NOTICE 2016 IL App (5th) 150055 Decision filed 11/10/16. The text of this decision may be NO. 5-15-0055 changed or corrected prior to the filing of a Peti ion for Rehearing or the disposition of IN THE the same.
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT ________________________________________________________________________
DANNY FOSTER and KATHLEEN FOSTER, ) Appeal from the ) Circuit Court of Plaintiffs-Respondents, ) Madison County. ) v. ) No. 14-L-530 ) HILLSBORO AREA HOSPITAL, INC., LAUREL ) KIETZMAN, M.D., ARTHUR SIPPO, M.D., ) ARTHUR C. SIPPO, M.D., MPH, LLC, BRANDON ) WYNN, D.O., CLINICAL RADIOLOGISTS, S.C., ) BARBARA MULCH, M.D., SPRINGFIELD ) CLINIC, LLP, and ILLINOIS EMERGENCY ) PHYSICIANS, LLP, ) Honorable ) William A. Mudge, Defendants-Petitioners. ) Judge, presiding. ________________________________________________________________________
JUSTICE CATES delivered the judgment of the court, with opinion. Presiding Justice Schwarm and Justice Goldenhersh concurred in the judgment and opinion.
OPINION
¶1 The plaintiffs, Danny Foster and Kathleen Foster, brought a multi-count, medical
negligence complaint in the circuit court of Madison County, against the defendants,
Hillsboro Area Hospital, Inc., Laurel Kietzman, M.D., Arthur Sippo, M.D., MPH, LLC,
Brandon Wynn, D.O., Clinical Radiologists, S.C., Barbara Mulch, M.D., Springfield
Clinic, LLP, and Illinois Emergency Physicians, LLP. All defendants, except Dr. Wynn 1 and Clinical Radiologists, S.C., moved to transfer the action to Montgomery County
under the doctrine of intrastate forum non conveniens. Following a hearing, the circuit
court denied the motions to transfer.
¶2 The defendants filed a petition for leave to appeal pursuant to Illinois Supreme
Court Rule 306(a)(2) (eff. July 1, 2014). Initially, this court denied the petition.
Thereafter, the Illinois Supreme Court issued a supervisory order directing this court to
vacate its order and to consider the matter on the merits. Pursuant to the supervisory
order, we vacated our previous order and allowed the defendants' petition. For reasons
that follow, we affirm.
¶3 BACKGROUND AND PROCEDURAL HISTORY
¶4 The Plaintiffs' Complaint
¶5 On April 4, 2014, the plaintiffs, Danny Foster and Kathleen Foster, filed a medical
negligence complaint in the circuit court of Madison County. The following factual
allegations are set forth in the complaint.
¶6 On June 22, 2012, Danny went to see his primary care physician, Dr. Barbara
Mulch, at the Springfield Clinic in Hillsboro, Illinois. Danny presented with complaints
of abdominal pain and cramping. Dr. Mulch conducted an evaluation, and ordered an
abdominal computerized tomography (CT) scan. The CT scan was performed on June
27, 2012, at the Hillsboro Area Hospital. Dr. Brandon Wynn, a radiologist employed by
Clinical Radiologists, S.C., interpreted the scan and prepared a report of his findings. In
his report, he did not mention whether a gastric ulcer was evident on the CT scan.
2 ¶7 Danny continued to have abdominal symptoms, so he returned to Hillsboro Area
Hospital on June 28, 2012. Danny was seen by Dr. Laurel Kietzman, the attending
physician in the emergency department. Dr. Kietzman evaluated Danny, but she did not
review his CT scan or order any other diagnostic tests. After conferring with Dr. Mulch,
Dr. Kietzman discharged Danny. The next day, Danny saw Dr. Mulch at her office in
Hillsboro. Dr. Mulch did not order any additional tests, and did not diagnose Danny's
gastric ulcer during that visit. Throughout the next two weeks, Danny's abdominal pain
"continued and intensified." On July 9, 2012, Danny returned to the emergency
department at Hillsboro Area Hospital. Danny was evaluated by Dr. Arthur Sippo. Dr.
Sippo discharged Danny without conferring with Dr. Mulch, without reviewing the CT
scan, and without ordering additional diagnostic testing.
¶8 On July 10, 2012, Danny presented to the emergency department at St. Francis
Hospital in Litchfield, Illinois, with continuing complaints of abdominal pain. A CT scan
of Danny's abdomen revealed a large, perforated gastric ulcer. Danny was immediately
transferred by helicopter to St. John's Hospital in Springfield, Illinois. Danny underwent
surgery, and he remained hospitalized at St. John's Hospital for an extended period of
time.
¶9 The complaint alleges that the defendants failed to diagnose and properly treat
Danny's gastric ulcer, and that Danny suffered permanent injuries and damages as a direct
and proximate result of the various negligent acts or omissions of the defendants. The
complaint also includes a claim on behalf of Danny's wife, Kathleen, for loss of
consortium. 3 ¶ 10 Forum Non Conveniens Motions
¶ 11 On May 12, 2012, Dr. Mulch and Springfield Clinic filed a motion, with
attachments, to transfer the case from Madison County to Montgomery County based on
the doctrine of forum non conveniens. Ultimately, each of the defendants, except Dr.
