{ "id": 894504, "name": "C. CARRIE JACKSON-BAKER, Adm'r of the Estate of James P. Jackson, Deceased, Plaintiff-Appellant, v. PHILLIP IMMESOETE, Defendant (Sharon Health Care Willows, Inc., Defendant-Appellee)", "name_abbreviation": "Jackson-Baker v. Immesoete", "decision_date": "2003-04-04", "docket_number": "No. 3-02-0416", "first_page": "1090", "last_page": "1096", "citations": [ { "type": "official", "cite": "337 Ill. App. 3d 1090" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "645 N.E.2d 1377", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "1383" } ], "opinion_index": 0 }, { "cite": "269 Ill. App. 3d 329", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 365892 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "336" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/269/0329-01" ] }, { "cite": "525 N.E.2d 177", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "170 Ill. App. 3d 736", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3584665 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/ill-app-3d/170/0736-01" ] }, { "cite": "667 N.E.2d 493", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1996, "pin_cites": [ { "page": "498" }, { "page": "499" } ], "opinion_index": 0 }, { "cite": "281 Ill. App. 3d 587", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 150229 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "594" }, { "page": "595" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/281/0587-01" ] }, { "cite": "655 N.E.2d 1002", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 5, "year": 1995, "pin_cites": [ { "page": "1004" }, { "page": "1004" }, { "page": "1004" }, { "page": "1004" }, { "page": "1004" } ], "opinion_index": 0 }, { "cite": "275 Ill. App. 3d 269", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 906702 ], "weight": 5, "year": 1995, "pin_cites": [ { "page": "272" }, { "page": "273" }, { "page": "273" }, { "page": "273" }, { "page": "273" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/275/0269-01" ] }, { "cite": "659 N.E.2d 47", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "pin_cites": [ { "page": "49" } ], "opinion_index": 0 }, { "cite": "276 Ill. App. 3d 1061", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 927602 ], "year": 1995, "pin_cites": [ { "page": "1064" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/276/1061-01" ] }, { "cite": "678 N.E.2d 364", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1997, "pin_cites": [ { "page": "368" }, { "page": "368" } ], "opinion_index": 0 }, { "cite": "287 Ill. App. 3d 242", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 521024 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "248" }, { "page": "248" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/287/0242-01" ] }, { "cite": "541 N.E.2d 153", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1989, "pin_cites": [ { "page": "154" } ], "opinion_index": 0 }, { "cite": "185 Ill. App. 3d 40", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2647441 ], "year": 1989, "pin_cites": [ { "page": "41" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/185/0040-01" ] } ], "analysis": { "cardinality": 663, "char_count": 13557, "ocr_confidence": 0.739, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.03156342319571527 }, "sha256": "36a3d609a68c0ca63b741331e43e6a568e8768f0ca34b9491a0bd7c67ee98f2c", "simhash": "1:83b618a4c9dddde4", "word_count": 2210 }, "last_updated": "2023-07-14T14:38:38.563173+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "C. CARRIE JACKSON-BAKER, Adm\u2019r of the Estate of James P. Jackson, Deceased, Plaintiff-Appellant, v. PHILLIP IMMESOETE, Defendant (Sharon Health Care Willows, Inc., Defendant-Appellee)." ], "opinions": [ { "text": "JUSTICE BARRY\ndelivered the opinion of the court:\nC. Carrie Jackson-Baker (Baker), administrator of the estate of her brother James E Jackson (Jackson), listed Sharon Health Care Willows, Inc. (Sharon Health), as a respondent in discovery for the purpose of filing survival and wrongful death actions as a result of Jackson\u2019s death after receiving care at Sharon Health\u2019s facility. When Baker attempted to convert Sharon Health to a defendant, the trial court found probable cause only for the survival action. Baker appeals the trial court\u2019s order denying the conversion of Sharon Health to a defendant on the wrongful death claim. We reverse and remand with directions.