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Sherrod v. Ramaswamy6/20/2000
Plaintiff David Sherrod (Sherrod) appeals from the trial court's June 3, 1999, order dismissing count I of his complaint against defendants C.P. Ramaswamy, M.D., and Rajendra Shroff, M.D., with prejudice. The case continued against a third defendant doctor, and so this case comes to us on appeal pursuant to Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a)). We affirm.
Sherrod was incarcerated at Big Muddy Correctional Center in Ina, Illinois . During his incarceration, he experienced severe abdominal pain necessitating health care. Defendants Rajendra Shroff, M.D. (Dr. Shroff), and C. P. Ramaswamy, M.D. (Dr. Ramaswamy), treated Sherrod at the health care unit at Big Muddy Correctional Center. Sherrod was also transported on at least one occasion to Franklin Hospital, where he was seen by defendant Richard O'Hair, M.D. Although not immediately diagnosed, the severe abdominal pain was caused by Sherrod's appendix. The appendix ultimately ruptured and a portion of his colon became gangrenous, requiring surgery.
Sherrod filed suit against both Dr. Shroff and Dr. Ramaswamy, as well as against Franklin Hospital, in the United States District Court for the Southern District of Illinois , attaching a certificate and physician's report to the complaint. Dr. Shroff and Dr. Ramaswamy filed motions to dismiss based upon the insufficiency of the physician's report. On July 3, 1997, Magistrate Judge Frazier concluded that the physician's report was insufficiently specific and recommended that the medical negligence count against Dr. Shroff and Dr. Ramaswamy be dismissed. Judge Gilbert adopted those recommendations by written order dated December 5, 1997. The order did not state that the dismissal was without prejudice. The balance of the suit, consisting of the claim against Franklin Hospital and a civil rights claim against Dr. Shroff and Dr. Ramaswamy, continued until ultimately the court entered judgment in favor of the defendants.
Sherrod then refiled his suit against Dr. Shroff and Dr. Ramaswamy in state court. The medical negligence portion of the suit had been in federal court via pendent jurisdiction--pendent to the civil rights claims, as federal jurisdiction would not otherwise have existed. Once judgment had been entered against Sherrod on the federal claims, he no longer had a basis for federal court jurisdiction as to the medical negligence claims. Thus, he refiled his medical negligence claims in state court. In the state court case, Sherrod added a defendant--Richard O'Hair, M.D.
Sherrod's state court complaint was sent to the Franklin County Circuit Clerk's office by way of Federal Express on December 4, 1998. The Federal Express package was received by a court employee on Monday, December 7, 1998. No one in the clerk's office stamped the complaint as filed until Wednesday, December 9, 1998.
At issue in this appeal is count I, against Dr. Shroff and Dr. Ramaswamy. Sherrod makes the same claims of medical negligence as those filed in the federal case. He also alleges that the complaint is being filed within the one-year time frame for refilings in cases dismissed without prejudice. Although it was not cited in his complaint, we believe that Sherrod refers to a dismissal pursuant to section 13-217 of the Code of Civil Procedure (Code) (735 ILCS 5/13-217 (West 1996)), which allows for a refiling after certain limited dismissals in a federal court. In April 1999, defendants Dr. Shroff and Dr. Ramaswamy filed motions to dismiss, contending in part that a dismissal for failure to file the appropriate physician's report pursuant to section 2-622 of the Code (735 ILCS 5/2-622 (West 1996)) operated as a dismissal on the merits. In other words, they argued that t
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