Kaiser v. Doll-Pollard

NO. 5-08-0247
N O T IC E
Decision filed 02/11/10. The text of
IN THE
this dec ision m ay b e changed or
corrected prior to the filing of a
APPELLATE COURT OF ILLINOIS
P e t i ti o n for Re hea ring or the
disposition of the same.
FIFTH DISTRICT
________________________________________________________________________
MARGIE KAISER and LAMAR KAISER, ) Appeal from the
) Circuit Court of
Plaintiffs-Appellees, ) St. Clair County.
)
v. ) No. 07-L-564
)
DR. A. DOLL-POLLARD and SOUTHERN )
OBSTETRICS AND GYNECOLOGICAL )
ASSOCIATES, S.C., ) Honorable
) Lloyd A. Cueto,
Defendants-Appellants. ) Judge, presiding.
________________________________________________________________________
JUSTICE CHAPMAN delivered the opinion of the court:
This appeal involves a motion to transfer a medical malpractice action from St. Clair
County to Clinton County based on improper venue. Plaintiff Margie Kaiser (the plaintiff)
underwent a hysterectomy at St. Joseph's Hospital in Clinton County but was transferred to
St. Elizabeth's Hospital in St. Clair County for postoperative care. The defendants, the doctor
who performed the hysterectomy and her employer, appeal an order denying their motion to
transfer. They argue that venue in St. Clair County is not proper because (1) the plaintiff
does not allege that the defendants committed any negligent acts in St. Clair County and (2)
all the elements of the plaintiff's cause of action arose in Clinton County. We affirm.
On December 15, 2005, defendant Dr. Anne Doll-Pollard (the defendant) performed
a hysterectomy on the plaintiff. The surgery was performed at St. Joseph's Hospital, which
is located in Clinton County. According to the allegations in the complaint, the defendant's
operative notes indicate that she "noted the existence of bleeding" and attempted to locate
the source of the bleeding but that she closed the patient despite the fact that the bleeding was
1
still occurring. After the surgery, the plaintiff's blood pressure and hemoglobin count
dropped while her white blood cell count rose. Her condition continued to deteriorate. Later
that day, a cardiologist transferred the plaintiff to St. Elizabeth's Hospital in St. Clair County.
There, doctors performed exploratory surgery, during which they found the source of the
bleeding. Although the doctors were able to stop the bleeding, the plaintiff alleges in her
complaint that she suffered permanent injuries as a result of complications.
On December 13, 2007, the plaintiff and her husband, Lamar Kaiser, filed a complaint
against the defendant and her employer, Southern Obstetrics and Gynecological Associates,
S.C. The complaint alleged that the defendant was negligent both in her performance of the
surgery and in failing to diagnose the plaintiff's condition following the surgery. According
to the complaint, the plaintiff suffered ongoing complications as a result of infection and a
loss of oxygen to her brain and other organs. In addressing the question of venue, the
complaint alleged that venue was proper in St. Clair County because the diagnosis and
treatment had occurred there, thereby making it a county in which a part of the transaction
that formed the basis of the action had occurred. See 735 ILCS 5/2-101 (W est 2006).
On January 17, 2008, the defendants filed a motion to transfer the case to Clinton
County on the basis of improper venue or, alternatively, on the basis of forum non
conveniens. The defendants argued that because the plaintiff did not allege that the care she
had received in St. Clair County was negligent, no part of the transaction occurred there.
They further argued that some action by the defendants must occur in a county for venue to
be proper there. We note that although forum non conveniens was raised in the trial court,
the parties apparently did not conduct discovery on the issue, and the trial court did not rule
on it. Only venue is at issue in this appeal.
On January 28, the plaintiffs filed their response to the defendants' motion. They
argued that the statutory language providing that venue is proper in any county where "some
2
part" of the transaction at issue occurred (see 735 ILCS 5/2-101 (West 2006)) makes
transactional venue a flexible doctrine. See Tipton v. Estate of Cusick, 273 Ill. App. 3d 226,
228, 651 N.E.2d 635, 637 (1995). They cited previous medical malpractice cases in which
venue was found to be proper in counties even though the plaintiffs had not alleged they had
received negligent care in those counties. Smith v. Silver Cross Hospital, 312 Ill. App. 3d
210, 726 N.E.2d 697 (2000); Bradbury v. St. Mary's Hospital of Kankakee, 273 Ill. App. 3d
555, 652 N.E.2d 1228 (1995); Tipton v. Estate of Cusick, 273 Ill. App. 3d 226, 651 N.E.2d
635 (1995). In addition, the plaintiffs argued that venue was proper in St. Clair County
because some of the plaintiff's injuries resulted from the surgery she underwent there to find
and stop the bleeding.
