NO. 4-02-0391

JUSTICE KNECHT delivered the opinion of the court:

Plaintiff, Michelle Long, brought a motion to convertrespondents in discovery into defendants pursuant to section 2-402 of the Illinois Code of Civil Procedure (Code) (735 ILCS 5/2-402 (West 2000)). The trial court denied plaintiff's motion,ruling section 2-402 required plaintiff to engage in discoveryduring the six-month extension of the statute of limitations anduse the newly discovered evidence to convert respondents indiscovery into defendants. Plaintiff appeals, arguing neitherthe language of the statute nor the case law requires plaintiffto engage in discovery before making a motion to convert. 735ILCS 5/2-402 (West 2000). Further, plaintiff asserts the courtincorrectly based its decision on a running of the statute oflimitations since section 2-402 specifically allows respondentsin discovery to be named as defendants after the statute oflimitations period has run. 735 ILCS 5/2-402 (West 2000). Wereverse.

On October 18, 1999, Kylee Bivens, an eight-year-oldfemale with a history of autism and seizure disorder, wasevaluated in the emergency department of Blessing Hospitallocated in Quincy, Illinois. Kylee was examined by Richard A.Saalborn, D.O. (Doctor of Osteopathy), for complaints ofvomiting, abdominal pain, and lethargy. The vomiting wasdescribed as "coffee-ground like," indicating the blood was fromthe gastrointestinal tract. A physical exam determined Kylee wasdehydrated and lethargic; an abdominal exam showed milddistension (swelling or enlargement due to internal pressure).

Later that day, X rays were ordered. The X rays wereinterpreted by Gregory A. Francken, M.D., and Dr. Francken'sinterpretations were transcribed. Dr. Francken's observationsindicated the X rays showed a 2.5-centimeter rounded, well-circumscribed object with a soft-tissue density overlying thelower abdomen and pelvis. Dr. Francken's analysis was not notedby any of the clinicians who later treated Kylee, and it isdisputed when Dr. Francken's report reached Kylee's file.

Kylee was then admitted to the pediatric unit, caredfor by A.O. Mathew, M.D., and treated for abdominal pain withleukocytosis (an increase in the number of white blood cells) anddehydration. Later in the evening, Dr. Mathew reexamined Kyleeand noted blood in her vomit as well as continued dehydration. Eventually Kylee developed septic (toxic) shock. Resuscitationwas performed and a consultation obtained from Robert L. Hall,M.D., a general surgeon, and assistant Rebecca S. Wolfer, M.D.

Drs. Hall and Wolfer suggested an operation beperformed. Kylee underwent an exploratory laparotomy (surgicalremoval of a section of the abdominal wall), a small boweldecompression, an appendectomy (surgical removal of theappendix), and an intra-abdominal lavage (therapeutic washing outof an organ). Following the operation, a chest X ray revealed a"significant white out on the right chest" and a bronchoscopy(procedure where a tubular illuminated instrument inspects thebronchial tubes) was performed by Dr. Wolfer and Larry Minnick,M.D. Kylee was transferred to the pediatric intensive-care unitand continued to receive resuscitation.

The following morning, a St. Louis Children's Hospitaltransport team arrived and attempted to bag-valve ventilateKylee; Kylee went into cardiac arrest from which she wasresuscitated. Later, Kylee went into cardiac arrest a secondtime, from which she did not recover. Kylee was pronounced deadon October 19, 1999, at 7:48 a.m.

An autopsy was performed and revealed mechanical injuryto the alimentary tract (tubular passage from mouth to anus) fromthe swallowing of a rubber ball. There was also extensiveinflammation and necrosis (the localized death of living tissue)of the esophagus and jejunum (a section of the small intestine). During the autopsy, a ball, 2.5 centimeters in diameter, wasrecovered from the colon.

