Find Legal Information

FIFTH DIVISION
September 3, 2004

No. 1-03-1493

Plaintiff Eddie Lewis brought this medical malpractice action against the University ofChicago Hospitals and 11 medical personnel, including John Dillon, M.D., Imre Noth, M.D., AlexLickerman, M.D., Rita Nanda, M.D., Mitali Bopna, M.D., Jolean Simmons, R.N., and EvelynDizon, R.N. (collectively referred to as defendants)⁽¹⁾ who treated his deceased wife. The trialcourt dismissed plaintiff's case under Supreme Court Rule 103(b) (177 Ill. 2d R. 103(b)) forfailure to exercise reasonable diligence to obtain service of process. The trial court determinedthat plaintiff's delay in obtaining the health professional's report required by section 2-622 of theCode of Civil Procedure (735 ILCS 5/2-622)(West 2000)), commonly referred to as the HealingArts Malpractice Act, did not excuse the intentional five-month delay in serving defendants. Because the statute of limitations had run in the period of time after plaintiff filed the complaintand before plaintiff served the defendants, the trial court dismissed the case with prejudice. Weaffirm.

BACKGROUND⁽²⁾

Plaintiff's wife, Arnatha Lewis, was admitted to the University of Chicago Hospitals onDecember 6, 1991. She was discharged that day and remained under care as an outpatient. Arnatha was readmitted on December 16, 1991, and died on December 27, 1999. Plaintiff filedsuit on December 21, 2001, shortly before the two-year statute of limitations periods for bothmedical malpractice and wrongful death actions had run. In lieu of filing the affidavit andaccompanying health practitioner's report (section 2-622 report, collectively) required by section2-622,⁽³⁾ plaintiff's counsel filed an affidavit declaring that he was unable to obtain the section2-622 report before the expiration of the statute of limitations, as allowed by subsection (a)(2) ofsection 2-622. 735 ILCS 5/2-622(a)(2) (West 2000). The provisions of section 2-622 permittedplaintiff 90 days from the filing of his affidavit to file the section 2-622 report. 735 ILCS5/2-622(a)(2)(West 2000). On March 18, 2002, within the additional 90-day time period,plaintiff's counsel filed the section 2-622 report. However, plaintiff did not issue summons on anydefendant until May 16, 2002, five months after the filing of his complaint and after the statute oflimitations had run. The earliest service was effected May 31, 2002.

Following service, defendants filed motions to dismiss plaintiff's complaint based on Supreme Court Rule 103(b) and plaintiff's failure to exercise reasonable diligence to obtain servicebetween the time he filed his complaint on December 21, 2001, and the issuance of summons onMay 16, 2002. In response to defendants' motions, plaintiff admitted that he intentionallywithheld summons for all defendants until he obtained the necessary section 2-622 report. Hecontended that at the time his complaint was filed in December 2001, it was not "viable" becauseit was not accompanied by the section 2-622 report. Plaintiff further asserted that he thereforehad an objectively reasonable basis for the delay in service of process and was under no obligationto serve defendants. The circuit court rejected plaintiff's argument and so do we.

SUPREME COURT RULE 103(B)

Supreme Court Rule 103(b) provides as follows:

"Dismissal for Lack of Diligence. If the plaintiff fails to exercise reasonablediligence to obtain service on a defendant, the action as to that defendant may bedismissed without prejudice, with the right to refile if the statute of limitation hasnot run. The dismissal may be made on the application of any defendant or on thecourt's own motion." 177 Ill. 2d R. 103(b).

STANDARD OF REVIEW

The Illinois Supreme Court has explained that a dismissal under Rule 103(b) is within thesound discretion of the trial court. Segal v. Sacco, 136 Ill. 2d 282, 286, 555 N.E.2d 719, 720(1990); Womick v. Jackson County Nursing Home, 137 Ill. 2d 371, 381, 561 N.E.2d 25, 29(1990). Plaintiff urges this court, however, to apply de novo review to the instant case because itinvolves solely the application of the law to undisputed facts. He asserts that the applicability ofthe abuse of discretion standard in Rule 103(b) cases has not actually been analyzed. Nonetheless, it has been noted that the Illinois Supreme Court, in applying Rule 103(b) onnumerous occasions, has made clear that the trial court's determination of a plaintiff's lack ofdiligence is "a fact-intensive inquiry suited to balancing, not bright lines." Hinkle v. Henderson,135 F.3d 521, 524 (7th Cir. 1998), citing Womick v. Jackson County Nursing Home, 137 Ill. 2d371, 561 N.E.2d 25 (1990)( and cases cited therein). Here, the trial court reviewed andconsidered the affidavits of plaintiff's counsel and defendants. The court also considered andweighed numerous factors in deciding whether plaintiff exercised reasonable diligence. While it istrue that the trial court here, in exercising its discretion, made certain legal conclusions, thoseconclusions were correct and we shall address them in the context in which they arise. We declineplaintiff's invitation to apply a de novo standard of review to the instant case. We thereforereview the trial court's ruling under an abuse of discretion standard. Kole v. Brubaker, 325 Ill.App. 3d 944, 949, 759 N.E.2d 129, 133 (2001).

