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09/14/87 Nancy Jacobsen, Adm'r of v. Edward F. Ragsdale

September 14, 1987

NANCY JACOBSEN, ADM'R OF THE ESTATE OF LEAH LEGEREIT, DECEASED, PLAINTIFF-APPELLEE

v.

EDWARD F. RAGSDALE, DEFENDANT-APPELLANT (ALTON MEMORIAL HOSPITAL ET AL., DEFENDANTS)



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

513 N.E.2d 1112, 160 Ill. App. 3d 656, 112 Ill. Dec. 503 1987.IL.1336

Appeal from the Circuit Court of Madison County; the Hon. A. A. Matoesian, Judge, presiding.

APPELLATE Judges:

JUSTICE KASSERMAN delivered the opinion of the court. HARRISON and LEWIS,* JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE KASSERMAN

Defendant, Dr. Edward F. Ragsdale, appeals under Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)) from the judgment of the circuit court of Madison County which granted plaintiff's motion for voluntary dismissal of his medical malpractice action under section 2-1009 of the Civil Practice Law (Ill. Rev. Stat. 1985, ch. 110, par. 2-1009). Defendant's motion to dismiss, filed pursuant to section 2-619 of the Civil Practice Law (Ill. Rev. Stat. 1985, ch. 110, par. 2-619), was pending at that time and had been set for hearing.

Plaintiff's suit was originally filed on August 8, 1985, in the circuit court of St. Clair County, Illinois. The complaint sought recovery for the wrongful death of Leah Legereit, allegedly caused by the medical malpractice of Alton Memorial Hospital, Dr. Edward F. Ragsdale, a radiologist, and Dr. Bellande Saint Louis, a treating doctor. Leah Legereit was allegedly admitted to Alton Memorial Hospital on or about November 19, 1984, and died on November 24, 1984.

Motions to transfer venue were filed on behalf of Alton Memorial Hospital, Dr. Bellande Saint Louis and Dr. Edward F. Ragsdale on the basis that none of the joined defendants were residents of St. Clair County and that the alleged injury took place in Madison County, Illinois. On October 22, 1985, an order was entered in the circuit court of St. Clair County, Illinois, transferring the case to Madison County. Defendants Alton Memorial Hospital and Dr. Bellande Saint Louis filed answers to plaintiff's complaint. Defendant Dr. Edward F. Ragsdale filed a motion to dismiss, supported by an affidavit, the thrust of which was that Dr. Ragsdale was not a proper defendant to the lawsuit in that he had not personally treated Leah Legereit or taken part in the medical treatment which allegedly led to her death. Also attached to defendant's motion to dismiss were copies of the hospital records of Leah Legereit which indicated by the incidents, places and people described therein that defendant Dr. Edward F. Ragsdale was not personally involved in the care and treatment of plaintiff's decedent. Plaintiff did not present counteraffidavits or any evidence to refute the contentions of Dr. Ragsdale.

On January 31, 1986, Dr. Ragsdale's motion to dismiss was argued and allowed. In that order, the trial court granted plaintiff "30 days to file an amended complaint against the radiologist who interpreted the deceased's x-rays." On February 19, 1986, plaintiff filed her first amended complaint, again including defendant Dr. Ragsdale as a named defendant. Count II of the first amended complaint was directed against Dr. Ragsdale and alleged that he committed one or more acts of negligence by and through his agent, Dr. John Hooker.

On February 21, 1986, defendant Dr. Ragsdale again filed a motion to dismiss, this time directed against the first amended complaint. In that motion, defendant asserted that a physician shareholder of a corporation is not liable for the alleged malpractice of another physician shareholder of the corporation where the shareholder being sued rendered no medical services to the patient, did not sign any hospital records or medical reports on the patient, and did not exercise any supervision or control over the physician shareholder who did treat the patient. Dr. Ragsdale's earlier affidavit attached to the motion to dismiss the original complaint was incorporated into defendant's motion to dismiss the first amended complaint. The first amended complaint was again answered by co-defendants Alton Memorial Hospital and Dr. Bellande Saint Louis and various discovery was undertaken.

On March 31, 1986, the plaintiff, ex parte, moved to amend her amended complaint and add Dr. John H. Hooker as an additional named defendant. The motion was granted and an order was entered on March 31, 1986. Plaintiff filed her second amended complaint at that time, again naming Dr. Edward F. Ragsdale as a defendant. The court set defendant Dr. Ragsdale's motion to dismiss the first amended complaint for hearing on April 4, 1986. At the hearing, plaintiff moved to voluntarily dismiss the claim against defendant Dr. Ragsdale without prejudice. Over defendant's objection, plaintiff's motion was granted by the court. An order was entered granting plaintiff's motion for voluntary dismissal, in which the court stated: "This cause comes on to be heard on motions of the defendant Ragsdale to dismiss and plaintiff's motion to voluntarily dismiss Dr. Ragsdale. Defendant's motion to dismiss was filed prior to plaintiff's motion. Notwithstanding, the court rules in favor of plaintiff and dismisses the cause of action against Dr. Ragsdale without prejudice." The court also found that there was "no just reason for delaying enforcement or appeal of this order."

We note at the outset that there is no question that the order in question is appealable under the holdings in Dillie v. Bisby (1985), 106 Ill. 2d 487, 478 N.E.2d 1338, and Kahle v. John Deere Co. (1984), 104 Ill. 2d 302, 472 N.E.2d 787.

On appeal, defendant raises the issue of whether the trial court abused its discretion when it considered and granted plaintiff's motion for voluntary dismissal before considering defendant's motion to dismiss, which had been filed and set for hearing prior to plaintiff's motion. We affirm.

Defendant, placing strong reliance upon the decision in Bernick v. Chicago Title & Trust Co. (1945), 325 Ill. App. 495, 60 N.E.2d 442, contends that where a hearing has been set pursuant to a motion to dismiss filed under section 2 -- 619 of the Civil Practice Law, a plaintiff no longer has an absolute right to a voluntary dismissal. In Bernick, the defendant's motion relied upon the doctrine of res judicata as a complete defense to the action. The court reasoned that since a motion under section 48 of the Civil Practice Act (now section 2 -- 619 of the Civil Practice Law) would terminate the litigation if sustained, a "hearing" had begun within the meaning of the statute regarding voluntary dismissals. ...


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