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Hendricks v. Victory Memorial Hospital9/7/2001
PUBLISHED
Defendant, Victory Memorial Hospital (Victory), sought to dismiss the complaint of plaintiffs, Nancy Hendricks and Russell Hendricks, on the ground that it was the second refiling of the same cause of action and therefore prohibited by section 13--217 of the Code of Civil Procedure (735 ILCS 5/13--217 (West 1998)). The trial court denied the motion but certified for appeal the question whether section 13--217 barred plaintiffs' action under the facts presented here. We granted defendant's petition for leave to appeal (see 155 Ill. 2d R. 308) and now affirm the circuit court's decision.
In 1993, plaintiffs sued Dr. Stephen Sipos for medical malpractice. The complaint alleged that Sipos negligently treated Nancy Hendricks at Victory between October 10 and October 16, 1991. The complaint also contained a count alleging loss of consortium on behalf of Russell Hendricks. At the relevant time, Sipos was a staff physician at Victory.
Plaintiffs voluntarily dismissed their complaint and, on October 5, 1995, filed a new complaint against both Dr. Sipos and Victory. The complaint alleged medical negligence against Sipos and a theory of "negligent credentialing" against Victory for granting surgical privileges to Sipos.
Plaintiffs later settled with Sipos and, on November 24, 1998, voluntarily dismissed their complaint against both defendants. On November 23, 1999, plaintiffs filed the present complaint solely against Victory. Victory moved to dismiss, arguing that section 13--217, which permits a plaintiff to refile a complaint within one year of a voluntary dismissal, allows only one refiling. Victory contended that plaintiffs' complaint was an impermissible second refiling of the same cause of action. The trial court disagreed and denied the motion. The court certified for appeal the question whether plaintiffs' cause of action is barred where they previously filed two complaints based on the same core of operative facts but the first complaint did not name Victory as a defendant. We granted Victory's petition for leave to appeal.
Section 13--217 is a general savings provision that allows a plaintiff to refile within one year or within the remaining statute of limitations, if any, a complaint that has been voluntarily dismissed or dismissed for one of a number of specified reasons unrelated to the merits. 735 ILCS 5/13--217 (West 1998). Although the statute does not say so, the supreme court has interpreted it to permit only a single refiling of the same cause of action. Timberlake v. Illini Hospital, 175 Ill. 2d 159, 164 (1997); Flesner v. Youngs Development Co., 145 Ill. 2d 252, 254 (1991).
Victory acknowledges that it was not named as a defendant in plaintiffs' first complaint. Thus, there has been only one refiling as to it. However, Victory contends that all three complaints arose from the same transaction, namely, Dr. Sipos' treatment of Nancy Hendricks in October 1991.
According to Victory, res judicata principles determine whether causes of action are the same for purposes of section 13--217. Citing River Park, Inc. v. City of Highland Park, 184 Ill. 2d 290 (1998), Victory argues that the supreme court has adopted the "transactional" test of res judicata, under which claims will be considered the same if they arise from a single group of operative facts. Plaintiffs respond that an "action," by definition, involves a claim based on a particular set of facts involving a particular defendant. Therefore, they maintain that their first action against Sipos was not an action against Victory.
Although neither party cites it, Flynn v. Allis Chalmers Corp., 262 Ill. App. 3d 136 (1994), controls the outcome o
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