IL Supreme Court: Withdrawal, refiling medmal lawsuit vs hospital OK, even if may be attempt to sidestep judge’s order


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A man’s 10-year quest to sue Decatur Memorial Hospital in the death of his brother was given a new breath of life when the Illinois Supreme Court upheld an appellate court decision that the failure of his previous complaints do not bar him from filing the suit again, even though the hospital said his decision to withdraw and refile amounted to an attempt to sidestep a judge’s order.

Gerald R. Ward sued the hospital in 2009. According to court documents, Ward’s brother died of a bacterial infection after developing a post-surgery bedsore. Ward’s lawsuit went through several iterations – each time, the trial court granted some of the hospital’s motions to dismiss, leaving room for Ward to file an amended complaint.

In 2015, four years after Ward filed his third amended complaint, the case was set to go to trial. Two weeks before the trial date, the hospital discovered Ward planned to call a rebuttal witness. According to court documents, the hospital objected to the witness. Citing the brief window of time before the trial was set to begin, the court agreed to bar the witness.

Eight days before the trial was set to begin, Ward moved to voluntarily dismiss the action. The court granted the motion and dismissed the suit without prejudice.

Four months later, Ward surfaced again with a new complaint against the hospital for his brother’s death. The hospital claimed he was simply trying to get around the previous court’s decision to bar his witness, and cited Illinois Supreme Court Rule 219 (e), which says a litigant cannot avoid compliance with the court’s rules by voluntarily dismissing the lawsuit.

The trial court granted the hospital summary judgment under the principle of res judicata, which prevents someone from seeking legal relief from issues that a court has already decided and from issues that could have been addressed in an earlier related action. Res judicata also prevents a litigant from splitting a single cause of action into multiple complaints.

Because the trial court dismissed a number of Ward’s previous related complaints and he did not replead them, the hospital argued, the dismissals constituted final decisions of the court, and Ward could not, under res judicata, file a related complaint on issues that could have been decided earlier.

The appellate court reversed the summary judgment, finding that the court’s decision to dismiss was not a final adjudication of the issues because it granted Ward leave to file an amended complaint.

In an opinion authored by Justice Thomas L. Kilbride and concurred by justices Rita B. Garman and Anne M. Burke, the high court affirmed the appellate court’s decision.

“When the trial court granted the hospital’s motions to dismiss the original, first amended and second amended complaints, it did so without prejudice and with permission to refile,” Kilbride wrote. “Upon each involuntary dismissal, the court granted Ward leave to file an amended complaint. The dismissal orders neither terminated the litigation nor firmly established the parties’ rights. Accordingly, the dismissal orders were not final and had no res judicata effect.”

The court differed from the appellate court on technicalities of language; the appellate court had said by granting leave to amend the entire complaint the trial court vacated its own decision to dismiss individual counts with prejudice. The Supreme Court disagreed, writing that some individual counts could be dismissed with prejudice, while others could be amended and refiled.

In a special concurrence, Chief Justice Lloyd A. Karmeier, with the support of justices Robert R. Thomas and P. Scott Neville Jr., said the majority came to the right conclusion, but unwittingly clouded the argument of res judicata.

In its analysis, the majority cites Illinois Supreme Court Rule 273 and says the rule provides that “a dismissal order is a final adjudication … when the order specifies that it is ‘with prejudice’ or when the trial court denies leave to file an amended complaint.”

In the special concurrence, Karmeier wrote that the majority had flipped Rule 273 on its head and that a dismissal order that does not specify if it is with or without prejudice is assumed to be final. In dismissing a complaint, he wrote, a judge is required to specify if the dismissal is without prejudice, not if the dismissal is with prejudice as written by the majority.

“While I disagree with the majority’s construction of finality for the purposes of res judicata … I concur with the majority’s reasoning regarding the remaining dismissal orders,” Karmeier wrote.

Ward has been represented in the case by attorney Randall A. Wolter, of Wolter, Beeman, Lynch & Londrigan, of Springfield.

Decatur Memorial has been represented by attorneys Michael J. Kehart and Regan Lewis, of Kehart, Wise, Toth & Lewis, of Decatur.