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Long v. Elborno

September 20, 2007

KATHRYN LONG, PLAINTIFF-APPELLANT,
v.
AHMED ELBORNO, INDIVIDUALLY AND AS AGENT OF RUSH OAK PARK HOSPITAL, AND RUSH OAK PARK HOSPITAL, INDIVIDUALLY, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. No. 04 L 13549 Honorable Abishi C. Cunnigham, Judge Presiding.

The opinion of the court was delivered by: Presiding Justice Neville

Published opinion

Plaintiff, Kathryn Long (Long), filed a negligence action against the defendants, Dr. Ahmed Elborno (Dr. Elborno)*fn1 and Rush Oak Park Hospital (Rush). Rush filed a motion to dismiss the complaint pursuant to Supreme Court Rule 103(b), and the trial court granted the motion based upon Long's failure to exercise reasonable diligence in serving Rush with her summons and complaint. 177 Ill. 2d 103(b). On appeal, Long presents the following issues for review: (1) whether Rush's motion to dismiss Long's complaint was untimely; (2) whether Rush waived its right to file a motion to dismiss based upon the provisions in Supreme Court Rule 103(b) (177 Ill. 2d 103(b)); (3) whether Long acted with reasonable diligence in serving Rush with her complaint and summons; and (4) whether the trial court abused its discretion when it granted Rush's motion to dismiss. For the reasons that follow, we affirm the judgment of the trial court.

BACKGROUND

On December 3, 2004, Long filed a two-count complaint against Dr. Ahmed Elborno and Rush and alleged that on December 3, 2002, the defendants negligently performed a vertebroplasty procedure on Long. According to the two-year statute of limitations for physicians or hospitals codified in section 13-212 of the Code of Civil Procedure (Code), the time for filing such a lawsuit expires two years after the cause of action accrues. 735 ILCS 5/13-212 (West 2004).

Long appended to her complaint a section 2-622(a)(2) affidavit. 735 ILCS 5/2-622(a)(2). (West 2004). In the affidavit, Bradley Lichtman, Long's attorney, averred that he was unable to obtain the physician's consultation required by section 2-622(a)(1) because (1) the statute of limitations would impair the action, and (2) because the consultation could not be obtained before the expiration of the statute of limitations. 735 ILCS 5/2-622(a)(1),(a)(2) (West 2004). On March 3, 2005, Long filed an affidavit and the written report from a physician required by section 2-622(a)(1) of the Code. 735 ILCS 5/2-622(a)(1) (West 2004). On March 30, 2005, Lichtman failed to appear for a case management conference, and the trial court dismissed the case for want of prosecution. However, the trial court vacated the dismissal when Lichtman filed a motion and explained that his failure to appear on March 30, 2005, on behalf of Long was due to a "docketing error."

On July 6, 2005, the sheriff served Long's complaint and summons on Neal Levin, an authorized person to receive service for Rush, at Rush's hospital located at 520 South Maple, Oak Park, Illinois. On August 10, 2005, Rush filed its appearance and a demand for a jury trial. On August 19, 2005, Rush filed a motion to dismiss and maintained that the complaint served on the hospital did not have the affidavit and health professional's report filed by Long on March 3, 2005, attached to it, and that Long failed to exercise reasonable diligence in obtaining service on the hospital, thereby violating Supreme Court Rule 103(b). 177 Ill. 2d 103(b). At the same time, Rush served subpoenas for depositions and records on five of Long's health care providers.

On October 11, 2005, Long filed her response and attached the affidavit of her attorney (Lichtman). Lichtman averred that he personally filed the complaint on December 3, 2004, and although he acknowledged that he did not personally place the summons and complaint for service, he believed that the support staff at his firm, Evins & Sklare, would have the sheriff serve the defendants. Lichtman further averred that, while examining Long's case file on March 3, 2005, he noticed that the summons and complaint had not been served and, upon making this discovery, he once again directed the Evins & Sklare support staff to have the sheriff serve the defendants in Long's case. Lichtman averred that between March 3, 2005, and June 15, 2005, he directed the Evins & Sklare support staff to obtain service on the defendants on multiple occasions; however, he did not recall the specific dates that such directions were made. Lichtman further averred that it was not until June 15, 2005, that Evins & Sklare's clerk had the clerk of the circuit court file stamp the summons and, on June 17, 2005, the summons and the complaint were delivered to the Cook County sheriff to be served on the defendants. Lichtman averred that, although service of process matters were handled by the firm's support staff, service matters were overseen by the attorney assigned to the case. Finally, Lichtman averred that from December 3, 2004, until June 17, 2005, the failure to place the summons and complaint with the sheriff for service on defendants was inadvertent and not intentional.

On October 17, 2005, Rush filed a reply in further support of its motion to dismiss. On November 7, 2005, after hearing the arguments of the parties, the trial court granted Rush's motion to dismiss with prejudice. The trial court's order also stated that "pursuant to Supreme Court Rule 304(a), this matter is final and appealable as there is no just reason for delaying enforcement or appeal or both." See 210 Ill. 2d R. 304(a).

ANALYSIS

Standard of Review

In this case, the trial court dismissed Long's complaint pursuant to Supreme Court Rule 103(b). 177 Ill. 2d 103(b). An appellate court applies an abuse of discretion standard of review when reviewing a trial court's order dismissing a complaint pursuant to Supreme Court Rule 103(b). Segal v. Sacco, 136 Ill. 2d 282, 286 (1990). Accordingly, we must determine whether the trial court abused its discretion when it entered the order that granted Rush's motion to dismiss Long's complaint. Segal, 136 Ill. 2d at 286.

I.

Timeliness First, we address Long's argument that the trial court abused its discretion when it permitted Rush to file its motion to dismiss on August 19, 2005. Long relies upon two supreme court rules in support of her position. Supreme Court Rule 101(d) provides that a defendant is required to file an answer or otherwise appear within 30 days after being served with a summons and complaint. 166 Ill. 2d R. 101(d). Supreme Court Rule 181(a) provides that a party may appear by filing a motion within the 30 day period of being served with a summons and complaint. 210 Ill.2d R. 181(a). According to Long, Rush filed its appearance on August 10, 2005, and its motion to ...


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