On February 7, 2008, the defendants filed a reply. They argued that the cases cited
by the plaintiffs were distinguishable. Smith and Bradbury involved wrongful death actions,
while in Tipton, the plaintiff alleged that he suffered a stroke as a result of taking a
medication in Cook County which had been prescribed elsewhere. The defendants argued,
as they do in this appeal, that the causes of action involved in all three cases did not exist
until an event occurred in the plaintiffs' chosen counties–the causes of action in Smith and
Bradbury did not arise until the decedents died, and the cause of action in Tipton did not exist
until the plaintiff took the medication and suffered a stroke. Smith, 312 Ill. App. 3d at 213-
15, 726 N.E.2d at 700-02 (following Bradbury and finding that the decedent's death in Cook
County was sufficient to establish venue there); Bradbury, 273 Ill. App. 3d at 558, 652
N.E.2d at 1230 (explaining that the place a plaintiff was wronged is the place "where the last
event takes place which is necessary to render the [defendant] liable"); Tipton, 273 Ill. App.
3d at 228, 651 N.E.2d at 637 (finding that the plaintiff's act of ingesting a medication alleged
to have triggered the stroke that caused his injuries was a part of the transaction forming the
basis of his cause of action).
3
On April 3, 2008, the court entered an order denying the defendants' motion to
transfer. The court did not include any factual findings or express legal analysis in its order.
This interlocutory appeal followed.
Venue is proper in any county in which any defendant joined in good faith resides or
in any county "in which the transaction or some part thereof occurred out of which the cause
of action arose." 735 ILCS 5/2-101 (West 2006). Here, it is undisputed that neither
defendant resides in St. Clair County. Thus, only the second prong of the venue statute, the
"transactional" prong, is at issue.
Before considering the merits of the defendants' appeal, we must resolve the parties'
contentions regarding the standard of review to apply. Often, venue motions present mixed
questions of law and fact. Corral v. Mervis Industries, Inc., 217 Ill. 2d 144, 153-54, 839
N.E.2d 524, 530 (2005). We review the factual determinations made by the trial court to
determine whether they are against the manifest weight of the evidence. However, we
review the court's conclusions of law de novo. Corral, 217 Ill. 2d at 154, 839 N.E.2d at 530.
Where there is no dispute regarding the facts underlying the court's decision, we review the
entire ruling de novo. Corral, 217 Ill. 2d at 153, 839 N.E.2d at 530.
The defendants argue that the court below denied their motion based on "agreed" facts
and did not make any findings of fact. Thus, they contend, our review is de novo. The
plaintiffs, however, contend that the court "must have" made findings it did not articulate in
its order, because whether any portion of the transaction occurred in St. Clair County is a
factual question on which the parties disagree. They thus contend that the proper standard
of review is the manifest-weight-of-the-evidence standard. They further contend that
because it is impossible to determine on the record before us what factual determinations the
court made, we must resolve in their favor any doubts raised by this gap in the record. See
Corral, 217 Ill. 2d at 157, 839 N.E.2d at 532 (explaining that, when the record is incomplete,
4
an appellate court "must presume" that a trial court "had a sufficient factual basis for its
holding and that its order conforms with the law").
We agree with the defendants. At the pleading stage, we take all well-pled facts in
the plaintiff's complaint as true. Safeway Insurance Co. v. Daddono, 334 Ill. App. 3d 215,
218, 777 N.E.2d 693, 695 (2002). Thus, we assume that the plaintiff received negligent care
in Clinton County and postoperative care in St. Clair County. We assume that the plaintiff
suffered injuries as a result of blood loss and infection. We assume that the blood loss began,
as alleged, during the surgery performed in Clinton County, and we assume it continued, as
alleged, until surgeons in St. Clair County were able to locate the source of the bleeding and
stop it. The question before us is not whether these allegations are true. Rather, the question
is whether the facts that the plaintiffs alleged took place in St. Clair County formed a "part"
of the transaction. In other words, we are asked to determine whether the court below
correctly determined the legal effect of the facts pled by the plaintiffs. That is a legal
question. We will therefore review the defendants' contentions de novo.
