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Prouty v. Advocate Health and Hospitals Corp.

May 11, 2004

TONI LEE PROUTY, INDIVIDUALLY AND AS MOTHER AND NEXT FRIEND OF DEZIRAE PROUTY, A MINOR, PLAINTIFF-APPELLEE,
v.
ADVOCATE HEALTH AND HOSPITALS CORPORATION, D/B/A ADVOCATE GOOD SHEPHERD HOSPITAL, DEFENDANT-APPELLANT TRI-COUNTY EMERGENCY PHYSICIANS, LTD., JOSEPH GIANGRASSO, GERALYNN S. RENNER, JOHN BRECKERMAN, AND PEDIATRIC CARE, P.C., DEFENDANTS.



Appeal from the Circuit Court of Cook County. No. 03 L 07282. The Honorable, Michael J. Hogan, Judge Presiding.

The opinion of the court was delivered by: Justice Garcia

PUBLISHED

In this permissive interlocutory appeal taken pursuant to Supreme Court Rule 306(a)(2) (166 Ill. 2d R. 306(a)(2)), the defendant, Advocate Health and Hospitals Corporation, d/b/a Advocate Good Shepherd Hospital (Advocate), appeals from the circuit court's order denying its motion to transfer this case from the circuit court of Cook County to the circuit court of Lake County, based on the doctrine of forum non conveniens. Advocate claims that the trial court abused its discretion in denying the motion to transfer because private and public interest factors heavily weigh in favor of transfer. Advocate also claims that plaintiff's choice of Cook County is forum shopping.

BACKGROUND

The plaintiff, Toni Lee Prouty, filed a multicount complaint alleging medical malpractice in the treatment of her daughter, Dezirae Prouty. The complaint named several defendants, including Advocate, Tri-County Emergency Physicians, Ltd.; Joseph Giangrasso, M.D.; Geralynn S. Renner, M.D.; John Beckerman*fn1 , M.D.; and Pediatric Care, P.C. Specifically, Prouty alleges that on September 17, 1997, when Dezirae was only one day old, a well-baby visit was conducted by Dr. Beckerman at Good Shepherd Hospital. The complaint alleges that sometime between September 18 and 20, 1997, a representative of Dr. Beckerman's office contacted Prouty and cancelled a scheduled well-baby visit that was to occur sometime between September 18 and 20, 1997, because Dr. Beckerman would not accept Prouty's Illinois Department of Public Aid medical card. On September 20, 1997, Dezirae was brought to Good Shepherd Hospital's emergency department with complaints of poor feedings, inability to produce wet diapers, vomiting and apnea. Dr. Beckerman was notified that his patient was in the emergency department. However, he did not examine Dezirae, but provided consultation by telephone to the emergency department physician. Dezirae was examined by defendants Dr. Joseph Giangrasso and Dr. Geralynn Renner. A jaundice test was ordered. After being in the hospital for just three hours, Dezirae was discharged from the emergency department with a diagnosis of jaundice.

Prouty alleges that the defendants negligently treated Dezirae because they failed to order radiographic tests, failed to admit Dezirae to the hospital, failed to do a work-up for apnea, failed to diagnose Dezirae with dehydration, and failed to take her weight or pulse. The plaintiff alleges that as a result Dezirae suffered severe cardiac arrest on September 23, 1997, which resulted in brain damage. On September 23, 1997, Dezirae was again brought to Good Shepherd Hospital, but was taken by helicopter to Lutheran General Hospital, located in Cook County. She was admitted to Lutheran General's emergency department for one or two days, and remained at Lutheran General for two weeks in the pediatric intensive care unit. At Lutheran General, Dezirae had major surgery on her gastrointestinal tract. She exhibited severe dehydration and renal failure.

On September 19, 2003, Advocate filed a motion to dismiss for venue, requesting a transfer from Cook County to Lake County pursuant to Supreme Court Rule 187 (134 Ill. 2d R. 187) and the doctrine of forum non conveniens. In support of its motion, Advocate argued: (1) that all of the alleged negligent treatment was rendered at Good Shepherd Hospital in Lake County; (2) Pediatric Care is located in Lake County; (3) Dr. Beckerman resides in Lake County; (4) Tri-County Emergency Physicians is located in Lake County; (5) Dr. Giangrasso resides in Lake County; (6) Dr. Renner resides in Cook County; (7) Prouty resides in Lake County; and (8) Good Shepherd's risk manager, the designated trial representative for Good Shepherd Hospital, resides in McHenry County. On December 30, 2003, Prouty responded to Advocate's motion to transfer. In support of her motion, Prouty argued that Cook County is appropriate because it is the residence of three defendants, Dr. Renner, Tri-County, and Advocate. Prouty argued that a majority of the treatment was administered at Lutheran General, that the substantial injuries occurred in Cook County, and that relevant medical doctors and records were in Cook County, mainly at Lutheran General. Even though the negligent action occurred in Lake County, the injury, treatment and diagnosis occurred in Cook County.

Citing to Bland v. Norfolk & Western Ry. Co., 116 Ill. 2d 217, 506 N.E.2d 1291 (1987), Advocate argued that the five treating physicians from Lutheran General should not have a significant bearing on the forum issue. The trial court noted that these treating physicians were different from those considered in Bland. The trial court noted that this case does not indicate forum shopping because Dezirae was transferred from Good Shepherd Hospital to Lutheran General Hospital:

"THE COURT: I think one of the similarities in those cases is that the reason the Courts don't consider treaters -- or many of them -- is because they say, well, they say you are forum shopping and you can just go get treaters in any county you want. Certainly, that's not the case here. The case here is [s]he was transferred, you know, from the Defendant's hospital. So I think that's a consideration."

On January 28, 2004, the trial court denied Advocate's motion to dismiss for venue. In rendering its decision, the trial court reasoned:

"THE COURT: I've read the arguments. I've read the briefs and the case law. Forum convenience allows the trial court to deny jurisdiction in exceptional cases. The Plaintiff has a substantial interest in choosing the forum, and the choice should rarely be disturbed. Plaintiff's choice, however, receives somewhat less deference when neither the Plaintiff's residence [n]or the site of the accident or injury is located in the chosen forum.

Defendant must show the chosen forum is inconvenient to Defendants and the witnesses. Defendant cannot assert that the Plaintiff's chosen forum is inconvenient to the Plaintiff. The test is an unequal balancing test. Transfer is appropriate only when litigation has no practical connection, no nexus with the Plaintiff's choice of forum.

In our case, we have witnesses sprout out over three different counties, Cook, Lake, and McHenry. I believe that since the Defendants transferred the Plaintiff to Lutheran General and to Cook County, these witnesses were not chosen for any other reason than Plaintiff's care -- Plaintiff's child's care and should be considered as any other witnesses. Therefore, this Court finds the Defendant has not met its heavy burden and the motion is denied."

Advocate filed a petition for leave to appeal, which we granted on March 25, 2004, pursuant to Supreme Court Rule ...


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