Foster v. Hillsboro Area Hospital, Inc.

NOTICE
2016 IL App (5th) 150055
Decision filed 11/10/16. The
text of this decision may be NO. 5-15-0055
changed or corrected prior to
the filing of a Peti ion for
Rehearing or the disposition of IN THE
the same.

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT
________________________________________________________________________

DANNY FOSTER and KATHLEEN FOSTER, ) Appeal from the
) Circuit Court of
Plaintiffs-Respondents, ) Madison County.
)
v. ) No. 14-L-530
)
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, ) Honorable
) William A. Mudge,
Defendants-Petitioners. ) Judge, presiding.
________________________________________________________________________

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., 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
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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 presented with complaints

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 prepared a report of his findings. In

his report, he did not mention whether a gastric ulcer was evident on the CT scan.

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¶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.
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¶ 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
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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 web site 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 healthcare 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
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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 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
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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 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
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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."

¶ 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

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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.
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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 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

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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

12
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 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
13
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 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 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).

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¶ 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 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.

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¶ 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

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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
17
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 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.

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¶ 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
19
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 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.

20
¶ 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
21
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 parties' attorneys have their offices in Madison County, St.

Clair County, and St. Louis City. 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 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
22
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
23
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 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
24
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
25
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.

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

26
¶ 61 Affirmed.

27
 2016 IL App (5th) 150055

NO. 5-15-0055

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT
_____________________________________________________________________________________

DANNY FOSTER and KATHLEEN FOSTER, ) Appeal from the
) Circuit Court of
Plaintiffs-Respondents, ) Madison County.
)
v. ) No. 14-L-530
)
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, ) Honorable
) William A. Mudge,
Defendants-Petitioners. ) Judge, presiding.
_____________________________________________________________________________________

Opinion Filed: November 10, 2016
_____________________________________________________________________________________

Justices: Honorable Judy L. Cates, J.

Honorable S. Gene Schwarm, P.J., and
Honorable Richard P. Goldenhersh, J.,
Concur
_____________________________________________________________________________________

Attorneys Brad A. Elward, Heyl, Royster, Voelker & Allen, 300 Hamilton Blvd., Peoria, IL
for 61601-6199; Richard K. Hunsaker, Ann C. Barron, Heyl, Royster, Voelker &
Petitioners Allen, 105 West Vandalia Street, Suite 100, Edwardsville, IL 62025; Terese A.
Drew, Hinshaw & Culbertson, LLP, 701 Market Street, Suite 1300, St. Louis,
MO 63101; Kim Jansen, Hinshaw & Culbertson, LLP, 222 N. LaSalle Street,
Suite 300, Chicago, IL 60601; Ted W. Dennis, Freeark, Harvey & Mendillo,
P.C., 115 W. Washington Street, P.O. Box 546, Belleville, IL 62222-0546; James
E. Neville, Derek J. Siegel, Neville, Richards & Wuller, LLC, 5 Park Place
Professional Centre, P.O. Box 23977, Belleville, IL 62223-0977
_____________________________________________________________________________________

Attorneys Georgiann Oliver, Eric C. Young, Joley, Oliver & Beasley, P.C., 8 East
for Washington Street, Belleville, IL 62220; Burton M. Greenberg, 500 North
Respondents Broadway, Suite 1460, St. Louis, MO 63102
_____________________________________________________________________________________