Wynn and Clinical Radiologists, S.C., either filed a motion to transfer, or joined in the
motion filed by Dr. Mulch and Springfield Clinic. The moving defendants argued that
Montgomery County was a more convenient forum for the litigation because the events
giving rise to the action occurred in Montgomery County, and because most of the
defendants and witnesses resided in or near Montgomery County. They also argued that
the plaintiffs' choice of forum was entitled to little or no deference because it was neither
the plaintiffs' home forum, nor the forum where the cause of action arose. Some of the
defendants filed affidavits in support of their respective motions to transfer. In addition,
several defendants filed answers to forum interrogatories propounded by the plaintiffs.
¶ 12 The plaintiff filed responses in opposition to the motions to transfer, and attached
supporting documents, including discovery responses from the defendants. The plaintiffs
argued that the moving defendants failed to meet their respective burdens to show that the
plaintiffs' chosen forum was inconvenient for that defendant, and that another forum
would be more convenient for all parties. The plaintiffs further argued that the
defendants failed to show that the relevant public- and private-interest factors strongly
favored transfer of the case from Madison County to Montgomery County.
4 ¶ 13 Supporting Affidavits and Discovery Requests
¶ 14 As noted above, the parties attached affidavits, discovery responses, and other
documents in support of their respective submissions. In response to the plaintiffs'
interrogatories, Dr. Mulch stated that she resides and practices medicine in Montgomery
County, and that she is a partner in Springfield Clinic, LLP. She noted that Springfield
Clinic has offices in Montgomery County and Sangamon County. As a partner, Dr.
Mulch attends bimonthly business meetings at Springfield Clinic's offices in Sangamon
County. Dr. Mulch further stated that she only sees patients in Montgomery County. Dr.
Mulch provided her patient hours. Her office is open from 7 a.m. to 5 p.m. on Monday
and Friday, from 8 a.m. to 5 p.m. on Tuesday and Wednesday, and from 8 a.m. to 6 p.m.
on Thursday, with additional hours on Saturday.
¶ 15 Dr. Mulch filed an affidavit stating that it is more convenient for her to testify or
appear in Montgomery County than Madison County, that she resides and works as a
treating physician in Montgomery County, and that if she were compelled to testify in
Madison County, rather than Montgomery County, she would be "forced to take more
time off work and see less patients." Dr. Mulch further stated that she treated Danny
Foster in Montgomery County, that any evidence located at Springfield Clinic is more
easily accessed from Montgomery County than Madison County, and that her "job
functions as a partner in Springfield Clinic would be interrupted" if she were forced to
testify or appear in Madison County.
¶ 16 Springfield Clinic, LLP, is an Illinois LLP that operates a multi-specialty clinic in
order to serve the health care needs of patients throughout central Illinois by providing a 5 comprehensive network of medical offices throughout the central Illinois region. The
main office is located in Springfield, Illinois, in Sangamon County. As a part of its very
limited responses to discovery requests from the plaintiffs, the Springfield Clinic
produced information from its web site, which revealed that the Springfield Clinic
medical specialists travel to more than 40 remote central Illinois locations as part of an
outreach program. The web site further indicates that the goal of the Springfield Clinic is
to deliver the same high quality care found in Springfield to patients closer to their
homes. While Springfield, Illinois, serves as the hub for its operations, the Springfield
Clinic also offers medical care at 11 different satellite offices in several surrounding
communities, including the office in Hillsboro, Illinois. Springfield Clinic is affiliated
with hundreds of clinicians, most of whom had no involvement with Danny Foster's care
and treatment. Springfield Clinic indicated that many of its physicians and clinicians are
board certified, and many of its services are nationally accredited. Although the
Springfield Clinic objected to almost every interrogatory posed by the plaintiffs, the
discovery did indicate that the Springfield Clinic does not provide services in Madison
County, and has no affiliations with healthcare services in Madison County. Notably, the
Springfield Clinic stated that it operates an electronic medical record system, and that all
of Danny Foster's records are maintained in its system in Montgomery County and/or
Sangamon County.
¶ 17 Clinical Radiologists, S.C., is an Illinois corporation with offices in Springfield
and Quincy. According to its discovery responses, Clinical Radiologists had a contract
with Hillsboro Area Hospital in June 2012. Under the terms of the contract, Clinical 6 Radiologists provided "on-site" radiologists and teleradiology services. Teleradiology
services allow radiologists to interpret radiological scans from remote locations. At the
time of these events, Clinical Radiologists had more than 73 board certified physicians
under contract. It provided radiologists to staff several health care facilities, including St.
Anthony's Health Center and Imaging Center. St. Anthony's and the Imaging Center are
located in Madison County, Illinois. At least two physicians employed by Clinical
Radiologists reside in Madison County. None of the radiologists in Madison County
provided any medical care or treatment to Danny Foster.
¶ 18 Dr. Wynn resides in Chatham, Sangamon County, Illinois. According to
discovery responses, Dr. Wynn was an employee of Clinical Radiologists at the time he
reviewed and interpreted Danny Foster's CT scan. Dr. Wynn is currently an employee
and a shareholder of Clinical Radiologists. Dr. Wynn works out of a number of medical
centers, including Hillsboro Area Hospital. He has, on rare occasion, provided
radiological services out of facilities at St. Anthony's Health Center and the Imaging
Center in Madison County. Dr. Wynn interprets radiology images both on site and from
remote locations.
