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Jackson-Baker v. Immesoete

April 4, 2003


Appeal from the Circuit Court for the 10th Judicial Circuit Peoria County, Illinois No. 00-L-295 Honorable Stuart P. Borden, Judge Presiding.

The opinion of the court was delivered by: Justice Barry


C. Carrie Jackson- Baker ("Baker"), administrator of the estate of her brother James P. Jackson ("Jackson"), listed Sharon Health Care Willows, Inc., ("Sharon Health") as a respondent in discovery for the purpose of filing survival and wrongful death actions as a result of Jackson's death after receiving care at Sharon Health's facility. When Baker attempted to convert Sharon Health to a defendant, the trial court found probable cause only for the survival action. Baker appeals the trial court's order denying the conversion of Sharon Health to a defendant on the wrongful death claim. We reverse and remand with directions.


Jackson suffered from mental illness and had been institutionalized for most of his adult life. From April 24, 1998, through July 13, 1998, Jackson was a resident of and under the care of Sharon Health Care Willows's South Nursing Home. On July 13, 1998, Jackson was taken to Proctor Hospital where he was diagnosed with a bowel obstruction. Jackson underwent several surgical procedures and remained hospitalized until his death on September 1, 1998. During his hospital stay, Jackson developed several complications, including toxic epidermal necrolysis, symptoms of which are a rash over the body, large blisters, and the shedding of skin.

Baker originally filed suit against Proctor Hospital and Dr. Phillip Immesoete on behalf of her brother Jackson. Sharon Health and several physicians were named as respondents in discovery. After obtaining Jackson's medical records and consulting with experts, Baker dismissed Proctor Hospital as a defendant and moved to convert Sharon Health to a defendant. Attached to the motion was a report from Professor MaryBeth Buschmann of the University of Illinois at Chicago College of Nursing, a registered nurse. Based upon her review of Jackson's medical records obtained from Sharon Health, Bushmann found an abrupt change in Jackson's food intake at Sharon Health in July. Despite Jackson's refusal to eat, he sustained a 12 pound weight gain during that month. Bushmann further found notations indicating that Jackson had vomited undigested chicken, but found no record of Jackson's bowel movements. Additional notations indicated that Jackson grimaced when his abdomen was palpated, and that there were wide variations in Jackson's blood pressure. Based upon these observations from the records, Bushmann concluded that the nursing staff of Sharon Health was negligent in the care of Jackson.

On November 14, 2001, the trial court entered an order finding sufficient probable cause on the survival action to allow Sharon Health to be converted to a defendant on that claim. However, the trial court found insufficient probable cause on the wrongful death claim. Baker moved for reconsideration which the trial court denied on January 10, 2002. On January 31, 2002, Baker moved for leave to file an interlocutory appeal, and the trial court found no just reason to delay appeal of the court's order "with respect to the wrongful death cause of action."


On appeal, Baker argues that (1) the trial court erred in determining there was no probable cause to convert Sharon Health from a respondent in discovery to a defendant on the wrongful death claim; and (2) the trial court is not permitted under the respondent in discovery statute to find probable cause to convert a respondent in discovery to a defendant on one cause of action but not another. Prior to discussing the issue certified by the trial court, we note that Baker has asked this court to strike a portion of Sharon Health's brief. In its response, Sharon Health argues that this court should not only consider whether it was proper for the trial court to deny Baker's motion to convert on the wrongful death action, but also on the survival action which the trial court allowed to proceed. After the trial court entered its order on the motion to convert, Baker filed a motion for interlocutory appeal. The trial court found no just reason to delay appeal of the court's order "with respect to the wrongful death cause of action." In an interlocutory appeal, the reviewing court may only address the question certified by the trial court. Bachman v. Sharon & Lo's Place, Inc., 185 Ill. App. 3d 40, 41, 541 N.E.2d 153, 154 (1989). Therefore, we grant Baker's motion to strike and shall not consider the portion of Sharon Health's brief addressing the survival action.

A trial court's ruling on a motion to add a respondent in discovery as a defendant is entitled to deference where the court heard testimony and made determinations regarding conflicting evidence. McGee v. Heimburger, 287 Ill. App. 3d 242, 248, 678 N.E.2d 364, 368 (1997). However, where (1) the facts are undisputed, (2) the credibility of the witnesses is not an issue, and (3) in-court testimony has not been presented, a question of law is presented, and a reviewing court may consider the question de novo. McGee, 287 Ill. App. 3d at 248, 678 N.E.2d at 368. In the instant case, the trial court considered only documentary evidence. Therefore, a de novo standard is appropriate.

Section 5/2-402 of the Code of Civil Procedure provides, in pertinent part:

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. 735 ILCS 5/2-402.

Probable cause under section 2-402 will be established where a person of ordinary caution and prudence would entertain an honest and strong suspicion that the purported negligence of the respondent in discovery was a proximate cause of plaintiff's injury. Medjesky v. Cole, 276 Ill. App. 3d 1061, 1064, 659 N.E.2d 47, 49 (1995). However, the evidence need not rise to the level of a high degree of likelihood of success on the merits or the evidence necessary to defeat a motion for summary judgment in favor of the respondents in discovery, nor is the plaintiff required to ...

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