On October 15, 2001, a complaint was filed pursuant tosections 13-212, 2-402, and 2-622 of the Code by plaintiff, asthe mother and special administratrix of the estate of KyleeBivens. 735 ILCS 5/13-212, 2-402, 2-622 (West 2000). Thecomplaint named Dr. Mathew, Dr. Mathew's corporation, andBlessing Hospital as defendants, and Dr. Hall, Dr. Saalborn, andDr. Francken as respondents in discovery. The complaint allegedthose named (1) failed to properly diagnose and treat Kylee, (2)failed to obtain a surgical consultant in an expeditious fashion,(3) failed to consult the radiologist, (4) failed to review Xrays taken of Kylee, and (5) failed to properly monitor Kylee'scondition and communicate that information to the treatingphysicians. Plaintiff's attorney signed an affidavit stating (1)damages were sought for injuries caused by medical malpractice,and (2) a health-care professional had advised there was ameritorious cause of action. An unsigned report by an unnamedphysician accompanied the complaint and detailed facts concerningKylee's admittance to the hospital, her treatment, and theliability of Blessing Hospital and Dr. Mathew. The physician'sreport was based on (1) records from Blessing Hospital, (2) theautopsy report, and (3) radiographs (X rays).

On November 8, 2001, Dr. Mathew filed a motion todismiss; on November 21, 2000, Blessing Hospital filed a motionto dismiss; and on December 4, 2000, Dr. Mathew adopted BlessingHospital's motion to dismiss. Blessing Hospital's motioncontended plaintiff failed to comply with section 2-622 of theCode in that the affidavit of the attorney failed to state (1)whether the physician writing the medical report had practicedwithin the last six years in the same area of medicine as thedefendants, and (2) whether the physician had the requisiteeducation and experience. 735 ILCS 5/2-622 (West 2000). Further, the motion faulted the physician's report for notindicating the name and address of the physician or where he waslicensed. On December 17, 2000, the trial court granted themotion and gave plaintiff 28 days to amend the complaint.

On January 22, 2002, plaintiff filed an amendedcomplaint, accompanied by the affidavit of the plaintiff'sattorney and a physician's report from Bernard Lerner, M.D. Thephysician's report was identical to the one attached to the firstcomplaint except it was signed. On February 7, 2002, defendantsanswered with a motion to dismiss, alleging Dr. Lerner's medicallicense had been revoked in Illinois for unlawful possession of acontrolled substance. Further, although Dr. Lerner indicated onhis curriculum vitae he was licensed to practice medicine in NewMexico and Georgia, according to the New Mexico Board of MedicalExaminers, his license had been suspended in that state, andaccording to the Georgia Board of Medical Examiners, he had nolicense. On February 22, 2002, Blessing Hospital made a motionfor summary judgment; and on February 25, 2002, the trial courtgranted the motion and gave plaintiff until March 8 to file asecond-amended complaint.

On March 11, 2002, plaintiff filed a reply todefendant's motion to dismiss and filed a motion to convertrespondents in discovery to defendants. This motion wasaccompanied by an attorney's affidavit and by the medical reportof Alan M. Nager, M.D. Dr. Nager's physician's report relied on(1) records from Blessing Hospital, (2) the autopsy examinationreport, and (3) radiographic films. Also on March 11, 2002,arguments were scheduled on the motion to convert (735 ILCS 5/2-402 (West 2000)).

On March 25, 2002, Dr. Hall filed a motion in objectionto plaintiff's motion to convert, alleging that although section2-402 affords plaintiffs a six-month grace period to deduceevidence in discovery as to whether a respondent should be nameda defendant, in this case plaintiff conducted no discovery afterthe expiration of the two-year statute of limitations on October19, 2001. Therefore, plaintiff should not be allowed to takeadvantage of the six-month extension afforded by section 2-402. Dr. Hall's second argument concerned the fact Dr. Nager was not asurgeon and did not have the requisite education and experienceto comment on the duty owed by Dr. Hall. On that same date, Dr.Saalborn filed a response to plaintiff's motion to convert,making an argument similar to Dr. Hall's first argument. OnMarch 26, 2002, Dr. Francken objected to plaintiff's motion toconvert, arguing Dr. Hall's first and second arguments.

On April 8, 2002, a hearing was held on plaintiff'smotion to convert. At the hearing, plaintiff and respondents indiscovery primarily argued whether section 2-402 requiredplaintiff to have conducted discovery before convertingrespondents in discovery into defendants. Although plaintiffasserted the X-ray films analyzed by Dr. Nager for his reportwere received during the six-month section 2-402 extendeddiscovery period, attorneys for respondents in discoveryhighlighted the affidavit of Dr. Lerner indicated he used the Xrays in his physician's report. Therefore, since Dr. Lerner'sreport was filed with the initial complaint, the X rays werereceived before the two-year statute of limitations period hadrun.

