Illinois Supreme Court Ruled That Plaintiff in Medical Malpractice Case Can Refile Voluntarily Dismissed Lawsuit

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.

Relying on the Supreme Court Rule 273, the hospital argued there was a judgment on the merits in the first case and that res judicata barred the second lawsuit. With four exceptions, Rule 273 states that an involuntary dismissal “operates as an adjudication upon the merits” unless the order “otherwise specifies.”

Although the trial judge concluded res judicata barred the second suit, the Illinois Appellate Court reversed and the Supreme Court affirmed the Illinois Appellate Court, 4th District.

Justice Mary Jane Theis’s opinion explained that “a dismissal order is a final adjudication on the merits under Rule 273 when the order specifies that it is ‘with prejudice’ or when the trial court denies leave to file an amended complaint. None of the dismissal orders entered in this case was ‘with prejudice,’ and the trial court each time granted Ward leave to amend. Therefore, the orders did not constitute final adjudication on the merits.”

The court properly recognized that Ward’s decision to replead counts that had been previously dismissed “did not make the dismissal of those counts a final order for the purposes of res judicata.” The Supreme Court went on to conclude that “by granting the plaintiff permission to file an amended complaint, the trial court vacated the designation of ‘with prejudice’ in its dismissal of individual counts of the original complaint.

In sum, the Illinois Supreme Court held that none of the orders dismissing counts of the various complaints in the initial action were final. The lack of finality renders the doctrine of res judicata inapplicable.

Ward v. Decatur Memorial Hospital, 2019 IL 123937 (June 12, 2019).

Kreisman Law Offices has been handling medical malpractice lawsuits, physician negligence cases, hospital negligence lawsuits, birth injury lawsuits, cerebral palsy birth injury lawsuits and nursing home negligence lawsuits for individuals, families and loved ones who have been harmed, injured or died as a result of the carelessness or negligence of a medical provider for more than 40 years in and around Chicago, Cook County and its surrounding areas, including Westchester, Addison, Bensenville, Rosemont, Park Ridge, Mount Prospect, Wheeling, Deerfield, Highwood, Hawthorne Woods, Libertyville, Barrington Hills, Hoffman Estates, Bedford Park, Oak Lawn, Chicago (South Side, South Shore, Roseland, Logan Square, Ukrainian Village, Humboldt Park, Lower West Side, McKinley Park, Bridgeport, Fuller Park, Bronzeville, Hyde Park, South Loop, Armour Square, Archer Heights), Cicero, Bedford Park, Burbank, Evergreen Park and Hickory Hills, Ill.