## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

Ram os v. Kewanee Hospital , 2013 IL App (3d) 120001

Appellate Court Caption J UL I O RAMOS, M.D., Plaintiff-Appellant, v. KEWANEE HOSPI TAL
, Def endant- Appellee

.

District & N o. Third District
Docke t No. 3-12-0001

Filed
Rehea ring denied May

31, 2013 Aug ust 13, 2013

Held (Note : Thi s syl lab us

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) I n an action alleg ing that plaintiff phy sician’s hospital privileg es were improperly suspended, plaintiff was not entitled to judgme nt n.o.v. , since the evidenc e of the prejudice suffe red by plaintiff was not so

overw helming t h at the verdic t for defe ndant hospital could not stand; howeve r, plaintiff was entitled t o a n ew trial based on the trial court’s

err or in prohibiting plaintiff from deposing employ ees of the entity defe ndant reta ined to revie w the patient car e incidents involving plaintiff,

an d t h e award of costs and expenses to defe ndant based on plaintiff’s voluntarily dismiss ed first complaint was reve rsed o n t he g round that those sanctions we re imposed a fter pla intiff ref iled his action.

Dec ision Under Review Appea l from the Circuit Court of He nry County , No. 11-L -14; the Hon. Charles H. Steng el, J udg e, pre siding.

J udg ment Affir med in part, va cate d in part, and r ever sed; ca use re manded.Counsel on

Appea l Thomas J . Pliura (ar g ued), of L eRoy , for a

ppellant.

Fatema F

. Z anzi and Doug las B. Swill, both of Drinker Biddle & Reath L L P, of C h i cag o, and J ohn J

. D’Attomo (ar g ued), of Carlson Partners, L td., of L ombard, for

appellee

.

Panel J USTI CE SCHMI DT delivere d the judgme nt of the court, with opinion.
J ustices Carter

and O’ Br ien conc urre d in the judgme nt and opinion.

OP INION

¶ 1 Plaintiff, J ulio Ramos, M.D., filed a three -count second am en d ed co m p laint ag ainst defe ndant, Kewa

nee Hospital (the hospital), seeking injunctive relief
, a decla ration that the hospital improperly summarily suspended his privileges
, an d damag es arising from the

s ummary suspension. Plaintiff voluntarily dismiss ed his second amende d complaint, t h en filed the curr ent action six wee ks later. Following trial, a jury returne d a verdic t in favor of the defe ndant hospital. Plaintiff appea ls, claiming
, inter alia
, he was improperly assessed fee s and costs in the ref

iled case that wer e associate d with the orig inal action, the trial court

err ed in denying his motion for substitut ion of judge
, t he trial court made numerous

err oneous evidentiar

y ruling s, and he is e ntitled to a judgme nt notwithstanding the verdic t. We affir m in part, vac ate in par

t, reve rse in par

t, and re mand for f

urther pr ocee dings.

¶ 2 BA CKGROUND ¶ 3 Dr. Ramos is a family prac tice phy sician. He worke d from Au gu s t o f 2 0 0 2 t h roug h November of 2007 as an employ ee of the defe ndant hospital. I n November 2007, he soug ht
to terminate his employ

ment with the hos pital. On November 30, 2007, he entered into an ag ree ment with Reg ional Family Hea lth Cent e r , S. C. ( Re g io n a l F a mi ly), to provide phy sician

s ervic es for it. Dr. Remi Satkauskas and Dr. Kevin J eff ries own Reg ional Fam i l y

. By Dec ember of 2007, Dr

. Ramos also beg an working full-time as an emer g ency room phy sician
at Gra ham Hospital in Canton, I llinois

. During these times, he maintained clinical privileg es at Kew anee Hospital. ¶ 4 The defe ndant hospital has adopted medical staff bylaws t h at s et forth proce dures by which a phy s i ci an can apply for clinical privileg es, as well as a proce ss by which those privileg es may be suspended or revoke d. The proce ss i ncludes revie w by the medical executive com m i t t ee (MEC). The MEC is a committee of active members of the hospital medical staff with responsibil i t y for various staff activities. The MEC advises the board

conce rning a phy sician’s qualifications and t h e p ropriety of maintaining privileg es. The

-2-b o ard, howeve r, maintains the final and ultimate decision making authority reg arding

whether to gr ant, re voke, or suspe nd a phy sician’s c linical privileg es. ¶ 5 The by laws’ conflict of interest provision prohibits a member of any hospital c ommitt ee from participating in the discussion or voting on a matter in which the member “h as o r

rea sonably could be p er ce i v ed t o have a conflict of interest or to be biased in any matter in v o lv in g a n o th e r medical staff member.” The bylaws further provide that the chief executive office r (CEO), the board, or any active member of the medical staff may initiate a reque st for investigation or corr ective a ction ag ainst a phy sician with clinical privileg es. ¶ 6 On or about J une 3, 2008, the hospital rec eived a repor t from Hea lthSy stems of I llinois (HSI repor

t) conce rning patient car e involving Ramos. Hea lthSy stems i s an independe nt quality revie w org anization contra cted by the I llinois Depa rtment of Hea lthcare and Family Service s to perf

orm revie w of inpatient service s provided to Medica id prog ram participa nts. The hospital did not solicit the HSI repor t and had never previously rec eived an HSI repor t. ¶ 7 Prior to J une of 2008, the CEO of the hospital, Gustafson, was awa re of two other pa

tient

car e i n cidents involving Ramos, which wer e under revie w by the hospital’s peer revie w committee. After rec eiving the HSI repor t, the hospital board issued a written reque st to the hosp i t al ’s M E C to revie w the three patient car e incidents and initiate corr ective action if

war rante d. ¶ 8 The MEC sent a letter to Ramos on J uly 11, 2008, informing him of the three patient ca re incidents and adv i s i n g him that a specia l meeting of the MEC was schedule d for J uly 17, 2008. The letter reque sted he attend the meeting
, which he did. At the meeting
, he responde d
to questions reg arding the incidents, submitt ed written materia ls to the MEC, prese nted his version of the events surrounding t h e i n ci d en ts and acknow ledg ed that he revie wed the medical r ecor ds of all three patients prior to the mee ting. ¶ 9 On J uly 17, 2008, the board rec eived a fourth patient car e incident involving Ramos and ref err ed this incident to the MEC as well. The MEC declined to consider the fourth incident until it completed the r eview of the pre vious three. ¶ 10 The MEC declined to a ppoint a n ad hoc committee to inve stigate the three patient ca re incidents. The MEC issued a “L etter of Concern” to Ramos and felt no other action was

war rante d. Dr. Satkauska s and Dr. Jeffr ies wer e member s of the MEC at the ti me it issued the letter of

conce rn. ¶ 11 T h e b o ar d claims that prior to J une of 2008, it eng ag ed a peer revie w consul t an t t o provide peer revie w educa tion to the MEC as the board felt there wer e serious defic iencies in its revie w proce ss. O ne rec ommendation made by this consultant was for the hospital to ref er case s to an external entity for peer revie ws. I n J uly of 2008, the board decide d to send the four patient car e incidents involving Dr. Ramos to CI MRO Quality Hea lthcare Soluti ons (CI MRO). ¶ 12 CI MRO prepa red a repor

t that was prese nted to the board. There afte r, on Aug ust 1, 2008, the hospital directe d Dr. Satkauska s to ask Dr. Ramos if he would voluntarily ref rain fr om prac ticing or taking calls at the hospital pending further revie w of the four patient car e incidents. Ramos rejec ted the re quest. ¶ 13 The boa

rd t hen met on Aug ust 5, 2008, wher e the CI MRO phy sician re viewer g ave a n

-3-oral prese ntation c oncer ning her finding s and rec ommendations. Two day s later, the board provided Ramos with written notice that his clinical privileg es we re summar ily suspended pending further investigation. T h e b y l aw s of the hospital state that in such instances the phy sician is entitled to a hear ing wit h in 15 business day s, commonly ref err ed to as a “fa ir hear ing.” ¶ 14 On Aug ust 15, 2008, Ramos reque sted a fair hear ing pursuant to the bylaws. Ramos, the medical staff and Gustafson ag ree d on a hear ing office r who presided over the hear ing. Ninetee n hours of testimony and argument wer e prese nted at the hear ing. The initial session of the fair hear ing did not commence until August 27, 2008, which the hospital a dmits is 3 day s beyond the 15-day period. The hospital attributes this three -day delay to difficulties in coordinating the schedule s o f t h e hear ing office r and phy sicians on the fair hear ing committee. ¶ 15 On October 14, 2008, t he fa ir hea ringcommittee issued a report and rec ommendation. The board, pursuant to the repor t, decide d to reinstate Ramos’s clinical privileg es subject to

cer tain monitoring and supervision require ments. The board notified Ramos of this decision

on October 30, 2008. He reje cted the proposal the nex t d ay an d demande d an appellate hear ing be fore the boar d. ¶ 16 On November 2 5
, 2 0 0 8
, t h e b o ard conducte d the appellate hear ing. There afte r, on Dec ember 1, 2008, the board asked Ramos to inform it in 10 day s how and why the proposed monito ring plan was unacc eptable. Ramos made no response