¶ 19 Illinois Emergency Physicians (IEP) is a limited liability partnership with its
primary office located in Traverse City, Michigan. IEP provides physicians to staff
hospital emergency departments, and urgent care centers on a contract basis. It also
provides hospitalists on a contract basis. At the time of these events, IEP had a contract
with Hillsboro Area Hospital. According to the terms of the contract, IEP agreed to staff
Hillsboro Area Hospital's emergency department with qualified physicians 24 hours a 7 day, 7 days a week. The contract also required IEP to provide the Hospital with the
hardware and software necessary to operate the emergency department's charting system,
known as the "QualChart System." IEP was required to provide computers, printers,
modems, and other equipment as necessary to operate the medical record charting
system. Any equipment placed by IEP remained the property of IEP. According to
documents provided by the plaintiffs, IEP was not a stranger to the Madison County
courthouse, as it regularly filed lawsuits in the circuit court of Madison County against
Madison County residents.
¶ 20 Dr. Sippo is a resident of Madison County. According to discovery responses, Dr.
Sippo was an independent contractor and physician partner with IEP when he evaluated
Danny Foster at Hillsboro Area Hospital. Dr. Sippo had been assigned by IEP to staff the
Hillsboro Area Hospital's emergency department under the contract between IEP and
Hillsboro Area Hospital. Dr. Sippo is no longer affiliated with IEP. He has medical
practices in Shelby County and St. Clair County. Dr. Sippo also has a consulting
business, Arthur Sippo, M.D., MPH, LLC, through which he provides expert testimony
on life expectancy, typically in asbestos cases, pending in Madison County. The
registered agent for the LLC is in Madison County.
¶ 21 Dr. Kietzman is a resident of Wheaton, Du Page County, Illinois. At the time Dr.
Kietzman evaluated Danny Foster, she was a physician partner with IEP. In discovery
responses, Dr. Kietzman indicated that from May 31, 2012, through July 28, 2012, she
worked a total of seven shifts in the emergency department at Hillsboro Area Hospital.
After July 29, 2012, she stopped working at that hospital. Dr. Kietzman no longer has a 8 relationship with Illinois Emergency Physicians, LLP. She currently practices medicine
in Aurora, Illinois. Dr. Kietzman indicated that if she was involved in a trial in Madison
County, she would not be able to work any shifts for her full time job in Aurora, Illinois,
and that this would significantly impact her practice. Dr. Kietzman also provided an
affidavit stating that travel to Madison County would cause a greater hardship than travel
to Montgomery County, as her only viable travel option to either county is by car, and
that the longer commute to Madison County would "impede" her ability to "fulfill
professional obligations to her patients and employer."
¶ 22 Hillsboro Area Hospital is located in Montgomery County. In its answers to
interrogatories, Hillsboro Area Hospital stated that it has contracts with third parties who
arrange for physicians, nurses, and other medical personnel to provide care and treatment
for persons seen or admitted at the Hospital. At the time of these events, Hillsboro Area
Hospital had contracts with Illinois Emergency Physicians, LLP, Clinical Radiologists,
and Empire Medical Staffing, LLC. Hillsboro Area Hospital also filed the affidavit of
Angela Dugan, director of case management for Hillsboro Area Hospital. In the
affidavit, Ms. Dugan identified six potential employees who might be called as witnesses
in the case. Of these potential witnesses, one resides in Bond County, one resides in
Sangamon County, and four reside in Montgomery County. Ms. Dugan also stated that
for those employees of Hillsboro Hospital "who may or will be called as a witness in this
matter, it will be easier for them to appear at a deposition or trial in Hillsboro,
Montgomery County, Illinois so as to lessen the disruption of their work schedule and
9 any personal commitments and to lessen the staffing demands on Hillsboro Area
Hospital."
¶ 23 A hearing was held on September 30, 2014. Following the arguments of counsel,
the trial court granted the parties time to supplement their pleadings and took the matter
under submission. On January 8, 2015, the trial court issued a written order, denying the
defendants' motions to transfer based on forum non conveniens. This appeal followed.
¶ 24 ANALYSIS
¶ 25 Forum non conveniens is an equitable doctrine founded in considerations of
fundamental fairness and sensible and effective judicial administration. Langenhorst v.
Norfolk Southern Ry. Co., 219 Ill. 2d 430, 441, 848 N.E.2d 927, 934 (2006). The
doctrine allows a circuit court to decline jurisdiction and transfer an action when it
appears that another forum can better serve the convenience of the parties and the ends of
justice. First America Bank v. Guerine, 198 Ill. 2d 511, 515, 764 N.E.2d 54, 57 (2002).
A trial court is vested with considerable discretion in determining whether to grant or
deny a forum non conveniens motion, and its ruling will not be reversed unless it can be
shown that the court abused its discretion in balancing the relevant public- and
private-interest factors. Langenhorst, 219 Ill. 2d at 442, 848 N.E.2d at 934. A court
abuses its discretion when no reasonable person would take the view adopted by the trial
court. Langenhorst, 219 Ill. 2d at 442, 848 N.E.2d at 934. That said, our supreme court
has repeatedly reminded us that a trial court's discretionary power under the forum non
conveniens doctrine should be exercised only in exceptional circumstances when the
interests of justice require a trial in a more convenient forum. See Langenhorst, 219 Ill. 10 2d at 442, 848 N.E.2d at 934; Guerine, 198 Ill. 2d at 515, 764 N.E.2d at 57; Torres v.
Walsh, 98 Ill. 2d 338, 346, 456 N.E.2d 601, 605 (1983).
