Foster v. Hillsboro Area Hospital, Inc.

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Appellate Court Date: 2017.01.11

11:49:10 -06'00'

Foster v. Hillsboro Area Hospital, Inc., 2016 IL App (5th) 150055

Appellate Court DANNY FOSTER and KATHLEEN FOSTER, Plaintiffs-

Caption Respondents, v. 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, Defendants-Petitioners.

District & No. Fifth District

Docket No. 5-15-0055

Filed November 10, 2016

Decision Under Appeal from the Circuit Court of Madison County, No. 14-L-530; the

Review Hon. William A. Mudge, Judge, presiding.

Judgment Affirmed.

Counsel on Brad A. Elward, of Heyl, Royster, Voelker & Allen, of Peoria, and

Appeal Richard K. Hunsaker and Ann C. Barron, of Heyl, Royster, Voelker &

Allen, of Edwardsville, for petitioner Hillsboro Area Hospital, Inc.

Kim Jansen, of Hinshaw & Culbertson, LLP, of Chicago, and Terese

A. Drew, of Hinshaw & Culbertson, LLP, of St. Louis, Missouri, for

petitioners Illinois Emergency Physicians, LLP, Laurel Kietzman,

Arthur C. Sippo, M.D., MPH, LLC, and Arthur Sippo.

Ted W. Dennis, of Freeark, Harvey & Mendillo, P.C., of Belleville,

for petitioners Clinical Radiologists, S.C., and Brandon Wynn.

James E. Neville and Derek J. Siegel, of Neville, Richards & Wuller,

LLC, of Belleville, for other petitioners.

Georgiann Oliver and Eric C. Young, of Joley, Oliver & Beasley,

P.C., of Belleville, and Burton M. Greenberg, of St. Louis, Missouri,

for respondents.

Panel 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., 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. All defendants, except Dr.

Wynn 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 complained 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

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prepared a report of his findings. In his report, he did not mention whether a gastric ulcer was

evident on the CT scan.

¶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.

¶ 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.

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¶ 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

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

website 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 health care 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 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

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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 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 C. 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 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.”

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¶ 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 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. 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

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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

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 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

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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 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 C. 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 C. 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).

¶ 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

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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.

¶ 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 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 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

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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.

¶ 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 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

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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.

¶ 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 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 attorneys have their offices in Madison County,

St. Clair County, and St. Louis. 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

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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 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 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

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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 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 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.

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¶ 60 Accordingly, the judgment of the circuit court of Madison County is affirmed.

¶ 61 Affirmed.

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