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12/30/88 Hilda Perry, v. Rush-Presbyterian-St. Luke

December 30, 1988

HILDA PERRY, PLAINTIFF-APPELLANT

v.

RUSH-PRESBYTERIAN-ST. LUKE'S MEDICAL CENTER, DEFENDANT-APPELLEE (RUSH-PRESBYTERIAN-ST. LUKE'S MEDICAL CENTER ET AL., DEFENDANTS)



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

533 N.E.2d 437, 178 Ill. App. 3d 564, 127 Ill. Dec. 565 1988.IL.1940

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

APPELLATE Judges:

PRESIDING JUSTICE LORENZ delivered the opinion of the court. PINCHAM and MURRAY, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LORENZ

Plaintiff, Hilda Perry, appeals from the dismissal of her cause of action for medical malpractice against defendant, Rush-Presbyterian-St. Luke's Medical Center (Rush). After the dismissal, the case continued in the trial court against defendant Linda Blakely. We address the issue of whether a hospital can be named as a medical malpractice respondent in discovery pursuant to section 2-402 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-402). For the following reasons, we reverse and remand.

On October 10, 1986, plaintiff filed a medical malpractice action for injuries she allegedly sustained while a patient in the hospital in October of 1984. Plaintiff named Rush and certain doctors and nurses as respondents in discovery.

Approximately one month after the complaint was filed, Rush filed a motion to dismiss plaintiff's cause of action arguing that a hospital cannot be named as a respondent in discovery under section 2 -- 402 because the section is only applicable to individuals, relying on Evans v. Bachman (1979), 78 Ill. App. 3d 1107, 398 N.E.2d 114. Plaintiff then moved to amend her complaint and convert Rush from a respondent in discovery to a defendant.

On June 4, 1987, the court granted Rush's motion to dismiss and denied plaintiff's motion to amend her complaint, finding that a hospital could not be named as a respondent in discovery. Plaintiff filed a timely notice of appeal.

Opinion

The only issue on appeal is whether a hospital can be named as a medical malpractice respondent in discovery under section 2-402. (Ill. Rev. Stat. 1985, ch. 110, par. 2-402.) Our research indicates that the only Illinois case that mentioned the issue presented is Evans v. Bachman (1979), 78 Ill. App. 3d 1107, 398 N.E.2d 114, which Rush relied on in the trial court. In Evans, plaintiff argued section 2-402 was applicable to hospitals. On appeal, the court summarily stated, "The respondent in discovery statute 'is available only against individuals' and is, therefore, inapplicable to the instant action," citing the historical and practice notes of Smith-Hurd Illinois Annotated Statues as authority. (Evans v. Bachman (1979), 78 Ill. App. 3d 1107, 1112, 398 N.E.2d 114, citing Ill. Ann. Stat., ch. 110, par. 21.1, Historical and Practice Notes, at 68 (Smith-Hurd Supp. 1979).) The Evans holding was criticized in subsequent historical and practice notes because "[no] reason in principal [ sic ] can be discovered for this limitation." (Ill. Ann. Stat., ch. 110, par. 2-402, Historical and Practice Notes, at 342 (Smith-Hurd 1983).) The Evans opinion merely relied on a comment in the historical and practice notes which has been revised and now supports the position that a hospital can be named as a respondent in discovery. We believe Evans is not controlling to the issue presented because it did not analyze the language or legislative intent of the statute.

The respondent in discovery statute provides:

"Sec. 2 -- 402. Medical malpractice respondents in discovery. The plaintiff in any action based on an allegation of negligence in the performance of health care services may designate as respondents in discovery in his or her pleading those individuals, other than the named defendants, believed by the plaintiff to have information essential to the determination of who should properly be named as additional defendants in the action.

Persons so 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 ...


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