¶ 26 In considering a forum non conveniens issue, the trial court must evaluate the total
circumstances of the case and consider all relevant private- and public-interest factors,
without emphasizing any single factor. Langenhorst, 219 Ill. 2d at 443, 848 N.E.2d at
935. The private-interest factors are not weighed against the public-interest factors, and
each case must be considered on its own unique facts. Langenhorst, 219 Ill. 2d at 444,
848 N.E.2d at 935.
¶ 27 Factors of private interest include: (1) the convenience of the parties, (2) the
relative ease of access to sources of testimonial, documentary, and real evidence, and (3)
all other practical considerations that make the trial of a case easy, expeditious, and
inexpensive. Langenhorst, 219 Ill. 2d at 443, 848 N.E.2d at 935; Guerine, 198 Ill. 2d at
516, 764 N.E.2d at 58. Factors of public interest include: (1) the interest in deciding
controversies locally, (2) the unfairness of imposing the expense of a trial and the burden
of jury duty on residents of a forum with little connection to the litigation, and (3) the
administrative difficulties presented by adding litigation to already congested court
dockets. Langenhorst, 219 Ill. 2d at 443-44, 848 N.E.2d at 935; Guerine, 198 Ill. 2d at
517, 764 N.E.2d at 58. The defendant has the burden to show that the balance of relevant
private- and public-interest factors strongly favors transfer to another forum.
Langenhorst, 219 Ill. 2d at 444, 848 N.E.2d at 935. The defendant must show that the
plaintiff's chosen forum is inconvenient to the defendant, and that another forum is more
11 convenient to all parties. Langenhorst, 219 Ill. 2d at 444, 848 N.E.2d at 935; Guerine,
198 Ill. 2d at 518, 764 N.E.2d at 59.
¶ 28 A further consideration in the forum analysis is the deference owed to a plaintiff's
choice of forum. Guerine, 198 Ill. 2d at 517, 764 N.E.2d at 58. The plaintiff has a
substantial interest in selecting the forum where his rights will be vindicated, and the
plaintiff's choice of forum should rarely be disturbed unless other factors strongly favor
transfer. Guerine, 198 Ill. 2d at 517, 764 N.E.2d at 58. A plaintiff's choice of forum is
given somewhat less deference when the plaintiff chooses a forum other than his home
forum or the location where some part of the action arose. Langenhorst, 219 Ill. 2d at
448, 848 N.E.2d at 938; Guerine, 198 Ill. 2d at 517, 764 N.E.2d at 59. But less deference
does not mean no deference. Langenhorst, 219 Ill. 2d at 448, 848 N.E.2d at 938. As
previously noted, the defendant bears the burden to show that the plaintiff's chosen forum
is inconvenient to the defendant and that another forum is more convenient to all parties.
Langenhorst, 219 Ill. 2d at 444, 848 N.E.2d at 935; Guerine, 198 Ill. 2d at 518, 764
N.E.2d at 59. In doing so, the defendant may not argue that the plaintiff's chosen forum
is inconvenient to the plaintiff. Langenhorst, 219 Ill. 2d at 444, 848 N.E.2d at 935;
Guerine, 198 Ill. 2d at 518, 764 N.E.2d at 59.
¶ 29 Plaintiffs' Choice of Forum
¶ 30 With these principles in mind, we consider the trial court's order denying the
defendants' motions to transfer. In this case, the trial court prepared a detailed order,
evaluating the circumstances of the case and considering the relevant factors in its forum
12 analysis. As a result, this is a case where we have a record of the trial court's findings
and analysis, and a base from which to review its decision.
¶ 31 In the order, the trial court initially considered what level of deference was due the
plaintiffs' choice of forum. The court found that the plaintiffs' choice of forum was
entitled to "somewhat less deference" because the plaintiffs did not reside in Madison
County. While plaintiffs have a substantial interest in choosing the forum where their
rights will be determined, this interest is accorded less deference where the chosen forum
is neither the plaintiffs' place of residence nor the site of the injury. Guerine, 198 Ill. 2d
at 517-18, 764 N.E.2d at 59. In this case, the trial court correctly determined that the
plaintiffs' choice of forum was due somewhat less deference, as opposed to no deference.
Accordingly, under the unequal balancing test, the battle over forum starts with the
plaintiffs' choice of forum in the lead. Guerine, 198 Ill. 2d at 521, 764 N.E.2d at 61.
¶ 32 Private-Interest Factors
¶ 33 Next, we consider the private-interest factors, the first of which is the convenience
of the parties. According to the record, the plaintiffs were residents of Montgomery
County when this cause of action arose, and when they filed this lawsuit. The plaintiffs
now live in Arizona. Although the plaintiffs reside outside of their chosen forum, it is
presumed that the chosen forum is convenient for them. The defendants may not prevail
on a forum motion by asserting that a trial in the plaintiffs' chosen forum is inconvenient
for the plaintiffs. Langenhorst, 219 Ill. 2d at 444, 848 N.E.2d at 935.
¶ 34 According to the record, Dr. Mulch and Hillsboro Area Hospital are residents of
Montgomery County. Springfield Clinic's primary office is in Sangamon County, but it 13 has one of its satellite offices in Montgomery County. Dr. Wynn and Clinical
Radiologists are residents of Sangamon County. Dr. Kietzman is a resident of Du Page
County. Illinois Emergency Physicians is located in Michigan, but has a registered agent
in Cook County, Illinois. Dr. Sippo and Arthur Sippo, M.D., MPH, LLC, are residents of
Madison County. Thus, the residences of the individual defendants and defendant
entities are spread among several counties.
