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05/18/88 R. Anthony Marrese, M.D., v. R. Anthony Marrese

May 18, 1988

SUPREME COURT OF ILLINOIS VICTORIA RANSOM, APPELLEE

v.

R. ANTHONY MARRESE, M.D., APPELLANT



524 N.E.2d 555, 122 Ill. 2d 518, 120 Ill. Dec. 525 1988.IL.783

Appeal from the Appellate Court for the Fifth District; heard in that court on appeal from the Circuit Court of Madison County, the Hon. John Gitchoff, Judge, presiding.

APPELLATE Judges:

JUSTICE WARD delivered the opinion of the court.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WARD

The plaintiff, Victoria Ransom, filed a complaint in the circuit court of Madison County on May 22, 1985, for injuries allegedly caused by the negligence of the defendant, R. Anthony Marrese, M.D., in treatment while she was hospitalized in Indiana. Pursuant to § 2-619(a)(1) and 2-619(a)(3) of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, pars. 2-619(a)(1), (a)(3)), the circuit court dismissed the complaint with prejudice. The appellate court reversed (150 Ill. App. 3d 67), and we allowed the defendant's petition to appeal (107 Ill. 2d R. 315).

The parties are in agreement as to the facts underlying this appeal. On May 23, 1983, the defendant, a physician licensed to practice in Indiana, provided medical services to the plaintiff while she was hospitalized in Evansville, Indiana. Approximately one year later, on May 29, 1984, the plaintiff, pursuant to § 16 -- 9.5 -- 9 -- 2 of the Indiana Medical Malpractice Act (Ind. Code Ann. § 16 -- 9.5 -- 1 et seq. (Burns 1983)), gave notice of her intent to pursue a malpractice claim against the defendant by filing a proposed complaint with the Indiana Insurance Commissioner for submission to a medical review panel. The section requires a claimant to submit a malpractice claim to a medical review panel and obtain an opinion from the panel before instituting a court action. (Ind. Code Ann. § 16 -- 9.5 -- 9 -- 2 (Burns 1983).) The proposed complaint charged the defendant with medical negligence in diagnosing and treating the plaintiff's condition and with wilful misrepresentation of her condition and of the need for surgery. Specifically, the plaintiff charged that the defendant recommended and performed unnecessary surgery on her spine.

The proposed complaint also sought recovery from Deaconess Hospital, where the alleged malpractice took place, and from another physician who assisted in the surgery. The plaintiff's intention was to subsequently file an action in the United States District Court for the Southern District of Indiana, invoking that court's jurisdiction on diversity of citizenship. The proposed complaint pends in Indiana and no opinion has been issued by the medical review panel.

At the time of the claimed negligence and when the proposed complaint was filed, the defendant was a resident of Indiana, and the plaintiff was a resident of Kentucky. After the plaintiff filed the proposed complaint, however, the defendant moved to Illinois. On May 22, 1985, the plaintiff filed a five-count complaint against the defendant in the circuit court of Madison County. This complaint alleged the same facts as those in the proposed complaint pending in Indiana and sought to recover for damages the plaintiff allegedly sustained through the defendant's negligence and misrepresentation.

The defendant moved for involuntary dismissal of the plaintiff's complaint under § 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 circuit court granted the defendant's motion for dismissal under § 2- 619(a)(1), concluding that it lacked subject matter jurisdiction over the plaintiff's action because the plaintiff failed to comply with § 16-9.5-9-2 of the Indiana Medical Malpractice Act, which requires the issuance of a written opinion of a medical review panel as a condition precedent to the institution of a court action. The court also concluded that there was another action pending between the same parties for the same cause in Indiana, which warranted dismissal of the complaint before it under § 2-619(a)(3) of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-619(a)(3)).

The appellate court reversed the trial court's judgment, holding that dismissal for lack of subject matter jurisdiction under § 2-619(a)(1) was improper because the medical review panel procedure did not apply to an action commenced in a court outside of Indiana. The court also concluded that the medical review panel provisions were procedural, rather than substantive, in nature, and that a court in this State was not required to apply the procedural rules of another jurisdiction. The appellate court also held that the submission of a proposed complaint to a medical review panel in compliance with the Indiana Medical Malpractice Act did not constitute another "action" so as to warrant a dismissal under § 2-619(a)(3) of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-619(a)(3)).

