When lawmakers in Illinois added Section 2-402 to the Code of Civil Procedure in 1976, their goal was to protect doctors and other health care workers from frivolous lawsuits. To reduce the number of health care providers sued for medical malpractice, the legislation allows civil plaintiffs to convert lawsuit respondents to defendants if evidence uncovered during the discovery process suggests they are culpable. The problem that plaintiffs have faced is that the language dealing with the standard of proof required to convert a respondent to a defendant is ambiguous.
Illinois Supreme Court ruling
That ambiguity was cleared up on May 15 when the Illinois Supreme Court ruled unanimously that medical malpractice plaintiffs do not have to establish liability during the discovery phase. Instead, they must only show that culpability is a reasonable probability. The ruling was made in a case brought by the mother of a man who died after doctors failed to properly diagnose his condition. A circuit court and appellate court both dismissed the lawsuit.
The plaintiff initially filed a medical malpractice lawsuit against the hospital where her son was treated and the health care network that operated it. She filed a motion to convert a physician from a respondent to a defendant when evidence emerged during discovery that he failed to diagnose her son’s baclofen withdrawal. The man was fitted with a baclofen pump to control muscle spasms after a swimming pool accident left him paralyzed. The Illinois Association of Defense Trial Counsel, the American Medical Association and the Illinois State Medical Society all filed amicus briefs on behalf of the doctor.
Lawmakers include ambiguous language in legislation to give judges discretion to make fair rulings based on the facts presented to them, but this can sometimes lead to laws being interpreted in ways they did not intend. Higher courts are expected to provide clarification and guidance in these situations, which is what happened in this case.