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In recent years, plaintiff attorneys in medical malpractice lawsuits have increasingly utilized the statute allowing for respondent in discovery (RID).  735 ILCS 5/2-402 involves persons and entities designated as RIDs.  However, RIDs are not parties.  RIDs are identified in complaints and are required to participate in discovery, including answering written discovery and sitting for a deposition.

It is a peculiar statute, in part because it is not recognized by the federal district court in Illinois and is not available in most states.  It is relevant because it is utilized by plaintiffs to explore whether to convert a RID to a defendant and is increasingly being used as an attempt to “pressure” RIDs into providing testimony against medical defendants.  One classic example arises where a physician RID criticizes the lack of communication from the nursing staff in a case in which the hospital is a defendant and the nursing care is at issue.

Illinois appellate decisions confirm that a RID must be designated in the complaint before the applicable statute of limitation has expired, or the applicable period of repose has expired, where appropriate.  Once a RID is timely designated, the statue is not clear on the role the RID has in the discovery process.  As a practical matter, however, a RID participates in the discovery process, including having legal representation attend depositions and answering written discovery, until the time arrives for the plaintiff to determine whether to convert or terminate the RID.  Also, to avoid re-depositions in a case where a RID is converted to a defendant, the attorneys typically agree to allow questions on standard of care, liability and damages.

Notably, the statute does not limit the scope of discovery to the RID.  For example, a plaintiff’s attorney is not prohibited from asking questions of a physician RID with regard to that physician’s opinions relative to whether the communication from the nursing staff was adequate.  Put another way, the statute does not prohibit the plaintiff from obtaining discovery from a RID harmful to another RID, defendant or some other person or entity not yet named in a complaint.  Therefore, defense counsel must be mindful of this and attempt, where appropriate, to seek out the attorney for the RID prior to the deposition to assess whether that RID will be offering opinions against any of the other defendants.  This is a tactic used to pressure the defendants into an early settlement based on negative testimony from the RID.  Such a strategy is desirable in some cases because the depositions of the RIDs usually proceed prior to the depositions of the plaintiff and defendants.

The statute provides that a RID must be converted or terminated within six-months after the complaint is filed.  The six-month period commences when the complaint is filed, not when service of process is effectuated.  To convert a RID into a defendant, a motion must be filed within the six-month period.  Although the statute calls for a hearing on the motion, judges routinely grant the plaintiff’s request to convert.  Furthermore, judges almost always grant the plaintiff’s request to convert as long as the requisite 2-622 health professionals report is attached to the motion.

Plaintiffs are also allowed to extend the conversion period beyond six months upon petition of the court.  Judges routinely grant such extensions as long as the plaintiff’s attorneys can demonstrate an effort to secure the necessary discovery.  This would include issuing written discovery and attempting to depose the RID.  Extensions are also permissible in cases in which the plaintiff is attempting to serve all the defendants even though the RID has already been served.  In some cases, the plaintiff will petition the court to allow for discovery of other medical personnel even after the RID has been deposed.  For example, judges have permitted a plaintiff to depose the nurses involved in post-surgical care even after the surgeon and anesthesiologist had been deposed.

As outlined above, the RID statute is both peculiar and relevant in its use, especially in medical malpractice cases.  The designation of a RID should serve as notice to a defendant that the plaintiff may be seeking to elicit “finger-pointing” testimony in the hopes of hastening an early settlement.