Kaiser v. Doll-Pollard

SUPREME COURT CASES

Laws-info.com » Cases » Illinois » 5th District Appellate » 2010 » Kaiser v. Doll-Pollard

State: Illinois

Court: 5th District Appellate

Docket No: 5-08-0247 Rel

Case Date: 02/11/2010

Preview:NO. 5-08-0247
N O T IC E Decision filed 02/11/10. The text of this dec ision m ay b e changed or corrected prior to the P e t i ti o n for filing of a or the

IN THE APPELLATE COURT OF ILLINOIS

Re hea ring

FIFTH DISTRICT ________________________________________________________________________ MARGIE KAISER and LAMAR KAISER, ) Appeal from the ) Circuit Court of Plaintiffs-Appellees, ) St. Clair County. ) v. ) No. 07-L-564 ) DR. A. DOLL-POLLARD and SOUTHERN ) OBSTETRICS AND GYNECOLOGICAL ) ASSOCIATES, S.C., ) Honorable ) Lloyd A. Cueto, Defendants-Appellants. ) Judge, presiding. ________________________________________________________________________ JUSTICE CHAPMAN delivered the opinion of the court: This appeal involves a motion to transfer a medical malpractice action from St. Clair County to Clinton County based on improper venue. Plaintiff Margie Kaiser (the plaintiff) underwent a hysterectomy at St. Joseph's Hospital in Clinton County but was transferred to St. Elizabeth's Hospital in St. Clair County for postoperative care. The defendants, the doctor who performed the hysterectomy and her employer, appeal an order denying their motion to transfer. They argue that venue in St. Clair County is not proper because (1) the plaintiff does not allege that the defendants committed any negligent acts in St. Clair County and (2) all the elements of the plaintiff's cause of action arose in Clinton County. We affirm. On December 15, 2005, defendant Dr. Anne Doll-Pollard (the defendant) performed a hysterectomy on the plaintiff. The surgery was performed at St. Joseph's Hospital, which is located in Clinton County. According to the allegations in the complaint, the defendant's operative notes indicate that she "noted the existence of bleeding" and attempted to locate the source of the bleeding but that she closed the patient despite the fact that the bleeding was

disposition of the same.

1

still occurring. After the surgery, the plaintiff's blood pressure and hemoglobin count dropped while her white blood cell count rose. Her condition continued to deteriorate. Later that day, a cardiologist transferred the plaintiff to St. Elizabeth's Hospital in St. Clair County. There, doctors performed exploratory surgery, during which they found the source of the bleeding. Although the doctors were able to stop the bleeding, the plaintiff alleges in her complaint that she suffered permanent injuries as a result of complications. On December 13, 2007, the plaintiff and her husband, Lamar Kaiser, filed a complaint against the defendant and her employer, Southern Obstetrics and Gynecological Associates, S.C. The complaint alleged that the defendant was negligent both in her performance of the surgery and in failing to diagnose the plaintiff's condition following the surgery. According to the complaint, the plaintiff suffered ongoing complications as a result of infection and a loss of oxygen to her brain and other organs. In addressing the question of venue, the complaint alleged that venue was proper in St. Clair County because the diagnosis and treatment had occurred there, thereby making it a county in which a part of the transaction that formed the basis of the action had occurred. See 735 ILCS 5/2-101 (W est 2006). On January 17, 2008, the defendants filed a motion to transfer the case to Clinton County on the basis of improper venue or, alternatively, on the basis of forum non conveniens. The defendants argued that because the plaintiff did not allege that the care she had received in St. Clair County was negligent, no part of the transaction occurred there. They further argued that some action by the defendants must occur in a county for venue to be proper there. We note that although forum non conveniens was raised in the trial court, the parties apparently did not conduct discovery on the issue, and the trial court did not rule on it. Only venue is at issue in this appeal. On January 28, the plaintiffs filed their response to the defendants' motion. They argued that the statutory language providing that venue is proper in any county where "some

2

part" of the transaction at issue occurred (see 735 ILCS 5/2-101 (West 2006)) makes transactional venue a flexible doctrine. See Tipton v. Estate of Cusick, 273 Ill. App. 3d 226, 228, 651 N.E.2d 635, 637 (1995). They cited previous medical malpractice cases in which venue was found to be proper in counties even though the plaintiffs had not alleged they had received negligent care in those counties. Smith v. Silver Cross Hospital, 312 Ill. App. 3d 210, 726 N.E.2d 697 (2000); Bradbury v. St. Mary's Hospital of Kankakee, 273 Ill. App. 3d 555, 652 N.E.2d 1228 (1995); Tipton v. Estate of Cusick, 273 Ill. App. 3d 226, 651 N.E.2d 635 (1995). In addition, the plaintiffs argued that venue was proper in St. Clair County because some of the plaintiff's injuries resulted from the surgery she underwent there to find and stop the bleeding. On February 7, 2008, the defendants filed a reply. They argued that the cases cited by the plaintiffs were distinguishable. Smith and Bradbury involved wrongful death actions, while in Tipton, the plaintiff alleged that he suffered a stroke as a result of taking a medication in Cook County which had been prescribed elsewhere. The defendants argued, as they do in this appeal, that the causes of action involved in all three cases did not exist until an event occurred in the plaintiffs' chosen counties

Download Kaiser v. Doll-Pollard.pdf