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Ward v. Decatur Memorial Hospital

Supreme Court of Illinois

June 20, 2019

GERALD R. WARD, Appellee,
v.
DECATUR MEMORIAL HOSPITAL, Appellant.

          JUSTICE THEIS delivered the judgment of the court, with opinion. Justices Kilbride, Garman, and Burke concurred in the judgment and opinion.

          OPINION

          THEIS, JUSTICE

         ¶ 1 The primary issue in this appeal is whether res judicata bars plaintiff Gerald R. Ward's refiled action because he voluntarily dismissed the third amended complaint after the Macon County circuit court had involuntarily dismissed several counts from the original, first, and second amended complaints in the initial action. Richter v. Prairie Farms Dairy, Inc., 2016 IL 119518, controls the outcome of this case; therefore, we affirm the judgment of the appellate court, reversing the grant of summary judgment in favor of defendant Decatur Memorial Hospital (Hospital).

         ¶ 2 BACKGROUND

         ¶ 3 The underlying claims involve alleged medical malpractice sustained by the decedent (Ward's brother) at the Hospital. In mid-December 2007, the decedent had gastric bypass surgery at the Hospital. According to Ward, shortly thereafter, the decedent developed a bed sore that became infected. The Hospital discharged him four days after the procedure. In January 2008, the decedent died from complications associated with a bacterial infection.

         ¶ 4 The Initial Complaint

         ¶ 5 In December 2009, Ward filed his initial nine-count complaint (No. 09 L 209). He named the Hospital, "Decatur Memorial Hospital Home Health Services," and unknown employees of the Hospital as defendants. In count I, on behalf of the decedent's estate, Ward alleged that the Hospital breached its duty of care to the decedent by, among other things, failing to diagnose or to treat the bed sore that developed during his stay. In count II, in his individual capacity, Ward raised a wrongful death claim against the Hospital. In count III, in his individual capacity, Ward claimed that the Hospital should reimburse him for the decedent's medical bills and funeral expenses under the "Family Expense Act."

         ¶ 6 In count IV, on behalf of the estate, Ward alleged that Decatur Memorial Hospital Home Health Services breached its duty of care to the decedent. In count V, in his individual capacity, Ward raised a wrongful death claim against Decatur Memorial Hospital Home Health Services. In count VI, in his individual capacity, Ward claimed that he was entitled to family expenses from Decatur Memorial Hospital Home Health Services.

         ¶ 7 In count VII, on behalf of the estate, Ward claimed that unknown employees breached their duty of care to the decedent. In count VIII, in his individual capacity, Ward raised a wrongful death claim against unknown employees. In count IX, in his individual capacity, Ward claimed that he was entitled to family expenses from unknown employees.

         ¶ 8 In May 2010, the Hospital filed a combined motion to dismiss the complaint. The Hospital moved to dismiss counts I, II, IV, and paragraph 4(d) of counts IV through VI under section 2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2010)) for failure to allege sufficient facts to state a cause of action. In those counts, Ward alleged that the Hospital's nurses failed to diagnose the decedent's pressure sore. Because nurses cannot make medical diagnoses, the Hospital asked the trial court to strike the counts.

         ¶ 9 The Hospital also noted that under section 2-622(g) of the Code, plaintiff's failure "to file an affidavit and report in compliance with this [s]ection shall be grounds for dismissal under [s]ection 2-619." Id. § 2-622(g). Arguing that Ward's report failed to satisfy the statutory requirements, the Hospital moved to dismiss the entire complaint. It further observed that Ward had not been appointed special administrator for the decedent's estate; therefore, it moved to dismiss counts I, II, IV, V, VI, and VII. Additionally, the Hospital noted that although the complaint referenced the "Family Expense Act," Ward likely meant the "Rights of Married Persons Act," which did not allow a sibling to recover for another sibling's medical expenses. As such, the Hospital asked the court to dismiss counts III, VI, and IX of the complaint. Finally, because Ward lacked jurisdiction to sue unknown persons, the Hospital argued that counts III, VI, and IX also should be dismissed.