. On December 12, 2008, the board provided Ramos with notice of final action, that being continuing the summary suspension. ¶ 17 Whil e the administrative proce eding s detailed above wer e pending
, on Aug ust 26, 2008, Ramos filed a two-count complaint seeking injunctive re l i ev e and a decla ration that his clinical privileg es wer e improperly suspended. In April of 2009, the trial court conducte d a five-da y hear ing on the preliminary injunction, ultimately denying plaintiff’s reque st for the injunction. ¶ 18 On J uly 24, 2009, Ramos filed an amende d complaint adding a count seekingdamag es. The trial court dism issed that count, without prejudice , afte r which pla intiff filed a second amende d complaint. ¶ 19 Def

endant filed a counter claim alleg ing that article VI
, section 2(a)
, of the bylaws is void and unenfor cea

ble under I l l i n o is law as that section purports to require the consent of the medical staff before t h e hospital may summarily suspend a phy sician’s clinical privileg es. T his section clea

rly states that the CEO and chief of staff must act jointly whe n i s s u i n g a summary suspension of a phy sician’s privileg es. The trial court held this languag e violated the court’s pronounce ment in Lo v. Provena Covenant Medic al Center
, 342 I ll. App. 3d 975 (2003), whic h stated that bylaws re quiring a hospi tal to obtain the s taff’ s approva l prior to disciplining the staff violate public policy

. As such, the trial court found article VI
, section 2(a) ’s re quirement to that ef fec t unenforc eable as ag ainst I llinois public policy

. ¶ 20 The trial court also, in Augus t of 2010, set a trial date of J anuar y 10, 2011. I n October of 2010, the trial court struck plaintiff’s jury demand as untimely

. Plaintiff filed another jury demand, which was also struck by the court. On J anuar y 4, 2011, the parties appea red for a

-4-final pretria l at which time the plaintiff announce d his intention to exercise his rig ht to a

voluntary dismiss al. The trial cou rt enter ed an order on J anuar y 6, 2011, dismiss ing plaintiff’s original case, No. O8-CH-123, without prejudice . Plaintiff paid defe ndant $136 in costs associated w ith the filing of de fenda nt’s answe r in ca se No. 08-CH- 123. ¶ 21 The plainti ff filed case No. 11-L -4 on Februa ry 16, 2011. Case No. 11-L -4 asserts two counts. Count I is for decla ratory relief seeking a decla ration that Ramos’s summary suspension is contrary

to the bylaws of the hospital a nd void ab initio . Count I I is a brea ch of contra ct count in which Ramos seeks money damag es. Both of these counts wer e pled in

case No. 08-CH-123. On Fe bruar y 28, 2011, plaintiff filed a motion for substitut ion of judge

as a matter of r ight. On Ma rch 19, 2011, in case No. 11-L -4, defendant moved pursuant to I llinois Supreme Court Rule 219(e) (ef f. Nov. 27, 2002) for

costs associate d with c ase No. 08-CH-123. Eventually
, the trial court denied plaintiff’s motion for substitut ion of judge and

awa rded defe ndant $22,649.03 in costs and expenses associate d with the defe nse of case No. 08-CH-123. ¶ 22 Despite repeated requests at t he administrative level and during the discovery phase at the trial level, the hospita l failed to disclose to the plaintiff the orig inal copy of CI MRO’s report until Aug ust 17, 2011, which was approximately one month prior to trial. When revie wing the orig inal version CI MRO sent to Christine Be rmudez, the hospital’s q u al ity control direc tor, and the v er s i o n that was ultimately g iven to the MEC, the plaintiff deter mined the following lang uag e wa s added to the c onclusion of the sec ond version: “The PR (phy sician revie wer ), as a board cer tified family phy sician, upon revie w of the four episodes of car e provided by the phy sician, under review i n multipl e settings, provided the f

ollowing r ecommendations:
* Refer for formal assessment of potential impairment; phy sical, emotional, mental, and substance -re lated.
* Refer to the gover

ning board of the hos pital d u e t o the pot ential i mminent threat to patient safe ty .” ¶ 23 Upon lear

ning of the exis tence of the orig inal repor t whi ch o m i t t ed t h i s lang uag e, plaintiff issued subpoenas for depositions of Diane Homan, M.D., and J udy Ring, RN, BSN of CI MRO. The subpoenas als o soug ht to obtain documents associate d with CI MRO’s revie w of Dr. Ramos’s activities. Homan and Ring filed a mot ion to quash t he subpoenas. The trial court g rante d the motion, there by prohibiting plaintiff from deposing anyone from CI MRO. ¶ 24 Case No. 11-L -4 proce eded to a six -day trial in September of 2011. As neither party felt it nece ssary to rec ap the trial testimony in their briefs to this court, that which is rele vant to

o u r analy sis will be detailed below. Ultimately
, the jury returne d a verdic t in favor of the hospital. Plaintiff filed a posttrial motion seeking
, inter alia
, a judgme nt notwithstanding the verdic t (judg ment n.o.v. ). The trial court denied plaintiff’s motion. The trial court also stay ed enfor ceme nt of its order awa rding defe ndant $22,649.03 in costs and expenses related to case No. 08-CH-123. This timely appea l followed.

-5-¶ 25 ANALYSI S

¶ 26 Plaintiff raises numerous issues on appea l. The vast majority of these arguments can be
separ ated into two c ateg ories: ar g uments claiming plaintiff is e ntitled to a judgme nt n.o.v. , and arguments claiming plaintiff is entitled to a new trial. Plaintiff also claims the trial court

err ed in enter ing a judgme nt ag ainst him in this case , No. 11-L -4, for $22,649.03 in costs and expenses associate d with case No. 08-CH-123.

¶ 27 I . J udg ment N.O.V. ¶ 28 P l aintiff claims the trial court improperly denied his motion for a j u d gm en t n

. o

. v. Specifica lly
, plaintiff identifies a number of provisions of the hospital’s bylaws and claims he unequivoca lly prove d v i o l at ions of these provisions. Proving a violation of any one of these by laws
, plaintiff submits, entitled him to a verdic t in his favor

. There fore
, plaintiff
argues he is entitled to a judg ment n.o.v. ¶ 29 We rev i ew d

e n o vo a trial court’s denial of a motion for judgme nt n.o.v. Serrano v. Rotman
, 406 I ll. App. 3d 900, 908 (2011). A judgme nt n.o.v. is proper ly enter ed only wher e the evidenc e, when viewed in a light most fa v o rable to the opponent, so overwhelmingly favor s the movant that no contra ry verdic t ba sed on the evidenc e could ever stand. Pedrick

v. Peoria & Eastern R.R. Co.
, 37 I ll. 2d 494, 510 (1967); Maple v. Gustafson
, 151 I ll. 2d 445, 453 (1992)

. I n ru l i n g o n a motion for judgme nt n.o.v. , the trial court does not weig h the evidenc e, nor is it conce rned with the cr ed i b i l ity of witnesses. Id. A judgme nt n.o.v. is improper wher e there is any evidenc e, toge ther with rea sonable infere nces to be draw n there fro m , d em onstrating a substantial fac tual dispute, or wher e witness cre dibilit y or a resolution of conf

licting e vidence is decisive of the outcome. Id. at 454. ¶ 30 Aga i n, plaintiff adduce d evidenc e at trial and argued to the jury that h e p ro v ed t h e hospital violated its own by laws when issuing his summary suspension. To fully analy ze his theories of why he is entitled to a judgme nt n.o.v. , we mu s t fi rs t discuss the applicable burden of proof employ ed at the trial court level when a phy sician claims h i s h o s p i t al privileg es we re imprope rly suspended or

terminated. ¶ 31 I llinois subscribes to the rule o f n o n re view when it comes to case s involving private hospital staff privileg es. Adkins v. Sarah Bush Lincoln Health Center
, 129 I ll. 2d 497 (1989). As a matter of I llinois public policy
, staffing decisions of private hospitals a re only subject
to judicial revie w when the decision involves a revoc ation or reduc tion of ex i s t i n g s t aff privileg es. Id. at 506. I n s u ch i n s t ances, the hospital’s action is subject to limit ed judicial revie w to d et er m i n e whether the decision made was in compliance with the hospital’s by laws. Id. at 506-07. The judicial reluc tance to revie w these internal staff decisions ref lects the unwillingness of courts to substitut e our judgme nt for t h e p rofessional judgme nt of hospital officia ls with superior qualifications to consider and decide such issues. Id. at 507. A cour t may reve rse the decision of the hospital off icials if it is not i n acc ordanc e with the by laws or if the by laws wer e followed but “ actua l unf airne ss on the part of the hospital, its committees or individual membe rs of the committees is de monstrated in the rec ord.” Id. at 514. A h o s p ital need not employ “per fec t” compliance with its bylaws as substantial compliance will suffice

. Chessick v. Sherman Hospital Ass’n
, 1 9 0 I ll. App. 3d 889, 899

-6-(1989); Carson v. Northw est Community Hospital , 192 I ll. App. 3d 118, 121 (1989).

