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08/31/95 GEORGE WILLIAMS v. DR. MARIA MEDENICA AND

August 31, 1995

GEORGE WILLIAMS, PLAINTIFF-APPELLANT,
v.
DR. MARIA MEDENICA AND UNIVERSITY OF CHICAGO HOSPITALS & CLINICS, DEFENDANTS (DR. J. WIEDER, DR. HENRY A. FINN, DR. LARRY B. DIXON AND DR. CHARLES LERNER, RESPONDENTS IN DISCOVERY-APPELLEES).



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE KENNETH L. GILLIS, JUDGE PRESIDING.

Presiding Justice Hoffman delivered the opinion of the court: Theis and S. O'brien, JJ., concur.

The opinion of the court was delivered by: Hoffman

PRESIDING JUSTICE HOFFMAN delivered the opinion of the court:

The circuit court denied the plaintiff's motion to join certain respondents in discovery as defendants and thereafter, denied the plaintiff's motion to reconsider. Proceeding pursuant to Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)), the plaintiff appeals from both orders.

On February 28, 1994, approximately two weeks prior to the expiration of the applicable statute of limitations, the plaintiff filed the instant medical malpractice action against Dr. Maria Medenica and the University of Chicago Hospitals and Clinics. Pursuant to section 2-402 of the Code of Civil Procedure (Code) (735 ILCS 5/2-402 (West 1992)), the plaintiff named Dr. J. Wieder, Dr. Henry A. Finn, Dr. Larry B. Dixon, and Dr. Charles Lerner as respondents in discovery. The University of Chicago, Medenica, Finn, and Dixon were served with summons and filed their appearances on April 4, 1994. The record on appeal fails to reflect service of summons on Lerner or Wieder.

On August 24, 1994, the plaintiff filed a motion supported by the affidavit of Dr. Calvin Brown seeking to convert the respondents in discovery to defendants and for leave to file his amended complaint. Finn and Dixon responded to the motion.

On September 21, 1994, after finding that Dr. Brown's affidavit failed to satisfy the probable cause requirement of section 2-402, the trial court denied the plaintiff's motion to convert the respondents in discovery to defendants, denied the plaintiff's oral motion to file an amended affidavit from Dr. Brown supporting probable cause, and dismissed Finn and Dixon as respondents in discovery. The plaintiff filed a motion to reconsider on October 19, 1994, supported by an amended affidavit from Dr. Brown. On November 15, 1994, the trial court denied the motion to reconsider. Thereafter, on December 5, 1994, pursuant to the plaintiff's motion, the circuit court modified its orders of September 21 and November 15 to include the requisite findings under Supreme Court Rule 304(a), and this appeal from those orders followed.

In urging reversal, the plaintiff argues that the trial court erred in denying (1) his motion to convert the respondents in discovery to defendants, (2) his oral motion for leave to file an amended affidavit from Dr. Brown in support of the conversion, and (3) his motion for reconsideration supported by Dr. Brown's amended affidavit. For the reasons which follow, we reverse and remand this action to the circuit court for further proceedings consistent with this opinion.

Section 2-402 of the Code is a statutory procedure whereby a plaintiff in a civil action can name as respondents in discovery:

"those individuals or other entities, 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.

***

A person or entity named as a respondent in discovery in any civil action may be made a defendant in the same action at any time within 6 months after being named as a respondent in discovery, even though the time during which an action may otherwise be initiated against him or her may have expired during such 6 month period." (735 ILCS 5/2-402 (West 1992).)

From its original adoption in 1976 (Ill. Rev. Stat. 1977, ch. 110, par. 21.1), until its amendment in 1989 (Ill. Rev. Stat. 1989, ch. 110, par. 2-402), the procedure authorized by this statute was only available to plaintiffs in actions based on an allegation of negligence in the performance of health care services. However, in both its original form, applicable only to medical malpractice actions, and its presentform, now applicable to all civil actions, the statute has provided that a respondent in discovery can only be named as a defendant in the action on the plaintiff's motion (1) if the motion is made within the six-month period after the party was named a respondent in discovery, and (2) "if the evidence discloses the existence of probable cause for such action." (See Ill. Rev. Stat. 1977, ch. 110, par. 21.1; 735 ILCS 5/2-402 (West 1992).) The statute is not at all clear as to the quantum of evidence necessary to establish probable cause to convert a respondent in discovery to a defendant, and the legislative history of the statute is of little assistance in this regard.

The various courts that have addressed this issue seem to hold that the evidence necessary to establish the requisite probable cause need only be such as would lead a person of ordinary caution and prudence to believe or entertain an honest and strong suspicion that his injury was the proximate result of the tortious conduct of the respondent in discovery. (See Froehlich v. Sheehan (1992), 240 Ill. App. 3d 93, 608 N.E.2d 889, 181 Ill. Dec. 638; Ingle v. Hospital Sisters Health System (1986), 141 Ill. App. 3d 1057, 491 N.E.2d 139, 96 Ill. Dec. 325.) But it need not rise to the level of a high degree of likelihood of success on the merits or the evidence necessary to defeat a motion for summary judgment in favor of the respondents in discovery, nor is the plaintiff required to establish a prima facie case against the ...


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