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Medical Malpractice Motion 3 - Plaintiff's motion to compel

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Plaintiff's Motion to Compel Against Defendant Advocate Health and Hospitals Corporation

NOW COMES the Plaintiff, ALEXIS MAY KAZIAN, a minor, by and through her father and next friend, KRISTIAN KAZIAN, by and through her attorneys, the Law Offices of Thomas J. Popovich, P.C. and the Law Office of Scott A. Hiera and pursuant to the Illinois Supreme Court Rules and in support of her Motion to Compel, states the following:

1. This matter arises from a severe burn that Plaintiff Alexis May Kazian, age 23 months, (hereinafter referred to as ALEXIS) received while she was a patient at Lutheran General Hospital (hereinafter referred to as LGH), a hospital owned and operated by Defendant, Advocate Health and Hospitals Corporation (hereinafter referred to as AHHC).

2. That on November 20, 2003, ALEXIS was admitted to LGH for treatment of pneumonia, and while admitted at LGH, she received numerous full thickness, third degree burns to her right thigh covering approximately 10% of her body's surface.

3. On May 25, 2004, Plaintiff served Defendant with Plaintiffs' First Request to Produce Pursuant to Rule 214; Plaintiff's First Interrogatories directed to AHHC; and Plaintiff's First Request to Admit Facts directed to AHHC. (See attached exhibit “A”, “B”, and “C” respectively, a true and accurate copy of each listed document.)

4. On June 17, 2004, Defendant served Its Objections to Plaintiffs' Interrogatories and Its Objection to Plaintiffs' Rule 214 Request to Produce. (See attached exhibit “D” and “E” respectively, a true and accurate copy of each listed document.)

5. Defendant objected to Plaintiffs' Interrogatories 2, 3, 5, 9, 10,12, 14 - 18, 21, 22, 27 - 29, which were signed by Defendant's attorney, Steven C. Steinback.

6. One of Plaintiffs' attorneys, Scott A. Hiera, sent Mr. Steinback a letter on June 22, 2004 stating in part; “Your objections are perplexing to me because under Supreme Court Rule 213, Committee Comments, Paragraph “J”, “Medical Malpractice Interrogatories to Defendant Hospital”; a list of Interrogatories approved by the Supreme Court is provided with the specific intention of avoiding discovery disputes. Plaintiff's Interrogatories numbered 2, 3, 5, 9, 10, and 12 are all objected to by you, yet the Supreme Court has approved these same interrogatories.” (See attached exhibit “F”, a true and accurate copy of Mr. Hiera's June 22nd letter.)

7. One of Plaintiffs' attorneys, Scott A. Hiera, spoke with Defendant's attorney, Steven C. Steinback, on June 23, 2004, and pointed out that Plaintiffs' Interrogatories were proper for the reasons delineated in Mr. Hiera's letter of June 22, 2004 and should be answered. During the conversation Mr. Steinback maintained his position that his objections would not be removed.

8. Mr. Hiera's letter of June 22nd also sought the removal of Defendant's numerous Objections to Plaintiff's 214 Request to Produce, and reiterated his request during the phone conversation of June 23rd, only to receive no compliance.

9. On June 23, 2004, Mr. Hiera sent another letter to Mr. Steinback to confirm Mr. Steinback's position regarding his objections, and to address Mr. Steinback's responses to Plaintiffs' First Request to Admit Facts. (See attached exhibit “G”, a true and accurate copy of Mr. Hiera's June 23rd letter.)

10. On June 23, 2004, Defendant's attorney, Mr. Steinback, sent Mr. Hiera a letter stating in part: “we will provide answer's to Plaintiff's Interrogatories Nos. 2, 3, 5, 10, and 12. Our objections to the remaining interrogatories stand. Like wise, our responses to Plaintiffs Request to Admit stand.” (See attached exhibit “H”, a true and accurate copy of Mr. Steinback's June 23rd letter.)