¶ 32 Plaintiff i d en t i fi es specific sections of the bylaws, which we will discuss individually below, and claims that he unequivoca lly proved the hospital violated these sections. Def endant asser

ts the plaintiff failed to adduce overwhelming evidenc e of a materia l brea ch of the by laws. There fore
, defe ndant conclude s that the trial court proper ly denied plaintiff’s motion for a judg ment n.o.v. as plaintiff fa iled to meet the Pedrick standard.

¶ 33 A. Article I V, Section 2(a ) ¶ 34 Ramos beg i n s h i s ar gu m ent identifying article I V, section 2(a)
, which states that the “Chief of Staff, or desig nee, and the Chief Ex ecutive Offic er, or desig nee, shall jointly have the authority
, whene ver action must be taken immediately to preve nt imminent dang er to the health of any person, to summarily suspend all or any portion of t he C linic al P ri v i leg es of a Phy sician ***.” ¶ 35 Plaintiff claims it is uncontrovered that the MEC and chief of staff did not ag ree to the
summary suspension. There fore
, plaintiff posits that he unequivoca lly proved a violation of article VI
, section 2(a)
, of the hospital b y l aw s en t itling him to a judgme nt n.o.v. Plaintiff direc ts our attention to languag e in this section stating the chief of staff and the CEO “shall jointly ” have the authority to summarily

suspend a phy sician. ¶ 36 Nowher e, howeve r, does the plaint i ff ev en mention that the trial court found that the lang uag e in ar

ticle VI
, section 2(a), violates public policy of I llinois as announc ed in Lo v. Provena Covenant Medic al Center
, 342 I ll. App. 3d 975. T h e Lo court noted that if “the medical staff had the power to veto any restric tions the hospita l wo uld impose on a phy sician’s defe ctive prac tice–if the hospital could stop substandard trea tment only upon the medical staff’ s rec ommendation or approva l–the medical staff would eff ectively not be ‘ac countable’ to the hospital f or the quality of car e, and the hospital could not ‘re quire’ the medical staf

f to do any

thing to eliminate an imminent dange r to patients.” Id. at 984. Such

a policy
, the Lo court found, would violate numerous “re quirements of state and fede ral law” which mandate that a hospit al h as an eff ective g overning body leg ally responsible for the conduct of

the hospital as an institution. Id. at 983. ¶ 37 Ag ain, nowher e in plaintiff’s argument to this court do we find that he challeng es the trial court’s ruling that article I V, section 2(a)
, violates public policy and is there fore unenfor cea

ble. Plaintiff mere ly states that he unequivoca lly proved the CEO of the hospital
acte d unilatera lly in violation of article I V, section 2(a)

. To deter mine whether p l ai n tiff is indeed entitled to a judgme nt n.o.v. for unequi v o ca l l y p rovi ng a violation of article I V, section 2(a)
, we would first need to deter mine whether the trial court proper ly interpre ted Lo and whether or not that section of the bylaws is, in fac t, enfor cea ble. Howeve r, plaintiff has ch o s en n o t to addre ss the trial court’s ruling on the issue. There fore
, we find plaintiff’s
argum en t re gar ding article I V, section 2(a)
, to be forf eited. The appellate court is not a repository into whic h an appellant may foist the burden of argument and rese arc h. Velocity Inve stments, LLC v. Alston
, 397 I ll. App. 3d 296, 297 (2010). “Points not argued are waived” and failure to proper ly develop an argument and support it with citation to rele vant authority results in forfe iture of that a rgument. I ll. S. C t. R. 341(h)(7) ( eff . J uly 1, 2008).

-7-¶ 38 B. A rticle VI , Section 1(g )

¶ 39 Plaintiff’s next theory as t o wh y h e i s entitled to a judgment n.o.v. involves article VI
, section 1(g ). Plaintiff claims this sec t i o n m andates that once the MEC decide s no further action is war

rante d, the hospital can take no further action. Plaintiff argues that the MEC found no action was war

rante d and, there fore
, the summary suspension violated this section. The hospital counter s, arguing that the clea r languag e of article VI
, section 1(g ), indicates that only the MEC can take no fur ther a ction if its findings ar e fa vorable to the phy sician. ¶ 40 Article V I , section 1(g ), states:

“The Chief Ex ecutive Offic er shall promptly notify the Phy sician or Practitioner in writing of the action taken by the Ex ecutive Commi ttee. I f the action is favor able to the Phy sician or Practitioner so notified, no further action is taken. I f t he recommendation of the Ex ecutive C o m m i t tee is adver se, the Chief Ex ecutive Offic er shall notify the Phy sician or Practitioner by cer tified mail, return re ce i p t reque sted, advising the Phy sician or Practitioner of the adver se rec ommendation and the rea sons for the adver se

rec ommendation (including all rea sons bas ed o n t h e quality of medical car e or other basis, including economic fac tors), and the hear ing proce dure to be followed acc ording to Article VI Iof these B y laws.” ¶ 41 The rec ord reve als that following the MEC’s meeting of J uly 17, 2008, the MEC issued

a “letter of conce rn” to Ramos reg arding “issues of profe ssionalism.” The MEC’s letter, dated Aug ust 1, 2008, indicates that “the MEC felt that there wer e issues of conce rn relating
to clinical car e delivere d” for the first case revie wed. The letter further identifies a “sepa rate

conce rn related to the i ntera ction betwee n [R am o s ] an d the R adiolog y Tec hnician” on the

s ec o n d case revie wed. For the third case , the “MEC was unable to deter mine whethe r [R amos’s] conduct was appropr iate or not” g iven “the vary ing acc ounts of what happene d.” Whil e the MEC did “not fee l action in addition to” its Aug ust 1, 2008, letter was nece ssary , it did wish “to ex press ser ious conce rn about the a bove alleg ations.” ¶ 42 Plaintiff argued to the jury that article VI
, section 1(g ), prohibited any further action fr om being taken ag ainst him once the MEC decide d no further action was war rante d. The bylaws clea rly state, howeve r, that is true only when “the action [t aken by the MEC] is favor able to the phy sician.” As noted above, to be entitled to a judgme nt n.o.v. , Ramos must show when all the evidenc e, viewed in the light most favor able to the hospital, so overwhelmingly favor s him that no contra

ry v er d i ct ca n stand. Pedrick
, 37 I ll. 2d at 510. Ramos has not met this burden. The jury could have rea sonably conclude d that the letter issued by the MEC w hich “expresses serious conce rns” about the three incidents revie wed does not equate to an action “fa vorable to the phy sician.”