ANALYSIS

In ruling on a motion to dismiss under Rule 103(b), courts look to several factors todetermine whether a plaintiff has exercised reasonable diligence in obtaining service: (1) the lengthof time used in serving the defendant; (2) the plaintiff's activities; (3) whether the plaintiff is awareof the defendant's location; (4) whether the defendant's location could be easily ascertained; (5)actual knowledge of the complaint on the part of the defendant; (6) special circumstancesaffecting plaintiff's efforts; and (7) actual service on the defendant. Segal v. Sacco, 136 Ill. 2d282, 287, 555 N.E.2d 719, 720 (1990). Prejudice against defendant is also considered, but lackof prejudice will not necessarily defeat a defendant's Rule 103(b) motion. Womick v. JacksonCounty Nursing Home, 137 Ill. 2d 371, 377, 561 N.E.2d 25, 27 (1990).

In the instant case, all of these factors weigh in favor of the defendants. The undisputedfacts, with respect to each factor, are as follows: (1) plaintiff failed to issue summons or effectuateservice within a five-month period; (2) plaintiff intentionally made no attempt to serve anydefendant; (3) and (4) in addition to a hospital, all of the defendants were physicians and nurses,the record demonstrates that all were easily located and this was not an issue because plaintiffintentionally chose not to serve anyone; (5) there is no evidence that any defendant hadknowledge of the pendency of the lawsuit; (6) plaintiff made no "efforts" to serve defendants;⁽⁴⁾ and(7) each of the defendants was served.⁽⁵⁾

Plaintiff argues that because his counsel acted deliberately, it does not make any sense toapply the Segal factors mechanically. Plaintiff claims that he did not have a viable medicalmalpractice complaint until the filing of the section 2-622 report. He asserts that he purposelyelected not to issue any summons against any defendant until he first consulted with a physician todetermine whether there was medical support for the allegations in the filed complaint. He hasalso asserted that his intentional delay in serving defendants was consistent with Rule 103(b)'sunderlying purpose.

The Illinois Supreme Court adopted Rule 103(b) "'to effectuate its historical andconstitutional mandate to render justice fairly and promptly.'" Womick, 137 Ill. 2d at 377, 561N.E.2d at 27, quoting O'Connell v. St. Francis Hospital, 112 Ill. 2d 273, 282, 492 N.E.2d 1322,1326 (1986). The court long ago emphasized the purpose and importance of Rule 103(b) when itexplained as follows:

"Nothing is more critical to the judicial function than the administration ofjustice without delay. [Citations.] Central to discharging this function, the judiciarymust be unimpeded in considering and rendering judgments on matters before it.[Citations.] Rule 103(b) was adopted by this court to effectuate its historical andconstitutional mandate to render justice fairly and promptly.

Due diligence in serving process is essential to this purpose, for it is thesole legally sufficient means of alerting defendants to the pendency of a civil suit. In addition, service with due diligence, by promptly placing defendant on notice ofa pending action, shortens the time needed to investigate, prepare and litigate theissues raised, thereby allowing the court to proceed expeditiously to a justresolution of the matter before it." O'Connell v. St. Francis Hospital, 112 Ill. 2d273, 282, 492 N.E.2d 1322, 1326 (1986).