As previously stated, the sole issue before us is whether venue is proper under the
transactional prong of our venue statute. Determining venue under this prong requires us to
consider two key variables: the nature of the cause of action and the place where the cause
of action sprang into existence. Rensing v. Merck & Co., 367 Ill. App. 3d 1046, 1050, 857
N.E.2d 702, 706 (2006). The phrase "transaction or some part thereof" in the venue statute
has been interpreted broadly. Tipton, 273 Ill. App. 3d at 228, 651 N.E.2d at 637. It includes
all the facts that the plaintiff bears the burden of proving. Servicemaster Co. v. Mary
Thompson Hospital, 177 Ill. App. 3d 885, 890-91, 532 N.E.2d 1009, 1012 (1988) (relying
on People ex rel. Carpentier v. Lange, 8 Ill. 2d 437, 441, 134 N.E.2d 266, 267-68 (1956)).
A plaintiff in a medical malpractice action has the burden of proving (1) the standard of care
that the defendant's conduct is to be measured against, (2) that the defendant failed to comply
5
with that standard of care, and (3) that the defendant's negligent care proximately caused the
plaintiff's injury. Wiedenbeck v. Searle, 385 Ill. App. 3d 289, 292, 895 N.E.2d 1067, 1069
(2008). Here, the plaintiffs allege that the defendant negligently performed the surgery and
negligently failed to diagnose the problem of internal bleeding. In order to prove the latter
allegation, they will have to demonstrate that the problem could have been diagnosed sooner
than it was. See Holston v. Sisters of the Third Order of St. Francis, 165 Ill. 2d 150, 155,
650 N.E.2d 985, 988 (1995).
The defendants contend that venue is proper only in Clinton County because no
portion of the transaction occurred in St. Clair County. This is so, they contend, because (1)
the plaintiffs do not allege that the defendants committed any negligent acts in St. Clair
County and (2) the plaintiff suffered an injury that gave rise to a cause of action for medical
malpractice prior to leaving Clinton County. In addition, the defendants argue that their
"statutory right to change venue should not be thwarted" by the plaintiffs' attempt at forum-
shopping.
In support of their position, the defendants rely heavily on Jackson v. Reid, 363 Ill.
App. 3d 271, 842 N.E.2d 763 (2006), while the plaintiffs rely primarily on Smith, Bradbury,
and Tipton. As we will explain, we find the Jackson case distinguishable from the case
before us despite some factual similarities, and we find that the Tipton case, while not
precisely analogous, provides support for the plaintiffs' position.
The defendants argue that because both Smith and Bradbury involved the Wrongful
Death Act (740 ILCS 180/0.01 et seq. (West 2008)), they are distinguishable from the instant
case. The Wrongful Death Act provides a distinct cause of action that allows survivors to
recover damages they suffer as a result of their decedent's death. Bradbury, 273 Ill. App. 3d
at 558, 652 N.E.2d at 1230. That cause of action is separate and distinct from any claim the
decedent might have had for the underlying negligence had he survived. Bradbury, 273 Ill.
6
App. 3d at 558, 652 N.E.2d at 1230 (explaining that the Wrongful Death Act does not
provide for the survival of the decedent's cause of action). Although wrongful death is a
separate and distinct cause of action, it is nevertheless premised on the underlying
negligence. Bradbury, 273 Ill. App. 3d at 558, 652 N.E.2d at 1230. Because of this, both
the underlying negligence and the decedent's death are necessary to give rise to a claim.
Thus, we do not agree with the defendants that the mere fact that Smith and Bradbury
involved claims for wrongful death makes them inherently distinguishable. However, for
reasons we will explain more fully later, we find little guidance in Bradbury. In addition, we
find that Smith is inapposite for another reason. In that case, the decedent died in a Cook
County hospital, but both he and the administrator of his estate (his widow) were residents
of Will County. Smith, 312 Ill. App. 3d at 213, 726 N.E.2d at 700. The defendants sought
a transfer to Will County based largely on venue provisions in the Probate Act of 1975 (755
ILCS 5/1-1 et seq. (West 1998)). Smith, 312 Ill. App. 3d at 213-14, 726 N.E.2d at 700. That
is obviously not an issue in this case.
