Chung v. Advocate Health Care

Case Date: 12/27/2002
Court: 1st District Appellate
Docket No: 1-00-3106 Rel


1-00-3106

 
SOPHIE CHUNG, a Minor, by Her
Parents and Next Friends, HOWARD
Chung and Myunghee Chung, and 
HOWARD CHUNG, Indiv., and MYUNGHEE
CHUNG, Indiv., 

                    Plaintiffs-Appellants,

          v.

ADVOCATE HEALTH CARE, a Corporation
d/b/a Good Samaritan Hospital; DUPAGE
EMERGENCY PHYSICIANS, LTD., a
Corporation; VALERIE JEAN PHILLIPS;
BRUCE DONENBERG; J. BADOWSKA, S.C., a
Corporation, JANINA BADOWSKA, CENTRAL
DUPAGE HOSPITAL ASSOCIATION, a 
Corporation d/b/a Central DuPage
Hospital; ASSOCIATED GENERAL SURGEONS, 
S.C., a Corporation; PETER W. BROIDO;
WEST CENTRAL ANESTHESIOLOGY GROUP,
LTD., a Corporation; MICHAEL J. 
PERCONTI, JOHN A. KOWALSKI, WINFIELD
RADIOLOGY CONSULTANTS, S.C.,
a Corporation; HAK KUNG SUE,
PEDIATRIC CRITICARE, LTD., a
Corporation, and SARI NABULSI,

                    Defendants-Appellees.

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Appeal from the
Circuit Court of
Cook County.











No. 99 L 01560











Honorable
David Donnersberger,
Judge Presiding.

JUSTICE REID delivered the opinion of the court:

In this medical malpractice action, the plaintiffs-appellants are a young girl and her parents. The defendants-appellees are essentially the hospitals and doctors thatallegedly harmed the girl as a result of their allegednegligence. The sole issue raised on appeal is whether the trialcourt abused its discretion when it granted the defendants'motion to transfer venue from Cook County to DuPage County. Forthe reasons that follow, we reverse the decision of the trialcourt and remand this cause for further proceedings.

BACKGROUND

Plaintiff Sophie Chung (Sophie), a minor, is represented byher parents, Howard Chung (Howard) and Myunghee Chung (Myunghee),who are also suing in their individual capacities. On February9, 1999, the plaintiffs filed a two-count complaint wherein theyalleged the following defendants committed medical malpractice:Advocate Health Care (Advocate), d/b/a Good Samaritan Hospital(Good Samaritan); DuPage Emergency Physicians, Ltd. (DuPagePhysicians); Valerie Jean Phillips, M.D. (Dr. Phillips); BruceDonenberg, M.D.; J. Badowska, M.D., S.C.; Janina Badowska, M.D.(Dr. Badowska); Central DuPage Hospital Association, d/b/aCentral DuPage Hospital (Central DuPage); Associated GeneralSurgeons, S.C.; Peter W. Broido, M.D. (Dr. Broido); West CentralAnesthesiology Group, Ltd.; Michael J. Perconti, M.D.; John A.Kowalski, M.D.; Winfield Radiology Consultants, S.C.; Hak KungSue, M.D.; Pediatric Criticare, Ltd.; and Sari Nabulsi, M.D (Dr.Nabulsi).

In the complaint, it was alleged that on February 9, 1997,five year-old Sophie was admitted to Good Samaritan, which islocated in DuPage County, Illinois, for gastro-intestinalsymptoms. There, Dr. Phillips and Dr. Badowska examined Sophieand decided that she needed pediatric critical care treatment. Sophie was subsequently transferred to Central DuPage, which isalso located in DuPage County.

At Central DuPage, Sophie was examined by Dr. Broido and Dr.Nabulsi. After an abdominal flat plate and upright X ray weretaken, Sophie was taken to surgery. There, Dr. Broido performeda procedure known as an exploratory laparotomy. During theprocedure it was discovered that Sophie had a malrotation of thebowel. After untwisting her bowel, Dr. Broido elected to stopthe procedure in order to evaluate the bowel's condition. Thenext day, Sophie was transferred to Children's Memorial Hospital(Children's Memorial), which is located in Chicago, Illinois.

The doctors at Children's Memorial discovered that Sophie'sbowel had died because the malrotation had not been timelytreated. Sophie subsequently had four additional surgeries andremained hospitalized at Children's Memorial until April 7, 1997. The plaintiffs, who are residents of DuPage County,initiated this action in Cook County, Illinois. On May 18, 1999,the defendants filed a motion to transfer venue pursuant toSupreme Court Rule 187 (134 Ill. 2d R. 187). The defendantsrequested that the case be transferred to DuPage County pursuantto the doctrine of forum non conveniens. The trial court grantedthe defendants' motion to transfer venue and the plaintiffsappealed. A different division of this court initially deniedthe plaintiffs' petition for leave to appeal, and on May 1, 2000,the Supreme Court of Illinois issued a supervisory order thatrequired this court to vacate its previous order and address thiscase on its merits.