\nFACTS\nJackson suffered from mental illness and had been institutionalized for most of his adult life. From April 24, 1998, through July 13, 1998, Jackson was a resident of and under the care of Sharon Health Care Willows\u2019s South Nursing Home. On July 13, 1998, Jackson was taken to Proctor Hospital where he was diagnosed with a bowel obstruction. Jackson underwent several surgical procedures and remained hospitalized until his death on September 1, 1998. During his hospital stay, Jackson developed several complications, including toxic epidermal necrolysis, symptoms of which are a rash over the body, large blisters, and the shedding of skin.\nBaker originally filed suit against Proctor Hospital and Dr. Phillip Immesoete on behalf of her brother Jackson. Sharon Health and several physicians were named as respondents in discovery. After obtaining Jackson\u2019s medical records and consulting with experts, Baker dismissed Proctor Hospital as a defendant and moved to convert Sharon Health to a defendant. Attached to the motion was a report from Professor MaryBeth Buschmann of the University of Illinois at Chicago College of Nursing, a registered nurse. Based upon her review of Jackson\u2019s medical records obtained from Sharon Health, Bushmann found an abrupt change in Jackson\u2019s food intake at Sharon Health in July. Despite Jackson\u2019s refusal to eat, he sustained a 12-pound weight gain during that month. Bushmann further found notations indicating that Jackson had vomited undigested chicken, but found no record of Jackson\u2019s bowel movements. Additional notations indicated that Jackson grimaced when his abdomen was palpated and that there were wide variations in Jackson\u2019s blood pressure. Based upon these observations from the records, Bushmann concluded that the nursing staff of Sharon Health was negligent in the care of Jackson.\nOn November 14, 2001, the trial court entered an order finding sufficient probable cause on the survival action to allow Sharon Health to be converted to a defendant on that claim. However, the trial court found insufficient probable cause on the wrongful death claim. Baker moved for reconsideration, which the trial court denied on January 10, 2002. On January 31, 2002, Baker moved for leave to file an interlocutory appeal, and the trial court found no just reason to delay appeal of the court\u2019s order \u201cwith respect to the wrongful death cause of action.\u201d\nANALYSIS\nOn appeal, Baker argues that (1) the trial court erred in determining there was no probable cause to convert Sharon Health from a respondent in discovery to a defendant on the wrongful death claim; and (2) the trial court is not permitted under the respondent in discovery statute to find probable cause to convert a respondent in discovery to a defendant on one cause of action but not another. Prior to discussing the issue certified by the trial court, we note that Baker has asked this court to strike a portion of Sharon Health\u2019s brief. In its response, Sharon Health argues that this court should not only consider whether it was proper for the trial court to deny Baker\u2019s motion to convert on the wrongful death action, but also the survival action, which the trial court allowed to proceed. After the trial court entered its order on the motion to convert, Baker filed a motion for interlocutory appeal. The trial court found no just reason to delay appeal of the court\u2019s order \u201cwith respect to the wrongful death cause of action.\u201d In an interlocutory appeal, the reviewing court may only address the question certified by the trial court. Bachman v. Sharon & Lo\u2019s Place, Inc., 185 Ill. App. 3d 40, 41, 541 N.E.2d 153, 154 (1989). Therefore, we grant Baker\u2019s motion to strike and shall not consider the portion of Sharon Health\u2019s brief addressing the survival action.\nA trial court\u2019s ruling on a motion to add a respondent in discovery as a defendant is entitled to deference where the court heard testimony and made determinations regarding conflicting evidence. McGee v. Heimburger, 287 Ill. App. 3d 242, 248, 678 N.E.2d 364, 368 (1997). However, where (1) the facts are undisputed, (2) the credibility of the witnesses is not an issue, and (3) in-court testimony has not been presented, a question of law is presented, and a reviewing court may consider the question de novo. McGee, 287 Ill. App. 3d at 248, 678 N.E.2d at 368. In the instant case, the trial court considered only documentary evidence. Therefore, a de novo standard is appropriate.