Appeal from the Circuit Court of Madison County; the Hon. John
Gitchoff, Judge, presiding.
JUSTICE HARRISON DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 6, 1987.
Plaintiff, Victoria Ransom, appeals from a judgment of the circuit court of Madison County dismissing her complaint with prejudice pursuant to sections 2-619(a)(1) and 2-619(a)(3) of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, pars. 2-619(a)(1), (a)(3)). The questions presented for our review are: (1) whether the proposed complaint previously filed by plaintiff with the Indiana Commissioner of Insurance in accordance with the Indiana Medical Malpractice Act (Ind. Code Ann. sec. 16-9.5-1-1 et seq. (Burns 1983)) constitutes "another action pending between the same parties for the same cause" within the meaning of section 2-619(a)(3) of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-619(a)(3)), and (2) whether compliance with the medical-review-panel procedure set forth in chapter 9 of the Indiana Medical Malpractice Act (Ind. Code Ann. sec. 16-9.5-9-1 et seq. (Burns 1983)) is a prerequisite to plaintiff's right to bring a medical malpractice action in Illinois for acts or omissions which occurred in the State of Indiana. For the reasons which follow, we answer both questions in the negative. We therefore reverse and remand for further proceedings.
The facts underlying this appeal are not in dispute. Plaintiff filed a two-count complaint against defendant, Dr. R. Anthony Marrese, in the circuit court of Madison County, Illinois, for damages she sustained when defendant performed surgery on her spine which she contends was unnecessary. Count I of plaintiff's complaint sounds in negligence. Count II alleges that defendant intentionally misrepresented to plaintiff both her condition and the need for surgery to correct that condition. The acts or omissions for which plaintiff seeks to impose liability on defendant took place at Deaconess Hospital in Evansville, Indiana. At the time of these acts or omissions, defendant was a resident of the State of Indiana. Plaintiff apparently was, or became, a Kentucky resident. Both plaintiff and defendant currently reside in Illinois.
Plaintiff's complaint was filed on May 22, 1985. On May 29, 1984, however, plaintiff had filed a "proposed complaint" for medical malpractice with the Indiana Commissioner of Insurance in accordance with the Indiana Medical Malpractice Act (Ind. Code Ann. sec. 16-9.5-1-1 et seq. (Burns 1983)). That statute provides, inter alia, that medical malpractice claims must be submitted to a medical review panel and the panel must render an opinion before the claim may be pursued in court. See Ind. Code Ann. sec 16-9.5-9-1 (Burns 1983).
Plaintiff's "proposed complaint" averred the same basic facts as count I of her present action but sought recovery not only against defendant, Dr. Marrese, but also against Deaconess Hospital, where the alleged malpractice took place, and Dr. Albert Riss, another physician who treated her and participated in performing the surgery on her spine. The "proposed complaint" was based solely on negligence. No claim was made for intentional misrepresentation. The complaint was ultimately to be filed in the United States District Court for the Southern District of Indiana and would have invoked that court's diversity jurisdiction under 28 U.S.C.A. sec. 1332 (West Supp. 1986).
Defendant moved for involuntary dismissal of plaintiff's complaint under sections 2-619(a)(1) and 2-619(a)(3) of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, pars. 2-619(a)(1), (a)(3)) on the following grounds:
"1. That there is another action pending between the same parties for the same cause of action in the State of Indiana.
2. That this Court does not have jurisdiction of the subject matter of this action for the reason that under the Indiana Medical Malpractice Statute, no action against a health care provider may be commenced before the claimant's proposed Complaint has been presented to a medical review panel and an opinion rendered by that panel."
The circuit court granted defendant's motion, relying on each of these grounds. Plaintiff's motion to reconsider was denied, and plaintiff now appeals.
• 1 Plaintiff first argues that the circuit court erred in applying section 2-619(a)(3) to dismiss her complaint because there is not "another action pending between the same parties for the same cause" as required by that provision. We agree. The "proposed complaint" filed by plaintiff with the Indiana Commissioner of Insurance for submission to a medical review panel under Indiana law is based on substantially the same underlying facts or issues as the complaint at issue here, and the parties' interests in each proceeding are sufficiently similar, even though those parties are not identical. The "same cause" and "same parties" elements of section 2-619(a)(3) are therefore satisfied. (See La Salle National Bank v. Helry Corp. (1985), 136 Ill. App.3d 897, 906, 483 N.E.2d 958, 964; Cummings v. Iron Hustler Corp. (1983), 118 Ill. App.3d 327, 332-33, 454 N.E.2d 1078, 1082-83.) What is absent is the pendency of another "action."
In law, the word "action" is commonly understood to mean a formal proceeding in a court of justice. (See Black's Law Dictionary 26 (5th ed. 1979); 1A C.J.S. Actions secs. 2, 3 (1985).) Although the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 1-101 et seq.) does not itself expressly define the term, even a cursory review of the Code's provisions reveals that it has adopted the same, basic definition. Indeed, of the numerous references to "actions" in the Code, we have not found a single instance in which the term is used to mean anything other than a formal court proceeding. There is no dispute that the medical-review-panel process initiated by plaintiff in Indiana by the filing of her "proposed complaint" with the Indiana Commissioner of Insurance is not such a formal court proceeding, nor is there any suggestion in the record that her "proposed complaint" has ever been submitted to any court of law. Under these circumstances, we must conclude that the Indiana proceeding does not constitute another pending "action" within the meaning of section 2-619(a)(3) (Ill. Rev. Stat. 1985, ch. 110, par. 2-619(a)(3)).
Defendant urges us to reject this conclusion, arguing that "action" should be interpreted to embrace more than just "judicial action," but he has been unable to cite any Illinois authority to support such an interpretation. Our independent research has disclosed one case which assumed, without expressly deciding, that a proceeding before the Illinois Human Rights Commission, an administrative body, constituted an "action" within the meaning of the predecessor statute to section 2-619(a)(3), justifying dismissal of litigation commenced in the circuit court which involved substantially the same cause and sufficiently similar parties. (Cummings v. Iron Hustler Corp. (1983), 118 Ill. App.3d 327, 454 N.E.2d 1078.) Even if we were to agree with this decision, however, it would nevertheless be of no aid to defendant here.
The Illinois Human Rights Commission is authorized to decide the merits of complaints filed with it under the Illinois Human Rights Act (Ill. Rev. Stat. 1985, ch. 68, par. 1-101 et seq.). (See Ill. Rev. Stat. 1985, ch. 68, pars. 8-102, 8-106, 8-107.) It is empowered to grant an array of remedies (see Ill. Rev. Stat. 1985, ch. 68, par. 8-108) and to impose a variety of penalties (see Ill. Rev. Stat. 1985, ch. 68, par. 8-109), and its orders are enforceable through court action (See Ill. Rev. Stat. 1985, ch. 68, par. 8-111(B)). In view of these characteristics, we understand Cummings v. Iron Hustler Corp. (1983), 118 Ill. App.3d 327, 454 N.E.2d 1078, to mean that section 2-619(a)(3) requires at least that the other pending proceeding be one which will finally adjudicate a controversy on the merits, as would litigation in circuit court. To allow dismissal under a lesser standard would be contrary to the purpose of section 2-619(a)(3), which is to avoid ...