ANALYSIS

The plaintiffs maintain the trial court abused itsdiscretion when it granted the defendants' motion to transfervenue from Cook County to DuPage County.

The doctrine of forum non conveniens presupposes theexistence of more than one forum having jurisdiction and venue. Peile v. Skelgas, Inc., 163 Ill. 2d 323, 336 (1994), citingWieser v. Missouri Pacific R.R. Co., 98 Ill. 2d 359, 364 (1983),and Vinson v. Allstate, 144 Ill. 2d 306, 311 (1991). A trialcourt has considerable discretion in ruling on a forum nonconveniens motion, and the court's decision to grant or deny thatmotion will not be reversed absent an abuse of discretion. Peile, 163 Ill. 2d at 336; Brummett v. Wepfer Marine, Inc., 111Ill. 2d 495, 503 (1986). According to this equitable doctrine, acourt that has jurisdiction over the parties and the subjectmatter involved may nevertheless decline jurisdiction of a casewhen it is apparent that trial in another forum with jurisdictionover the parties would be more convenient and would better servethe ends of justice. Vinson, 144 Ill. 2d at 310.

To determine whether the doctrine applies, the circuitcourt must balance the private interest factors affecting theconvenience of the parties and the public interest factorsimpacting the court's administration of its docket. Gulf OilCorp. v. Gilbert, 330 U.S. 501, 508-09, 91 L. Ed. 1055, 1062-63,67 S. Ct. 839, 843 (1947); Torres v. Walsh, 98 Ill. 2d 338, 345(1983). The doctrine of forum non conveniens is a flexible onewhich requires evaluation of the total circumstances rather thanconcentration on any single factor. Peile, 163 Ill. 2d at 336-37.

"In Illinois, the private interest factors include (1) theconvenience of the parties; (2) the relative ease of access tosources of testimonial, documentary, and real evidence; and (3)all other practical problems that make trial of a case easy,expeditious, and inexpensive--for example, the availability ofcompulsory process to secure attendance of unwilling witnesses,the cost to obtain attendance of willing witnesses, and theability to view the premises (if appropriate)." First AmericanBank v. Guerine, 198 Ill. 2d 511, 516 (2002), citing Griffith v.Mitsubishi Aircraft International, Inc., 136 Ill. 2d 101, 105-06(1990), Bland v. Norfolk & Western Ry. Co., 116 Ill. 2d 217, 224(1987), and Adkins v. Chicago, Rock Island & Pacific R.R. Co., 54Ill. 2d 511, 514 (1973)(these factors also may include therelative capacities of the two forums to provide a fair trial).

"The public interest factors include (1) the interest indeciding localized controversies locally; (2) the unfairness ofimposing the expense of a trial and the burden of jury duty onresidents of a county with little connection to the litigation;and (3) the administrative difficulties presented by addingfurther litigation to court dockets in already congested fora."  Guerine, 198 Ill. 2d at 516-17, citing Griffith, 136 Ill. 2d at106.

"Court congestion is a relatively insignificant factor,especially where the record does not show the other forum wouldresolve the case more quickly. See Brummett v. Wepfer Marine,Inc., 111 Ill. 2d 495, 503 (1986) ('Courts should be extremelyreluctant to dismiss a case from the forum rei gestae merelybecause that forum's docket has a backlog'). These factorsgovern both interstate and intrastate transfers." Guerine, 198Ill. 2d at 517.

In exercising its discretion, the circuit court mustdetermine whether the defendant has established that conveniencefactors weigh strongly in favor of a dismissal or transfer. Walker v. American River Transportation, 277 Ill. App. 3d 87(1996). "'A plaintiff's right to select the forum is asubstantial one, and unless the factors weigh strongly in favorof transfer, "the plaintiff's choice of forum should rarely bedisturbed."'" Peile, 163 Ill. 2d at 337, quoting Griffith, 136Ill. 2d at 106, quoting Jones v. Searle Laboratories, 93 Ill. 2d366, 372-73 (1982). But when the plaintiff does not reside inthe forum where he or she filed suit or the injury did not occurin the forum where he or she filed suit, the plaintiff's choiceis given less deference. Dykstra v. A.P. Green Industries, Inc.,326 Ill. App. 3d 489, 493 (2001). Although the deferenceaccorded to the plaintiff's choice of venue in such instances isless, "less" is not synonymous with "none." Dykstra, 326 Ill.App. 3d at 493; Elling v. State Farm Mutual Automobile InsuranceCo., 291 Ill. App. 3d 311, 318 (1997). Regardless of the amountof deference given to the plaintiff's selection of a particularforum, the defendant still bears the burden of showing that theplaintiff's selected forum is inconvenient to the defendant andthat another forum is more convenient to all parties. Dykstra,326 Ill. App.3d at 493.

