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Jackson suffered from mental illness and had beeninstitutionalized for most of his adult life. From April 24, 1998,through July 13, 1998, Jackson was a resident of and under the careof Sharon Health Care Willows's South Nursing Home. On July 13,1998, Jackson was taken to Proctor Hospital where he was diagnosedwith a bowel obstruction. Jackson underwent several surgicalprocedures and remained hospitalized until his death on September1, 1998. During his hospital stay, Jackson developed severalcomplications, including toxic epidermal necrolysis, symptoms ofwhich are a rash over the body, large blisters, and the shedding ofskin.

Baker originally filed suit against Proctor Hospital and Dr.Phillip Immesoete on behalf of her brother Jackson. Sharon Healthand several physicians were named as respondents in discovery. After obtaining Jackson's medical records and consulting withexperts, Baker dismissed Proctor Hospital as a defendant and movedto convert Sharon Health to a defendant. Attached to the motionwas a report from Professor MaryBeth Buschmann of the University ofIllinois at Chicago College of Nursing, a registered nurse. Basedupon her review of Jackson's medical records obtained from SharonHealth, Bushmann found an abrupt change in Jackson's food intake atSharon Health in July. Despite Jackson's refusal to eat, hesustained a 12 pound weight gain during that month. Bushmannfurther found notations indicating that Jackson had vomitedundigested chicken, but found no record of Jackson's bowelmovements. Additional notations indicated that Jackson grimacedwhen his abdomen was palpated, and that there were wide variationsin Jackson's blood pressure. Based upon these observations fromthe records, Bushmann concluded that the nursing staff of SharonHealth was negligent in the care of Jackson.

On November 14, 2001, the trial court entered an order findingsufficient probable cause on the survival action to allow SharonHealth to be converted to a defendant on that claim. However, thetrial court found insufficient probable cause on the wrongful deathclaim. Baker moved for reconsideration which the trial courtdenied on January 10, 2002. On January 31, 2002, Baker moved forleave to file an interlocutory appeal, and the trial court found nojust reason to delay appeal of the court's order "with respect tothe wrongful death cause of action."

On appeal, Baker argues that (1) the trial court erred indetermining there was no probable cause to convert Sharon Healthfrom a respondent in discovery to a defendant on the wrongful deathclaim; and (2) the trial court is not permitted under therespondent in discovery statute to find probable cause to converta respondent in discovery to a defendant on one cause of action butnot another. Prior to discussing the issue certified by the trialcourt, we note that Baker has asked this court to strike a portionof Sharon Health's brief. In its response, Sharon Health arguesthat this court should not only consider whether it was proper forthe trial court to deny Baker's motion to convert on the wrongfuldeath action, but also on the survival action which the trial courtallowed to proceed. After the trial court entered its order onthe motion to convert, Baker filed a motion for interlocutoryappeal. The trial court found no just reason to delay appeal ofthe court's order "with respect to the wrongful death cause ofaction." In an interlocutory appeal, the reviewing court may onlyaddress the question certified by the trial court. Bachman v.Sharon & Lo's Place, Inc., 185 Ill. App. 3d 40, 41, 541 N.E.2d 153,154 (1989). Therefore, we grant Baker's motion to strike and shallnot consider the portion of Sharon Health's brief addressing thesurvival action.

A trial court's ruling on a motion to add a respondent indiscovery as a defendant is entitled to deference where the courtheard testimony and made determinations regarding conflictingevidence. McGee v. Heimburger, 287 Ill. App. 3d 242, 248, 678N.E.2d 364, 368 (1997). However, where (1) the facts areundisputed, (2) the credibility of the witnesses is not an issue,and (3) in-court testimony has not been presented, a question oflaw is presented, and a reviewing court may consider the questionde novo. McGee, 287 Ill. App. 3d at 248, 678 N.E.2d at 368. Inthe instant case, the trial court considered only documentaryevidence. Therefore, a de novo standard is appropriate.

Section 5/2-402 of the Code of Civil Procedure provides, inpertinent part:

The plaintiff in any civil action may designate asrespondents in discovery in his or her pleading thoseindividuals or other entities, other than the nameddefendants, believed by the plaintiff to haveinformation essential to the determination of whoshould properly be named as additional defendants inthe action.

Persons or entities so named as respondents indiscovery shall be required to respond to discovery bythe plaintiff in the same manner as are defendants andmay, on motion of the plaintiff, be added asdefendants if the evidence discloses the existence ofprobable cause for such action. 735 ILCS 5/2-402.

Probable cause under section 2-402 will be established where aperson of ordinary caution and prudence would entertain an honestand strong suspicion that the purported negligence of therespondent in discovery was a proximate cause of plaintiff'sinjury. Medjesky v. Cole, 276 Ill. App. 3d 1061, 1064, 659 N.E.2d47, 49 (1995). However, the evidence need not rise to the level ofa high degree of likelihood of success on the merits or theevidence necessary to defeat a motion for summary judgment in favorof the respondents in discovery, nor is the plaintiff required toestablish a prima facie case against the respondent in discovery. Williams v. Medenica, 275 Ill. App. 3d 269, 272, 655 N.E.2d 1002,1004 (1995).