\nSection 2 \u2014 402 of the Code of Civil Procedure provides, in pertinent part:\n\u201cThe plaintiff in any civil action may designate as respondents in discovery in his or her pleading those individuals or other entities, other than the named defendants, believed by the plaintiff to have information essential to the determination of who should properly be named as additional defendants in the action.\nPersons or entities so named as respondents in discovery shall be required to respond to discovery by the plaintiff in the same manner as are defendants and may, on motion of the plaintiff, be added as defendants if the evidence discloses the existence of probable cause for such action.\u201d 735 ILCS 5/2 \u2014 402 (West 1994).\nProbable cause under section 2 \u2014 402 will be established where a person of ordinary caution and prudence would entertain an honest and strong suspicion that the purported negligence of the respondent in discovery was a proximate cause of plaintiffs injury. Medjesky v. Cole, 276 Ill. App. 3d 1061, 1064, 659 N.E.2d 47, 49 (1995). However, the evidence need not rise to the level of a high degree of likelihood of success on the merits or the evidence necessary to defeat a motion for summary judgment in favor of the respondents in discovery, nor is the plaintiff required to establish a prima facie case against the respondent in discovery. Williams v. Medenica, 275 Ill. App. 3d 269, 272, 655 N.E.2d 1002, 1004 (1995).\nBaker attached a letter from MaryBeth Buschmann to her motion to add Sharon Health as a defendant. Based upon her review of Jackson\u2019s records from Sharon Health and Proctor Hospital, Buschmann concluded that the nursing staff of Sharon Health was negligent in the care of Jackson in the following ways: (1) not taking action with regard to abrupt changes in Jackson\u2019s behavior, eating habits, and weight; (2) failing to recognize that there were no recorded bowel movements along with Jackson\u2019s refusal to eat accompanied by weight gain; (3) failing to chart on July 12, 1998, the day before Jackson was taken to the hospital; (4) not adequately monitoring for variable blood pressure or searching for its cause; (5) lack of recorded contact with doctors after abrupt changes in Jackson\u2019s behavior and eating habits; and (6) conflicting record keeping on medication sheets and nursing notes. In her letter, Buschmann went on to state that there were \u201cred flags waving all over in Mr. Jackson\u2019s condition *** and any nurse following the standard of nursing care in Illinois would have picked upon [sic] on these and followed through with her/his own investigation as well as reporting them to the attending physician.\u201d\nBaker also submitted records from Sharon Health and her own deposition testimony to the trial court. At her deposition, Baker testified that she spoke with a former employee of Sharon Health, Varesa Brown, after Jackson\u2019s death. Brown indicated to Baker that Jackson did not receive proper care in the days leading up to his death. While this is a hearsay statement, hearsay is properly considered on a motion to convert under section 2 \u2014 402. Coley v. St. Bernard's Hospital, 281 Ill. App. 3d 587, 594, 667 N.E.2d 493, 498 (1996).\nSharon Health argues that none of this evidence was sufficient to establish probable cause that negligent acts of Sharon Health were a proximate cause of Jackson\u2019s death. However, as pointed out earlier, Baker does not need to establish a prima facie case at this phase of the proceedings. Rather, Baker must simply demonstrate that a person of ordinary caution and prudence would entertain an honest and strong suspicion that Sharon Health\u2019s action and/or inaction was a proximate cause of Jackson\u2019s death. By our view, a person of ordinary caution could certainly entertain an honest suspicion that Sharon Health\u2019s alleged inadequate care of Jackson resulted in his death. Buschmann\u2019s review of Jackson\u2019s records indicated that Jackson sustained a 12-pound weight gain despite refusing meals, vomited undigested food, and had no recorded bowel movements in the week before he was transferred to Proctor Hospital. Furthermore, there were no notations on Jackson\u2019s records at all on the day before he was taken from Sharon Health in a nearly comatose state.