A decision by a McHenry County, Ill., trial court dismissing the medical malpractice lawsuit on the grounds of res judicata bar on claim-splitting has been reversed by the Illinois Appellate Court. In this medical negligence lawsuit, the trial judge erroneously determined that only an express agreement from defendants could satisfy the “agreement in effect” exception to claim-splitting. The defendants’ lawyers, just before the jury trial would have started, implied that they would not object to a refiling by plaintiff as defense counsel suggested in that refiling was a method to preserve the plaintiff’s lawsuit without associated costs.
In 2008, the plaintiff Robert Kantner filed a multi-count medical malpractice lawsuit against defendants Ladonna Jo Waugh, M.D., Mercy Health System Corp., Mercy Harvard Hospital Inc., Mercy Center for Metabolic and Bariatric Surgery and Mercy Alliance Inc. Kantner’s lawsuit was based on permanent injuries he alleged he suffered following bariatric surgery. His lawsuit in different counts alleged (1) informed consent and (2) negligence.
In 2009, the defendants moved to dismiss the informed-consent claim and the trial court granted that motion. Kantner and his lawyers proceeded to trial on the negligence claim. Thus, the plaintiff spit off one count of his complaint leaving the other count to proceed.
On Dec. 7, 2015, before the first day of trial, Kantner moved to continue the case. Two business days earlier, on Dec. 3, 2015, plaintiff’s counsel had been battered by her son, a military veteran who had returned from Afghanistan. In spite of an off-the- record discussion between the parties, the defendants’ counsel objected to the motion to continue: “We’re not unsympathetic, Judge. But we do object.” The defense counsel noted that plaintiff’s counsel had not given notice that she would ask for a continuance. The defense counsel was concerned that his experts would charge a cancellation fee.
The trial court “tipped its hand,” stating that it would grant the continuance, provided that plaintiff assumed the associated cancellation fees of the defendants’ experts. The court told plaintiff to choose the course of action: either continue the case and assume the cancellation fees or go to trial.
Plaintiff’s counsel stated: “I don’t know what to do. I mean, am I talking $10,000? Am I talking [$1,000]? What am I talking?” Plaintiff’s counsel complained that defense counsel sought “carte blanche” to collect an indeterminate fee amount. After a long discussion on the record with the attorneys, the court granted plaintiff’s motion to voluntarily dismiss his remaining negligence claim.
The order drafted by defendants stated, “On plaintiff’s oral motion and by agreement of the parties, the case is voluntarily dismissed pursuant to statute 735 ILCS 5/2-1009 [(West 2014)] with no costs assessed.” The order did not include the words “upon refiling.” Incidentally, the trial judge later determined that given the context of the preceding discussion with the parties, plaintiff’s request effectively included the words “now or upon refiling.”
On Feb. 11, 2016, Kantner refiled his negligence claim. On March 11, 2016, defendants moved to dismiss the refiled claim pursuant to the res judicata doctrine. They argued that the plaintiff had violated the doctrine’s rule against splitting-claims. Hudson v. City of Chicago, 228 Ill.2d 462, 467 (2008).
In line with the Hudson decision, the defendants argued that the court’s 2009 involuntarily dismissal of the informed-consent claim, followed by the 2015 voluntary dismissal of the negligence claim, barred a subsequent refiling of the negligence claim.
On June 14, 2016, the trial judge conducted a hearing on the defendants’ motion to dismiss. The plaintiff argued that although the claims were split, prohibited by the res judicata doctrine, Kantner’s lawyer argued that res judicata should not bar refiling where, in December 2015, defendants submitted “an unsolicited offer” to accept a voluntary dismissal and waived costs upon refiling.
In this pretrial discussion on the record, counsel for Kantner stated, “How would that be different [from a continuance?]” The court answered that it would be “cheaper” than a continuance, but that the trial could be conducted on approximately the same date, in late September 2016. Plaintiff’s counsel was given the opportunity to confer with plaintiff and, relying on everything defendants and the court had stated, counsel decided to voluntarily dismiss with the intention of refiling. “It [wa]s an offer by the defense. We accepted it.”
