Appellate Law

Appeal Notice Timely In Medical Malpractice Case Despite Limited Reconsideration Motion

By Steven R. Merican

Tina Hemminger died from cervical cancer. Her husband, Daniel, sued Tina?s doctors, lab technician, and the hospital where she was treated for medical malpractice in failing to diagnose Tina?s cancer.

Three of the five defendants asked the trial court for summary judgment based on two arguments: (1) that they were immune from suit because they were municipal entities or government employees, and (2) the statute of limitations barred the lawsuit.

The trial court gave summary judgment to the three defendants, and made a finding under Illinois Supreme Court Rule 304(a) (no just reason to delay enforcement or appeal of the judgment). Within the 30-day deadline, Daniel asked the trial court to reconsider the summary judgment. His reconsideration request raised only the statute of limitations issue, and not the immunity question. The trial court denied Daniel?s request.

Daniel appealed within 30 days of the time the trial court denied the request for reconsideration. The appeal asked for reversal of the immunity and the statute of limitations rulings.

The three defendants asserted that the appellate court did not have jurisdiction to hear the appeal of the immunity issue. They argued that Daniel?s appeal of the immunity ruling was late because (1) he did not address it in his reconsideration request, so the time to appeal it was not tolled, and (2) the appeal was filed more than 30 days after the trial court issued the summary judgment, making it late. The guts of the argument was that the immunity ruling and the statute of limitations ruling were separate orders that required individual notice of appeal, even though both were contained in a single order.

The Third District Illinois Appellate Court disagreed the three defendants. The appellate court ruled that Daniel?s one notice of appeal covering both issues was timely because the reconsideration request applied to the entire summary judgment ruling. Here?s how the appellate court explained it:

[T]he single order granting the motion for summary judgment on both issues says, "This ruling is final and appealable pursuant to Supreme Court Rule 304(a) ? The Rule 304(a) language is unambiguous. Defense counsel drafted the order that he argues is really two separate orders. Defense counsel cannot argue that it means something other than what it says. Plaintiff filed a single motion to reconsider a single order granting summary judgment. This tolled the time for filing a notice of appeal with respect to the order ? We conclude that this court has jurisdiction to hear plaintiff's appeal.

The appellate court acknowledged ?we would have a different case? had the trial court ?entered summary judgment on each issue separately, each with its own Rule 304(a) finding.? Read the whole case, Hemminger v. Nehring, No. 3-08-0751 (4/6/10), by clicking here.

Full post as published by Illinois Appellate Lawyer Blog on July 24, 2010 (boomark / email).