Section 2-402 of the Code is a statutory procedure whereby a plaintiff in a civil action is permitted to name as respondents in discovery “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. Persons 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.
A person or entity named as a respondent in discovery in any civil action may be made a defendant in the same action at any time within 6 months after being named as a respondent in discovery, even though the time during which an action may otherwise be initiated against him or her may have expired during such 6 month period.”
According to the statute, a respondent in discovery may be added as a defendant where the evidence discloses the existence of probable cause for such action. The statute is not clear as to the amount of evidence needed to establish probable cause to convert a respondent in discovery to a defendant.
Background Facts
Seventeen-year-old Donald Cleeton suffered a cervical cord injury, which left him quadriplegic. To reduce Donald’s involuntary muscle spasms (spasticity from the nerve damage), Dr. Jose Espinosa implanted a Medtronic SynchroMed II Infusion System. The Medtronic device was a programmable pump that delivered doses of baclofen into the intrathecal space of Donald’s spine. The device consisted of two parts: the pump itself, which held and dispersed baclofen, and a catheter, which delivered baclofen from the pump into the intrathecal space of the spine.
Around 12:07 p.m. on October 30, 2017, a code blue was called for Donald because of a lack of pulse. Dr. Espinosa recommended intrathecal administration of baclofen, which was given by Dr. Todd Knox at 2:05 p.m. Donald was
pronounced dead at 3:06 p.m. after three hours of resuscitation efforts. Later tests revealed that the catheter for Donald’s pump contained holes. Donald died because of BWS (baclofen withdrawal syndrome).
In February 2019, Carol Cleeton (Donald’s mother) filed a wrongful death action against SIU Healthcare, Inc.; Young; and Dr. Al Sawaf. She named, as respondents in discovery, the following: Memorial Medical Center, Dr. Austin, Dr. Knox, Dr. Bakir, Medtronic, Dr. Mirocha, Jessica Farley, Sue Ferrill, and Stephanie Whooley. Farley was a nurse who cared for Donald when he was in the emergency room, and Ferrill and Whooley were Medtronic employees.
In September 2019, Carol filed a motion to extend Dr. Bakir’s status as a respondent in discovery. Dr. Bakir filed a response to Carol’s motion as well as a motion to terminate his status as a respondent in discovery. The circuit court granted Carol’s motion and set a November 13, 2019 deadline to convert Dr. Bakir to a defendant. Carol sought
another extension of Dr. Bakir’s status as a respondent in discovery, to which Dr. Bakir objected.
In November 2019, Carol filed a motion to convert Dr. Bakir from a respondent in discovery to a defendant pursuant to section 2-402 of the Code. Carol attached to the motion a certificate of merit by Dr. William Stephen Minore, as well as
proposed counts for the wrongful death and survival actions against Dr. Bakir. In his certificate, Dr. Minore opined that, based upon a review of the medical records provided by Memorial Medical Center and within a reasonable degree of medical certainty, Dr. Bakir deviated from the standard of care by his failure to “timely recognize the differential diagnosis of Baclofen Withdrawal Syndrome, order treatment consistent with the Medtronic Emergency Procedures received at Memorial Medical Center at approximately 10:44 a.m. on October 30, 2017, and order the administration of Intrathecal Baclofen in a timely manner.”
The circuit court entered a written order denying Carol’s motion to convert and terminating Dr. Bakir’s status as a respondent in discovery. In so doing, the circuit court found that (1) the Medtronic emergency procedure documents did not set forth the standard of care by which Dr. Bakir’s conduct must be measured and, (2) even if the Medtronic emergency procedure documents did establish the standard of care for Dr. Bakir, the evidence does not support the basis upon which Dr. Minore relied in reaching his opinion that a reasonable and meritorious basis exists for filing a medical malpractice action against Dr. Bakir. Carol filed an appeal.
The Illinois Supreme Court stated in its Opinion filed on May 18, 2023: “Dr. Minore’s affidavit may not have stated the specific standard of care from which Dr. Bakir deviated, but it did provide the court with sufficient information about what Dr. Bakir failed to do based upon a reasonable degree of medical certainty—timely recognize that Donald suffered from BWS, timely order treatment, and timely administer that treatment. Whether these failures deviated from the standard of care and actually caused Donald’s death is a question for the trier of fact. But at present, our question is whether Carol presented sufficient documentary evidence such that an ordinary and prudent person would have an honest and strong suspicion that the respondent in discovery breached the applicable standard of care and that the respondent in discovery is liable for causing plaintiff’s injury. The evidence threshold in section 2-402 of the Code was met in this case … the threshold the plaintiff must meet is to present evidence that would establish a reasonable probability that the respondent in discovery could be liable for the plaintiff’s injury. At the discovery stage, the threshold is sufficiently low to allow the plaintiff to convert a respondent in discovery to a defendant. Certainly, one of the underlying purposes of the statute was to protect medical providers. However, there is no indication in the legislative history that the legislators intended to make it more difficult for a plaintiff to name a defendant or convert a respondent in discovery to a defendant.”
The Illinois Supreme Court held: “We find, under section 2-402 of the Code, that the plaintiff is to present such evidence (e.g., affidavits, discovery depositions, medical records, reports, X-rays) that there exists an honest and strong suspicion that the respondents in discovery caused the plaintiff’s injuries. Ingle, 141 Ill. App. 3d at 1064-65. We also find that Carol’s pleadings and documentary evidence were legally sufficient to establish probable cause under section 2-402 of the Code: the evidence would cause a person of ordinary caution and prudence to develop an honest and strong suspicion that the purported negligence of the respondent was a proximate cause of plaintiff’s injuries. Therefore, we hold that Carol presented sufficient evidence to establish probable cause for converting Dr. Bakir from a respondent in discovery to a defendant. Accordingly, we reverse the judgment of the appellate court, we reverse the judgment of the circuit court, and we remand the cause to the circuit court for further proceedings consistent with this opinion.”
Source Cleeton v. SIU Healthcare, Inc., 2023 IL 128651.
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