¶ 43 C. Article VI , Sections 2(b) a nd 2(c) ¶ 44 Plaintiff also notes that the hospital failed to provide him a fair hear ing within 5 day s of his reque st and 15 day s of the issuance of t he suspension as required by article VI
, section 2(c)
, and article VI
, section 2(b), respe ctively

. The rec ord demonstrates, and the hospital

conce des, that the hear ing took place three day s beyond that time frame. Plaintiff makes no

-8-argument and p ro v i d es no citation to authority indicating how this prejudice d him in any

way

. Nor does the plaintiff provide argument or authority for a claim that this three -day delay equate d to a mater ial brea ch of the bylaws. ¶ 45 As noted above, when a phy sician proves that a hospital violated its bylaws in suspe nding

or revoking the phy sician’s privileg es, “the violations must be substantial to require judicial intervention.” Chessick
, 190 I ll. App. 3d at 899. That is, to be entitled to relief
, the plaintiff must show “the violations prejudice the plaintiff.” Id. ¶ 46 At the commenc ement of the fair he aring , albeit 3 day s late, 19 hours of testimony and
argument wer e prese nted. There is no alleg ation that the three -day delay somehow preve nted plaintiff from putting forth evidence he wished to pre sent at the he aring . We acknow ledg e that the plaintiff proved the hear ing beg an three day s beyond the term called for in article VI
, sections 2(b) and 2(c)
, of the by laws. Howeve r, plaintiff having failed to prove or even alleg e that this som eh o w p rejudice d him in any way , we hold the plaintiff is not entitled to a judgme nt n.o.v. on this iss ue.

¶ 47 D. Article VI I , Section 2(d) ¶ 48 Plaint i ff als o claims that defe ndant failed to provide him with proper written not ice of hear ing in violation of article VI I
, section 2(d), of the bylaws. Specifica lly
, plaintiff contends he did not rec eive written notice which stated in concise lang uag e the acts or omissions with which he was char g ed. Plaintiff fails, h o we v er , t o explain how this lack of proper notice prejudice d him. ¶ 49 Article V I I , section 2(d) , states:

“The Chief Ex ecutive Offic er shall provide the Phy sician or Practitioner with a written notice of the t ime, place and date of t he hearing

. The noti ce of such hea ring shall state in concise languag e the acts or omissions with which the Phy sician o r Practitioner is char g ed, or the other rea sons for the adver se rec ommendation or decision, including all

rea sons based on the quality of medical car e or any other basis, including econom ic fac tors. The notice shall also state that the Phy sician or Practitioner has the ri g ht to inspect all pertinent information in the hospit al’s possession with respe ct to the

rec ommendation, upon written re quest and at rea sonable times.” ¶ 50 The rec ord reve als that plaintiff rec eived a letter dated J uly 11, 2008, which sets forth the fac ts and circ umstances underly ing the three p at i en t case s under revie w by the MEC. De fe n dant claims the J uly 11, 2008, letter was sufficie nt notice to comply with t h e afor ementioned by law provision as it put Ramos on notice of the claims ag ainst him and he actively participated in the MEC proce eding s. ¶ 51 The rec ord further indicat es t h at t h e h o s p i t al had a formal notice hand-de livered on Aug ust 25, 2008, a mere t wo d ay s befor e the hear ing. Plainti ff argues t his notice was also insufficient, but he offers no explanation as t o why it was insuffic ient beyond claiming “it speaks f or itself.” ¶ 52 Ag ain, the rec ord indicates plaintiff actively participated and was repr esente d by counsel during the fair hear ing. Plaintiff does not argue that issues wer e discussed during the hear ing

-9-of which he had no notice nor which surprised him. We find no evidenc e in the rec ord that

the plaintiff asked for additional time t o re s p o nd to the issues identified in the hospital’s Aug ust 25, 2008, notice or the J uly 11, 2008, letter. We cannot say that t h e ev i d ence of noncompliance so overw helmingly favo rs p l aint iff that no contra ry verdic t can stand. As such, we hold Ramos is not entitled to a judg ment n.o.v. on this iss ue.

¶ 53 E. Article V I I , Section 3(d)( i) ¶ 54 Plaintiff claims to have une quivocally proved a violation of article VI I , section 3(d) (i), which states:
“The proce eding befor e the Boa rd shall be in the nature of an appellate hear ing based on the rec ord of the hear ing befor e the hear ing committee and an y appea l statements submitt ed. Eac h party shall have the rig ht to make oral argument persona lly or throug h his/her repr esentative, subject to limit s or rules adopted by the Boa rd, and the Boa

rd may , in its sole discretion, ask questions of the parties. The Boa rd may there afte r conduct, at

a time convenie nt to itself, delibera tions outs i d e the prese nce of the appellant and responde nt and their repr esentatives for the purpose of deter mining whether the adver se

rec ommendation or decision ag ainst the aff ecte d Phy sician or Practitioner was justified and wa s not unreasona

ble, ar bitrary or ca pricious.” ¶ 55 Plaintiff assert s this section prohibited Mark Rewer ts from attending the deliber ations

o n appellate revie w afte r Rewer ts acte d as the board’ s repr esenta tive in the fair hea ri n g. Def endant acknow ledg es Rewer ts ’ prese nce at the appellate deliberations, but claims it offe red uncontrove rted evidenc e that Rewe rt s ab stained from voting on the matter of Ramos’s privileg es. As with oth er i s s u es d iscussed above, the fact that the j ury returne d a verdic t in favor of the hospital indicates that it found R ew er t s ’ prese nce at the appellate hear ing did not constitute a material bre ach of this section of the bylaws. ¶ 56 We cannot say the evidenc e, when viewed in the light most favor able to the hospital, so

overw helmingly favor s the plaintiff that no contra ry verdic t could ever stand. We must note t h at we find no lang uag e in article VI I
, section 3(d)( i), prohibiting a board memb er wh o repr esente d the board at t he fair hearing from attending the appellate p ro ce ed i ng

. Plaintiff fails to develop his ar g ument identifying the exact lang uag e conta ined in this section upon which his argument is based. Ar g uably , the languag e indicating that the proc eedingbefor e the board “shall be in the nature of an appellate proce eding ” indicates that one acting as an advocate duringthe fa ir hea ring cannot sit on the appe llate tribunal char g ed with r uling on matters which took plac e at the f air he aring

. ¶ 57 Howeve r, t he hospital put forth evide nce that Rewerts a bstained fr om voting on issues
prese nted to the board. This is cer tainly evidenc e from which the jury could have conclude d that Rewer

ts mere ly attende d th e “ a

p p e ll a te proce eding ” and took no meaning ful part there in. As we find no lang uag e in this bylaw prohibiting attendanc e at the appellate proce eding
, we cannot say that Ramos is entitled to a judgme nt n.o.v. based upon his alleg ation that he unequivoca lly

proved a violation of article V I I , section 3(d) (i).

-10-¶ 58 F. Ar ticle VI I , Section 2(f) (vi) ¶ 59 Plaintiff further argues that it is undisputed that the hospital failed to provide plaintiff a copy of the orig inal CI MRO repor t, in violation of article VI I
, section 2(f) (vi), of the by laws. That section states that the phy sician or prac titioner “shall h av e the rig ht to inspect all information in the hospital’s possession with respe ct to adver se action or rec ommendation.” Wit hholding the orig inal CI MRO repor t, plaintiff asser

ts, unequivoca lly violated this section of the bylaws. ¶ 60 The hospit al acknowledg es t here wer e two versions of the C I MRO repor t , re fe rringto

one as a “d ra ft ” and the other as the “fina l CI MRO repor t.” The hospital also does not dispute that it failed to provide Ramos with the orig inal version of the CI MRO report. ¶ 61 Despite failing to turn over the orig inal CI MRO repor t befor e the matter proce eded to the fair hear ing, the h o s pital claims that even if this is a technica l violation of the bylaws, the plaintiff has not show n how this prejudiced him or how it e ntitles him to a judgme nt n.o.v. The hospital note s that Gar y Pheiffer
, the chair of the board, testified that even without the added lang uag e in the final CI MRO repor t, he still would have voted in favor of a summary suspension. The h o s pital further notes that Ramos put on evidenc e from Christine Be rmudez, the hos pital’s quality

control direc tor, and Mar g are t Gustafson, the hospital’s CEO, which showed that lang uag e was indeed added to the CI MRO repor t and that the hospital failed to disclose the orig inal repor t. Wh il e this evidenc e seems damning to the defe ndant, the hospital

n o t es i t indicates the jury was well awa re of its failure to disclose t he C I MRO report

. T h e hospital continues that it was a que stion of fac t f or the jury to de termine whether failure to turn ov er t h e report equated t o a material brea ch of article VI I
, section 2(f)(vi), and, g iven the jury ’s ver dict, a question it must have re solved in favor of the hospital. ¶ 62 The hospital’s failure to disclose the orig inal copy of the C I M R O re p o rt i s ce rt ainly troublesome. Howeve r, g iven the standard of revie w employ ed whe n deter mining whe ther

a party is entitled to a judgme nt n.o.v. which prohibits us from rew eig hing the evidenc e ( Maple
, 151 I ll. 2d at 453), we cannot say the trial court err ed in denying plaintiff’s motion for a judgme nt n.o.v. on this issue. Our concer n is wh et h er t h er e is any evidenc e, together with rea sonable infere nces to be drawn there from, demonstrating a substantial fac tual dispute. Id. We may only find the trial court err ed in denying a motion for a judgme nt n.o.v. when the evidenc e so overw helmingly favor s the moving party that no contra ry verdic t based on the evidenc e could e ver stand. Pedrick , 37 I ll. 2d at 510. ¶ 63 Wh i l e t h e o ri gi nal version of the repor t did not contain the alleg ation that Ramos’s actions posed an “imminent threa t to patient safe ty ” as does the final version, it did express

a number of concerns; those conce rns related to the trea tment of three patients. The alleg ations contained within the o ri g inal CI MRO repor t when coupled with Pheiffer ’s testimony that the additional lang uag e would not have chang ed his vote reg arding plaintiff’s
summary suspension leave us unable to say that the evidenc e of prejudice to the plaintiff by the hospital’s failure to timely dis cl o se the orig inal repor t is so overwhelming that no contra ry verdic t may sta n d

. T h er ef o re, we hold the trial court did not err in denying plaintiff’s motion for a judg ment n.o.v.

