Hepler Broom, LLC

For Convenience Sake: How Hospitals Can Utilize the Doctrine of Intrastate Forum Non Conveniens to Transfer Medical Malpractice Lawsuits to More Convenient Forums

June 1, 2020

In general, Illinois law requires that a lawsuit be commenced “(1) in the county of residence of any defendant who is joined in good faith and with probable cause for the purpose of obtaining a judgment against him or her and not solely for the purpose of fixing venue in that county, or (2) in the county in which the transaction or some part thereof occurred out of which the cause of action arose.” 735 ILCS 5/2-101. For venue purposes, the residence of a corporation, such as a hospital, is in the county where it has any office or is doing business. 735 ILCS 5/2-102. Because hospitals generally have many offices and arguably do business in several counties, many venues could be proper, and plaintiffs could thus file cases in a variety of jurisdictions that have little or no connection with the case. In such a circumstance, the doctrine of intrastate forum non conveniens provides an avenue for defendant hospitals to seek transfer to a more convenient jurisdiction. See generally ILCS S. Ct. Rule 187 (providing the procedure for filing a motion to dismiss or transfer under the doctrine of forum non conveniens).

In 1983, the Illinois Supreme Court established the doctrine of intrastate forum non conveniens.[1] Torres v. Walsh, 98 Ill. 2d 338 (1983). The doctrine gives a trial court the discretion to transfer a case to another forum within Illinois, even if the current venue is proper, if another forum would be more convenient for the parties. Id.; Estate of Prather v. Sherman Hosp. Sys., 2015 IL App (2d) 140723, ¶ 40 (2015); Langenhorst v. Norfolk S. Ry. Co., 219 Ill. 2d 430, 441-42 (2006). The Illinois Supreme Court has noted that trial courts should only exercise discretion to transfer a case on these grounds in exceptional circumstances. Langenhorst, 219 Ill. 2d at 442. A plaintiff’s choice of forum is also given deference. Dawdy v. Union Pac. R.R. Co., 207 Ill. 2d 167, 173 (2003). However, less deference is given to the plaintiff’s chosen forum if the plaintiff is not a resident of the county or the county is not where the injury occurred. Elling v. State Farm Mut. Auto. Ins. Co., 291 Ill. App. 3d 311, 314 (1997).

To determine whether a case should be transferred to a different forum based on the doctrine of forum non conveniens, courts consider both private and public factors. Private factors considered are the following: “(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 problems that make trial of a case easy, expeditious, and inexpensive—for example, the availability of compulsory process to secure attendance of unwilling witnesses, the cost to obtain attendance of willing witnesses, and the ability to view the premises (if appropriate).” First Am. Bank v. Guerine, 198 Ill. 2d 511, 516 (2002). Public factors include the following: “(1) the interest in deciding localized controversies locally; (2) the unfairness of imposing the expense of a trial and the burden of jury duty on residents of a county with little connection to the litigation; and (3) the administrative difficulties presented by adding further litigation to court dockets in already congested fora.” Id. at 517. To succeed on a motion to transfer based on forum non conveniens, a defendant must show that these factors strongly favor transfer. Torres, 98 Ill. 2d 338, 346 (1983); see Evans v. St. Joseph’s Hosp., 2020 IL App (5th) 190414, ¶¶ 12-15 (finding that private and public interest factors did not strongly favor transfer based on forum non conveniens where the medical treatment and witnesses were scattered among several counties in Missouri and Illinois).

In sum, defendants should consider filing a motion to transfer based on forum non conveniens when a case is brought in a jurisdiction that has little or no connection to the case. This is especially true for hospitals that could be sued in many jurisdictions given their residency in multiple forums. By using the doctrine when necessary, defendant hospitals may be able to transfer lawsuits to forums that are more convenient for all parties and help facilitate the prevention of forum shopping.

 

[1] Currently, HB5044 is pending in the Illinois House. If passed, HB5044 would abolish the doctrine of intrastate forum non conveniens. See 2019 Illinois House Bill No. 5044, Illinois One Hundred First General Assembly – Second Regular Session.

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