¶ 35 Dr. Sippo and Arthur Sippo, M.D., MPH, LLC, were among the defendants who
moved to transfer this case from Madison County to Montgomery County based on forum
non conveniens. The record, however, shows that Dr. Sippo and his LLC are residents of
Madison County, and that Dr. Sippo often testifies as a consultant in Madison County.
Their arguments suggesting that their home county is inconvenient are not well taken.
See Kwasniewski v. Schaid, 153 Ill. 2d 550, 555, 607 N.E.2d 214, 217 (1992) ("It is all
but incongruous for defendants to argue that their own home county is inconvenient.").
¶ 36 We take judicial notice that Madison County and Montgomery County are
contiguous, and that the distance between the Madison County courthouse in
Edwardsville and the Montgomery County courthouse in Hillsboro is approximately 42
miles. Thus, for all moving defendants, except Dr. Kietzman and IEP, the relatively short
distance between the chosen forum and the alternate forum substantially reduces the
burden of travel and makes it unlikely that a trial in Madison County would be more
costly or inconvenient. Langenhorst, 219 Ill. 2d at 450, 848 N.E.2d at 939; Griffith v.
Mitsubishi Aircraft International, Inc., 136 Ill. 2d 101, 113, 554 N.E.2d 209, 214 (1990).
14 ¶ 37 Some defendants have filed affidavits stating that a trial in Madison County would
be inconvenient, and that a trial in Montgomery County would be more convenient. Dr.
Mulch filed an affidavit stating that it would be inconvenient for her to appear in
Madison County because she would see fewer patients, but she provided no specific facts
in support of this averment. In answers to interrogatories, Dr. Mulch noted that her office
is generally open from 7 or 8 a.m. to 5 or 6 p.m. during the week. Thus, it would be
difficult to see patients during the days that the trial is in session, regardless of whether
the trial is held in Madison County or Montgomery County.
¶ 38 Hillsboro Area Hospital filed an affidavit from its director of case management,
Angela Dugan. Ms. Dugan identified six potential employees who might be called as
witnesses in the case. One of the employee-witnesses resides in Bond County, another
resides in Sangamon County, and the remaining four reside in Montgomery County. In
the affidavit, Ms. Dugan states that, for all employee-witnesses who will or may be called
to testify, "it will be easier for them to appear at a deposition or trial in Hillsboro,
Montgomery County, Illinois so as to lessen the disruption of their work schedule and
any personal commitments and to lessen the staffing demands on Hillsboro Area
Hospital." Notably, none of the employee-witnesses submitted an affidavit regarding the
issue of inconvenience, and Ms. Dugan's affidavit provides no specific information
regarding staffing demands and disruptions in employees' work schedules. Further, it
would be necessary for the Hospital to adjust staff schedules whether the trial occurs in
Madison County or Montgomery County.
15 ¶ 39 Dr. Kietzman resides furthest from Madison County. She, too, filed an affidavit,
stating that it would cause greater hardship for her to travel to Madison County than to
travel to Montgomery County and that the longer commute to Madison County would
impede her ability to "fulfill professional obligations to her patients and her employer."
Dr. Kietzman resides in Wheaton, Illinois. The distance from Wheaton to Montgomery
County on Interstate 55 is approximately 240 miles, while the distance from Wheaton to
Madison County on Interstate 55 is approximately 265 miles. This is a difference of 25
miles. Dr. Kietzman faces a lengthy commute whether this case is tried in Madison
County or Montgomery County, and Dr. Kietzman's claim that an additional 25 miles of
travel to Madison County would impose a significantly greater hardship is disingenuous.
¶ 40 The conclusory statements made in the affidavits described herein concerning
inconvenience do not provide any specific information showing how a trial in Madison
County would be inconvenient to each of the respective affiants and/or pose undue
hardship. Furthermore, these affidavits fail to demonstrate how a trial in Montgomery
County would be more convenient to all parties. Additionally, upon reviewing some of
the statements in the defendants' affidavits in conjunction with their interrogatory
responses, we notice ambiguities relative to the claims of inconvenience. Essentially,
these affidavits establish that it is not the place of trial, but the fact of trial that is
inconvenient. Any trial poses some inconvenience to the parties. But the burden under
the doctrine of forum non conveniens is for the defendants to show that the plaintiffs'
chosen forum is inconvenient to the defendant, and another forum is more convenient to
16 all parties. We do not believe the defendants have met this burden, and find that the
affidavits are not dispositive of this issue.
¶ 41 Dr. Wynn and Clinical Radiologists did not file a motion to transfer, and they did
not join in other written motions to transfer. In fact, the docket entry in the record
indicates they filed an answer to the plaintiffs' complaint. According to the transcript of
proceedings at the hearing held on September 30, 2014, Dr. Wynn and Clinical
Radiologists appeared, but did not seek to join the motions for transfer that had been filed
by the other defendants. In a brief argument to the court, their attorney did state that
Montgomery County was a more convenient forum. Based on responses to discovery in
the record, Clinical Radiologists has contracts with two medical centers in Madison
County to provide radiology services for Madison County residents, and they have two
employees on site at one of those locations. Dr. Wynn is employed by Clinical
Radiologists and interprets radiology scans and films out of several medical centers and
from remote locations. He has also, on rare occasion, worked in Madison County, filling
in for another radiologist. Based on the record, Dr. Wynn and Clinical Radiologists did
not establish that Madison County would be an inconvenient forum for trial.
