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12/29/95 DIANA SUTTLE v. LAKE FOREST HOSPITAL

December 29, 1995

DIANA SUTTLE, A MINOR, BY AND THROUGH PETER SUTTLE AND CYNTHIA THOMPSON, HER PARENTS, PLAINTIFF-APPELLEE,
v.
LAKE FOREST HOSPITAL, DEFENDANT-APPELLANT.



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

Petition for Leave to Appeal Denied April 3, 1996.

Presiding Justice Cousins delivered the opinion of the court: Gordon and McNULTY, JJ., concur.

The opinion of the court was delivered by: Cousins

PRESIDING JUSTICE COUSINS delivered the opinion of the court:

Plaintiff, Diana Suttle, a minor, by and through her parents Peter Suttle and Cynthia Thompson, filed a complaint against several defendants and the appellant, Lake Forest Hospital, alleging negligence in plaintiff's medical care which caused injuries shortly after her birth. Venue in Cook County was based on the following defendants (the venue defendants) with residence in Cook County - Corometrics Medical Systems, Inc. (Corometrics), Parke-Davis & Co., and Lake County Women's Health Care and Infertility Institute (the Institute). Appellant moved to transfer venue to Lake County pursuant to section 2-104 of the Code of Civil Procedure (735 ILCS 5/2-104 (West 1992)), claiming that the venue defendants had been joined in bad faith solely to obtain venue. The motion was denied, after which the Institute settled with plaintiff while both Corometrics and Parke-Davis were granted summary judgment in unopposed motions. Appellant renewed its motion to transfer venue, but the court denied the motion as untimely and as not warranted because Corometrics and Parke-Davis had been joined in good faith. Appellant brings this interlocutory appeal to reverse the denial of its motion to transfer venue.

We affirm.

BACKGROUND

On January 3, 1989, before filing the complaint at issue, plaintiff filed a complaint against appellant, Dr. Anthony Greis, and Dr. Brian Greis. The complaint alleged negligent acts by the doctors in plaintiff's medical care, and it alleged that appellant should have enforced rules which would have required the doctors to avoid their negligent acts. All of these defendants were residents of Lake County. On February 8, 1989, appellant filed a motion pursuant to section 2-104 to transfer venue to Lake County, and the doctors filed the same motion on February 13, 1989. The motions were continued at plaintiff's request until June 15, 1989, when plaintiff filed a first amended complaint adding Dr. Andrew Rosinson as a defendant. Dr. Rosinson was a Cook County resident, and the court continued the motions to transfer until discovery was completed as to Dr. Rosinson's participation in plaintiff's medical care. On October 20, 1989, Dr. Rosinson filed an affidavit of noninvolvement in plaintiff's medical care, and his motion to dismiss was later granted.

In January of 1990, plaintiff filed a second amended complaint which added the Institute, Corometrics, and Parke-Davis as defendants. The venue defendants were all residents of Cook County. Plaintiff alleged that the Institute had performed negligent acts through its agents Dr. Anthony Greis and Dr. Brian Greis, that Corometrics had not issued a necessary warning with its fetal monitor, and that Parke-Davis had not issued a necessary warning with its medicine Pitocin. On April 27, 1990, the trial court held that the complaint had failed to properly allege venue for any of the defendants, and thus the court granted the appellant's motion to transfer venue to Lake County. On July 5, 1990, plaintiff dismissed her case in Lake County.

On July 6, 1990, plaintiff refiled her complaint in Cook County. On August 8, 1990, appellant filed a timely motion to transfer venue to Lake County under section 2-104, alleging that the venue defendants had not been joined in good faith. On August 30, 1990, the new trial court denied the motion.

On October 27, 1993, Parke-Davis filed a motion for summary judgment contending that Pitocin, its brand name for the medicine oxytocin, was not the oxytocin used in plaintiff's care. On February 1, 1994, Corometrics filed a motion for summary judgment contending that the doctors treating the plaintiff already knew the information that was the basis of plaintiff's allegation of inadequate warning, and thus the inadequate warning could not have been the proximate cause of the plaintiff's injuries. On February 14, 1994, both Corometrics' and Parke-Davis' motions for summary judgment were granted after being unopposed by plaintiff. On February 24, 1994, the Institute and its doctors were dismissed pursuant to a settlement agreement in which they agreed to pay $300,000, the total amount of their insurance coverage. The Institute itself contributed $100,000 towards the settlement.

On February 25, 1994, appellant renewed its motion to transfer venue to Lake County pursuant to section 2-104. After a hearing, the court denied the motion on April 25, 1994. The court cited two reasons to deny the motion: (1) the motion was untimely under section 2-104(b) because the statute barred a motion to transfer venue when the plaintiff had not put forward the motion dismissing defendants Corometrics and Parke-Davis; and (2) venue defendants Corometrics and Parke-Davis had been joined in good faith originally. Appellant appealed the denial of its motion pursuant to Supreme Court Rule 306. 155 Ill. 2d R. 306.

On September 6, 1994, this court denied appellant's petition for interlocutory appeal. On December 6, 1994, the Illinois Supreme Court allowed the appellant's petition and entered a supervisory order directing this court to consider this appeal on the merits. On January 11, 1995, this court entered an order, pursuant to the ...


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