In Jackson, the defendant urologist treated the plaintiff over the course of four years.
The defendant determined that a bilateral ureteral implantation surgery was necessary. The
medical malpractice complaint alleged that the defendant was negligent in performing the
surgery, in providing postoperative care, and in determining that the surgery was necessary
in the first place. Jackson, 363 Ill. App. 3d at 273, 842 N.E.2d at 765. All the defendant's
treatment of the plaintiff–including both the surgery and the postoperative care–took place
in Peoria County. Jackson, 363 Ill. App. 3d at 273, 842 N.E.2d at 765. However, prior to
determining that the surgery was necessary, the defendant had ordered several tests, including
X rays and sonograms. The plaintiff went to a laboratory in McLean County for these tests.
Jackson, 363 Ill. App. 3d at 273-74, 842 N.E.2d at 765-66. The plaintiff filed her lawsuit in
McLean County, and the defendant filed a motion to transfer to Peoria County based on
7
improper venue. Jackson, 363 Ill. App. 3d at 272-73, 842 N.E.2d at 765.
The plaintiff there argued on appeal that venue in McLean County was proper under
the transactional prong because the tests ordered by the defendant and performed in McLean
County formed an "integral part" of her cause of action. Jackson, 363 Ill. App. 3d at 275,
842 N.E.2d at 767. In rejecting this claim, the Fourth District found it significant that all the
dealings between the parties and all the acts alleged to have been negligent had taken place
in Peoria County. Jackson, 363 Ill. App. 3d at 276-77, 842 N.E.2d at 768. The similarities
with the instant case are apparent: the defendant here did not treat the plaintiff in St. Clair
County, and the plaintiff does not allege that the treatment she received there was negligent.
However, these similarities, standing alone, are not dispositive.
We emphasize that the Jackson court did not hold that the nonnegligent acts of third
parties can never establish transactional venue. Indeed, the court acknowledged that the term
"transaction" is not meant to be interpreted so narrowly "as to include only those immediate
facts from which the cause of action arose." Jackson, 363 Ill. App. 3d at 276, 842 N.E.2d
at 767. The court also acknowledged that third-party interactions can constitute a part of the
transaction if they " 'have a definite and direct bearing on the cause of action.' " Jackson, 363
Ill. App. 3d at 276, 842 N.E.2d at 768 (quoting Southern & Central Illinois Laborers' District
Council v. Illinois Health Facilities Planning Board, 331 Ill. App. 3d 1112, 1117, 772
N.E.2d 980, 984 (2002), abrogated on other grounds by Corral, 217 Ill. 2d at 149-50, 839
N.E.2d at 527-28). The court found only that the specific third-party acts at issue there–the
tests performed in McLean County–were preliminary acts which, standing alone, were not
enough to establish transactional venue. Jackson, 363 Ill. App. 3d at 276, 842 N.E.2d at 768
(citing Lake County Riverboat L.P. v. Illinois Gaming Board, 313 Ill. App. 3d 943, 953, 730
N.E.2d 524, 532 (2000)). We believe that this conclusion was supported by additional
factors that are not present in the case before us.
8
First, in Jackson, the court found that the plaintiff's entire cause of action came into
existence in Peoria County. Jackson, 363 Ill. App. 3d at 277, 842 N.E.2d at 768. The court
explained that the defendant determined that the surgery was necessary, performed the
surgery, and provided postoperative care in Peoria County. Jackson, 363 Ill. App. 3d at 277,
842 N.E.2d at 768. The plaintiff did not allege that the tests had been performed negligently
or that she had suffered any injury as a result of having them performed. Instead, the court
explained, it was the defendant's negligent interpretation of the test results that led her to
conclude that the surgery was necessary, a decision the plaintiff alleged was negligent.
Jackson, 363 Ill. App. 3d at 277, 842 N.E.2d at 768. The defendants contend that this fact
makes Jackson analogous to our case. We find that precisely the opposite is true, however.