The purpose of Rule 103(b) is to protect defendants from unnecessary delay in the serviceof process and to prevent the circumvention of the statute of limitations. See Segal v. Sacco, 136Ill. 2d 282, 286-87, 555 N.E.2d 719, 720 (1990) ("It has long been noted that '[p]revention ofintentional delay in the service of summons which would postpone service for an indefinite timeafter a statutory period of limitations has run, was a primary reason for the passage of SupremeCourt Rule 103(b) and its predecessors. [Citations.]"); see also Wilk v. Wilmorite, Inc., ___ Ill.App. 3d ___, ___, 812 N.E.2d 765, 771 (2004)("Rule 103(b) further aims to protect defendantsfrom unnecessary delay in the service of process so that they are afforded a fair opportunity toinvestigate. Thus, Rule 103(b) seeks to prevent circumventing a primary purpose of statutes oflimitation by not allowing a plaintiff to timely file suit before the applicable limitation periodexpires and then intentionally take no action to serve the defendant until the plaintiff is ready toproceed with litigation."); Fassero v. Turigliatto, 349 Ill. App. 3d 368, 811 N.E.2d 252(2004)(one of the purposes of Rule 103(b) is to protect defendants from stale claims, therebyaffording defendants a fair opportunity to investigate the circumstances while witnesses and factsare accessible); Kole v. Brubaker, 325 Ill. App. 3d 944, 949, 759 N.E.2d 129, 133 (2001) (Rule103(b) further aims to protect a defendant from unnecessary delay in the service of process and toprevent the plaintiff from circumventing the applicable statute of limitations, which is designed toafford the defendant a fair opportunity of investigation, by filing suit before the expiration of thelimitations period but taking no action to have the defendants served until the plaintiff is ready toproceed with the litigation ); Curtis v. Pekin Insurance Co., 105 Ill. App. 3d 561, 565, 434N.E.2d 555, 558 (1982) ("primary purpose of Supreme Court Rule 103(b) is to prevent thecircumvention and undermining of the applicable statute of limitations by undue delays in theservice of process); Kohlhaas v. Morse, 36 Ill. App 2d 158, 162, 183 N.E.2d 17, 19(1962)(explaining that the Illinois Supreme Court adopted Rule 4, the predecessor to Rule103(b), to prevent a plaintiff from filing a complaint near the end of the statutory time limit, andthen delaying service of summons for an indefinite period, "thereby virtually nullifying the timelimit as any protection to a defendant against stale claims").

Although prevention of intentional delay in the service of summons was a primary reasonfor the passage of Rule 103(b) and its predecessor, a subjective test of plaintiff's intent is notrequired by the rule; rather, the standard used in resolving a Rule 103(b) motion is an objectivetest of reasonable diligence in effecting service. Kole v. Brubaker, 325 Ill. App. 3d 944, 950, 759N.E.2d 129, 134 (2001); Kreykes Electric, Inc. v. Malk & Harris, 297 Ill. App. 3d 936, 940, 697N.E.2d 885, 888 (1998); Phifer v. Hayes, 20 Ill. App. 3d 635, 638-39, 314 N.E.2d 473, 475-76(1974). Here, plaintiff's contention that he withheld summons while awaiting the filing of hissection 2-622 report does not relieve plaintiff of his duty to effect service on defendants.

We now address a legal conclusion made by the trial court when determining whetherspecial circumstances existed.⁽⁶⁾ The trial court stated as follows:

"Further, there is no authority to support plaintiff's argument that the malpracticecomplaint was not 'viable' until a [section] 2-622 affidavit is obtained; underSupreme Court Rule 137, once a complaint is signed by an attorney and filed withthe court, the affixation of counsel's signature on the pleading constitutes acertification by that attorney that a reasonable inquiry has been undertaken and theallegations in the complaint are true, to the best of that counsel's knowledge,information and belief. This is sufficient to prosecute the lawsuit."

This is an accurate statement of the law. Thus, we agree with the trial court's determination that,despite plaintiff's arguments, he had a viable cause of action against defendants when he filed thelawsuit on December 21, 2001.

Plaintiff asserts, however, that even if he served all defendants before he received thereport of merit from the consulting physician, "nothing was going to transpire in the case until healso was able to file the medical reports that section 2-622 requires before a case can moveforward." See 735 ILCS 5/2-622(1)(West 2000). Section 2-622 excuses defendants fromappearing or filing answers until the section 2-622 report is filed by the plaintiff (735 ILCS5/2-622(a)(2) (West 2000)), but in no way does it excuse plaintiffs from serving defendants untilthe report has been filed.

Plaintiff has also attempted to justify his intentional delay by stating that if he did not havea meritorious claim against any defendants, he would have dismissed them - at some point.⁽⁷⁾ Nonetheless, a plaintiff cannot choose to delay serving defendants for an indefinite period while heascertains whether he has a meritorious claim and then contend that there was no unreasonabledelay because "nothing was going to transpire in the case" until he also was able to file thesection 2-622 report. But as defendants correctly note, plaintiff erroneously assumes that, ifserved, defendants would have taken no action to investigate the claims, retain counsel, contactinsurance and hospital representatives, obtain records, and so on. Plaintiff cannot presume whatsteps a defendant may take in investigating and defending a case, even prior to the filing of asection 2-622 report. Moreover, while it is true that the trial court had the authority to extendthe period for plaintiff to file the medical report, by not serving defendants until he obtained thesection 2-622 report, plaintiff prevented defendants from asserting any defenses they might havehad during that time. See, e.g., Hobbs v. Lorenz, 337 Ill. App. 3d 566, 786 N.E.2d 260 (2003)(where trial court dismissed case with prejudice on defendant's motion where plaintiff's counseldid little or nothing to obtain report during 90-day extension period and allowed period to expirewithout seeking a further extension).

