In October, Brennan Burtker attorneys Anthony Longo and Blair Kipnis filed a Petition for Leave to Appeal in the Supreme Court of Illinois challenging a long-standing practice in Cook County that deprives defendants of their constitutional right to service of summons in medical malpractice actions.
Under Illinois law, prospective medical malpractice plaintiffs are entitled to copy their medical records, and if the records are not forthcoming, they may file a limited purpose action seeking production of their medical records in the circuit court.
When the medical provider produces the records, the action should be moot and terminated from the court’s docket. However, it has been a long-standing practice in Cook County to permit plaintiffs to amend the limited purpose action into a civil action seeking money damages for medical malpractice.
Medical providers find this practice objectionable for many reasons, including that it allows the plaintiff to prosecute an action without serving summons to the defendant. The lack of the summons creates defenses based upon lack of personal jurisdiction and lack of diligence in service under Rule 103(b).
In a pending matter, Brennan Burtker has aggressively challenged this awkward practice of permitting plaintiffs to allege medical malpractice for the first time in an unserved amended complaint. A Petition for Leave to Appeal is currently pending, and awaiting decision by the Supreme Court.