Based on the briefs and arguments at the hearing, thetrial court determined "it is clear *** nothing took place in thesix-month period *** in order to gain additional information onwhich plaintiff now bases [her] motion to convert." Further,since plaintiff had the information required to name respondentsin discovery as defendants before the initial statute oflimitations period had run, plaintiff had not used section 2-402as intended. The court stated it had given plaintiff theopportunity to pursue litigation multiple times and was opposedto disposing of cases for highly technical procedural errors;however, the court went on to surmise the statute of limitationswas not hypertechnical and could not be ignored. The courtdenied plaintiff's motion to convert and entered a Rule 304(a)finding (155 Ill. 2d R. 304(a)). This appeal followed.

II. ANALYSIS

On appeal, plaintiff generally argues the trial courtshould have allowed her to convert Drs. Hall, Saalborn, andFrancken from respondents in discovery into defendants. Specifically, plaintiff contends: (1) the trial court abused itsdiscretion, (2) plaintiff did not unfairly extend the statute oflimitations, and (3) plaintiff's section 2-622 physician's reportwas sufficient to convert all respondents in discovery intodefendants.

A. Trial Court Abused Its Discretion

The standard of review on the denial of a section 2-402motion to convert a respondent in discovery into a defendant iswhether the trial court abused its discretion. Froehlich v.Sheehan, 240 Ill. App. 3d 93, 103, 608 N.E.2d 889, 896 (1992);see also Ingle v. Hospital Sisters Health System, 141 Ill. App.3d 1057, 1065, 491 N.E.2d 139, 144 (1986) (deference must begiven to the trial court's findings). "'Abuse of discretion'means clearly against logic; the question is not whether theappellate court agrees with the circuit court, but whether thecircuit court acted arbitrarily, without employing conscientiousjudgment, or whether, in view of all the circumstances, the courtexceeded the bounds of reason and ignored recognized principlesof law so that substantial prejudice resulted." State Farm Fire& Casualty Co. v. Leverton, 314 Ill. App. 3d 1080, 1083, 732N.E.2d 1094, 1096 (2000).

Generally, section 13-212 of the Code sets forth thestatute of limitations in a medical malpractice case and providesa cause of action must be brought within two years after the dateon which the claimant knew, or through the use of reasonablediligence should have known, of the existence of the injury ordeath for which damages are sought. 735 ILCS 5/13-212 (West2000). In some instances, application of the statute is harsh;however, section 2-402 acknowledges there may be times when aplaintiff does not have access to information that will helpdetermine who is responsible for her damage. 735 ILCS 5/2-402(West 2000). This statute allows a plaintiff to name anindividual who has information concerning the damage as arespondent in discovery. Plaintiff may later convert therespondent in discovery into a defendant upon a showing ofprobable cause, so long as such is done within six months ofnaming the respondent in discovery.

Section 2-402 of the Code provides in pertinent part:

"The plaintiff in any civil action maydesignate as respondents in discovery in hisor her pleading those individuals or otherentities, other than the named defendants,believed by the plaintiff to have informationessential to the determination of who shouldproperly be named as additional defendants inthe action. ***

Persons or entities so named asrespondents in discovery shall be required torespond to discovery by the plaintiff in thesame manner as are defendants and may, onmotion of the plaintiff, be added asdefendants if the evidence discloses theexistence of probable cause for such action. * * *

A person or entity named as a respondentin discovery in any civil action may be madea defendant in the same action at any timewithin [six] months after being named as arespondent in discovery, even though the timeduring which an action may otherwise beinitiated against him or her may have expiredduring such [six-]month period. Noextensions of this [six-]month period shallbe permitted unless the plaintiff can show afailure or refusal on the part of therespondent to comply with timely fileddiscovery." 735 ILCS 5/2-402 (West 2000).

Plaintiff first argues the statute of limitations isnot an issue in this case because the rules of civil procedureextend the statute of limitations in numerous situations similarto the present case. For example, plaintiff could have initiallynamed Drs. Hall, Saalborn, and Francken as defendants and filedan affidavit 90 days later pursuant to section 2-622 (735 ILCS5/2-622 (West 2000)). Alternatively, plaintiff could have namedDrs. Hall, Saalborn, and Francken as defendants and requested anextension of time to file a section 2-622 affidavit; trial courtshave discretion to grant such extensions. Tucker v. St. JamesHospital, 279 Ill. App. 3d 696, 704, 665 N.E.2d 392, 396 (1996). Plaintiff concludes it would have been possible for her to havean extension without utilizing section 2-402.