11. Mr. Steinback's June 23rd letter did not remove his objection to Plaintiff's Interrogatory no. 9, which has been approved by the Supreme Court, (See Supreme Court Rule 213, Committee Comments, paragraph “J”, Medical Malpractice Interrogatories to Defendant Hospital) nor did he remove his objections to Interrogatories 14-18, 21, 22, 27-29, or the objections to Plaintiff's 214 Request to Produce nos. 1, 2, 5, 6, 11, 15, 17, and 23.

12. Defendant was served Plaintiffs' 213, 214 and 216 written discovery requests on May 20, 2004 and as of July 6, 2004 Plaintiffs still have not received satisfactory responses to any of the documents served upon Defendant.

13. On June 21, 2004, Defendant served its Response to Plaintiffs' First Request to Admit Facts. (See attached exhibit “I”, a true and accurate copy of Defendant's Response to Plaintiffs' First Request to Admit Facts.)

14. Defendant responded to Plaintiffs' First Request to Admit Facts with the following disclaimer in 24 of the 25 Requests:

Defendant lacks sufficient personal knowledge to truthfully admit or deny the matters of which admission is requested for the following reasons. Defendant is an institution. Accordingly, it does not have personal knowledge of the care and treatment of the minor plaintiff. Nor does it have personal knowledge that all of the matters set forth in the medical records of the minor plaintiff are accurate. The only individuals with personal knowledge regarding the care and treatment of the minor and the accuracy of the matters set forth in the medical records are the physicians, nurses, and other personnel who rendered care to the minor plaintiff and/or made entries in the medical records. (See attached exhibit “I”.)

15. Defendant's response to 12 of the 25 (3, 5, 8, 9, 12, 18, 20 - 25) requests also included the following: “...the request inappropriately attempts to elicit a medical conclusion or opinion from Defendant. Defendant is an institution and therefore prohibited from engaging in the practice of medicine. Accordingly, it is not qualified to render a medical conclusion or opinion.” (See attached exhibit “I”.)

16. SZCZEBLEWSKI v. GOSSETT, 795 N.E.2d 368*, 342 Ill.App.3d 344**, 277 Ill.Dec. 1, 5 th Dist. (2003) is very similar to the instant case in that the plaintiff served the defendant a Request to Admit Facts pertaining to medical records. The defendant's attorney in Szczeblewski responded in a fashion very similar to the Defendant's response in the instant case:

Each subparagraph (a) and (b) of defendant's responses uniformly stated as follows:

“* * * This defendant can neither admit or [sic] deny Request for Admission of Fact * * * in that it requires him to give a medical opinion which he is not qualified to do. Defendant has insufficient knowledge to admit or deny.”

Defendant verified his responses to each of plaintiffs' requests for the admission of facts as “true and correct to the best of his knowledge and belief.” Id. at 370* and 347**.

17. The Court in Szczeblewski was very clear in its decision stating that:

“ ‘[W]hether a fact is an ‘ultimate’ fact is irrelevant for purposes of this rule. The key question is whether a requested admission deals with a question of fact. Accordingly, requests for legal conclusions are improper; however, requests for admissions of factual questions which might give rise to legal conclusions are not improper.' (Emphasis in original.) P.R.S. International, Inc., 184 Ill.2d at 236, 234 Ill.Dec. 459, 703 N.E.2d at 77. A defendant's conduct as the cause of the occurrence, the necessity and reasonableness of the medical services a plaintiff received to treat his or her injuries, and the reasonable cost of the medical services received are all facts that are proper subjects for a Rule 216 request to admit.” Id. at 371* and 347**.

18. Defendant's assertion that “The only individuals with personal knowledge regarding the care and treatment of the minor and the accuracy of the matters set forth in the medical records are the physicians, nurses, and other personnel who rendered care to the minor plaintiff and/or made entries in the medical records” (See Exhibit “I”) does not absolve Defendant of its responsibility to verify the requested information.

