 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Lewis v. Dillon9/3/2004
UNPUBLISHED
Plaintiff Eddie Lewis brought this medical malpractice action against the University of Chicago Hospitals and 11 medical personnel, including John Dillon, M.D., Imre Noth, M.D., Alex Lickerman, M.D., Rita Nanda, M.D., Mitali Bopna, M.D., Jolean Simmons, R.N., and Evelyn Dizon, R.N. (collectively referred to as defendants) who treated his deceased wife. The trial court dismissed plaintiff's case under Supreme Court Rule 103(b) (177 Ill. 2d R. 103(b)) for failure to exercise reasonable diligence to obtain service of process. The trial court determined that plaintiff's delay in obtaining the health professional's report required by section 2-622 of the Code of Civil Procedure (735 ILCS 5/2-622)(West 2000)), commonly referred to as the Healing Arts 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 complaint and before plaintiff served the defendants, the trial court dismissed the case with prejudice. We affirm.
BACKGROUND
Plaintiff's wife, Arnatha Lewis, was admitted to the University of Chicago Hospitals on December 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 filed suit on December 21, 2001, shortly before the two-year statute of limitations periods for both medical malpractice and wrongful death actions had run. In lieu of filing the affidavit and accompanying health practitioner's report (section 2-622 report, collectively) required by section 2-622, plaintiff's counsel filed an affidavit declaring that he was unable to obtain the section 2-622 report before the expiration of the statute of limitations, as allowed by subsection (a)(2) of section 2-622. 735 ILCS 5/2-622(a)(2) (West 2000). The provisions of section 2-622 permitted plaintiff 90 days from the filing of his affidavit to file the section 2-622 report. 735 ILCS 5/2-622(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 any defendant until May 16, 2002, five months after the filing of his complaint and after the statute of limitations 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 service between the time he filed his complaint on December 21, 2001, and the issuance of summons on May 16, 2002. In response to defendants' motions, plaintiff admitted that he intentionally withheld summons for all defendants until he obtained the necessary section 2-622 report. He contended that at the time his complaint was filed in December 2001, it was not "viable" because it was not accompanied by the section 2-622 report. Plaintiff further asserted that he therefore had an objectively reasonable basis for the delay in service of process and was under no obligation to 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 reasonable diligence to obtain service on a defendant, the action as to that defendant may be dismissed without prejudice, with the right to refile if the statute of limitation has not run. The dismissal may be made on the application of any defendant or on the court's own motion." 177 Ill. 2d R. 103(b).
STANDARD OF REVIEW
Page 1 2 3 4 5 Illinois Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|