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October 6, 1995



Released for Publication November 3, 1995. Petition for Leave to Appeal Denied January 31, 1996.

Presiding Justice McNAMARA delivered the opinion of the court: Egan and Zwick, JJ., concur.

The opinion of the court was delivered by: Mcnamara

PRESIDING JUSTICE McNAMARA delivered the opinion of the court:

This appeal arises from the denial of a motion in a medical malpractice action to convert two physicians named as respondents in discovery to defendants. On April 8, 1993, plaintiff Malinda Allen filed a complaint alleging two separate injuries negligently caused during abdominal surgery for a hysterectomy performed on April 10, 1991. Plaintiff's complaint named Thorek Hospital and Medical Center as a defendant, and designated Arnold Kaplan, M.D., and Hassan Shakir, M.D., as respondents in discovery. On October 12, 1993, plaintiff filed a motion for leave to file an amended complaint naming the respondents as defendants. On April 29, 1994, the court denied the motion ruling that under section 2-402 of the Code of Civil Procedure (the Code) (735 ILCS 5/2-402 (West 1992)), plaintiff's motion was untimely because she had only until October 8, 1993, six months after filing her complaint, to file such a motion. We affirm.

On appeal, plaintiff contends that the trial court misinterpreted and misapplied the six-month extension period provided for converting respondents in discovery to defendants, thereby shortening the limitations period within which plaintiff could bring an action for her injuries. Plaintiff also contends that any defects resulting from her failure to serve the respondents in discovery with the original complaint were cured. The relevant facts are as follows.

On April 10, 1991, plaintiff underwent abdominal surgery at Thorek Hospital for a hysterectomy. Hassan Shakir, M.D., was the anesthesiologist, and Arnold Kaplan, M.D., was the surgeon. During intubation for anaesthesia, plaintiff's jaw was fractured. She also sustained damage to the ulnar nerve in her right arm. Immediately after surgery, plaintiff felt numbness in the arm and noticed that her fingers were somewhat curled. Prior to her discharge, plaintiff asked Kaplan about her right arm and hand.

The condition of plaintiff's arm worsened after she left the hospital. Six weeks later, plaintiff went to Kaplan for a checkup. She still had numbness and problems with swelling and curling of the fingers. Kaplan received a phone call during the consultation and left the office. Another physician, Dr. Chawla, returned to the examining room as a replacement for Kaplan. Chawla recommended physical therapy. Plaintiff began her therapy in the summer of 1991, and she continued to receive therapy until March 1992.

Plaintiff filed her complaint pro se on April 8, 1993. She named Thorek Hospital as a defendant and Shakir and Kaplan as respondents in discovery. The complaint contained one count and alleged that both injuries occurred on April 10, 1991. No other date of discovery was mentioned. In lieu of a physician's report normally required in medical malpractice actions under section 2-622 of the Code (735 ILCS 5/2-622 (West 1992)), plaintiff filed an affidavit explaining that "the consultation required could not be obtained before the expiration of the statute of limitations." The trial court granted plaintiff until October 26, 1993, to comply with section 2-622.

Plaintiff properly served Thorek Hospital with her complaint. Neither of the respondents in discovery was served with a copy of the complaint as required by section 2-402 of the Code, nor did the plaintiff's summons name the respondents as persons to be served. It only named defendant Thorek Hospital's registered agent.

Plaintiff later obtained counsel to represent her in this action. On October 12, 1993, with the assistance of counsel, plaintiff filed a motion for leave to file a complaint naming the respondents as defendants. At an October 28, 1993, status hearing, the trial court scheduled an evidentiary hearing, as required by section 2-402, to determine whether plaintiff had probable cause to pursue an action against Shakir and Kaplan. On November 5, 1993, plaintiff's counsel mailed to both physicians a copy of the motion and notice of the evidentiary hearing, set for December 1, 1993.

On December 1, 1993, Kaplan attempted to file a special appearance but was told by the court that a respondent in discovery does not have to file any appearance. Kaplan, however, filed a memorandum opposing plaintiff's motion to convert him to a defendant. The evidentiary hearing was continued.

On December 15, 1993, plaintiff filed a memorandum in support of her motion to convert the respondents to defendants. She attached as an exhibit a copy of a proposed amended complaint containing two counts and naming three defendants: Thorek, Shakir, and Kaplan. Count I alleged that Shakir and other unnamed employees of Thorek Hospital fractured plaintiff's jaw during intubation of the anaesthesia on April 10, 1991. Count II asserted that Shakir, Kaplan, and Thorek negligently injured plaintiff's right arm during the surgery. Plaintiff further alleged in count II that she did not discover that her arm injury was wrongfully caused until February or March of 1992.

In response to plaintiff's brief, Kaplan filed another memorandum in January 1994. On March 3, 1994, Shakir was allowed to appear specially, and he also filed a memorandum opposing plaintiff's motion. Also, in both January and April of 1994, plaintiff filed two more memoranda replying to Kaplan's and Shakir's memoranda, respectively.

On April 29, 1994, the trial court conducted the hearing on plaintiff's October 12, 1993, motion for leave to file an amended complaint naming respondents Shakir and Kaplan as defendants. The court denied the motion, ruling that plaintiff's motion was ...

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