Plaintiff's proposed practice would allow an entire case to be filed and dismissed withoutthe defendant even knowing he or she was named. Specifically, under plaintiff's reasoning, a partywould be permitted to file a lawsuit naming a defendant, not issue summons to that defendantadvising him or her of the claim, and then, at some later date, dismiss the defendant due to theinability to obtain a section 2-622 report. To follow this reasoning of "what they don't knowwon't hurt them" would deny defendants the right to know that they have been named in alawsuit, not to mention denying them the protections of Rule 103(b).

Applying the objective test, plaintiff failed to exercise reasonable diligence in servingdefendants. Plaintiff's subjective view that defendants are better served if they are not summoned,even where they have already been named as defendants in a complaint, until plaintiff can assurethat they may be subject to liability in the opinion of a medical expert is flawed. Defendants arebetter served if they are "served."

In this appeal, plaintiff has argued that his counsel acted reasonably and in good faith andthat the procedure he followed of not issuing summons until he obtained the section 2-622 report"avoided serving doctors against whom there might not subsequently be a meritorious cause ofaction, and thus avoided causing an unnecessary burden." Plaintiff overlooks the fact that beinglabelled a defendant has also been recognized as a burden. Indeed, in Bogseth v. Emanuel, 166Ill. 2d 507, 517, 655 N.E.2d 888 (1995), the Illinois Supreme Court explained that section 2-402of the Code of Civil Procedure (735 ILCS 5/2-402 (West 1992)), which allows a plaintiff todesignate individuals as respondents in discovery, rather than defendants, was "an innovativereform to help avoid the stigma, costs, and burdens thrust upon individuals being nameddefendants to litigation unnecessarily." (Emphasis added.) As this court has explained:

"The legislative history of section 2-402 indicates that its purpose was toprovide plaintiff's attorneys with a means of filing medical malpractice suitswithout naming everyone in sight as a defendant. It was believed that the label of'defendant' in a medical malpractice suit contributed to the spiraling cost of medicalmalpractice insurance." Clark v. Brokaw Hospital, 126 Ill. App. 3d 779, 783, 783,467 N.E.2d 652, 655 (1984).

Thus, plaintiffs who wish to avoid imposing unnecessary burdens upon "doctors against whomthere might not subsequently be a meritorious cause of action" can utilize section 2-402.

CONCLUSION

Plaintiff has not set forth any authority that would require or allow summons to beintentionally withheld in a medical malpractice action until a plaintiff is able to obtain a section2-622 report. The requirement to file a section 2-622 affidavit for medical malpractice casesdoes not affect plaintiff's burden to exercise reasonable diligence in serving all defendants. Thetrial court did not abuse its discretion in dismissing plaintiff's complaint for his lack of diligence inserving defendants.

For the foregoing reasons, we affirm the trial court's judgment dismissing plaintiff'scomplaint with prejudice, pursuant to Rule 103(b).

Affirmed.

FITZGERALD SMITH, P.J., and O'MARA FROSSARD, J., concur.

1. Plaintiff voluntarily dismissed the Defendants M. Ibriham, M.D., Patricia Kurtz, M.D.,William Harper, M.D., and Farr Curlin, M.D. and they are not parties to this appeal.

2. We have provided a summary of only those facts necessary to understand the issues inthis appeal.

3. The affidavit must state that the plaintiff has reviewed the facts of the case with a healthprofessional. The health professional's report must state that there is a reasonable andmeritorious basis for filing the action and provide reasons for that conclusion.

4. Plaintiff has mischaracterized his intentional choice not to serve defendants until heobtained the section 2-622 report as a "special circumstance." Plaintiff has misconstrued thisfactor. Nothing about the section 2-622 report affected plaintiff's efforts to obtain service. Plaintiff intentionally made no efforts. As the trial court correctly noted when deciding thatdefendants had made a prima facie showing of plaintiff's unreasonable lack of diligence: "[T]herecord does not disclose any unusual circumstances that would have prevented or otherwisehindered plaintiff's ability to serve defendants."

5. It has been noted that this factor arose in a case in the context of showing that the factthat a plaintiff actually did obtain service strongly supported the contention that he exercisedreasonable diligence to obtain service and that "[o]rdinarily, factor number 7 is not listed indiscussing the factors to be considered in determining whether or not plaintiff has exercisedreasonable diligence." Segal v. Sacco, 136 Ill. 2d 282, 295, 555 N.E.2d 719, 724 (1990) (Ryan,J., dissenting). Again, because plaintiff was not trying to effectuate service, this factor isirrelevant here.

6. The legal conclusion apparently was the basis for plaintiff's argument that we shouldapply a de novo standard of review.

7. In an affidavit dated September 24, 2002, plaintiff's counsel stated that, because a healthcare practitioner's report could not be obtained for three of the named defendants, plaintiffintended to voluntarily dismiss these doctors. Plaintiff voluntarily dismissed those threedefendants and another unserved defendant on May 7, 2003 - approximately 14 months after filingthe section 2-622 report and almost 1