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December 28, 1994


Appeal from the Circuit Court of Du Page County. No. 92-L-2094. Honorable Robert K. Kilander, Judge, Presiding.

Rehearing Denied and Released for Publication February 24, 1995.

The Honorable Justice Bowman delivered the opinion of the court: Geiger and Doyle, JJ., concur.

The opinion of the court was delivered by: Bowman

JUSTICE BOWMAN delivered the opinion of the court:

Plaintiffs, Robert and Geri Moscardini, appeal an order denying their motion to file an amended complaint naming respondents-in-discovery William Hadesman, M.D., and Michael Nosek, M.D., as defendants in their medical malpractice lawsuit. The original complaint designated Neurosurg, S.C., and Denes Martonffy, M.D., as defendants, and Drs. Hadesman and Nosek as respondents-in-discovery pursuant to section 2-402 of the Code of Civil Procedure (the Code) (735 ILCS 5/2-402 (West 1992)).

The following summary of the facts is taken from plaintiffs' complaint and the depositions of Drs. Hadesman and Nosek (respondents). On February 11, 1991, plaintiff Robert Moscardini (plaintiff) was admitted to Elmhurst Memorial Hospital (Elmhurst) under the service of Dr. Nosek. At the time of his admission, plaintiff was complaining of back and bilateral leg pain. During the afternoon of February 13, 1991, plaintiff had an epidural injection performed for relief of pain and an MRI for evaluation of his lumbar spine. That evening, around 9:45 p.m., plaintiff alleges his condition was deteriorating. He was having difficulty urinating, was dribbling urine, and had numbness in both legs from the knees to the feet. The next day, February 14, 1991, plaintiff underwent surgery at Elmhurst for removal of a herniated L3-L4 invertebral lumbar disc. The surgery was performed by Dr. Martonffy, assisted by Dr. Hadesman. Following surgery, plaintiff experienced loss of bowel and bladder function which persisted to the end of his hospitalization on March 5, 1991.

The depositions of Drs. Hadesman and Nosek confirm the roles they played in plaintiff's treatment. Dr. Hadesman stated in his deposition that plaintiff was admitted to Elmhurst on the service of Dr. Nosek with himself as consultant. According to Dr. Hadesman, Dr. Nosek was responsible for plaintiff's general care, while Dr. Martonffy (who was originally named as a defendant), Dr. Hadesman, and another doctor were specifically responsible for plaintiff's back pain. Dr. Nosek's deposition confirmed that he was plaintiff's attending doctor and that Dr. Hadesman was responsible for the treatment of plaintiff's back pain.

The instant lawsuit was filed on October 21, 1992. It alleged that Dr. Martonffy's diagnosis, treatment, and post-operative follow-up was deficient in a number of respects and sought damages for injuries plaintiff allegedly suffered as a result of this negligence. On April 13, 1993, plaintiff took the depositions of Drs. Hadesman and Nosek. On April 20, 1993, plaintiff filed a motion to convert the respondents-in-discovery to defendants. The motion alleged that, based on the contents of respondents' depositions and the opinions of two qualified medical experts who had conducted a review of the deposition transcripts, there was probable cause to convert them to defendants. Attached to the motion as exhibits were two letters, purporting to be written by physicians, setting forth the opinion that respondents had committed acts of professional negligence in treating plaintiff. Neither of these letters was signed, sworn, or dated.

The first letter concerned Dr. Hadesman. It stated that the author, a board-certified internist and neurosurgeon, was of the opinion that Dr. Hadesman had been negligent in failing properly to diagnose plaintiff's condition and in failing to take plaintiff to surgery earlier. The letter opined that Dr. Hadesman's negligence caused plaintiff's neurological condition to deteriorate to the extent it did.

The second letter also stated it was written by a board-certified internist and neurosurgeon, and concerned Dr. Nosek. It stated that Dr. Nosek was plaintiff's attending physician and was in primary control of the consultants and total patient care. The letter expressed the opinion that Dr. Nosek negligently failed to monitor plaintiff's neurological and urological status, failed to come to the hospital when informed of plaintiff's worsening condition, failed to notify Drs. Martonffy and Hadesman of plaintiff's deteriorating condition, and failed to understand the significance of the changes in plaintiff's neurological and urological status.

Respondents objected to plaintiff's motion to name them as defendants, arguing that it was insufficient under section 2-402 of the Code because it did not set forth any competent evidence which showed probable cause to convert respondents-in-discovery to defendants. Specifically, respondents argued that because the attached letters were unsigned, unsworn, and undated, they could not constitute evidence as contemplated by section 2-402. Respondents further noted that plaintiff had filed no other evidence in support of its motion. In response, plaintiff sought, and was granted, leave to file with the court the deposition transcripts of Drs. Hadesman and Nosek. Plaintiff argued that the physicians' letters, read in conjunction with respondents' depositions, were sufficient evidence to support conversion of respondents to defendants.

On May 6, 1993, following a hearing, the trial court denied plaintiff's motion to amend the complaint to name respondents asdefendants and dismissed respondents with prejudice. In reaching its decision, the trial court found that "the unverified letters presented by plaintiff cannot be considered by the Court as evidence," apparently relying on Froehlich v. Sheehan (1992), 240 Ill. App. 3d 93, 181 Ill. Dec. 638, 608 N.E.2d 889. The court, however, did consider the deposition testimony of respondents, but found that the depositions, without more, did not give rise to probable cause to convert respondents to defendants.

On June 4, 1993, plaintiff filed a motion to reconsider, to which he attached signed and dated copies of the same letters, along with the authors' curricula vitae. Also attached was an affidavit of plaintiff's attorney, stating that he had consulted with the physicians who had written the letters, that they practice in the same specialty as respondents, and that he reasonably believed them to be knowledgeable as to the issues involved. The affidavit further stated: "the reviewing health professionals have determined in their written reports after review of the medical records and other relevant material involved * * * that there is a reasonable and meritorious cause for the filing of such an action." Respondents opposed the motion to reconsider, contending that the submission of the signed and dated letters did not alter the state of the evidence before the court because the letters remained unsworn and, thus, could not be considered. On July 29, 1993, after briefing, the trial court denied the motion to reconsider, and this timely appeal ensued.

On appeal, plaintiff's principal contention is that the trial court erred in denying him leave to amend his complaint because he produced sufficient evidence to create probable cause to convert respondents to defendants. Respondents argue that the only evidence properly before the trial court was the depositions because the physicians' letters were unsworn and, hence, not evidence. Because the trial court ruled as a matter of law that unverified letters could not constitute evidence under section 2-402, we review its determination de novo. See S.B. Lexington, Inc. v. Near North Insurance Agency, Inc. (1993), 244 Ill. App. 3d 1023, 1030, 185 Ill. Dec. 100, 614 N.E.2d 234; Jacobson v. General Finance ...

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