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05/18/94 VEDA GREEN v. PATRICK HERON

May 18, 1994

VEDA GREEN, PLAINTIFF-APPELLANT,
v.
PATRICK HERON, M.D., DEFENDANT-APPELLEE.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE RICHARD JORZAK, JUDGE PRESIDING.

Released for Publication July 14, 1994. Petition for Leave to Appeal Denied October 6, 1994.

Rizzi, Cerda, Tully

The opinion of the court was delivered by: Rizzi

JUSTICE RIZZI delivered the opinion of the court:

Plaintiff, Veda Green, brought a medical malpractice suit against defendant, Dr. Patrick H. Heron, alleging that Dr. Heron, a gynecologist, negligently performed a laparoscopic tubal ligation on her at South Chicago Community Hospital (S.C.C. Hospital). S.C.C. Hospital was also named a defendant. Three and one half years after the suit was filed, a summary judgment was entered in favor of S.C.C. Hospital. Dr. Heron, however, was not served with process until six years and seven months after the suit was filed. Dr. Heron filed a motion to dismiss pursuant to Supreme Court Rule 103(b) (134 Ill. 2d 103(b)), claiming that plaintiff failed to exercise reasonable diligence in effecting service upon him. The trial court granted Dr. Heron's motion, and dismissed the case with prejudice. It is this order from which plaintiff appeals.

Plaintiff argues on appeal that the trial court erred when it found a lack of reasonable diligence, and alternatively, that the trial court erred when it dismissed the case with prejudice. We affirm the trial court's order dismissing the case with prejudice.

On September 2, 1983, plaintiff filed her complaint. The Cook County sheriff's department attempted unsuccessfully to serve Dr. Heron on three separate occasions at 2011 East 75th Street, Chicago, Illinois. This was the address where Dr. Heron had maintained his medical practice. The summons were returned unserved, and indicated only that Dr. Heron could not be found.

Dr. Heron was not found at 2011 East 75th Street because he had moved to Kingston, Jamaica in August of 1983 to begin a teaching position at the University of the West Indies. Dr. Heron has dual citizenship; he is both an American and a Jamaican citizen. In preparation for his move, Dr. Heron told the staff in his office, the doctor replacing him, and the doctor who owned the office space of his impending move. He also informed the administration at S.C.C. Hospital of his appointment to teach. S.C.C. Hospital was where Dr. Heron had staff privileges and where he had performed the surgery alleged in plaintiff's complaint.

Dr. Heron also notified the American College of Obstetricians and Gynecologists of his move, which thereafter listed him at his new Kingston, Jamaica address. In addition, in preparation for the move, Dr. Heron filled out a change of address form with the U.S. Post Office, with his Kingston, Jamaica address. Dr. Heron also listed his phone number in the Kingston telephone directory beginning in 1983. In July of 1987, Dr. Heron also supplied the American Medical Association (AMA) with his address in Jamaica. Dr. Heron also advised the condominium association where he lived that he planned to move to Jamaica. Finally, he notified the registered agent for his professional corporation of his impending departure to Jamaica.

When the summons were returned unserved, plaintiff employed a private investigator, Weldon Veasey. Veasey went to the address on 75th Street to speak with the neighbors to ascertain Dr. Heron's whereabouts. Pursuant to this inquiry, plaintiff discovered that Dr. Heron had left the country, but nothing more. During the next four months plaintiff did nothing further to locate Dr. Heron.

In 1984, plaintiff attempted to locate Dr. Heron during the months of April and September; during the other ten months plaintiff made no efforts to locate Dr. Heron. During April and September, Veasey twice returned to 75th Street, spoke with staff at S.C.C. Hospital, made inquiry with the Secretary of State, the Illinois Department of Education and Registration and the AMA. These activities proved fruitless.

In 1985, Veasey returned to 75th Street three more times. These trips were made during the months of February, July and December. Plaintiff also contacted the AMA in May and July. The AMA responded each time that it did not have Dr. Heron's address. Also during July, plaintiff wrote to the Jamaican consulate inquiring as to Dr. Heron's whereabouts. Plaintiff made no investigative efforts during January, March, April, June, August, September or November.

In February 1986, Veasey returned yet again to 75th Street where he was told that Dr. Heron was living at 8700 South Dante in Chicago. So, on March 5, 1986, an alias summons was issued for that address. This summons was returned unserved.

In April 1986, plaintiff deposed David R. Fosse, vice-president at S.C.C. Hospital. Prior to that time, plaintiff had not sought to depose anyone at S.C.C. Hospital to determine if Dr. Heron had left a forwarding address for his patients or for medical referral purposes. At his deposition, Fosse informed plaintiff that Dr. Heron was in Jamaica. The next month, in May, Veasey went again to South Dante. In October 1986, plaintiff deposed Harlan H. Newkirk, president of S.C.C. Hospital. Plaintiff, however, did not inquire as to Dr. Heron's whereabouts.

In February 1987, plaintiff employed the investigating services of United Exchange. Plaintiff made no other independent efforts until May 1988, when United Exchange confirmed that Dr. Heron was living in Jamaica.

Nearly five years after Dr. Heron moved, plaintiff finally focused her search in Jamaica. Plaintiff contacted the Jamaican Consulate in June 1988. In July, plaintiff learned that Dr. Heron was not practicing medicine. Then in December 1988, plaintiff personally traveled to Jamaica, where she learned Dr. Heron's address. On December 28, 1988, plaintiff prepared an alias summons for Dr. Heron at the Kingsway Pharmacy, Kingston, Jamaica and sent it to the Supreme Court of Jamaica. Plaintiff mailed the summons on January 30, 1989, at the request of the Jamaican Supreme Court. Then on March 5, 1989, the Jamaican Supreme Court told ...


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