402 does not state, on its face, that it has any effect when the limitations period for the underlying cause of action has not run. The statute does not contain any of the conventional phrases the legislature has used to express limitations, such as: "No person shall commence an action * * * unless within [some time after an event]." Ill. Rev. Stat. 1983, ch. 110, pars. 13-101, 13-102, 13-103.
Moreover, defendants' interpretation conflicts with the policies underlying the statute.
"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, House of Representatives, June 10, 1976, at 32-33.
The procedures of section 2-402 are not mandatory, and the plaintiff's attorney still has the option to name persons as defendants, rather than respondents in discovery, at the outset." (Clark v. Brokaw Hospital (1984), 126 Ill. App.3d 779, 783, 467 N.E.2d 652.)
Plaintiffs generally would be unlikely to avail themselves of this section if use of the section subjects them to the severe penalty of having their actions barred within six months, even though the statutory limitation periods for the underlying causes of action have not run. If plaintiffs elect not to use the procedures established in section 2-402, the section will entirely fail to achieve the legislature's objectives. Parmer argues that his interpretation of the statute will achieve the legislature's objectives because use of section 2-402 substantially benefits plaintiffs in other ways, and therefore plaintiffs will employ the provision even if it shortens the period in which they may add new defendants. Parmer points to plaintiffs' discovery rights and to the respondents' lack of any right to engage in reciprocal discovery or to challenge the sufficiency of a complaint. However, a respondent in discovery has the right to be made a defendant upon his own motion. (Ill. Rev. Stat. 1983, ch. 110, par. 2-402.) Therefore, if the respondent ...