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04/15/94 ROSALIE BOGSETH v. DR. B. EMANUEL

April 15, 1994

ROSALIE BOGSETH, AS NEXT FRIEND OF LARRY BOGSETH, JR., A MINOR, PLAINTIFF-APPELLEE,
v.
DR. B. EMANUEL, DR. NACHMAN, EDGEWATER OPERATING CO., INDIV. AND D/B/A EDGEWATER MEDICAL CENTER AND M. SIMKEN, R.N., DEFENDANTS-APPELLANTS.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE JOSEPH CASCIATO, JUDGE PRESIDING.

Released for Publication June 7, 1994. Petition for Leave to Appeal Denied October 6, 1994.

McNAMARA, Egan, Giannis

The opinion of the court was delivered by: Mcnamara

JUSTICE McNAMARA delivered the opinion of the court:

This cause is before us on an interlocutory appeal certified to this court pursuant to Supreme Court Rule 308 (134 Ill. 2d R. 308). At issue is whether plaintiff's medical malpractice complaint, which named as the only defendant "John Doe" and named numerous health care providers as respondents in discovery, satisfies the requirements of the respondents in discovery statute (Ill. Rev. Stat. 1991, ch. 110, par. 2-402). The trial court denied defendants' motion to dismiss the action, and they appeal.

The relevant facts are as follows. On July 20, 1990, plaintiff, Larry Bogseth, Jr., a minor, by his mother and next friend, Rosalie Bogseth, filed a complaint naming as the sole defendant a fictitious individual called "John Doe" and 28 health care providers as respondents in discovery. Defendants, Doctors Benjamin Emanuel and Richard Nachman, Edgewater Operating Company, d/b/a Edgewater Medical Center, and Merle Simken, R.N., were four of the named respondents. Plaintiff's complaint was filed on the last day of the applicable statute of limitations (Ill. Rev. Stat. 1991, ch. 110, par. 13-210(b)).

The complaint alleged that on January 23, 1975, Rosalie was admitted to Edgewater Medical Center and gave birth to plaintiff on that date. The named respondents were various health care providers who provided care prior to, during, and after plaintiff's birth. The complaint further alleged that during the period of hospitalization, plaintiff developed respiratory distress and the named respondents "cared for or should have cared for [plaintiff and Rosalie] immediately prior to, during and after the events which led to the respiratory distress." According to the complaint, plaintiff suffered permanent brain damage and cerebral palsy as a result of such distress.

Regarding the defendant, John Doe, plaintiff alleged in the complaint as follows:

"9. That JOHN DOE is an individual believed to have caused or contributed to Plaintiff's condition(s) and damages through various acts and omissions and breaches of legal duties owed to Plaintiff and which will be further delineated by the instant requested discovery.

"12. That as a direct and proximate result of the negligent acts of JOHN DOE and potentially others Plaintiff has sustained significant and permanent disabling injuries which have caused and will in the future cause him to incur substantial sums * * * and will cause him to have suffered severe and significant mental anguish and pain and will in the future lose employment and income due to his permanent disabilities, along with other damages."

Plaintiff prayed for money damages against defendant, John Doe, in an amount in excess of $15,000.

After conducting discovery, plaintiff sought to convert respondent Doctors Emanuel and Nachman, Edgewater Medical Center, and Simken to defendants. On August 15, 1991, Doctors Emanuel and Nachman filed a motion to dismiss the complaint pursuant to section 2-619 of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 2-619), contending that the complaint was a nullity because it failed to name an actual defendant. On October 30, 1991, Edgewater Medical Center and Simken joined in the motion.

On February 27, 1992, the trial court heard oral arguments on respondents' motion to dismiss and on plaintiff's motion to convert. In support of his motion, plaintiff presented the affidavits of two medical experts who indicated that defendants (then respondents in discovery) breached the applicable standard of care and that the breach of care caused plaintiff to suffer permanent brain damage. Plaintiff's counsel further advised the court that since filing the complaint, he had acquired medical records, depositions and compliance with various production requests which were given to the reviewing experts in formulating their opinions. The court found that there was probable cause to convert Doctors Emanuel and Nachman, Edgewater Medical Center, and Simken from respondents to defendants.

As to defendants' motion to dismiss, plaintiff's counsel explained that he could have named all of the respondents as defendants when the complaint was initially filed but did not because he wanted to avoid the lengthy and difficult process of "trying to figure out who * * * the proper defendants [were]," which, in his view, was "exactly what the statute was designed ...


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