         ¶ 10 In July 2010, the trial court ruled on the Hospital's motion to dismiss the complaint. Because no court had appointed Ward as administrator for the decedent's estate, the trial court dismissed counts I and IV without prejudice. Ward conceded that his reliance on the Family Expense Act was misplaced, and the court determined that he alleged no facts to establish the Hospital's legal responsibility to pay the decedent's medical and funeral expenses. Accordingly, the court dismissed counts III and VI without prejudice.

         ¶ 11 The trial court observed that, in the report Ward filed under section 2-622 of the Code (id. § 2-622(a)(1) (requiring review of the cause of action by a qualified health professional)), the health care professional did not identify his reasons for determining that a meritorious cause of action existed. It therefore dismissed count II without prejudice. Finally, noting that section 2-413 of the Code (id. § 2-413) did not authorize naming unknown employees as defendants, the court ruled that counts VII, VIII, and IX were "properly stricken." The court granted Ward leave to file an amended complaint, affidavit, and report within 28 days.

         ¶ 12 The First Amended Complaint

         ¶ 13 In August 2010, Ward filed a first amended complaint. In count I, on behalf of the decedent's estate, Ward alleged that the Hospital, its agents, and its employees breached their duty to treat and to care for the decedent in accordance with reasonable and proper hospital practices. In count II, in his individual capacity, Ward raised a wrongful death claim against the Hospital. In count III, on behalf of the estate, Ward alleged that Decatur Memorial Hospital Home Health Services, its agents, and its employees breached their duty to treat and to care for the decedent in accordance with reasonable and proper home health care practices. Finally, in count IV, in his individual capacity, Ward raised a wrongful death claim against Decatur Memorial Hospital Home Health Services.

         ¶ 14 The Hospital filed a combined motion to dismiss the first amended complaint. It moved to dismiss counts I and III on the ground that Ward had not obtained leave of court before refiling them. The Hospital then noted that counts II and IV, which "purport[ed] to sound in wrongful death," were brought by Ward in his individual capacity. But it argued that recovery under the Wrongful Death Act (740 ILCS 180/0.01 et seq. (West 2010)) was limited to the decedent's personal representative; Ward could not recover in his individual capacity.

         ¶ 15 The Hospital moved to dismiss counts III and IV on the ground that "Decatur Memorial Hospital Home Health Services" did not exist and, thus, could not be sued. Further, the Hospital moved to dismiss the first amended complaint in its entirety, contending that "the specific allegations of negligent acts consist of nothing but legal or factual conclusions." It also moved to dismiss counts I and II of the complaint, arguing that the counts did not "state the standard of care applicable to the various persons for whom [the Hospital] is sought to be held liable." Finally, the Hospital moved to dismiss the first amended complaint in its entirety, arguing that the report from Ward's health care professional failed to support his allegations that the Hospital breached any duty of care.

         ¶ 16 The trial court granted dismissal of count I without prejudice, concluding that the report from Ward's doctor lacked the necessary detail to support his allegations. Because count II was brought in Ward's individual capacity, rather than as a representative of the decedent, the court dismissed it without prejudice. As to counts III and IV, Decatur Memorial Hospital Home Health Services did not exist; therefore, the parties agreed that those counts should be dismissed. The court granted Ward leave to file a second amended complaint within 30 days.

         ¶ 17 The Second Amended Complaint

         ¶ 18 In November 2010, Ward filed his second amended complaint. In count I, on behalf of the decedent's estate, Ward raised a survival claim under a theory of respondeat superior against the Hospital. This count alleged that the Hospital "through its agents and/or employees" breached its duty of care to the decedent by, among other things, failing to properly visually assess the patient, failing to identify the skin breakdown, and failing to treat his ulcer to control the infection. Ward further alleged that physicians breached their duty to treat and to administer care to the decedent "in accordance with reasonable and proper surgical practice." Count II was a wrongful death claim under a theory of respondeat superior based on the same allegations as in count I.

