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Lewis v. Dillon9/3/2004
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 counsel did little or nothing to obtain report during 90-day extension period and allowed period to expire without seeking a further extension).
Plaintiff's proposed practice would allow an entire case to be filed and dismissed without the defendant even knowing he or she was named. Specifically, under plaintiff's reasoning, a party would be permitted to file a lawsuit naming a defendant, not issue summons to that defendant advising him or her of the claim, and then, at some later date, dismiss the defendant due to the inability to obtain a section 2-622 report. To follow this reasoning of "what they don't know won't hurt them" would deny defendants the right to know that they have been named in a lawsuit, not to mention denying them the protections of Rule 103(b).
Applying the objective test, plaintiff failed to exercise reasonable diligence in serving defendants. 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 assure that they may be subject to liability in the opinion of a medical expert is flawed. Defendants are better served if they are "served."
In this appeal, plaintiff has argued that his counsel acted reasonably and in good faith and that 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 of action, and thus avoided causing an unnecessary burden." Plaintiff overlooks the fact that being labelled a defendant has also been recognized as a burden. Indeed, in Bogseth v. Emanuel, 166 Ill. 2d 507, 517, 655 N.E.2d 888 (1995), the Illinois Supreme Court explained that section 2-402 of the Code of Civil Procedure (735 ILCS 5/2-402 (West 1992)), which allows a plaintiff to designate individuals as respondents in discovery, rather than defendants, was "an innovative reform to help avoid the stigma, costs, and burdens thrust upon individuals being named defendants to litigation unnecessarily." (Emphasis added.) As this court has explained:
"The legislative history of section 2-402 indicates that its purpose was to provide plaintiff's attorneys with a means of filing medical malpractice suits without 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 medical malpractice 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 whom there 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 be intentionally withheld in a medical malpractice action until a plaintiff is able to obtain a section 2-622 report. The requirement to file a section 2-622 affidavit for medical malpractice cases does not affect plaintiff's burden to exercise reasonable diligence in serving all defendants. The trial court did not abuse its discretion in dismissing plaintiff's complaint for his lack of diligence in serving defendants.
For the foregoing reasons, we affirm the trial court's judgment dismissing plaintiff's complaint with prejudice, pursuant to Rule 103(b).
Affirmed.
FITZGERALD SMITH, P.J., and O'MARA FROSSARD, J., concur.
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