The battle over forum thus begins with the plaintiff'schoice already in the lead. Guerine, 198 Ill. 2d at 521. "Inmost instances, the plaintiff's initial choice of forum willprevail, provided venue is proper and the inconvenience factorsattached to such forum do not greatly outweigh the plaintiff'ssubstantial right to try the case in the chosen forum." Peile,163 Ill. 2d at 335-36, 645 N.E.2d at 190.

The Illinois Supreme Court recently refined and reaffirmedthe doctrine of forum non conveniens in Guerine, which hassimilarities to this case. In Guerine, a driver's estate and herchildren, who were represented by their father, filed a complaintin Cook County against the defendant driver for negligentoperation of his vehicle and against a manufacturer for thedefective design and manufacture of a boat trailer that was beingpulled behind the driver's vehicle. The trial court granted thedefendants' motion to transfer venue to De Kalb County and theplaintiffs appealed.

The decedent and the plaintiffs resided in Kane County; thedefendant driver resided in Cook County; and the defendantmanufacturer was a resident of Indiana. The accident occurred inDe Kalb County, and after the accident, the decedent was taken toa hospital in De Kalb County. The three police officers whoinvestigated the accident were from De Kalb County.

Of the potential witnesses, three resided in De Kalb Countyand one in Cook County, and the rest resided in other counties. The defendant driver's vehicle, boat and trailer were stored inDe Kalb County. The coroner who performed the decedent's autopsywas from Winnebago County.

In finding that the trial court abused its discretion whenit granted the defendants' motion to transfer venue, the Guerinecourt wrote:

"[W]e hold that a trial court abuses its discretion ingranting an intrastate forum non conveniens motion totransfer venue where, as here, the potential trialwitnesses are scattered among several counties,including the plaintiff's chosen forum, and no singlecounty enjoys a predominant connection to thelitigation. The balance of factors must strongly favortransfer of the case before the plaintiff can bedeprived of his chosen forum. See Peile, 163 Ill. 2dat 345. This is not such a case." Guerine, 198 Ill.2d at 526.

We will now conduct an examination and balance the privateand public interest factors that are applicable to this matter.

A. Private Interest Factors

All of the alleged malpractice occurred in DuPage County. The plaintiffs are residents of DuPage County and most of thedefendants are residents of DuPage County. Advocate has acorporate office in Cook County; DuPage Physicians has aregistered agent in Cook County; and Dr. Nabulsi currentlyresides in Texas. Of the 20 potential occurrence witnesses fromGood Samaritan and Central DuPage, 11 live in DuPage County, twolive in Cook County and the others live in various counties.

On the other side, the plaintiffs filed suit in Cook Countyand contend that Cook County is a convenient forum. Aftertransferring hospitals, Sophie received extensive treatment atChildren's Memorial, which is located in Cook County. Consequently, the plaintiffs aver they will call a number ofphysicians from Children's Memorial to testify as to causationand damages.

The plaintiffs' attorneys are from Cook County, and all butone of the defendants' attorneys are from Cook County. Althoughthe original sources of proof are located in DuPage County, thisdoes not strongly support transfer because all parties have orwill have copies of the relevant medical records. A view of thehospital in the case seems unnecessary. Also, DuPage County andCook County are in close proximity.

Like Guerine, this case involves parties and witnesses fromvarious counties. Here, as with Guerine, both counties have tiesto the case. Although DuPage County has significant ties to thiscase, Cook County has many ties as well.

B. Public Interest Factors

The alleged malpractice here occurred in DuPage County. Theplaintiffs are residents of DuPage County as are most of thedefendants. However, Cook County has a legitimate connection tothis litigation due to Advocate's residency in Cook County. CookCounty's court docket is more congested, however, this is not oneof the more significant factors.

C. The Balance of Factors

After weighing the relevant private and public interestfactors in this matter, we find that the trial court abused itsdiscretion when it granted the defendants' motion to transfervenue from Cook County. Here, admittedly, DuPage County doeshave significant ties to this matter; however, the plaintiffs'choice of chosen forum also has significant ties to thislitigation as well. "The balance of factors must strongly favortransfer of the case before the plaintiff can be deprived of hischosen forum." Guerine, 198 Ill. 2d at 526. The balancing ofprivate and public interest factors in this matter weighs againsttransfer. As such, Cook County is the proper forum for thiscase. CONCLUSION

For the foregoing reasons, the decision of the trial courtis reversed and this cause is remanded.

Reversed and remanded.

Buckley, J. and Quinn, J., concur.