¶ 42 In this appeal, the moving defendants contend that the trial court placed undue
emphasis on the fact that Dr. Wynn and Clinical Radiologists did not file a motion for
transfer, or otherwise take a position on the inconvenience factor. In its order, the trial
court correctly noted that Dr. Wynn and Clinical Radiologists did not join in the motions
to transfer. The court further stated that it could not presume that the chosen forum was
inconvenient to those defendants where they have not made that claim. After reviewing 17 the order, we find no indication that the court placed undue weight on the fact that Dr.
Wynn and Clinical Radiologists had not joined in the motions to transfer. The court
correctly noted that the moving defendants had a high burden. The court then found that
the defendants had failed to meet their burden to show that Madison County was an
inconvenient forum, and that Montgomery County was more convenient for all parties.
¶ 43 Our analysis of the factor involving the convenience to the parties, as well as our
consideration of certain other factors, such as the relative ease of access to sources of
testimonial, documentary, and real evidence, and even some of the public-interest factors,
affords us a glimpse into the modern-day practice of medicine and the delivery of health
care in our society today. In 2002, in Guerine, our supreme court evaluated whether the
equitable doctrine of intrastate forum non conveniens remained a viable tool to prevent
the "perceived abuses in its invocation or time consumed in its resolution." (Internal
quotation marks omitted.) Guerine, 198 Ill. 2d at 520, 764 N.E.2d at 60. Although the
court decided that this equitable doctrine was still workable, the court acknowledged
even then that because of changes in our society, the doctrine of forum non conveniens
may have to be viewed from a slightly different lens. More specifically, the court
explained, "we are connected by interstate highways, bustling airways,
telecommunications, and the world wide web. Today, convenience—the touchstone of
the forum non conveniens doctrine—has a different meaning. [Citation.] That is, the
convenience of the parties depends in large measure upon the context in which we
evaluate their convenience." Guerine, 198 Ill. 2d at 525-26, 764 N.E.2d at 63.
18 ¶ 44 In our view, since 2002, technological advances in the practice of medicine and
innovations in the delivery of health care have escalated exponentially. These advances
include the mode of ownership, operation, and management of medical practices and
services. This case exemplifies the various forms of modernization as we learn about
physician-owned multi-specialty groups like the Springfield Clinic. By affiliating with
hundreds of physicians, the Springfield Clinic can deliver nationally accredited health
care services throughout southern Illinois. We are also offered insight into what is now
the norm, that radiologists are no longer required in a hospital every hour of the day, as
the radiological scans can be read remotely, from any part of the globe. Clinical
Radiologists and Springfield Clinic employ or contract with predominantly board
certified physicians.
¶ 45 The Hillsboro Area Hospital need not have physicians on staff to take care of
patients in their emergency room, as emergency room doctors, like radiologists, are
available for hire through the operation and management of a corporate practice in
Michigan. Dr. Sippo and Dr. Kietzman, both Illinois physicians, contracted employment
with IEP, a Michigan corporation. At the request of IEP, Dr. Sippo and Dr. Kietzman
staffed emergency rooms in hospitals throughout Illinois. Even the technology required
to keep patient health care records was provided by a third party entity, like the
Springfield Clinic or IEP. The issue of convenience, in a world where everything is
available instantaneously and remotely, now blurs even further the lines of convenience.
In our view, the technological advances in the practice of medicine render many of the
usual convenience-of-the-parties arguments antiquated and implausible. This is 19 particularly true in this case, where the record clearly demonstrates that more than one
forum has a significant relationship to the issues raised herein, the chosen forum is
contiguous to Montgomery County, and the two courthouses are less than 50 miles apart.
¶ 46 Nevertheless, the individual physicians have stated that their ability to care for
their patients would be interrupted if the trial is held in Madison County. The reality is
that their schedules for delivering patient care will be interrupted whether the case is tried
in Madison County or Montgomery County. In medical negligence cases, the defendant
medical providers are generally in attendance each day, all day, every day, and the days
are long. The court invariably faces interruptions and delays during a longer trial, often
requiring witnesses to idle in the hallways. In this case, the defendants have established
that the fact of trial, rather than the place of trial, is inconvenient for them. But the fact
of trial is not a factor in the forum non conveniens analysis. Based on the record, this
factor, convenience of the parties, does not strongly favor transfer to Montgomery
County.
¶ 47 We next consider the relative ease of access to sources of testimonial,
documentary, and real evidence. In this case, the medical records and radiological scans
can be easily copied and scanned for dissemination among counsel for all parties, and
these records can be produced for trial in either forum. There is no reason to believe that
the transportation of any original records or documents to the chosen forum would pose a
significant burden on the defendants in this case. This factor does not strongly favor
transfer to Montgomery County.
20 ¶ 48 Another private-interest factor is the possibility of viewing the premises. This
factor is not concerned with the necessity of viewing the premises, but rather the
possibility of viewing the premises, if appropriate. Langenhorst, 219 Ill. 2d at 448-49,
848 N.E.2d at 938. In its order, the trial court acknowledged that the possibility of
viewing the premises weighed in favor of Montgomery County, but went on to state that
it could not see how a jury view would be necessary in this case. According to the
transcript of proceedings, the moving defendants wavered in their arguments regarding
the significance of a view of the various medical facilities. This case involves the alleged
failure to diagnose a gastric ulcer. While a jury view of the medical facilities could be
more easily accomplished in Montgomery County, there is nothing to suggest that a view
of the facilities would be necessary or helpful. See Hackl v. Advocate Health &
Hospitals Corp., 382 Ill. App. 3d 442, 452, 887 N.E.2d 726, 734 (2008) (viewing the site
is rarely called for in a medical negligence case). Under the circumstances of this case,
this factor tips in favor of Montgomery County, but is accorded little weight. As such,
this factor does not strongly favor transfer.