19. “To ensure that the laudable purpose of Rule 216 is accomplished, a party has a good-faith obligation to make a reasonable effort to secure answers to requests to admit from persons and documents within the responding party's reasonable control. In this case that would include the defendant's attorney and insurance company investigators or representatives. We believe that this finding reflects the long-accepted practice of trial attorneys in the courts of Illinois.” Emphasis added, Szczeblewski at 372*.

20. In the instant case, all of Plaintiffs' 25 requests were based upon the entries, or the omissions, contained in records Plaintiffs received from Defendant Hospital regarding ALEXIS. The “doctors, nurses, and other personnel who rendered care to the minor plaintiff and/or made entries in the medical records” must surely frequent Defendant institution and be readily available to Defense Counsel, yet Defendant's response lacks any indication that a good faith effort was made to verify the facts in Plaintiffs' Request to Admit.

21. The Szczeblewski Court's reasoning is very instructive and on point with the instant case, stating that:

“In deciding a party's duty under Rule 216, we are guided by how Supreme Court Rule 213 (166 Ill.2d R. 213) (“Written Interrogatories to Parties”) has been construed. Rule 213 has been interpreted “to require a party to answer fully and in good faith to the extent of his actual knowledge and the information available to him or to his attorney.” Singer v. Treat, 145 Ill.App.3d 585, 592, 99 Ill.Dec. 529, 495 N.E.2d 1264, 1268 (1986) (citing Brandon v. DeBusk, 85 Ill.App.3d 645. 647, 41 Ill.Dec. 1. 407 N.E.2d 193, 195 (1980) ). Comparably, Rule 36 of the Federal Rules of Civil Procedure ( Fed.R.Civ.P. 36(a)) (“Request for Admission”) explicitly requires as follows: “An answering party may not give lack of information or knowledge as a reason for failure to admit or deny unless the party states that the party has made reasonable inquiry and that the information known or readily obtainable by the party is insufficient to enable the party to admit or deny.” Id. at 372*

22. “The purpose of a request to admit is not to discover facts but, rather, to establish some of the material facts in a case without the necessity of formal proof at trial. P.R.S. International, Inc., 184 Ill.2d at 237, 234 Ill.Dec. 459, 703 N.E.2d at 77. The proper use of requests to admit results in a substantial savings of time and expense, both for the parties and the court. Branch Banking & Trust Co. v. Deutz-Allis Corp., 120 F.R.D. 655, 657 (E.D.N.C.1988) . ” Id. at 372*.

23. It appears that counsel for the defendant is attempting, somehow, to gain some sort of tactical advantage by this circumvention of stated law. This is not the type of gamesmanship that this Court should countenance.

24. Plaintiffs' counsel worked long and hard to craft requests to admit in an effort to narrow the issues in this matter and streamline the litigation process. Plaintiffs' counsel advised Defendant's counsel of this goal by letter and during personal phone conversation. In the spirit of Supreme Court Rule 201(k), Plaintiff's counsel attempted to work out this dispute without seeking this Court's intervention, but with little success.

25. Here, Plaintiff, in good faith, and attempting to narrow the issues at trial, sent Defendant a series of well-crafted Requests to Admit. In response, Defendant asserts insufficient knowledge, apparently without even making inquiry with any of its agent nurses, or doctors who practice at its facility and actually treated ALEXIS.

26. Now Plaintiffs' attorney has had to spend additional time preparing this motion, and will have to travel to court to argue this matter when it was absolutely unnecessary to do so. As a consequence, Plaintiff respectfully requests that this Court overrule Defendant's 213 and 214 objections, and direct Defendant to answer Plaintiff's First Request to Admit Facts in good faith.

WHEREFORE, Plaintiffs respectfully requests that this Court:

1) Overrule Defendant's objections to Plaintiffs' 213 Interrogatories;

2) Overrule Defendant's objections to Plaintiffs' 214 Request to Produce;

3) Order Defendant to answer all of Plaintiff's Requests to Admit Facts in good faith within fourteen (14) days;

4) And for any and all other relief deemed reasonable and proper given the facts and circumstances of this case.

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