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12/05/97 LEIGH SHANKLIN v. JOHN HUTZLER AND JOHN

December 5, 1997

LEIGH SHANKLIN, PLAINTIFF-APPELLANT,
v.
JOHN HUTZLER AND JOHN DOE, DEFENDANTS, J. ELMES, M.D., JAMES P. ELMES, M.D., LTD., RESPONDENTS IN DISCOVERY-APPELLEES, INGALLS MEMORIAL HOSPITAL, E. WINTER, M.D., J. LOHAN, R.N., EDWARD UNGER, M.D., A.J. BROWNER, M.D., AND G. MOONEY, G.P.T., RESPONDENTS IN DISCOVERY.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE KENNETH L. GILLIS, JACQUELINE P. FOX, JUDGES PRESIDING.

Presiding Justice Campbell delivered the opinion of the court. Buckley, J., and O'brien, J., concur.

The opinion of the court was delivered by: Campbell

PRESIDING JUSTICE CAMPBELL delivered the opinion of the court:

Plaintiff Leigh Shanklin appeals orders of the circuit court of Cook County denying plaintiff's motion for leave to amend her complaint and convert respondents in discovery James P. Elmes, M.D. and James P. Elmes, M.D., Ltd. ("Elmes Ltd.") into defendants in a personal injury action. Defendant John Hutzler and respondents in discovery Ingalls Memorial Hospital ("Ingalls"), E. Winter, M.D., J. Lohan, R.N., Edward Unger, M.D., A.J. Browner, M.D., and B. Mooney G.P.T., are not parties to this appeal.

This case is a subsequent appeal following this court's decision in Shanklin v. Hutzler, 277 Ill. App. 3d 94, 660 N.E.2d 103, 213 Ill. Dec. 846 (1995). The facts necessary to a disposition of this appeal are contained in that decision. However, for the purposes of this opinion, a recitation of the facts may be useful.

The record on appeal indicates the following facts. On December 6, 1991, plaintiff filed an unverified complaint against defendant Hutzler and defendant John Doe which also named the aforementioned medical care providers as respondents in discovery pursuant to section 2-402 of the Illinois Code of Civil Procedure (735 ILCS 5/2-402 (West 1996)) (Code). Section 2-402 provides in relevant part as follows:

"Sec. 2-402. Respondents in discovery. The plaintiff in any civil action may designate as respondents in discovery in his or her pleading 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.

Persons or entities so named as respondents in discovery shall be required to respond to discovery by the plaintiff in the same manner as are defendants and may, on motion of the plaintiff, be added as defendants if the evidence discloses the existence of probable cause for such 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 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 1996).

The complaint alleged that shortly before December 7, 1989, Hutzler, who resided in a separate condominium unit of plaintiff's building, violated a duty owed to his fellow residents by using unsafe electrical devices in his unit, thereby causing a fire that spread through the building, resulting in property damage and personal injury to the plaintiff. In particular, the complaint alleged that plaintiff suffered a trimalleolar fracture of the left lower extremity.

Plaintiff's complaint then details medical care she received for this fracture from the respondents in discovery. The complaint alleges that Dr. Elmes provided "consulting orthopedic services" and "performed an open reduction and internal fixation operation" on plaintiff. The complaint also alleges that after plaintiff was discharged from the hospital, she received follow-up treatment and evaluation from Dr. Elmes at the offices of James P. Elmes, M.D., Ltd. The complaint further alleges that plaintiff has continued to suffer with extreme mental and physical pain, has undergone several remedial surgeries and therapies, but remains permanently injured. The complaint attributes these continuing injuries at least in part to the negligence of John Doe and seeks discovery from the respondents in order to determine whether a cause of action exists against any or all of them.

The record includes a letter dated December 5, 1990 (approximately one year after the injury and one year before the filing of the complaint) from plaintiff to Ingalls requesting a complete copy of her medical records regarding her confinement from December 6, 1989, through December 13, 1989. The letter appears to be stamped with the date of December 12, 1990. The letter also appears to be stamped "ALL AVAILABLE INFORMATION SENT."

Dr. Elmes was served on January 12, 1992. From January 1992 through May 1992, plaintiff sought and received discovery materials, including the taking of depositions, from the respondents in discovery, including Dr. Elmes.

On June 4, 1992, plaintiff sought leave to file a first amended complaint converting Ingalls, Dr. Elmes and Elmes Ltd. into defendants, ...


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