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06/13/89 Michael Bernstein, A Minor v. Gottlieb Memorial Hospital

June 13, 1989

MICHAEL BERNSTEIN, A MINOR BY HIS FATHER AND NEXT FRIEND, RICHARD BERNSTEIN, PLAINTIFFS-APPELLEES

v.

GOTTLIEB MEMORIAL HOSPITAL ET AL., DEFENDANTS-APPELLANTS



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

542 N.E.2d 20, 185 Ill. App. 3d 709, 134 Ill. Dec. 20 1989.IL.881

Appeal from the Circuit Court of Cook County; the Hon. Willard J. Lassers, Judge, presiding.

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HARTMAN

This court allowed a Supreme Court Rule 308 (107 Ill. 2d R. 308) interlocutory appeal in this case based upon the following circuit court statement and question:

"Plaintiff, born in 1967, in 1971, filed a medical malpractice action. In 1975, the case was D.W.P. Plaintiff refiled in 1975. In 1978 the case again was D.W.P. Plaintiff refiled in 1980. In 1985, plaintiff filed a fourth time and the day after filing, took a voluntary dismissal of the 1980 case.

The question is whether the 1985 action is barred and should be dismissed on motion."

The circuit court, by a memorandum opinion and order, held that the action was not so barred and denied defendants' motions to dismiss.

Because of the serpentinous path created by the history of these cases, a somewhat detailed description of the procedures followed is necessitated.

Plaintiff Michael Bernstein (Michael) was born on June 16, 1967. On August 24, 1971, Michael, by his father and next friend Richard Bernstein (Richard), filed a two-count complaint (1971 complaint) against defendants Gottlieb Memorial Hospital (Hospital), Dr. Hai Solomon, M.D. (Dr. Solomon), and Rosemary Carroll, R.N. (Carroll) (sometimes collectively defendants). The gravamen of the complaint was that on June 16, 1967, the Hospital, by and through its "agents, servants and employees, including [Carroll]" was negligent in, inter alia : administering a drug known as pitocin to Ofra Bernstein (Ofra), Michael's mother, while she was in labor and immediately preceding Michael's birth, which proximately caused Ofra's frequent and prolonged labor contractions causing serious injury to Michael, then a viable full-term fetus subsequently born alive. Dr. Solomon was alleged guilty on June 16, 1986, of carelessly and negligently treating Ofra resulting in injury to plaintiff, administering pitocin to Ofra, failing to discontinue use of pitocin during Ofra's advanced stages of labor, and failing to inspect or observe Ofra's condition during treatment with pitocin.

The circuit court entered an order on October 2, 1975, dismissing the 1971 complaint for want of prosecution; Richard refiled Michael's claim *fn1 (1975 complaint), on November 12, 1975. By order entered June 15, 1978, the court dismissed the 1975 complaint for want of prosecution with prejudice, adding, "This cause was previously filed in 1967 [ sic ] and after having been on the call for seven (7) years was dismissed for want of prosecution."

Pursuant to a motion filed by Richard, on a date not apparent from the record, the circuit court ordered on October 25, 1978, the vacatur of all prior orders of dismissal and then, on the same date, again dismissed the 1975 complaint for want of prosecution.

On May 6, 1980, Richard filed a third complaint (1980 complaint). Although Richard achieved timely service of the 1980 complaint on the Hospital and Carroll, Dr. Solomon was not served until four years later, on May 14, 1984. Dr. Solomon filed a motion on June 13, 1984, and on June 17, 1984, an amended motion, to dismiss the 1980 complaint, citing Supreme Court Rule 103(b) (107 Ill. 2d R. 103(b)), and arguing that Richard failed to exercise due diligence in serving him and that the complaint was barred by laches.

The circuit court dismissed count II of the 1980 complaint with prejudice on August 30, 1984, but then, on July 12, 1985, and pursuant to Richard's motion, ...


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