The defendants’ motion stated that the plaintiff did not lay out an exception to the res judicata bar against claim-splitting. “The exception only applies when there is an express reservation,” and “this exception about allowing a plaintiff to refile, it needs to be expressly reflected in the transcript or in the order.” (Emphasis added.)
The trial judge was not persuaded by Kantner’s lawyer’s arguments. “There was no explicit agreement or offer that [defendants] would waive anticipated future defenses,” and “[a]ll that [defendants did] is explicitly waiv[e] the right to reimbursement of costs on [re]filing, and I can’t expand beyond what is explicitly said in order to ultimately agree with plaintiff’s contention. So, I believe Matejczyk (Matejczyk v. City of Chicago, 397 Ill.App.3d 1 10-11 (2009)) gives me the guidelines here, and * * * I must dismiss this case with prejudice.” (Emphasis added.)
In analyzing the facts of this case and the decision of the trial judge, the Illinois Appellate Court stated that in 2009, the court involuntarily dismissed Kantner’s informed-consent claim wherein the plaintiff was required, absent an exception, to pursue a resolution of the negligence claim without the interruption of a second dismissal or subject itself to a res judicata defense.
Counsel for Kantner stated that there are three exceptions to a claim-splitting situation: (1) The parties have agreed in terms or in effect that plaintiff may split his claim or the defendant acquiesced therein; (2) The court in the first action expressly reserved the plaintiff’s right to maintain the second action, and (3) equitable estoppel. The Illinois Appellate Court found that the first exception applied and therefore did not address the plaintiff’s remaining arguments.
The doctrine of res judicata provides that a final judgment on the merits rendered by a court of competent jurisdiction bars any subsequent actions between the same parties or their privies on the same cause of action. See Hudson, 228 Ill.2d at 473.
The Illinois Supreme Court has adopted the exceptions of claim-splitting set forth in section 26(1) of the Restatement (Second) of Judgments.
The Illinois Appellate Court was concerned with just the first exception found in the Restatement (Second) of Judgments which is “(1) the parties have agreed in terms or in effect that plaintiff may split his claim or the defendant has acquiesced therein.”
In this case, the trial judge erroneously determined that only an express agreement from defendants could satisfy the first exception to claim-splitting. The court stated: “There was no explicit agreement or offer that [defendants] would waive anticipated future defenses,” and “[a]ll that [defendants did on Dec. 7, 2015,] is explicitly waive the right to reimbursement of costs on [re]filing and I can’t expand beyond what is explicitly said in order to ultimately agree with [plaintiff’s] contention.” (Emphasis added.)
In summary, the appeals panel stated it was not convinced by defendants’ brief on the issue of an agreement in effect. The appeals panel reversed the trial court’s dismissal based on res judicata, because the agreement-in-effect exception applied. The court reinstated the refiled negligence complaint and sent the case back for trial.
Kantner v. Waugh, 2017 IL App (2d) 160848 (June 12, 2017).
Kreisman Law Offices has been successfully handling medical malpractice lawsuits, wrongful death cases, misdiagnosis of cancer cases, birth injury lawsuits, traumatic brain injury cases and hospital negligence lawsuits for individuals, families and loved ones who have been injured, harmed or died as a result of the negligence of a medical provider for more than 40 years, in and around Chicago, Cook County and its surrounding areas, including Wilmette, Glenview, Northfield, River Forest, Bridgeview, Hickory Hills, Calumet Park, Alsip, Calumet City, Harvey, Oak Forest, Berwyn, Schaumburg, Skokie, Tinley Park, Melrose Park, LaGrange Park, Chicago (South Loop, Wrigleyville, Loyola Park, Lithuanian Plaza, Lincoln Square, Chinatown, Canaryville, Bridgeport, Avondale, Austin, Archer Heights, Hegewisch, Humboldt Park, Kenwood, Hyde Park, Irving Park), Morton Grove and Oak Park, Ill.
Related blog posts:
U.S. District Court Orders Disclosure by Plaintiffs’ Counsel of Pre-deposition Contacts
Illinois Appellate Court Determines that the Injured Plaintiff’s Treating Physician and Defense Lawyer May Have Ex Parte Communications
Appeals Court Reverses Trial Court Found to Have Abused Its Discretion in Excluding the Testimony of a Plaintiff’s Expert Witness