¶ 49 Finally, we consider the remaining private-interest factors regarding the
availability of compulsory service to secure the attendance of unwilling witnesses, the
costs to secure the attendance of willing witnesses, and all other practical considerations
that make the trial of a case easy, expeditious, and inexpensive. In this case, compulsory
process is available in Madison County and Montgomery County. All in-state witnesses
that have been identified by the parties are subject to subpoena in either county. The
defendants and their officers, directors and employees may be compelled to appear 21 through a notice under Illinois Supreme Court Rule 237(b) (eff. July 1, 2005). The
defendants may also be compelled to produce the originals of medical records, and other
documents or tangible things under Rule 237(b). At present, no party has identified any
out-of-state, nonparty witnesses, and trial experts have not yet been disclosed. Finally,
the record shows that the parties' attorneys have their offices in Madison County, St.
Clair County, and St. Louis City. Although this factor does not carry great weight, it
remains a factor that falls within the other practical considerations that make a trial easy,
expeditious, and inexpensive. Thus, the remaining private-interest factors do not strongly
favor transfer.
¶ 50 Public-Interest Factors
¶ 51 We next consider the public-interest factors, the first of which is the interest in
deciding localized controversies locally. The defendants argue this is a localized
controversy because all of the alleged negligent acts occurred in Montgomery County.
They urge us to find that medical decisions made within a county, affecting residents of
that county, should be evaluated and judged locally. In support of their argument, the
defendants invoke the "similar locality rule."
¶ 52 The "similar locality" rule is an evidentiary rule that involves the standard of care
by which a physician's professional conduct must be judged. Purtill v. Hess, 111 Ill. 2d
229, 489 N.E.2d 867 (1986). Under the "similar locality" rule, a physician's conduct is
judged by the standard of care of a reasonably well-qualified physician practicing in the
same or a similar community. Purtill, 111 Ill. 2d at 243, 489 N.E.2d at 872-73. In
Purtill, the Illinois Supreme Court recognized that because there are relatively uniform 22 standards for the education and licensing of physicians, there is no reason why physicians
who practice in rural areas should not possess a degree of competency similar to that
possessed by physicians who practice in urban areas. Purtill, 111 Ill. 2d at 246, 489
N.E.2d at 874. Our supreme court also recognized that the availability of medical
facilities and the presence or absence of specialists in a locality may dictate the method in
which a physician's education and skills are applied. Purtill, 111 Ill. 2d at 246, 489
N.E.2d at 874. If there are certain uniform standards that would be applicable to a given
situation, regardless of the locality, then the lack of familiarity with the practice in a
particular locality will not disqualify the expert. Purtill, 111 Ill. 2d at 247, 489 N.E.2d at
874-75. If, however, the availability of facilities or other conditions in a locality are
relevant, then an expert must be acquainted with accepted standards of care under similar
circumstances before he or she can express an opinion regarding whether the defendant
doctor deviated from the standard of care. Purtill, 111 Ill. 2d at 247, 489 N.E.2d at 875.
¶ 53 According to the information provided in response to the plaintiffs' forum
discovery requests and interrogatories, some of the individual defendants are board
certified, and two of the entities indicated that they affiliate with board certified
physicians, and provide nationally accredited services. In addition, the record shows that
Hillsboro Area Hospital contracted with three separate entities to provide physicians and
other medical services for its patients. Under the terms of these contracts, Hillsboro Area
Hospital did not select the physicians who would staff its emergency department or
interpret the radiology scans taken at the Hospital. The contracting entities chose the
physicians and other health care providers to staff various departments or provide 23 services. The contracting entities even provided medical record software, computers, and
other services required for the care and treatment of patients at the Hillsboro Area
Hospital. There is simply nothing in the record at present to suggest that there was some
unique circumstance in the care and treatment rendered to Danny Foster that would
invoke the use of the "similar locality" rule. And, as noted previously, the "similar
locality" rule is an evidentiary issue, rather than a forum non conveniens factor. This
evidentiary issue has not yet been raised before the trial court, and the defendants have
not offered any evidence that the "similar locality" rule will be applicable in this case.
¶ 54 According to the allegations in the plaintiffs' complaint, the negligent acts and
omissions occurred in Montgomery County, and most of the subsequent medical care was
provided in Sangamon County. The defendants' residences, medical practices, and
service areas, however, are spread throughout Madison, Montgomery, Sangamon, and
other counties in Illinois. In addition, the delivery of services and management of
medical practices is interconnected and centralized, rather than localized. Thus, this case
does not involve a particularly localized controversy, as several counties have some
interest in the outcome of the case. This factor does not strongly favor transfer to
Montgomery County.
