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Long v. Mathew

January 24, 2003


Appeal from Circuit Court of Adams County No. 01L68 Honorable Dennis K. Cashman, Judge Presiding.

The opinion of the court was delivered by: Justice Knecht

Plaintiff, Michelle Long, brought a motion to convert respondents in discovery into defendants pursuant to section 2-402 of the Illinois Code of Civil Procedure (Code) (735 ILCS 5/2-402 (West 2000)). The trial court denied plaintiff's motion, ruling section 2-402 required plaintiff to engage in discovery during the six-month extension of the statute of limitations and use the newly discovered evidence to convert respondents in discovery into defendants. Plaintiff appeals, arguing neither the language of the statute nor the case law requires plaintiff to engage in discovery before making a motion to convert. 735 ILCS 5/2-402 (West 2000). Further, plaintiff asserts the court incorrectly based its decision on a running of the statute of limitations since section 2-402 specifically allows respondents in discovery to be named as defendants after the statute of limitations period has run. 735 ILCS 5/2-402 (West 2000). We reverse.


On October 18, 1999, Kylee Bivens, an eight-year-old female with a history of autism and seizure disorder, was evaluated in the emergency department of Blessing Hospital located in Quincy, Illinois. Kylee was examined by Richard A. Saalborn, D.O. (Doctor of Osteopathy), for complaints of vomiting, abdominal pain, and lethargy. The vomiting was described as "coffee-ground like," indicating the blood was from the gastrointestinal tract. A physical exam determined Kylee was dehydrated and lethargic; an abdominal exam showed mild distension (swelling or enlargement due to internal pressure).

Later that day, X rays were ordered. The X rays were interpreted by Gregory A. Francken, M.D., and Dr. Francken's interpretations were transcribed. Dr. Francken's observations indicated the X rays showed a 2.5-centimeter rounded, well-circumscribed object with a soft-tissue density overlying the lower abdomen and pelvis. Dr. Francken's analysis was not noted by any of the clinicians who later treated Kylee, and it is disputed when Dr. Francken's report reached Kylee's file.

Kylee was then admitted to the pediatric unit, cared for by A.O. Mathew, M.D., and treated for abdominal pain with leukocytosis (an increase in the number of white blood cells) and dehydration. Later in the evening, Dr. Mathew reexamined Kylee and noted blood in her vomit as well as continued dehydration. Eventually Kylee developed septic (toxic) shock. Resuscitation was performed and a consultation obtained from Robert L. Hall, M.D., a general surgeon, and assistant Rebecca S. Wolfer, M.D.

Drs. Hall and Wolfer suggested an operation be performed. Kylee underwent an exploratory laparotomy (surgical removal of a section of the abdominal wall), a small bowel decompression, an appendectomy (surgical removal of the appendix), and an intra-abdominal lavage (therapeutic washing out of an organ). Following the operation, a chest X ray revealed a "significant white out on the right chest" and a bronchoscopy (procedure where a tubular illuminated instrument inspects the bronchial tubes) was performed by Dr. Wolfer and Larry Minnick, M.D. Kylee was transferred to the pediatric intensive-care unit and continued to receive resuscitation.

The following morning, a St. Louis Children's Hospital transport team arrived and attempted to bag-valve ventilate Kylee; Kylee went into cardiac arrest from which she was resuscitated. Later, Kylee went into cardiac arrest a second time, from which she did not recover. Kylee was pronounced dead on October 19, 1999, at 7:48 a.m.

An autopsy was performed and revealed mechanical injury to the alimentary tract (tubular passage from mouth to anus) from the swallowing of a rubber ball. There was also extensive inflammation and necrosis (the localized death of living tissue) of the esophagus and jejunum (a section of the small intestine). During the autopsy, a ball, 2.5 centimeters in diameter, was recovered from the colon.

On October 15, 2001, a complaint was filed pursuant to sections 13-212, 2-402, and 2-622 of the Code by plaintiff, as the mother and special administratrix of the estate of Kylee Bivens. 735 ILCS 5/13-212, 2-402, 2-622 (West 2000). The complaint named Dr. Mathew, Dr. Mathew's corporation, and Blessing Hospital as defendants, and Dr. Hall, Dr. Saalborn, and Dr. Francken as respondents in discovery. The complaint alleged those named (1) failed to properly diagnose and treat Kylee, (2) failed to obtain a surgical consultant in an expeditious fashion, (3) failed to consult the radiologist, (4) failed to review X rays taken of Kylee, and (5) failed to properly monitor Kylee's condition and communicate that information to the treating physicians. Plaintiff's attorney signed an affidavit stating (1) damages were sought for injuries caused by medical malpractice, and (2) a health-care professional had advised there was a meritorious cause of action. An unsigned report by an unnamed physician accompanied the complaint and detailed facts concerning Kylee's admittance to the hospital, her treatment, and the liability of Blessing Hospital and Dr. Mathew. The physician's report was based on (1) records from Blessing Hospital, (2) the autopsy report, and (3) radiographs (X rays).

On November 8, 2001, Dr. Mathew filed a motion to dismiss; on November 21, 2000, Blessing Hospital filed a motion to dismiss; and on December 4, 2000, Dr. Mathew adopted Blessing Hospital's motion to dismiss. Blessing Hospital's motion contended plaintiff failed to comply with section 2-622 of the Code in that the affidavit of the attorney failed to state (1) whether the physician writing the medical report had practiced within the last six years in the same area of medicine as the defendants, and (2) whether the physician had the requisite education and experience. 735 ILCS 5/2-622 (West 2000). Further, the motion faulted the physician's report for not indicating the name and address of the physician or where he was licensed. On December 17, 2000, the trial court granted the motion and gave plaintiff 28 days to amend the complaint.

On January 22, 2002, plaintiff filed an amended complaint, accompanied by the affidavit of the plaintiff's attorney and a physician's report from Bernard Lerner, M.D. The physician's report was identical to the one attached to the first complaint except it was signed. On February 7, 2002, defendants answered with a motion to dismiss, alleging Dr. Lerner's medical license had been revoked in Illinois for unlawful possession of a controlled substance. Further, although Dr. Lerner indicated on his curriculum vitae he was licensed to practice medicine in New Mexico and Georgia, according to the New Mexico Board of Medical Examiners, his license had been suspended in that state, and according to the Georgia Board of Medical Examiners, he had no license. On February 22, 2002, Blessing Hospital made a motion for summary judgment; and on February 25, 2002, the trial court granted the motion and gave plaintiff until March 8 to file a second-amended complaint.

On March 11, 2002, plaintiff filed a reply to defendant's motion to dismiss and filed a motion to convert respondents in discovery to defendants. This motion was accompanied by an attorney's affidavit and by the medical report of Alan M. Nager, M.D. Dr. Nager's physician's report relied on (1) records from Blessing Hospital, (2) the autopsy examination report, and (3) radiographic films. Also on March 11, 2002, arguments were scheduled on the motion to convert (735 ILCS 5/2-402 (West 2000)).

On March 25, 2002, Dr. Hall filed a motion in objection to plaintiff's motion to convert, alleging that although section 2-402 affords plaintiffs a six-month grace period to deduce evidence in discovery as to whether a respondent should be named a defendant, in this case plaintiff conducted no discovery after the expiration of the two-year statute of limitations on October 19, 2001. Therefore, plaintiff should not be allowed to take advantage of the six-month extension afforded by section 2-402. Dr. Hall's second argument concerned the fact Dr. Nager was not a surgeon and did not have the requisite education and experience to comment on the duty owed by Dr. Hall. On that same date, Dr. Saalborn filed a response to plaintiff's motion to ...

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