-11-¶ 64 I I . New T rial

¶ 65 Although we have found t h at p l ai n t i ff i s n o t en t i t led to a judgme nt n.o.v. , we do, howeve r, hold plaintiff is entitled to a new trial. Plaintiff makes a numb er o f ar gu m ents reg ardingalleg ed er

rors made below, which he claims preve nted him f rom rec eiving a fa ir trial.

¶ 66 A. CI MRO Reports ¶ 67 Arguments conce rning the C I M R O re p o rts can be found in numerous sections of both the plaintiff’s and defe n d ant’s briefs to this court. The parties have interwove n these
arguments betwee n claims of both err or and propriety

. Plaintiff argues that err oneous ruling s reg arding the CI MRO repor ts wer e made both prior to trial and during the trial. The pretria l

err ors, plaintiff claims, stem from the trial court prohibiting him f rom deposing employ ees of CI MRO reg arding the cre ation of differ ing versions of CI MRO’s repor t. Plaintiff claims that prohibiting hi m fr om deposing those employ ees denied his rig ht to a fair trial as it prohibited him from prese nting his the ory of the case ; that is, the proce ss below was unfair

as Gustafson manipulated the proce ss out of persona l animus ag ainst the plaintiff. Plaintiff also argues that during trial the defe ndant was imp ro p er ly allowed to prese nt evidenc e perta ining to the CI MRO report. For the rea sons that follow, we f ind the trial court de nied plaintiff a fair trial when ref using to allow plaintiff the opportunity t o d ep o se those associate d with g enerat i n g t he CI MRO repor t. As such, we reve rse the judgme nt enter ed below and r emand f

or fur ther proc eeding s. ¶ 68 Ex planation at how we arr ive at this decision necessitates re view of the circ umstances surrounding the cre ation of the CI MRO repor ts and one of the plaintiff’s theories of why his privileg e s w e r e wr o n g f

u ll y s u spended. I n addition to claiming the hospital violated its by laws

as we detail above, plaintiff proce eded under the theory that the hospital eng ag ed in “ac tual unfairne ss” when suspe nding him. He noted, and the hospital does not dispute, that article VI
, section 2(a)
, on l y allows for a summary suspension “whe never action must be taken immediately to preve nt imminent dang er to the health of any person.” He further notes, and the hospital does not dispute, that no one on the MEC or any other phy sician associate d with the hospital opined that suspension was nece ssary to preve nt imminent dang er to the health of any person. ¶ 69 During the administrative proce eding s below and throug hout the course of the litigation, Ramos repe atedly reque sted all documents possessed by the hospital which wer e rele vant to his suspension. Despite these numerous reque sts initially made as ear ly as Aug ust 15, 2008, the hospital did not produce the orig inal version of the CI MRO repor t until Aug ust 17, 2011, approximately

one month prior to the September 19, 2011, trial. ¶ 70 The orig inal repor t contains no specific alleg ation o r o b s er v at ion that suspension was

nece ssary to preve nt imminent dang er to the health of any person. The subsequent ver sion of t he report and the onl y one shown to the hos pita l b o ar d added languag e recommending sanctions “due to the potential imminent threat to patient safe ty .” The trial court prohibited Ramos fr om deposing those from CI MRO who wer e responsible for cra fting the two differ ent versions of the repor t and fully exploring the circ umstances s u rr o u n d i n g eac h

-12-version.

¶ 71 Plaintiff makes numerous arguments as to why prohibiting him f r o m d e p o s ing those from CI MRO amounts to reve rsible err or. The defe ndant posits that the trial court corr ectly barr ed Ra mo s f r o m d e p o s ing the CI MRO employ ees as “allowing discovery conce rning the fi n d in g s and conclusions of t he C I MRO phy sician reviewer would open the door t o the reliti g ation of the phy sician’s c linical competenc e or pr ofessional c onduct.” We disag ree

. ¶ 72 We acknow ledg e, as defe ndant indi ca t es , t h at the rule of nonrevie w prec ludes courts from reviewing a hospi tal’s determination of a phy sician’s clinical competenc e as the rule is founded on t he premise that courts should not “substitute their judgme nt for the profe ssional judgme nt of hospital officia ls w it h s u p e r io r q u a li f ic a ti o n s to consider and decide such issues.” Adkins
, 129 I ll. 2d at 507. The Adkins court did not end its e x planation of the rule with that pronounce ment. I t noted that a “cour t, howeve r, will be justified in revie wing a private hospital’s actions even wher e the bylaws are fo llowed i f actual unfairne ss on the part of the hospital, its committees or individual members of the committees is demonstrated in the rec ord.” Id. at 514. ¶ 73 Whil e the rule of nonrevie w prec ludes us, as it did the trial court, from analy zing whether in fac t Dr. Ramos posed an imminent dang er to patient health, it does not ipso facto make the CI MRO repor

ts irrele vant to Ramos’s claim of fundame ntal and actua l unfairne ss mere ly due to the fac t that the repor ts comment on his co m p et en ce

. Ramos propounded a theory below that Gustaf

son was “out to g et him” as he w ould not support her attempts to chang e

cer tain bylaws. He allege d i n h i s co mplaint that in an eff ort to acc omplish her g oal or reduc ing his prese nce and influence in the hospital, she eng ag ed CI MRO to conduct a peer revie w when the customary MEC peer revie w rec ommended no further action be taken. The complaint notes that Gustafson “re ceive d a repor t from CI MRO that ag ain did not find that Plaintiff Dr. Ramos posed an imminent dang er to patients” y et she was “dissatisfied with the orig inal CI MRO r eport” so she “c ontacted CI MRO a nd demande d chang es or additions be made to the original report; chang es t hat would purportedly justify a s u m m ar y suspension

or re vocation of Plaintiff Dr . Ramos’ privileg es.” ¶ 74 R am o s further alleg ed that the hospital had never befor e hired an outsid e age n cy t o conduct a peer revie w. The rec ord ref lects that despite the fac t that he attempted to obtain all information rele vant to his suspension, the hospital routinely ref used to disclose the orig inal version of the CI MRO repor t. When Ramos finally obtained a copy of the orig inal CI MRO
repor t, he lear ned it contained no lang uag e specific ally stating t h at he posed an imminent dang er to patient health. The trial court thwarte d his eff orts to depose those associate d with the cre ation of the two differ ent CI MRO repor ts, as well as the transmission of those repor ts to the hospital. ¶ 75 By ref

using to allow Ramos to depose those associated with cre ation and transmissi on of the CI MRO r eport, the trial court denied him the opportunity to disc over whether or not the hospital is indeed corr ect that the chang es wer e mere ly an omission of a previously held belief or, in fac t, the product of Gustafson’s alleg ed conspirac y to reduc e Ramos’s influence within the hospital at all costs. Procee ding on the theory that the proce ss the hospital eng ag ed in to issue his summary suspension was fundame ntally unfair, Ramos was entitled to explore

-13-t h e ci rcumstances surrounding the cre ation of two differ ent CI MRO repor ts: one which specific ally claimed he posed an imminent dang er to patient health and the other which did
not contain that specific alleg ation. We hold the trial court abused its discretion in prohibiting Ramos fr om inquiring into this matter, there by denying him a f

air trial. ¶ 76 Discover

y ruling s are g ener ally within the trial court’s discretion and we will not disturb them absent an abuse of that discretion. D.C. v. S.A.
, 178 I ll. 2d 551, 559 (1997). Howeve r, g reat latitude is allowed in conducting discovery and the conce pt of rele vance is broade r for discovery purposes than for purposes of admitting evidenc e at trial. TTX Co. v. W hitley
, 295 I ll. App. 3d 548, 556 (1998). Relevanc e for discovery purposes includes not only what is admissible at trial, but also that which lea ds to admissibl e evide nce. Id. at 557. ¶ 77 W e al s o re

ject defe ndant’s asser

tion that any err or reg arding the CI MRO repor ts was invited by the plaintiff. Def endant beg ins its invited err or argument noting that the phy sician “soug ht to argue that the summary suspension proce eding s w e r e ‘unfa ir.’ ” Def endant alleg es that any err or associate d with the CI MRO repor ts must be attributed to plaintiff s i n ce plaintiff introduced “testimony that could be rebutted by the CI MRO repor t.” This argument lacks merit. We reje ct defe ndant’s contention that plaintiff’s theory that the hospital eng ag ed in actua l unfairne ss during the administrative revi ew p roce ss invited this or any err or associate d with the chang ing of the CI MRO report.