As previously noted, we must consider the nature of the plaintiffs' claim. Here, the
complaint alleges that the plaintiff suffered permanent injuries as a result of the loss of
oxygen to her brain and other organs. The complaint alleges that this occurred due to
hemorrhaging that began when the defendant performed a hysterectomy and did not end until
surgeons in St. Clair County were able to stop the bleeding. Obviously, the type of injury
they allege is cumulative. It may be impossible, even once the evidence is fully developed
at a trial, to determine precisely how much of the injury occurred in Clinton County and how
much occurred in St. Clair County. The complaint also alleges that the plaintiff suffered
permanent harm as a result of infection, but it does not specify when–or where–the infection
began.
In addition, the plaintiffs alleged in a responsive pleading that the plaintiff suffered
injury as a result of the surgery she underwent to find and treat the bleeding. (We presume
that this was a result of complications, because they do not allege that the St. Clair County
surgeons were negligent.) Any injuries that occurred in St. Clair County as a result of
intervening acts of third parties may also be attributable to the defendant's negligence as a
9
normal incident to the risk she created. Easley v. Apollo Detective Agency, Inc., 69 Ill. App.
3d 920, 938, 387 N.E.2d 1241, 1253 (1979); Restatement (Second) of Torts §443 (1965); see
Daly v. Carmean, 210 Ill. App. 3d 19, 30-32, 568 N.E.2d 955, 962-63 (1991) (finding that
a tendered jury instruction accurately stated the law which would have explained that a
doctor found to be negligent is liable " 'for any damages sustained by the plaintiff arising
from the efforts of subsequent health care providers to treat the condition caused by' " the
defendant's negligence); see also Simmons v. Lollar, 304 F.2d 774, 778 (10th Cir. 1962)
(applying this basic tort principle where the plaintiff's decedent died due to complications
from a nonnegligent surgery to treat injuries incurred due to the defendant's negligence); W.
Prosser, Torts §44, at 278-79 (4th ed. 1971). Thus, the plaintiffs allege injuries occurring in
both Clinton County and St. Clair County. Proving that the plaintiff sustained all the alleged
injuries will be crucial to their case, which makes the allegations of injury in St. Clair County
an integral part of their cause of action.
It is for this reason that we find the defendants' arguments distinguishing both
Bradbury and Tipton misplaced. Bradbury, as previously noted, involved a wrongful death
claim. The decedent was a baby who was born prematurely in Kankakee County. The baby
was transferred to a Cook County hospital, where he died three days later. His mother
brought a wrongful death action in Cook County, alleging that negligent medical treatment
in Kankakee County had led to the baby's death. Bradbury, 273 Ill. App. 3d at 557, 652
N.E.2d at 1229. There, as here, the defendants argued that for purposes of transactional
venue, the entire transaction had taken place in Kankakee County. Bradbury, 273 Ill. App.
3d at 558, 652 N.E.2d at 1230. One of the defendants "even [went] so far as to contend that
death is not an element of a cause of action for wrongful death." Bradbury, 273 Ill. App. 3d
at 558, 652 N.E.2d at 1230.
In rejecting this claim, the Bradbury court focused much of its discussion on the
10
distinct nature of a wrongful death claim. The court explained that not only is the decedent's
death a necessary element, it is "the last element necessary to render an actor liable" for
wrongful death. Bradbury, 273 Ill. App. 3d at 558, 652 N.E.2d at 1230. The court thus
concluded that venue was proper in the county where the decedent died. Bradbury, 273 Ill.
App. 3d at 558, 652 N.E.2d at 1230. We note that the Bradbury court was dealing with an
injury which, by definition, can occur in only one place; a decedent can only die in one
county. The court, thus, did not consider whether a different result would have been required
in a medical malpractice case had the baby survived.
Similarly, Tipton involved an injury that occurred in only one county. There, the
plaintiff suffered permanent brain damage and partial paralysis as a result of a stroke.
Tipton, 273 Ill. App. 3d at 228, 651 N.E.2d at 636. He alleged that the stroke had been
triggered by a medication that elevated his blood pressure. Tipton, 273 Ill. App. 3d at 228,
651 N.E.2d at 637. The medication had been prescribed and dispensed in Du Page County,
but the plaintiff ingested it and suffered the stroke in Cook County. Tipton, 273 Ill. App. 3d
at 227-28, 651 N.E.2d at 636. The court found that Cook County was "clearly a 'county in
which the transaction or some part thereof occurred out of which the cause of action arose.' "
Tipton, 273 Ill. App. 3d at 228, 651 N.E.2d at 637 (quoting 735 ILCS 5/2-101 (W est 1992)).