\nSharon Health also argues that Baker has not complied with section 2 \u2014 622 and therefore cannot demonstrate probable cause under section 2 \u2014 402. Generally stated, section 2 \u2014 622 requires the filing of an affidavit by a physician in actions where the plaintiff seeks damages for injuries or death caused by medical malpractice indicating that there is reasonable and meritorious cause for the action. 735 ILCS 5/2 \u2014 622 (West 1994). In Shanks v. Memorial Hospital, 170 Ill. App. 3d 736, 525 N.E.2d 177 (1988), the court determined that the affidavit of a registered nurse is insufficient to meet the requirements of section 2 \u2014 622. Sharon Health argues that because Buschmann is not a \u201cphysician licensed to practice medicine in all its branches\u201d under section 2 \u2014 622 but is, rather, a registered nurse, Baker has failed to satisfy the requirements of section 2 \u2014 622 and thus necessarily failed to establish probable cause under section 2 \u2014 402. In support of this assertion, Sharon Health cites Moscardini v. Neurosurg, S.C., 269 Ill. App. 3d 329, 645 N.E.2d 1377 (1994), where the court determined that these two sections should be read in pari materia. The court went on to conclude that if an unsigned, unverified physician\u2019s report accompanied by an attorney\u2019s affidavit is sufficient under section 2 \u2014 622, it can be sufficient to establish probable cause under section 2 \u2014 402. Moscardini, 269 Ill. App. 3d at 336, 645 N.E.2d at 1383. However, this does not mean that the converse is true, and Sharon Health cites no cases that support a requirement of compliance with section 2 \u2014 622 to establish probable cause under section 2 \u2014 402. In fact, such a requirement would undermine the purposes of these statutes. \u201cThe requirements of sections 2 \u2014 622 and 2 \u2014 402 were never intended as a means of depriving a plaintiff of a trial on the merits of his claim of malpractice.\u201d Williams, 275 Ill. App. 3d at 273, 655 N.E.2d at 1004. Rather, \u201cthe probable cause requirement of section 2 \u2014 402 should be liberally construed, to the end that controversies may be determined according to the substantive rights of the parties.\u201d Williams, 275 Ill. App. 3d at 273, 655 N.E.2d at 1004. In enacting section 2 \u2014 402, the legislature intended to eliminate frivolous actions at the pleadings stage and ensure that plaintiffs file only meritorious medical malpractice actions. Williams, 275 Ill. App. 3d at 273, 655 N.E.2d at 1004. While the requirements placed upon plaintiffs under section 2 \u2014 402 are not empty formalism, neither is the statute meant to create a substantive defense. Williams, 275 Ill. App. 3d at 273, 655 N.E.2d at 1004. Requiring compliance with section 2 \u2014 622 would place an unnecessary obstacle to the conversion of a respondent in discovery to a defendant. Furthermore, because respondents in discovery have not yet been converted to defendants named in the complaint, a plaintiff cannot be required to comply with section 2 \u2014 622 as to respondents in discovery. Coley, 281 Ill. App. 3d at 595, 667 N.E.2d at 499.\nAccordingly, the trial court erred in failing to find probable cause for Baker\u2019s wrongful death claim. Because we find that the trial court erred on this determination, we need not reach the issue of whether the respondent in discovery statute allows a trial court to make a determination as to one cause of action but not another. The trial court\u2019s order of November 14, 2001, is reversed and the cause remanded to the circuit court with directions to grant Baker\u2019s motion to add respondent in discovery, Sharon Health Care Willows, Inc., as a defendant with regard to the wrongful death action.\nReversed and remanded with directions.\nLYTTON and SLATER, JJ., concur.", "type": "majority", "author": "JUSTICE BARRY" } ], "attorneys": [ "Thomas E. Cady and Brian Nelson (argued), both of Katz, Huntoon & Fieweger, P.C., of Rock Island, for appellant.", "John P. Fleming (argued), of Schmidt, Fleming & Payne, of Peoria, for appellee." ], "corrections": "", "head_matter": "C. CARRIE JACKSON-BAKER, Adm\u2019r of the Estate of James P. Jackson, Deceased, Plaintiff-Appellant, v. PHILLIP IMMESOETE, Defendant (Sharon Health Care Willows, Inc., Defendant-Appellee).\nThird District\nNo. 3\u201402\u20140416\nOpinion filed April 4, 2003.\nRehearing denied May 2, 2003.\nThomas E. Cady and Brian Nelson (argued), both of Katz, Huntoon & Fieweger, P.C., of Rock Island, for appellant.\nJohn P. Fleming (argued), of Schmidt, Fleming & Payne, of Peoria, for appellee." }, "file_name": "1090-01", "first_page_order": 1108, "last_page_order": 1114 }