The Illinois Supreme Court unanimously ruled res judicata did not bar Gerald Ward from refiling his voluntarily dismissed lawsuit against Decatur Memorial Hospital. Although the decision of the Supreme Court was unanimous, it was split on the rationale. Ward was refiling a medical-malpractice lawsuit against Decatur Memorial Hospital for negligence that allegedly killed his brother, Clarence Ward.
A Macon County judge granted the hospital’s motion to dismiss the first three versions of Ward’s complaint. All of the orders included permission to replead, and none of the dismissals were “with prejudice,” though some claims were dismissed “without prejudice,” while other counts were asked without being labeled as “with” or “without” prejudice. As Ward fine-tuned the complaint, he abandoned some of the claims.
Shortly before trial was scheduled to start, Ward voluntarily dismissed the lawsuit under Section 2-1009 of the Illinois Code of Civil Procedure and then refiled the case within a year based on code Section 13-217.