Delestowixz v. Labinsky

                                                  FIRST DIVISION
                                                  May 19, 1997 
                                                                           








No. 1-96-1067

JOYCE V. DELESTOWICZ,              )    Appeal from the  
                                   )    Circuit Court of
          Plaintiff-Appellant,     )    Cook County.
                                   )
    v.                             )     
                                   )
HAROLD LABINSKY, M.D.,             )    
                                   )     
          Defendant-Appellee,      )    
                                   )
                                   )    
(ALEXIAN BROTHERS MEDICAL CENTER,  )      
INC., and ALADIN MARIANO, M.D.,    )    Honorable
                                   )    Jennifer Duncan Brice,
          Defendants).             )    Judge Presiding


     JUSTICE GALLAGHER delivered the opinion of the court:

     This case concerns whether a plaintiff must comply with
amended section 2-622 of the Code of Civil Procedure (735 ILCS
5/2-622 (West Supp. 1995)) with respect to a respondent in
discovery who was named as a defendant after the amendment's
effective date.  Plaintiff must do so.
     Plaintiff, Joyce V. Delestowicz, filed a medical malpractice
action against Alexian Brothers Medical Center and Dr. Aladin
Mariano on February 15, 1995.  Plaintiff alleged that the
defendants were negligent in performing a right sided open
thoracotomy for biopsy, causing partial permanent respiratory
failure and right diaphragm paralysis.  At that time, Dr. Harold
Labinsky was designated as a respondent in discovery pursuant to
section 2-402 of the Illinois Code of Civil Procedure. 735 ILCS
5/2-402 (West Supp. 1995).
     On September 13, 1995, plaintiff filed a second amended
complaint which, for the first time, named Dr. Labinsky as a
defendant.  Defendant, Dr. Labinsky, subsequently filed a motion
to dismiss based upon plaintiff's failure to comply with the
requirements of section 2-622 of the Illinois Code of Civil
Procedure (735 ILCS 5/2-622 (West Supp. 1995)), in that plaintiff
did not identify the reviewing health professional.  On February
16, 1996, after plaintiff's continuing failure to comply with
section 2-622, the trial court dismissed with prejudice
plaintiff's third amended complaint against defendant, Dr. Harold
Labinsky.  Plaintiff appeals from that order.  The lawsuit
remains pending in the lower court as to the other defendants.
     Section 2-622, which requires that a plaintiff in a medical
malpractice action file a report of a reviewing health
professional, was amended on March 9, 1995.  Effective that date,
the name and address of the reviewing health professional also
had to be provided.  The new provision, which required that the
identity of the reviewing health professional be disclosed,
specifically provides that it "does not apply to or affect any
actions pending at the time of its effective date, but applies to
cases filed on or after its effective date." 735 ILCS 5/2-
622(h)(West Supp. 1995).
     Plaintiff contends that, because she filed her original
complaint prior to the effective date of the amendment, she need
not comply with the requirement of the amended law.  While
plaintiff is correct that an action was pending on the date the
amendment became effective, her action was against other
defendants.  At that time, however, no action was pending against
Dr. Labinsky.  Dr. Labinsky had merely been designated as a
respondent in discovery.
     The clear language of section 2-402 shows that the
legislature distinguished the status of a respondent in discovery
from that of a named defendant.  A respondent in discovery who
has not yet been converted to a defendant under section 2-402 is
not a defendant "named in the complaint" and thus there can be no
action pending against such person. See Coley v. St. Bernard's
Hospital, 281 Ill. App. 3d 587, 595, 667 N.E.2d 493, 499 (1996).
Furthermore, a lawsuit naming an individual as a respondent in
discovery is not an action against that individual and the
individual is not a party to that action. See Murphy v. Giardina,
82 Ill. 2d 529, 533, 413 N.E.2d 399, 401 (1980); Shanklin v.
Hutzler, 277 Ill. App. 3d 94, 100, 660 N.E.2d 103, 106 (1995);
Engel v. St Mary's Hospital, 198 Ill. App. 3d 174, 177, 555 N.E.2d 810, 811 (1990).  A pleading that names respondents in
discovery does not constitute a complaint at law; it is simply a
discovery device. Murphy v. Giardina, 82 Ill. 2d  at 533, 413 N.E.2d  at 401.
     Earlier cases dealing with the applicability of section 2-
622 support the application of the amendment to the instant case.
In one of those cases, this court found that the requirements of
section 2-622 were applicable to an amended complaint naming a
new defendant which was filed after the effective date of the
statute despite the fact that the original complaint was filed
before the effective date of the statute. Blalark v. Chung, 177
Ill. App. 3d 541, 532 N.E.2d 518 (1988).  More recently, this
court held that the amended version of section 2-622 applied to a
refiled action against a defendant who had previously been
voluntarily dismissed. Calamari v. Drammis, 286 Ill. App. 3d 420,
676 N.E.2d 281 (1997).  The court acknowledged that the amendment
did not apply to pending actions. Calamari, 286 Ill. App. 3d at
425-26, 676 N.E.2d  at 766.  The court then concluded that,
because the action alleging negligence against the defendant was
not on file at the time the amendment became effective, the new
amendment applied to the refiled action. Calamari, 286 Ill. App.
3d at 429, 676 N.E.2d  at 766-67.
     Here, no action alleging negligence against defendant was on
file at the time the amendment to section 2-622 took effect. 
Thus, regardless of the pending action against other defendants,
the plaintiff was required to comply with the amended section 2-
622 with regard to Dr. Labinsky, which clearly states that it
applies to "cases filed on or after its effective date." 735 ILCS
5/2-622(h)(West Supp. 1995). 
     For the foregoing reasons, the judgment of the circuit court
of Cook County is affirmed.
     Affirmed.
     CAMPBELL, P.J. and O'BRIEN, J. concur.