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Weiden v. Benveniste

August 06, 1998

MARIE WEIDEN, PLAINTIFF-APPELLANT,
v.
DR. JOEL S. BENVENISTE, M.D., DR. JOHN DOE, M.D. (FICTITIOUS NAME), DR. PAUL MILLER, M.D., DR. GREGORY FAIRCHOK, M.D., DEFENDANTS-APPELLEES.



No. 97--L--9

Breslin and Slater, JJ., concur.

The opinion of the court was delivered by: Justice Koehler

IN THE APPELLATE COURT OF ILLINOIS THIRD DISTRICT

A.D., 1998

Appeal from the Circuit Court for the 13th Judicial Circuit La Salle County, Illinois

Honorable Louis J. Perona, judge Presiding

The plaintiff in this medical malpractice case, Marie Weiden, appeals the circuit court's dismissal of her complaint for lack of personal jurisdiction over the defendants, physicians who reside and practice medicine in the state of Florida. We must decide whether the circuit court erred in dismissing the plaintiff's complaint for lack of personal jurisdiction, and in so doing, we must answer the following two questions: (1) May the circuit court exercise jurisdiction over an out- of-state physician where the physician's report was sent to an Illinois physician and the alleged negligence caused an injury in Illinois? (2) Does a defendant waive his special and limited appearance by objecting to a request for a continuance and making a motion to strike an amended complaint? Because we conclude that the circuit court did not err, we affirm.

I.

Plaintiff Marie Weiden filed a complaint in the circuit court of La Salle County against defendants, Joel S. Benveniste, M.D., Paul Miller, M.D., and Gregory Fairchok, M.D., alleging that the physicians misinterpreted mammogram films in Florida in 1990, 1991, 1992 and 1994. The plaintiff alleges that the defendants negligently failed to detect a lesion on her left breast, which subsequently developed into a malignant tumor.

The plaintiff, a resident of Illinois, traveled to Florida annually for the winter. During those trips in 1990, 1991, 1992, and 1994, she obtained mammograms at a mobile testing trailer, and the films were sent to a local hospital, the Holmes Regional Medical Center, where they were interpreted by the defendant-radiologists.

In 1994, the plaintiff requested that the 1994 mammogram report prepared by the defendants be sent to her personal physician, William Farley, in La Salle County, Illinois. A clerical employee at the Holmes Regional Medical Center processed her request, and Dr. Farley relied on the defendants' report in treating the plaintiff.

The plaintiff learned she had cancer of the left breast in February 1995. After the plaintiff filed her complaint, but before the defendants had been served or had entered an appearance, the plaintiff filed an amended complaint without leave of court. Through a special and limited appearance, 735 ILCS 5/2--301, the defendants moved to quash service and to dismiss the plaintiff's original complaint for lack of personal jurisdiction. The circuit court dismissed the complaint for want of personal jurisdiction and subsequently denied the plaintiff's motion to reconsider or, in the alternative, for leave to file a second amended complaint. This appeal followed.

II.

The issue of whether the circuit court has personal jurisdiction over a defendant is a question of law, which is reviewed de novo. White v. Ratcliffe, 285 Ill. App. 3d 758, 764, 674 N.E.2d 906, 911 (1996). In ruling on an objection to personal jurisdiction made by special appearance, "the court shall consider all matters apparent from the papers on file in the case, affidavits ...


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