Thus, this appeal presents the questions: (1) whether a circuit court in our State has subject matter jurisdiction over a medical malpractice claim arising in Indiana when the plaintiff has not complied with statutory prerequisites set out in the Indiana Medical Malpractice Act (Ind. Code Ann. § 16-9.5-1-1 et seq. (Burns 1983)); and (2) whether the filing of a proposed complaint with the Indiana Insurance Commissioner for submission to a medical review panel constitutes "another action" within the meaning of section 2-619(a)(3) of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-619(a)(3)).

The Indiana legislature enacted the Indiana Medical Malpractice Act in response to a perceived crisis in the availability and cost of medical malpractice insurance coverage which, in turn, it was felt was threatening the availability of health-care services to the citizens of that State. (Winona Memorial Foundation v. Lomax (Ind. 1984), 465 N.E.2d 731, 739.) The Act establishes a procedure which must be followed in pursuing a malpractice claim against a health-care provider who qualifies as such under the Act. The Act specifies that a malpractice claimant must submit a proposed complaint to a medical review panel and obtain the opinion of that panel before commencing a legal action against a qualified health-care provider. The purpose of this panel procedure is to provide for the obtaining of an expert opinion prior to the commencement of litigation on the probable liability of the health-care provider. (Hines v. Elkhart General Hospital (7th Cir. 1979), 603 F.2d 646.) The filing of a proposed complaint tolls the applicable statute of limitation until 90 days after the claimant had been given the medical review panel's opinion. The medical review panel consists of an attorney, who acts in an advisory capacity only, and three health-care providers, who actually consider and pass upon the claimant's complaint against the defendant health-care provider. (Ind. Code Ann. §§ 16 -- 9.5 -- 9 -- 3, 16 -- 9.5 -- 9 -- 7 (Burns 1983).) The parties may submit evidence in written form to the review panel (Ind. Code Ann. § 16 -- 9.5 -- 9 -- 4 (Burns 1983)), and after submitting the evidence, either party may convene the panel and present questions relevant to the issues before the panel. In addition to examining the submitted evidence, panel members may request additional information and consult with medical authorities. (Ind. Code Ann. § 16 -- 9.5 -- 9 -- 6 (Burns 1983).) The panel is to "express its expert opinion [in writing to each of the parties] as to whether or not the evidence supports the Conclusion that the defendant or defendants acted or failed to act within the appropriate standards of care as charged in the complaint." (Ind. Code Ann. § 16 -- 9.5 -- 9 -- 7 (Burns 1983).) The panel makes no findings as to damages, and its opinion is not binding on the litigants. After the panel issues its written Conclusion, the plaintiff may proceed to litigate the claim in court. The report of the panel is admissible as evidence in subsequent litigation but is not conclusive and either party may call any member of the panel as a witness at trial. (Ind. Code Ann. § 16 -- 9.5 -- 9 -- 9 (Burns 1983).) The Act also imposes a $500,000 limit on the amount of damages a claimant may recover by way of settlement or litigation from a qualified health-care provider. The supreme court of Indiana has upheld the validity of the medical review panel procedure against a variety of objections. It has held that compliance with the review panel procedure is jurisdictional and a condition precedent to the maintenance of a civil action. The court has also decided that a court must dismiss a malpractice complaint against a health-care provider if the plaintiff has not complied with the statute. (Johnson v. St. Vincent Hospital, Inc. (Ind. 1980), 404 N.E.2d 585.) Relying on Johnson, the defendant argues that the complaint must be dismissed for lack of subject matter jurisdiction because the medical review panel has not issued an opinion on the plaintiff's proposed complaint.

The parties agree that under our "most significant relationship" test (Ingersoll v. Klein (1970), 46 Ill. 2d 42; Schulze v. Illinois Highway Transportation Co. (1981), 97 Ill. App. 3d 508), Indiana substantive law governs resolution of the question whether Indiana law requires a claimant to obtain the opinion of a medical review panel before the claimant may file a malpractice action in a court in Illinois.

The appellate court observed, preliminary to addressing the question, that a defendant must come within the purview of this statute in order for the medical review panel procedure to apply. To qualify for the protection of the Act, a health-care provider must file proof of financial responsibility with the Indiana Commissioner of Insurance and must pay an annual surcharge levied by the Commissioner. (Ind. Code Ann. ยง 16 -- 9.5 -- 4 -- 1 (Burns 1983).) The appellate court questioned whether the malpractice statute governs the rights and liabilities of the litigants here, because neither the plaintiff nor the defendant had alleged in the complaint or a supporting affidavit that the defendant had satisfied the conditions necessary to qualify as a health-care provider under the statute. The appellate court, however, allowed the defendant to supplement the record with an affidavit submitted by the Indiana Department of Insurance which indicated that the defendant had satisfied the conditions of coverage under the Indiana ...


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