In reaching this conclusion, the court noted that the plaintiff did not have a cause of
action until he suffered the stroke. Tipton, 273 Ill. App. 3d at 228, 651 N.E.2d at 637. The
defendants here focus on this language in arguing that Tipton does not support the plaintiffs'
position. Here, they contend, the plaintiffs did have a cause of action before the plaintiff was
transferred to St. Clair County and treated there. Unlike the plaintiff in Tipton, they argue,
the plaintiffs here allege that she suffered an actionable injury prior to leaving Clinton
County. We find this argument unavailing. Although the plaintiffs here could state a cause
of action for medical malpractice based solely on the allegations of injury in Clinton County,
11
it is not the same cause of action they state for the cumulative injuries they allege the plaintiff
sustained in both counties. Where, as here, a plaintiff alleges that injuries have been incurred
in multiple counties, venue may be proper in any or all of them. See Peterson v. Monsanto
Co., 157 Ill. App. 3d 508, 513-14, 510 N.E.2d 458, 462 (1987).
In addition, we note that the Tipton court emphasized that transactional venue is meant
to be a broad, flexible doctrine. Tipton, 273 Ill. App. 3d at 228, 651 N.E.2d 637. The
defendants' unnecessarily narrow interpretation of both Tipton and Bradbury is at odds with
this principle.
A second important distinction between this case and Jackson is the fact that the
plaintiff here alleges that she received postoperative care in St. Clair County for the
hysterectomy performed by the defendant prior to being released from the hospital.
Although not precisely analogous, we find our previous holding in Wier v. Ketterer, 133 Ill.
App. 3d 751, 479 N.E.2d 416 (1985), instructive. There, the plaintiff traveled through St.
Clair County while being transported by ambulance from Clinton County to St. Louis,
Missouri. He alleged that he suffered hypoglycemia and hypoxia in part due to the failure
of the defendant doctor to provide adequate medical supervision to the ambulance
technicians as they transported the plaintiff through St. Clair County. Wier, 133 Ill. App. 3d
at 752, 479 N.E.2d at 416-17. We note that implicit in this brief recitation of facts is the fact
that the defendant doctor was not with the plaintiff in the ambulance as it traveled through
St. Clair County. We also note that it is not entirely clear from the opinion whether the
hypoglycemia and hypoxia began as the ambulance passed through St. Clair County or
continued throughout the course of the journey. This court found these allegations sufficient
to establish venue in St. Clair County. Wier, 133 Ill. App. 3d at 752, 479 N.E.2d at 417.
There, as here, the plaintiff did not allege that the defendant committed any negligent
acts or omissions while the defendant was in St. Clair County. Rather, as here, the plaintiff
12
alleged that he sustained an injury as a result of the defendant's negligence while the plaintiff
was in St. Clair County. In addition, although not discussed in the Wier decision, the
plaintiff there could not have a claim against the doctor unless the doctor had a duty to
provide medical supervision to the ambulance crew. Presumably, this duty arose either
because the plaintiff was being transferred from a Clinton County hospital to a different
hospital, much as the plaintiff was here, or because the defendant determined that his
admission to the St. Louis hospital was necessary. Here, the defendant had a duty to provide
appropriate postoperative care to the plaintiff until she was well enough to be released from
the hospital. Thus, her alleged failure to do so constituted ongoing negligence until the
plaintiff was ultimately released from the hospital. Thus, the postoperative care the plaintiff
received in St. Clair County simply cannot be considered anything other than an integral part
of the surgery the defendant performed in Clinton County.
As a third distinction between this case and Jackson, we note the policy considerations
that supported the Fourth District's decision there. The Jackson court explained that the
legislative intent behind our venue statute was to protect a defendant from having to defend
a lawsuit in a county with "little or no relation to the defendant or the transaction that is the
subject of the lawsuit." Jackson, 363 Ill. App. 3d at 278, 842 N.E.2d at 769. The court
expressed a concern that finding venue in McLean County on the facts before it could lead
to absurd results. The court explained as follows:
"For example, the legislature could not have intended for a urology surgeon to be sued
in a county when the surgeon's only connection to that county is that the patient was
referred to him by a urologist in that county. Nor could the legislature have intended
for a cancer specialist to be sued in a county when the specialist's only connection to
that county is that he reviewed a patient's records that were brought from there."
