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04/12/88 Christine Kruk, Special v. Paul Birk Et Al.

April 12, 1988

PRZYBYSZ, DECEASED, PLAINTIFF-APPELLANT

v.

PAUL BIRK ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

CHRISTINE KRUK, Special Adm'r of the Estate of Lorraine

523 N.E.2d 93, 168 Ill. App. 3d 949, 119 Ill. Dec. 625 1988.IL.510

Appeal from the Circuit Court of Cook County; the Hon. Thomas Rakowski, Judge, presiding.

APPELLATE Judges:

JUSTICE SCARIANO delivered the opinion of the court. HARTMAN, P.J., and BILANDIC, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SCARIANO

Plaintiff appeals from the trial court's order dismissing her medical malpractice action against defendants. Plaintiff filed her suit two days before the statute of limitations expired, she caused no summons to issue in that action, and she did not attempt to serve any of the defendants. Two years later plaintiff voluntarily dismissed her action, pursuant to section 2-1009 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-1009), and immediately refiled, pursuant to section 13-217 (Ill. Rev. Stat. 1985, ch. 110, par. 13-217). It took plaintiff a period of eight months after refiling to have all defendants served with process. The trial court later granted defendants' Rule 103(b) (107 Ill. 2d R. 103(b)) motions to dismiss plaintiff's action with prejudice. She now argues that the trial court erred in ruling that her failure to obtain service on defendants until two years after the statute of limitations had expired constituted a lack of due diligence which mandated dismissal with prejudice pursuant to Supreme Court Rule 103(b).

Plaintiff's decedent, Lorraine Przybysz, was periodically hospitalized at Lutheran General Hospital in the months prior to her death, and while there she received care from Drs. Birk, Murphy, Broccolo, Rosenblate and Messink, and from Associated Radiologists, Ltd. Ms. Przybysz died on September 17, 1981.

Plaintiff was duly appointed special administrator of the estate and subsequently filed a medical malpractice action against defendants on September 15, 1983, two days before the applicable statute of limitations expired, alleging that defendants failed to diagnose and treat Ms. Przybysz's conditions of ill-being. Plaintiff claims she delayed in bringing suit for the reason that she was having difficulty in locating an expert willing to testify on her behalf, and that no summons was issued in this case because plaintiff lacked a medical opinion that she had a meritorious cause of action.

When plaintiff sent her medical records to a physician for review, he indicated that although he believed she might have grounds for a medical malpractice action, he was unable to render a medical opinion. Plaintiff then contacted a board-certified general surgeon, who advised that he believed grounds for a malpractice action existed, based on counsel's description of the events leading to Ms. Przybysz's death. Consequently, in March 1984, counsel forwarded plaintiff's medical records to this surgeon. Despite repeated efforts to contact the surgeon, plaintiff did not hear from him for months; however, in March 1985, he advised plaintiff that he was personally acquainted with one of the defendants and would not render an opinion if his identity was to be revealed. Plaintiff then sent her records to two additional general surgeons, one of whom was board-certified. The board-certified doctor believed that a cause of action existed for malpractice but declined to testify because he knew two of the defendants. The nonboard-certified surgeon also believed a malpractice cause of action existed, but preferred not to testify because he believed his lack of certification would detract from his credibility.

Thus, by August 1985, plaintiff had not yet located an expert willing to testify on her behalf; indeed, the record does not disclose that she ever found one. Accordingly, on August 13, 1985, plaintiff voluntarily dismissed her suit because she had not caused service of process to issue on any of the defendants, but pursuant to section 13-217 (Ill. Rev. Stat. 1985, ch. 110, par. 13-217), she refiled on August 14, 1985. In February 1986, in response to the defense of the statute of limitations raised by defendants after they had been served in the refiled action, plaintiff was granted leave to amend her complaint to show her filing and dismissal of the prior suit.

Lutheran General Hospital, Dr. Messink and Associated Radiologists, Ltd., were served in August 1985. Lutheran General appeared on October 18, 1985, and answered the complaint on November 24, 1985, raising the statute of limitations as an affirmative defense. Dr. Messink and Associated Radiologists appeared and made discovery requests in November 1985, and by leave of court, filed their answer in February 1986.

Dr. Rosenblate was served in September 1985. He appeared in November 1985 and moved to dismiss the complaint on statute of limitations grounds at that time. Dr. Rosenblate also served requests for discovery, and by leave of court, filed his answer in November 1985. He responded to plaintiff's discovery requests in February 1986.

Dr. Murphy was served on December 31, 1985, and he appeared and answered in March 1986. The summons issued to Dr. Broccolo in August 1985 was returned in September 1985, indicating that he was not found on several attempts to serve him at Lutheran General Hospital. No further summons issued until December 1985, and he was finally served in January 1986. In February 1986, Dr. Broccolo appeared and moved to dismiss on statute of limitations grounds. That motion was denied in April 1986, after which he filed a motion to dismiss based on Supreme Court Rule 103(b) for failure to exercise due diligence in obtaining service of process.

The first attempt to serve Dr. Birk was in August 1985, at Lutheran General Hospital. The next attempt was not made until December 31, 1985, and he was finally served in April 1986. In June 1986, Dr. Birk filed a motion to dismiss pursuant to Rule 103(b). The trial court granted both Dr. Birk's and Dr. Broccolo's Rule 103(b) motions to dismiss with prejudice in June 1986, but the final effect of ...


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