¶ 78 B. A ctual Prejudice ¶ 79 Def

endant as s er t s t h at t o “t h e ex t en t the phy sician proce eded under a theory of ‘funda mental unfairne ss,’ the phy sician is require d to prove ‘ac tual prejudice ’ resulting from the unfairne ss.” The sole authority defe ndant cites to support this claim is Adkins

. Following that citation, defe ndant claims plaintiff can show no preju d i ce as the rec ord reve als he is making more money now than prior to the s u spension of his privileg es and continues to incre ase his wag es. He rema ins a provider with more than 300 health plans d es pite his
summary suspension. ¶ 80 We acknow ledg e defe ndant raise d t h i s “a ct u al prejudice ” claim while respondingto

ar gu m en t s from the plaintiff asser ting he is entitled to a judgme nt n.o.v. We addre ss this
argument in the “Ne w Trial” section of this opinion since it seems more g er m an e to plaintiff’s claim that he wa s improperly preve nted from exploring and putting on evidenc e to support his claim of fundame ntal unfairne ss. ¶ 81 Def

endant’ s citation to evidenc e of plaintiff’s ear ning potential sug g ests that defe ndant believes Adkins stands for the proposition that there can be no “ac tual prejudice ” if a wrong fully suspended phy sician makes more mo n ey afte r suspension than he did befor e suspension. The actua l p re j u d i ce discussed in Adkins ref err ed not to monetary losses, howeve r, as the defe ndant sug g ests but, instead, to bias ag ainst the phy sician by a member of the revie w committee. Adkins
, 129 I ll. 2d at 512 (“A dkins does not contend that there was actua l prejudice on the part of [t he] members of the Ex ecutive Commi ttee or that the decision of the membe rs was ba sed on any thing but an inf

ormed re view of the fac ts.”). ¶ 82 Moreove r, the rec ord ref lects that plaintiff soug ht to remove or preve nt the listi ng of this suspension in the Nati o n al P rac titioner Data Ba nk. At least one other I llinois court has

-14-tang entiall y co m m ented on the neg ative impact a repor t to the National Practitioner Data Ba nk can have on a phy sician’s futur e employ ment. Janes v

. Centegra Health System
, 308 I ll. App. 3d 779 (1999). Certainly
, if Ramos can show his suspension was improperly enter ed due to a fundame ntally unfair proce ss, then repor ting that improperly enter ed suspension of

c li n ic a l p rivileg es to the National Practitioner Data Ba nk harms or prejudice s him. There fore
, we reje ct the hospital’s sug g estion that the only way a phy sician can show actua l pr ejudice when his privileg es have been suspe nded is to prove he suffe red mone tary loss therefr om.

¶ 83 C. Motion for Subst itution of J udg e ¶ 84 Af

t er h av i ng two jury demands stricken in case No. 08-CH-123 for beinguntime l y , plaintiff voluntarily dismiss ed that case and filed the i n s t ant action, No. 11-L -4. Plaintiff filed a jury demand along with his complaint in case No. 11-L -4 and, shortly there afte r, moved for substitut io n o f judge pursuant to section 2-1001(a )(2) of the Code of Civil P rocedure (the Code) (735 I L CS 5/2-1001(a) (2) (West 2010)). The trial court denied plaintiff’s motion. We revie w an order denying substitut ion of judge as a matter of rig ht de

novo

. In re D.M

., 395 I ll. App. 3d 972 (2009). ¶ 85 Plaintiff corr ectly notes that section 1 3 -2 1 7 o f the Code (735 I L CS 5/13-217 (West 2010)) allows for a plaintiff who voluntarily d i s m i s s ed an action under section 2-1009(a ) (735 I L CS 5/2-1009(a) (West 2010)) to “commenc e a new action within one y ear .” 735 I L CS 5/13-217 (West 2 0 10). I t is clea r that a case broug ht pursuant to section 13-217 is a new action and not the “ ‘re -commenc ement’ ” of the prior action. W ilson v. Brant
, 374 I ll. App. 3d 306, 311 (2007). Dr. Ramos’s voluntary dismiss al of case No. 08-CH-123 “ter minated the action in its entirety .” Dubina v. Mesirow Realty Dev elopment, Inc
., 178 I ll. 2d 496, 503 (1997). “ The orig inal and re filed ac tions are c ompletely distinct actions.” Id. at 504. ¶ 86 As there is no doubt that case No. 11-L -4 is a new and distinct action from case No. 08- CH-123, plaintiff argues the trial court improperly failed to gra n t his motion to substitut e judge

. He notes section 2-1001 of the Code mandates that when “a party timely exercises his

or her rig ht to a substitut ion without cause ,” “[e]ach party shall be entitled to one substitut ion

o f j u d ge wi t hout cause as a matter of rig ht.” 735 I L CS 5/2-1001(a) (2)( i) (West 2010). Section 2-1001 continues that an “application for substitut ion of j udg e as o f ri gh t s h all be made by motion and shall be g rante d if it is prese nted befor e trial or hear ing beg ins and befor e the judge to whom it is prese nted has ruled on any substantial issue in the case , or if it is presented by

consent of the parties.” 735 I L CS 5/ 2-1001(a )(2) (ii) (West 2010). ¶ 87 Plaintiff notes n o ru l i n gs h ad b ee n m ade in case No. 11-L -4 prior to his motion to substitut e. Theref

ore, plaintiff claims he wa s entitled as a matter of rig ht to substitut ion of judge as it is well settled that courts “ ‘ should lean toward favoring rathe r than de feating a substitut ion of judge .’ ” In re Austin D.
, 358 I ll. App. 3d 794, 799 (2005) (quoting Rodisch v. Commac ho-Esparza , 309 I ll. App. 3d 346, 350 (1999)). A s it is equa lly well settled that
any “and all order s enter ed afte r the improper denial of a motion to substitut e judge are null and v o i d
, ” p l aintiff maintains all order s following the improper denial of his motion to substitut e ar e void ab initio

. Id. ¶ 88 Whil e ac knowledg ing a party ’s rig hts unde r section 2-1001, defe ndant notes that those

-15-rig hts only allow for a substitut ion of judge when “a party timely exercises” them. 735 I L CS

5/2-1001(a) (2) (West 2010). Courts, including this one, have l o n g h el d that a motion to substitut e is “untimely if it was filed afte r t he judge ha s ruled on a subst antive is sue i n the

case .” In re D.M.
, 395 I ll. App. 3d 972, 976 (2009). The rea son for this policy is to preve nt a litiga nt from judg e shopping afte r for ming a n opinion that the j udg e may be unfa vorably disposed toward his case

. Id. A motion for substitut ion of judge may also be proper ly denied,

even if the judge presiding did not rule on a substan t i v e i s s u e, i f the litigant “ ‘had an opportunity to test the water s and form an opinion as to the court’s dispositi on’ ” of an issue. Cincinnati Insurance Co. v. Chapman
, 2012 I L App (1st) 111792, ¶ 23 (quoting In re Estate of Hoellen , 367 I ll. App. 3d 240, 246 (2006)). ¶ 89 Undoubtedly
, plaintiff had an opportunity to do more than just test the water s in case No. 08-CH-123. We find no repor ted case s in which the afor ementioned principles put in place
to preve nt forum shopping have been applied to a newly filed suit pursuant to section 13-217 of t h e C o d e. Defendant draw s our attention to Partipilo v. Partipilo
, 331 I ll. App. 3d 394 (2002), and In re Marriage of Kozloff
, 101 I ll. 2d 526 (1984), claiming they should g uide us to conclude that prohibitions ag ainst forum shopping in these matters trump section 2-1001’s rig ht to substi tute a judg e. ¶ 90 The hospital argues that our supreme court unequivoca lly settled this matter in Kozloff