Plaintiff also makes a "slippery-slope" argument andtheorizes if respondents in discovery have their way, trialcourts will have to hold evidentiary hearings to determinewhether sufficient discovery occurred during the six-month periodto allow conversion of respondents in discovery. Plaintiffcontends trial courts would be forced to delve into the minutiaof what discovery occurred and the extent of discovery. Plaintiffs will not only have to conduct formal discovery toconvert respondents, but must also uncover or discover somethingnew that was not available to the plaintiff when the initialcomplaint was filed. Further, plaintiff highlights a section 2-622 physician's report can be based on informal discovery,research, and the investigation of witnesses, events, parties,and documents. Therefore, since statutory language contains norequirement mandating formal discovery occur, plaintiff argues,the court should not impose one.

Torley v. Foster G. McGaw Hospital, 116 Ill. App. 3d19, 452 N.E.2d 7 (1983), specifically states section 2-402 doesnot require a plaintiff to conduct discovery with respondentsbefore converting them into defendants (735 ILCS 5/2-402 (West2000)). "Although defendants assert that the 'evidence' to whichthe statute refers means that which has been adduced by means ofdiscovery during the six-month statutory period, we see no reasonto engraft such a requirement on this procedure where thelegislature itself has not done so." Torley, 116 Ill. App. 3d at23, 452 N.E.2d at 9. In Torley, a plaintiff failed to ask thetrial court for leave to convert respondents in discovery intodefendants. Although Torley is typically cited for theproposition a plaintiff must seek leave of the court to convert arespondent in discovery into a defendant, the aforementionedquote from Torley is accurate in its determination that thelegislature chose not to explicitly mandate plaintiffs engage indiscovery before converting respondents into defendants.

Respondents in discovery argue the Torley court wasfaced with a different set of facts than those presently beforethe court; therefore, the Torley comment was dicta and should notbe applied in this case. In response to these arguments, weconcede that although there were different facts in Torley, it isobvious the Torley court considered the issue presently beforeus. We follow the Torley court because the fundamental principleof statutory construction is that courts are to give effect tothe intent of the legislature. In re Illinois Bell SwitchingStation Litigation, 161 Ill. 2d 233, 246, 641 N.E.2d 440, 446(1994). The first step in determining legislative intent is tolook at the plain meaning of the statutory language. Ziarko v.Soo Line R.R. Co., 161 Ill. 2d 267, 283, 641 N.E.2d 402, 410(1994). Where, however, the legislature's intent is not clearfrom the face of the statute, or the language is susceptible tomore than one interpretation, it is proper to look elsewhere forlegislative intent. Williams v. Illinois State ScholarshipComm'n, 139 Ill. 2d 24, 51, 563 N.E.2d 465, 477 (1990).

One reason section 2-402 was created was to provideplaintiff's attorneys with a means of filing medical malpracticesuits without naming uninvolved doctors as a defendants. Clarkv. Brokaw Hospital, 126 Ill. App. 3d 779, 467 N.E.2d 652 (1984). Sections 13-212 and 2-402 of the Code are clear that if aplaintiff knows of an individual's liability before the two-yearstatute of limitations has expired, then the plaintiff has anobligation to name the party as a defendant to conform to section13-212. 735 ILCS 5/13-212, 2-402 (West 2000). However, if thereis doubt as to liability, then the plaintiff may name theindividual as a respondent in discovery and utilize the six-monthwindow to discover if the evidence demonstrates the individualshould be converted. 735 ILCS 5/2-402 (West 2000).

Respondents in discovery highlight the second paragraphof section 2-402, which states, "Persons or entities so named asrespondents in discovery shall be required to respond todiscovery by the plaintiff in the same manner as are defendantsand may, on motion of the plaintiff, be added as defendants ifthe evidence discloses the existence of probable cause for suchaction." 735 ILCS 5/2-402 (West 2000). Respondents in discoveryinterpret the phrase, "if the evidence discloses," as referringto evidence obtained by discovery; otherwise, section 2-402simply extends the statute of limitations period an additionalsix months. Although the legislature may have contemplatedplaintiffs would utilize the six-month extension of the statuteof limitations provided by 2-402 to engage in additionaldiscovery against respondents and determine if a respondent'saction or inaction had exposed it to liability, the legislaturedid not explicitly include that requirement.

Further, in 1995 the legislature amended section 2-402. Pub. Act 89-7