¶ 55 Next, we consider whether Madison County has a sufficient connection to this
case to warrant imposing the burden of a trial on its citizens and circuit court. The trial
court determined that it would not be unfair to impose jury duty on Madison County
residents because the county has several connections to the litigation. The record
supports this finding. In this case, Dr. Sippo and his LLC are residents of Madison 24 County. Dr. Sippo operates a consulting business in Madison County, offering his
expertise as a physician to both plaintiffs and defendants. Dr. Sippo is routinely named
as an expert witness in asbestos cases. Therefore, the residents of Madison County have
a real and genuine interest in considering allegations of medical negligence involving two
of its residents, especially where those residents appear before Madison County juries
and render expert medical opinions.
¶ 56 Additionally, this is a failure to diagnose case involving the interpretation of
radiological scans by an employee of Clinical Radiologists. Clinical Radiologists
regularly contracts its radiological services to medical facilities in Madison County. The
residents of Madison County have a genuine interest in considering the quality of care
being offered by physicians working for Clinical Radiologists. Since Madison County
has significant interests in deciding this case, it would not be unfair to impose the
expenses of trial and jury duty on Madison County residents. This factor does not
strongly favor transfer.
¶ 57 Finally, as to the matter of docket congestion, the trial court found that the moving
defendants had not demonstrated that there would be greater administrative burdens if the
trial occurred in Madison County. We note that each of the parties relied on certain
select statistics within the Annual Report of the Illinois Courts that might, if considered
in isolation, favor their respective choice of forum. For example, the defendants pointed
to the Annual Reports from 2012 and 2013, to support their contention that the civil
dockets in Madison County are more congested than those in Montgomery County. The
plaintiffs countered with information from the office of the Madison County Circuit 25 Clerk to show that approximately 75% of those cases were on the asbestos docket, which
is overseen by one judge and a designated staff. A review of the Annual Report of the
Illinois Courts indicates that in 2013 and 2014, the clearance rates for civil cases in the
Third Judicial Circuit, including Madison County, were slightly higher than the clearance
rate in the Fourth Judicial Circuit, including Montgomery County, and that from 2010
through 2014, both circuits have clearance rates over 90%. "Court congestion is a
relatively insignificant factor, especially where the record does not show the other forum
would resolve the case more quickly." Guerine, 198 Ill. 2d at 517, 764 N.E.2d at 58.
Moreover, the trial court is in the best position to consider any administrative problems in
relation to its own docket and its ability to try the case in an expeditious manner.
Langenhorst, 219 Ill. 2d at 451, 848 N.E.2d at 939. This factor does not strongly favor
transfer.
¶ 58 CONCLUSION
¶ 59 In this case, the circuit court determined that the defendants failed to meet their
burden to show that the balance of factors strongly favored transfer of this case to
Montgomery County, and that Montgomery County was more convenient to all parties.
After reviewing the record, we cannot say that no reasonable person would have taken
the view of the circuit court. Therefore, we conclude that the circuit court did not abuse
its discretion in denying the moving defendants' motions to transfer based on intrastate
forum non conveniens.
¶ 60 Accordingly, the judgment of the circuit court of Madison County is affirmed.
26 ¶ 61 Affirmed.
27 2016 IL App (5th) 150055
NO. 5-15-0055
IN THE
FIFTH DISTRICT _____________________________________________________________________________________
DANNY FOSTER and KATHLEEN FOSTER, ) Appeal from the ) Circuit Court of Plaintiffs-Respondents, ) Madison County. ) v. ) No. 14-L-530 ) HILLSBORO AREA HOSPITAL, INC., LAUREL KIETZMAN, M.D., ) ARTHUR SIPPO, M.D., ARTHUR C. SIPPO, M.D., MPH, LLC, ) BRANDON WYNN, D.O., CLINICAL RADIOLOGISTS, S.C., ) BARBARA MULCH, M.D., SPRINGFIELD CLINIC, LLP, and ) ILLINOIS EMERGENCY PHYSICIANS, LLP, ) Honorable ) William A. Mudge, Defendants-Petitioners. ) Judge, presiding. _____________________________________________________________________________________
Opinion Filed: November 10, 2016 _____________________________________________________________________________________
Justices: Honorable Judy L. Cates, J.
Honorable S. Gene Schwarm, P.J., and Honorable Richard P. Goldenhersh, J., Concur _____________________________________________________________________________________
Attorneys Brad A. Elward, Heyl, Royster, Voelker & Allen, 300 Hamilton Blvd., Peoria, IL for 61601-6199; Richard K. Hunsaker, Ann C. Barron, Heyl, Royster, Voelker & Petitioners Allen, 105 West Vandalia Street, Suite 100, Edwardsville, IL 62025; Terese A. Drew, Hinshaw & Culbertson, LLP, 701 Market Street, Suite 1300, St. Louis, MO 63101; Kim Jansen, Hinshaw & Culbertson, LLP, 222 N. LaSalle Street, Suite 300, Chicago, IL 60601; Ted W. Dennis, Freeark, Harvey & Mendillo, P.C., 115 W. Washington Street, P.O. Box 546, Belleville, IL 62222-0546; James E. Neville, Derek J. Siegel, Neville, Richards & Wuller, LLC, 5 Park Place Professional Centre, P.O. Box 23977, Belleville, IL 62223-0977 _____________________________________________________________________________________
Attorneys Georgiann Oliver, Eric C. Young, Joley, Oliver & Beasley, P.C., 8 East for Washington Street, Belleville, IL 62220; Burton M. Greenberg, 500 North Respondents Broadway, Suite 1460, St. Louis, MO 63102 _____________________________________________________________________________________