         ¶ 19 In count III, Ward raised an institutional negligence/survival claim against the Hospital on behalf of the estate. Ward alleged that the Hospital breached its duty of care to the decedent by, among other things, failing to have adequately trained nurses, failing to require the nurses to consult with certain members of the surgical staff, and breaching the state's license requirements. Count IV was a claim for institutional negligence/wrongful death against the Hospital based on the same allegations as in count III.

         ¶ 20 The Hospital filed a combined motion to dismiss the second amended complaint. It moved to dismiss counts I and II, arguing that Ward failed to allege sufficient facts to state a cause of action on the theory of respondeat superior. According to the Hospital, it was "still unclear as to 'who did what,' and what the proper standard of care [was] as to the various agents and employees." The Hospital also moved to dismiss counts III and IV, arguing that Ward's claim for institutional negligence was vague and conclusory. It further moved to dismiss the entire complaint pursuant to section 2-622(g) of the Code. According to the Hospital, Ward's physician's report was conclusory as to the negligence claim and failed to provide reasons for his belief that a meritorious cause of action for institutional negligence existed.

         ¶ 21 At a hearing on its motion to dismiss, the Hospital noted that unlike the original and amended complaints-which focused on alleged missteps by nurses-in the second amended complaint, Ward also alleged that physicians had breached the standard of care. The Hospital argued that the accompanying physician's report contained no facts suggesting that a doctor breached any duty of care to the decedent. In both his response to the Hospital's motion to dismiss and at the hearing, Ward acknowledged that his lawsuit was based on alleged breaches in the standard of care by nurses, not by doctors. Given that admission, the Hospital argued that the complaint should not contain allegations directed at physicians.[1]

         ¶ 22 The trial court ruled that the second amended complaint lacked "a factual basis to support claims premised on a breach of the physician standard of care." It therefore struck the allegations directed at physicians. With those allegations removed, the court determined that Ward's section 2-622 report satisfied the statutory requirements as to the first two counts of the complaint. But the court concluded that the counts alleging institutional negligence were vague, unsupported by substantial allegations of fact, and unsupported by a report from a reviewing health professional as required by section 2-622. Consequently, the court dismissed the second amended complaint. It granted Ward leave to file, within 28 days, a third amended complaint "consistent with [the] court's order, along with a report by a reviewing health professional in support of the institutional negligence counts."

         ¶ 23 The Third Amended Complaint

         ¶ 24 In May 2011, Ward filed his third amended complaint. Count I was a survival claim against the Hospital under a theory of respondeat superior, based on its nurses' alleged breaches of their duty to act "in accordance with reasonable and proper nursing practice in light of the standard of care of nursing practice then prevailing in the community." Count II was a wrongful death claim against the Hospital under a theory of respondeat superior, also based on alleged breaches by nurses. The following month, the Hospital filed its answer and affirmative defenses to the third amended complaint.

         ¶ 25 Four years later, in early December 2015, the judge issued a pretrial conference order. Among other things, the court ordered the parties to submit a jointly prepared statement of the case and a jointly prepared list of witnesses. The jury trial was set for January 19, 2016. On December 31, 2015, the Hospital moved to bar Ward's disclosure of a rebuttal witness. It argued that it first learned of Ward's proposed rebuttal expert the day before, which was only 20 days before the start of trial. Noting that the case had been pending for six years, the Hospital insisted that Ward had had "ample time to obtain experts."

         ¶ 26 On January 4, 2016, Ward moved for leave to file a fourth amended complaint. The proposed fourth amended complaint contained two counts. Count I was a survival claim against the Hospital under a theory of respondeat superior; count II was a wrongful death claim against the Hospital under a theory of respondeat superior. According to Ward, he sought to amend the complaint "to more correctly and succinctly describe the alleged negligence of [d]efendant's nurses as a result of facts developed through discovery."

         ¶ 27 On January 5, 2016, the trial court issued an order on the pending motions. It noted that Ward had filed his initial complaint in December 2009. "[W]hen a case is this old," the court observed, "the lawyers, the [c]ourt, and the judicial system become one of the issues." Because trial was set to begin in roughly two weeks, the court granted the Hospital's motion to bar the proposed rebuttal witness. The court also denied Ward's motion for leave to amend his complaint, finding that the ...


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