The Fifth District Appellate Court affirmed Madison County Circuit Judge William Mudge’s order denying transfer in a medical malpractice suit alleging a patient’s gastric ulcer went undiagnosed.

Justice Judy Cates delivered the opinion on Nov. 10, writing that the defendants failed to meet their burden to show that transfer from Madison County to Montgomery County was appropriate.

Justice S. Gene Schwarm and Richard Goldenhersh concurred in the judgment.

The Fifth District Appellate court initially denied the defendants’ petition for leave to appeal. However, the Illinois Supreme Court issued a supervisory order directing the court to vacate its order and to consider the matter.

Plaintiffs Danny and Kathleen Foster filed their medical malpractice complaint on April 4, 2014, against Hillsboro Area Hospital, Dr. Laurel Kietzman, Dr. Arthur Sippo, 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 Physician LLP.

According to their complaint, Danny Foster saw Mulch, his primary care physician, on June 22, 2012, at the Springfield Clinic in Hillsboro, Ill. He had complaints of abdominal pain and cramping. Mulch conducted an evaluation and ordered a CT scan, which was performed on June 27, 2012, at the Hillsboro Area Hospital.

Wynn, a radiologist employed by Clinical Radiologists, interpreted the scan and prepared a report of his findings. However, the plaintiffs claim he failed to mention whether a gastric ulcer was evident on the CT scan.

Danny Foster continued to have abdominal symptoms and returned to the hospital on June 28, 2012, where he was seen by Kietzman, the attending physician in the emergency department.

He claims Kietzman evaluated him but failed to review his CT scan or order any other tests. She later discharged him after referring with Mulch.

The next day, Foster saw Mulch at her office in Hillsboro, who did not order any additional tests and did not diagnose an ulcer at that visit.

On July 9, 2012, Foster returned to the emergency department and was evaluated by Sippo, who discharged him.

The next day Foster went to St. Francis Hospital in Litchfield, Ill., where a CT scan revealed a large, perforated gastric ulcer. He was transferred by helicopter to St. John’s Hospital in Springfield, where he underwent surgery.

The plaintiffs resided in Montgomery County when the lawsuit was filed. They now live in Arizona.

Mulch and Springfield Clinic filed a motion to transfer the lawsuit from Madison County to Montgomery County based on forum non conveniens on May 12, 2014. Eventually, all but Wynn and Clinical Radiologists sought transfer.

The defendants argued that Montgomery County was a more convenient forum for the litigation. They further argued that Madison County was neither the plaintiffs’ home, nor the forum where the cause of action arose.

The plaintiffs opposed.

The requests to transfer the case were denied on Jan. 8, 2015. The defendants appealed.

The appellate court first noted that the defendants are spread throughout Montgomery County, Madison County and Sangamon County, meaning no single county is convenient for all parties.

The appellate court added that Sippo and Arthur Sippo M.D. MPH LLC were among the defendants who moved to transfer the case, but Sippo and his LLC are residents of Madison County. He also often testifies as a consultant in Madison County.

“Their arguments suggesting that their home county is inconvenient are not well taken,” Cates wrote.

“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,” she continued.

Mulch had argued that a trial in Madison County would make it harder for her to see patients. The court concluded that because her office is open during normal business hours, it would be difficult for her to see patients during the days of the trial regardless of which county the case is litigated.

The appellate court also held that it would be necessary for Hillsboro Area Hospital to adjust staff schedules whether the trial was held in Madison County or Montgomery County.

“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,” Cates wrote.

As for the defendants’ argument that the medical malpractice claims should be heard locally, the appellate court held that there is nothing in the record to suggest that Foster’s treatment and care would invoke the use of the “similar locality” rule.

The court further held that because the case concerns a failure to diagnose by an employee of Clinical Radiologists, which provides services in Madison County, the case is of interest to Madison County and would not be unfair to impose trial expenses and jury duty on residents.

“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,” the court concluded.

Madison County Circuit Court case number 14-L-530

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