. I n Kozloff

, our supreme court, while aff irming the denial of the husban d ’s m o tion to substitut e judge
, stated that “post-dec ree petitions do not constitute new actions, but mere ly continuations of the dissoluti on proce eding, an d a substantive ruling on one petition will
prec lude a c hang e of ve nue as of rig ht on another.” Kozloff , 101 I ll. 2d at 531. ¶ 91 Unlike the ref

iled petition to reduc e maintenanc e in Kozloff
, this action, case No. 11-L -4, is “a new action” separ ate and distinct from case No. 08-CH-123. 735 I L CS 5/2-1001(a) (2), 13-217 (West 2010); Dubina , 178 I ll. 2d at 504. ¶ 92 Def

endant further claims Partipilo v. Partipilo
, 331 I ll. App. 3d 394 (2002), supports the order denying plaintiff’s motion for substitut ion of judge

. Partipilo is so fac tually unique and dissimi lar to this case , howeve r, that we question its applicability

. ¶ 93 Partipilo involved no less than four lawsuits betwee n numerous parties. Id. The orig inal

s u i t wa s a divorce case , No. 98-D-20652, betwee n Fr ank and Maria Partipilo. Id. at 396. Maria moved to add additional parties to the divorce case , claiming these parties and Fr ank conspired to deplete marital assets by diverting funds from the family busines s , F&V Cement. Id. Maria and Fr ank eac h owned a part of F& V Cement, which held numerous contra cts with the City of Chicag o to perf orm ceme nt and paving work. Id. Fr ank moved to strike Maria ’s petition to add parties, claiming those matters must be litiga ted throug h tort suits. Id. The trial c ourt defe rre d ruling on the matter a nd set a trial date. Id. ¶ 94 Four months prior to trial of the divorce case , Maria filed case No. 01-CH-6280 a g ainst Fr ank and at least one of the parties she soug ht to add to the divorce proce eding

. Id. This suit alleg ed, inter alia , that Fr ank and the other defenda nts committed fra

ud ag ainst the family business. Id. Also pending during this time was a suit broug ht by the City of Chicag o ag ainst Fr ank an d Maria, case No. 01-M1-402155. Id. at 397. Maria cross-c laimed in the M1 suit
ag ainst Fr ank for brea ch of contra ct. Id. Maria filed notices of her claims t o n o n marital

-16-proper ty in case No. 01-CH-6280 as well as No. 01-M1-402155. Id. She also moved to set

a new trial date in the divorce case claiming Fr ank failed to comply with discovery

. Id. Maria then asked the judge in the divorce case to stay that matter until the other case s could be conclude d. Id. The judge in the divorce case , J udg e L awr ence , denied her reque st to stay the divorce proce eding

. Id. ¶ 95 Maria then filed another lawsuit, No. 01-CH-10785, seeking a decla ratory judgme nt of her right to p ro cee d with No. 01-CH-6280 prior to proce eding in the di vorce case

. Id. She asked the trial court to transfe r the divorce case to the judge assig ned to the newe st suit, No. 01-CH-10785, an d co n solidate the two case s. Id. The trial court denied her motion and consolidated the two c ases with Judge L awr ence instead. Id. ¶ 96 Maria then filed a motion for substitut ion of judge in case No. 01-CH-10785 as a matter of rig ht under section 2-1001(a )(2)

. 735 I L CS 5/2-1001(a) (2) (West 2000). She noted J udg e L awr ence had not ruled on any substantive matter in case No. 01-CH-10785. Partipilo
, 331 I ll. App. 3d at 397. J udg e L awr ence denied t h e m otion. Id. The appellate court aff irmed J udg e L awr ence ’s denial of Maria’ s motion to substitut e. Id. at 399. In doing so, the Partipilo
court found that J udg e L awr ence in f act “rule d on a substantial issue in N o. 01 CH 10785” when he denied “Mar ia’s J une 2011 motion to stay the divorce case until the conclusion of No. 01 CH 6280 and No. 01 M1 402155.” Id. The Partipilo court noted that case No. 01-CH10785 “wa s a repa ckag ing of Maria’ s previous reque st to continue the divorce case .” Id. The Partipilo court also quoted the a uthor ities and languag e cited above reg arding the prohibition
ag ainst judge shopping and filing motions to substitut e afte r a party has had an opportunity to “ test the water s and form an opinion a s to the court’s r eac tion to his or her claim.” Id. at 398. ¶ 97 Partipilo saw four differ ent lawsuits pending at the same time involving Fr ank and Maria wher e the case at bar involves the dismiss al and conclusion of one action and the

commence ment of an entirely new action. T h at leads us to conclude Partipilo is, at best, tang entially

rele vant to the matter at hand. ¶ 98 Our supreme court’s lang uag e in Kozlof f i s s t ro n g

. “This court has long condemne d a litigant’s attempt to seek a chang e of venue afte r he has formed an opinion, ba sed upon the court’s adver se ruling s, that the judge may be unfavor ably dispos ed towards his cause .” Kozloff
, 1 0 1 I l l

. 2 d at 530-31. Undoubtedly
, this litigant had such an opportunity

. On the other hand, it would not be unrea sonable to rea d Kozloff and conclude that the critica l fac tor for t h e co u rt wa s the fact that the petit ion to modify maintenanc e did not constitute a new action. Our best guess is that the supreme court would not e ndorse the exercise of the rig ht
to voluntary dismiss al as an end run around the prohibition ag ainst judge shopping. We hold that under the fac ts of t h i s ca s e, wher e the trial judge found that plaintiff had tested the
water s in the v o l u ntarily dismiss ed action, the trial court did not err in denying plaintiff’s motion for substitut ion of judge in the new action. We aff irm the trial court’s order denying plaintiff’s motion for substitution of judge.

¶ 99 D. Plaintiff’s Other Arguments Requesting a Ne w Trial ¶ 100 For the same rea sons plaintiff claims he is e ntitled to a judgme nt n.o.v. , which we have

-17-identified in section I above, plaintiff claims h e i s en t i t l ed to a new trial. Those claims

encompa ss arguments that he unequivoca lly proved the hospital violated various sections of the by laws when suspending him. Plaintiff also ident ifies a number of alleg ed evidentiar y

err ors made by the trial court which he claims entitles him to a new trial. Plaintiff argues: the trial court err ed in admitting the HSI repor t; improperly barr ed him from prese nting evidenc e that the finding s of the fair hear ing committee exonerated him; err ed in failing to allow him
to offe r any proof that he never posed an imminent dang er to the health of patients; the trial
court err ed in ref

using to bifurcate the trial; and, finally
, err ed when instructing the jury

. Our finding of reve rsible err or on the issue of prohibiting the plaintiff from deposing employ ees from CI MRO “obviates the need to addre ss those [additi onal] claims.” In re J. J.
, 3 1 6 I ll. App. 3d 817, 825 (2000).

¶ 101 I I I . J udg ment for Costs ¶ 102 Finally
, plaintiff claims he was improperly assessed $22,649.03 of costs associate d with

case No. 08-CH-123 in this case , No. 11-L -4. Def endant notes that the trial judge made a specific finding that “the dismiss al [of ca se No. 08-CH-123] was done to avoid g oing to trial.” This finding
, defe ndant claims, makes the awa rd a proper sanction under Supreme Court Rule 219(e), w hich states: “(e ) Voluntary Dismissals and Prior L itigation. A party shall not b e p er mitted to avoid compliance with discovery deadlines, order s o r applicable rules by voluntarily dismiss ing a lawsuit. I n establishing discovery d eadlines and ruling on permissible discovery and testimony , the cour

t sha ll c onsider discovery undertaken (or the abse nce

o f s am e)
, any misconduct, and orders entered in prior li tigation involving a party