Baker attached a letter from MaryBeth Buschmann to her motionto add Sharon Health as a defendant. Based upon her review ofJackson's records from Sharon Health and Proctor Hospital,Buschmann concluded that the nursing staff of Sharon Health wasnegligent in the care of Jackson in the following ways: (1) nottaking action with regard to abrupt changes in Jackson's behavior,eating habits, and weight; (2) failing to recognize that there wereno recorded bowel movements along with Jackson's refusal to eataccompanied by weight gain; (3) failing to chart on July 12, 1998,the day before Jackson was taken to the hospital; (4) notadequately monitoring for variable blood pressure or searching forits cause; (5) lack of recorded contact with doctors after abruptchanges in Jackson's behavior and eating habits; and (6)conflicting record keeping on medication sheets and nursing notes. In her letter, Buschmann went on to state that there were "redflags waving all over in Mr. Jackson's condition . . . and anynurse following the standard of nursing care in Illinois would havepicked upon on these and followed through with her/his owninvestigation as well as reporting them to the attendingphysician."

Baker also submitted records from Sharon Health and her owndeposition testimony to the trial court. At her deposition, Bakertestified that she spoke with a former employee of Sharon Health,Varesa Brown, after Jackson's death. Brown indicated to Baker thatJackson did not receive proper care in the days leading up to hisdeath. While this is a hearsay statement, hearsay is properlyconsidered on a motion to convert under section 2-403. Coley v.St. Bernard's Hospital, 281 Ill. App. 3d 587, 594, 667 N.E.2d 493,498 (1996).

Sharon Health argues that none of this evidence was sufficientto establish probable cause that negligent acts of Sharon Healthwere a proximate cause of Jackson's death. However, as pointed outearlier, Baker does not need to establish a prima facie case atthis phase of the proceedings. Rather, Baker must simplydemonstrate that a person of ordinary caution and prudence wouldentertain an honest and strong suspicion that Sharon Health'saction and/or inaction was a proximate cause of Jackson's death. By our view, a person of ordinary caution could certainly entertainan honest suspicion that Sharon Health's alleged inadequate care ofJackson resulted in his death. Buschmann's review of Jackson'srecords indicated that Jackson sustained a 12-pound weight gaindespite refusing meals, vomited undigested food, and had norecorded bowel movements, in the week before he was transferred toProctor Hospital. Furthermore, there were no notations onJackson's records at all on the day before he was taken from SharonHealth in a nearly comatose state.

Sharon Health also argues that Baker has not complied withsection 2-622 and therefore cannot demonstrate probable cause undersection 2-402. Generally stated, section 2-622 requires the filingof an affidavit by a physician in actions where the plaintiff seeksdamages for injuries or death caused by medical malpracticeindicating that there is reasonable and meritorious cause for theaction. 735 ILCS 5/2-622. In Shanks v. Memorial Hospital, 170Ill. App. 3d 736, 525 N.E.2d 177, the court determined that theaffidavit of a registered nurse is insufficient to meet therequirements of section 2-622. Sharon Health argues that becauseBuschmann is not a "physician licensed to practice medicine in allits branches" under section 2-622, but is rather a registerednurse, Baker has failed to satisfy the requirements of section 2-622 and thus necessarily failed to establish probable cause undersection 2-402. In support of this assertion, Sharon Health citesMoscardini v. Neurosurg, 269 Ill. App. 3d 329, 645 N.E.2d 1377(1994) where the court determined that these two sections should beread in pari materia. The court went on to conclude that if anunsigned, unverified physician's report accompanied by anattorney's affidavit is sufficient under section 2-622, it can besufficient to establish probable cause under section 2 -402. Moscardini, 269 Ill. App. 3d at 336, 645 N.E.2d at 1383. However,this does not mean that the converse is true, and Sharon Healthcites no cases which support a requirement of compliance withsection 2-622 to establish probable cause under section 2-402. Infact, such a requirement would undermine the purposes of thesestatutes. "The requirements of sections 2-622 and 2-402 were neverintended as a means of depriving a plaintiff of a trial on themerits of his claim of malpractice." Williams, 275 Ill. App. 3d at273, 655 N.E.2d at 1004. Rather, "the probable cause requirementof section 2-402 should be liberally construed, to the end thatcontroversies may be determined according to the substantive rightsof the parties." Williams, 275 Ill. App. 3d at 273, 655 N.E.2d at1004. In enacting section 2-402, the legislature intended toeliminate frivolous actions at the pleadings stage and ensure thatplaintiffs file only meritorious medical malpractice actions. Williams, 275 Ill. App. 3d at 273, 655 N.E.2d at 1004. While therequirements placed upon plaintiffs under section 2-402 are notempty formalism, neither is the statute meant to create asubstantive defense. Williams, 275 Ill. App. 3d at 273, 655 N.E.2dat 1004. Requiring compliance with section 2-622 would place anunnecessary obstacle to the conversion of a respondent in discoveryto a defendant. Furthermore, because respondents in discovery havenot yet been converted to defendants named in the complaint, aplaintiff cannot be required to comply with section 2-622 as torespondents in discovery. Coley, 281 Ill. App. 3d at 595, 667N.E.2d at 499.

Accordingly, the trial court erred in failing to find probablecause for Baker's wrongful death claim. Because we find that thetrial court erred on this determination, we need not reach theissue of whether the respondent in discovery statute allows a trialcourt to make a determination as to one cause of action but notanother. The trial court's order of November 14, 2001, is reversedand the cause remanded to the circuit court with directions togrant Baker's motion to add respondent in discovery, SharonHealthcare Willows, Inc. as a defendant with regard to the wrongfuldeath action.

Reversed and remanded with directions.

LYTTON, J. and SLATER, J., concur.