(Emphases in original.) Jackson, 363 Ill. App. 3d at 278, 842 N.E.2d at 769.
13
Here, the connection between the plaintiffs' case and St. Clair County is much stronger than
the connection that existed between the plaintiff's case in Jackson and M cLean County.
Thus, the policy concerns that informed the Jackson court's decision are not present here.
We conclude that venue is proper in St. Clair County.
Finally, the defendants argue that their right to proper venue should not be defeated
by the plaintiffs' attempt at forum-shopping. As long as venue is proper in more than one
county, a plaintiff is generally entitled to the forum of her choice. Hall v. Keating, 246 Ill.
App. 3d 538, 541, 616 N.E.2d 683, 685 (1993) (citing Gulf Oil Corp. v. Gilbert, 330 U.S.
501, 91 L. Ed. 1055, 67 S. Ct. 839 (1947)); see also Tipton, 273 Ill. App. 3d at 229, 651
N.E.2d at 637. We have already concluded that venue was proper in St. Clair County.
There are some exceptions to this principle. For example, venue cannot be based
upon the residence of a defendant who was joined in bad faith solely to establish venue. See
735 ILCS 5/2-101 (West 2006); see also Hall, 246 Ill. App. 3d at 540, 616 N.E.2d at 685.
Here, the residence prong of the venue statute is not at issue. The defendants do not attempt
to argue that the plaintiffs added a St. Clair County-based cause of action or defendant in bad
faith solely to establish venue there. Indeed, they acknowledge that the plaintiff received
postoperative care there, and they do not contest her allegation that she continued to
hemorrhage after leaving Clinton County. They argue instead that the events alleged to have
occurred in St. Clair County were so tangential to the cause of action that "brazen
forum[-]shopping" is the only possible motive for the "transparent" choice of forum.
However, we have already reached the opposite conclusion. The other exception to the rule
that a plaintiff is entitled to the venue of her choice as long as venue is proper is the doctrine
of forum non conveniens. Although raised at the trial court, that doctrine is not before us.
Moreover, we note that the facts of this case simply do not support the defendants'
forum-shopping argument. The plaintiff was transferred to St. Elizabeth's Hospital by an
14
attending cardiologist before the plaintiff was released from the hospital. She did not make
the decision, and she therefore did not–and could not–control the location of the
postoperative care she received. In other words, it was not even possible for her to choose
a physician in a county that might be a favorable forum for her malpractice action.
In addition, as previously discussed, this is not a case where St. Clair County bears no
substantial connection to the litigation. Much of the evidence regarding the cause and extent
of the plaintiff's injuries will come from St. Clair County because that is where she was
diagnosed and treated. Thus, we are not convinced that this case presents so blatant an
attempt at forum-shopping that we must depart from the rule that a plaintiff is entitled to
choose any forum where venue is proper. We conclude that the court properly denied the
motion to transfer.
For the reasons stated, we affirm the order of the trial court denying the defendants'
motion to transfer.
Affirmed.
WELCH and WEXSTTEN, JJ., concur.
15
NO. 5-08-0247
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
___________________________________________________________________________________
MARGIE KAISER and LAMAR KAISER, ) Appeal from the
) Circuit Court of
Plaintiffs-Appellees, ) St. Clair County.
)
v. ) No. 07-L-564
)
DR. A. DOLL-POLLARD and SOUTHERN )
OBSTETRICS AND GYNECOLOGICAL )
ASSOCIATES, S.C., ) Honorable
) Lloyd A. Cueto,
Defendants-Appellants. ) Judge, presiding.
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Opinion Filed: February 11, 2010
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Justices: Honorable Melissa A. Chapman, J.
Honorable Thomas M. Welch, J., and
Honorable James M. Wexstten, J.,
Concur
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Attorneys Dawn A. Sallerson, Nancy L. Cardinale, Timothy G. Shelton, Hinshaw & Culbertson,
for LLP, 222 N. LaSalle, Suite 300, Chicago, IL 60601
Appellants
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Attorney John Womick, Womick Law Firm, Chtd., 501 Rushing Drive, Herrin, IL 62949
for
Appellees
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