. T h e court may , in addition to the assessment of costs, require the party voluntarily dismissing

a claim to pay an opposing party or parties rea sonable expenses incurre d in defe nding the action including but not limit ed to discovery expenses, expert witness fee s, repr oduction costs, trave l expenses, postag e, and phone char g es.” (Emphasis ad ded.) I ll. S. Ct. R. 219(e) (ef f. Jul y 1, 2002). ¶ 103 Def

endant notes that our supreme court titled subsection (e)
, “Voluntar y Dismissals and Prior L itigation.” I ll. S. Ct. R. 219(e) (ef f. J uly 1, 2002). Def

endant claims inclusion of the phrase
, “and Prior L itigation” signifie s an intent from our supreme court to empower trial courts with the di scre tion to awa rd co s t s i n an action ref

iled under section 13-217 t hat are associate d with the voluntary dismiss al of “Prior L itigation.” We revie w de novo the interpre tation of a supre me cour t rule. In re Estate of R ennick
, 181 I ll. 2d 395, 401 (1998). ¶ 104 Neither party identifies a repor ted case , and our rese arc h has not reve aled any , in which

a trial court awa

rded costs in an action for expenses incurre d in a previous action voluntarily dismiss ed under section 2-1009. For sever al rea son s , we conclude that the awa rd was in

err or. Our supreme court did, h o w ever , discuss the interplay betwee n Rule 219(e) and section 2-1009 in Morrison v. W

agner , 191 I ll. 2d 162 (2000). ¶ 105 Morrison involved a medical malprac tice s u i t i n wh i ch the plaintiff filed a motion to voluntarily dismiss pursuant to section 2-1009(a ) of th e C o d e. Id. at 163; 735 I L CS 5/2- 1009(a) (West 2000). The circ uit court denied plaintiff’s motion as the trial “cour t appar ently

-18-believed the [pl aintiffs] ha d failed to prope rly respond to ce rtain pre trial discovery matters and wer e attempting to utiliz e section 2-1009 as a means to evade court-imposed discovery sanctions.” Morrison
, 191 I ll. 2d at 166. The suprem e co u rt h eld that denying plaintiffs’ motion for voluntary

dismiss al was imprope r. Id. at 167. ¶ 106 I n doing so, the Morrison court noted that Rule 219 “pre vents voluntary dismiss als from being used as an artifice for e vadingdiscovery require ments throug h two entirely differ ent mecha nisms. First, the rule enhanc es the monetary burden associate d with such dismiss als. Under section 2-1009(a ) of the Code o f Civil Procedur e, plaintiffs must pay costs as a condition of taking a voluntary dismiss al without prejudice

. Rule 219(e)
, howeve r, provides that in addition to the assessment of costs, the court may require the party seeking dismiss al
to pay the opposing party or parties th ei r ‘reasonable expenses incurre d in defe nding the action including but not limit ed to d i scover y expenses, opinion witness fee s, repr oduction

co s t s , t ra v el expenses, postag e, and phone char g es.’ ” Id. at 166-67 (quoting I ll. S. Ct. R

. 219(e) (ef f. Jan. 1, 1996)). ¶ 107 The Morrison court c ontinued, noting:

“When a case is ref

iled, the rule requi re s t h e court to consider the prior litigation in deter mining what discovery will be permitted, and what witnesses and evidenc e may be barr ed. [Cit ation.]
Be cause Rule 219(e) alters the conseque nces of taking a voluntary

dismiss al rather than restric ting a party ’s rig ht to obtain such a dismiss al, the circ uit court in this case had

no g rounds for preve nting the Morrisons from voluntarily dismiss ing their claims and forc ing the m to procee d to tr ial. I f the Morrisons deser ved to be sanctioned under Rule 219(e) for dismiss ing their ca s e i n order to avoid compliance with discovery require ments, the court could have assessed the additional expenses specifie d by the rule. Any further adver se action could only be taken when and if plaintiffs ref iled their claim in a subsequent pr ocee ding.” (Emphasis adde d.) Id. at 167. ¶ 108 This lang uag e, as well as the pl ain l anguag e of the rule, convince s u s t h at while a trial
court has authority to take “fur ther” ad v er s e action in the ref iled matter such as barr ing witnesses or limit ing discov ery , “re asonable expenses incurre d in defe nding the action including but not limit ed to discovery expenses, opinion witness fee s, repr oduction costs, t ra v el ex p enses, postag e, and phone char g es” must be levied in the orig inal action. After ref iling the new action, the plaintiff is no longe r a “par ty voluntari l y dismiss ing a claim.” Un d er the plain lang uag e of the rule, we find the trial court lacke d authority to make t h e

awa rd. I t is there fore void. Bank of Matteson v. Brown
, 283 I ll. App. 3d 599, 606 (1996) (“It is well established that a judgme nt or order enter ed by a court that lacks the inhere nt power to enter the particula

r orde r is void ***.”). ¶ 109 S i n ce t h i s is an issue of first impression, we will addre ss alternate reas o n s wh y we believe the awa

rd was improper. Def

endant makes no argument that the trial court awa rded the $22,649.03 in costs as a discovery sanction. Instead, defe ndant specific ally draw s our attention to the trial court’ s specific finding that “the dismiss al was done to avoid g oing to trial.” ¶ 110 Whether “a set trial date constitute[s ] a discovery deadline, order
, or applicable rule for

-19-purposes of assessing expenses pursuant to Rule 219(e) when a suit is voluntarily dismiss ed”

(interna l quotation marks omitted) was specific ally posed to the court in Scattered Corp. v. Midwest Clearing Corp.
, 299 I ll. App. 3d 653, 656 (1998). J ustice Theis, wr i t i ng for the Scattered Corp. court, found no need to addre ss that issue, noting that Rule 219(e) “re quires the circ uit court to make a preliminary finding of misconduct, analog ous to the ‘unre asonable noncompliance ’ standard invoked in Rule 219(c) case s [citati o n ] ***. *** To deter mine whether t h e n oncompliance is unrea sonable, the standard is whether the conduct of the noncomplying party shows a deliberate, contumacious or unwar rante d di s re gar d for the court’s authorit y

. *** We believe that Rule 219(e) targ ets those strateg ic and tactica l litigation decisions which, having crosse d the line of vigor ous advoca cy , become decisions aimed no longe r at besting the opposing party but rathe r at undermining the integ rity of the judicial sy stem.” Id. at 659-60. ¶ 111 Following those statements, the Scattered Corp. court noted that the circ uit court made

no specific finding of misconduct or unrea sonable noncompliance with any court order

. Id. at 660. There had been no “ ‘a l l ega t i on of di shonesty or bad conductment [ sic ].’ ” Id. The
court co n t i nued, stating, “While the circ uit court deter mined that this ty

pe of voluntary dismiss al was c ontemplated by Rule 219(e)
, the cour

t did not find that the dismi ssal itself, which nece ssarily avoided trial, evidenc ed unrea sonable noncompliance with any discovery deadline, or der or

applicable rule by

the plaintiff.” Id. at 661. ¶ 112 Simi larly
, while we understand that plaintiff’s dismiss al “nec essar ily avoided trial,” our revie w of the rec ord fails to ide ntify any finding by the trial court indicative of misconduct

or unrea sonab l e n oncompliance with a court order

. Quite the contra ry

. Def endant acknow ledg es that the trial court mere ly found plaintiff took a voluntarily dismiss al “to avoid
proce eding to trial on the date set by the ca s e m an ag ement order .” Moreove r, defe ndant’s motion seeking costs did not even alleg e that plaintiff, either by filing a motion for voluntary dismiss al or oth er wise, eng ag ed in misconduct. There fore
, assuming it is proper to awa rd Rule 219(e) costs and expenses in the re filed ac tion, it was not proper he re. ¶ 113 Finally
, the analy sis in Scattered Corp

. supports our conclusion that Rule 219(e) does not allow a trial court to le vel monetary sanctions in a ref iled action for events which occur red in a voluntarily dismiss ed cause

. The court observe d that “the expenses au t h o rized under Rule 219(e) serve not as a sanction per se , b u t rather as a deter rent to the dilatory and manipulative use of a

plaintiff’s voluntary

dismiss al. This prophylactic intent is consistent with the purpose behind Rule 219(c) i n encour agin g co m p l iance with the entire discovery
proce ss.” Id. at 660. Common sense dictate s t h at any possible deter rent eff ect is lost if
expenses and fee s are not awa rded as part of the orig inal action. One fac ing additional costs and expenses might rethink his dec i s i o n t o voluntarily dismiss

. The awa rd of costs and

ex p en s es related to the dismiss ed case in the ref iled case can only be a sanction. I t seem s i n cong ruous to g ive a plaintiff an absolute rig ht to dismiss
, let him dismiss
, and to then

awa rd monetar

y sanctions ag ainst him when he re files. ¶ 114 We vacate the trial court’s order awa rding defe ndant $22,649.03 in costs and expenses.

-20-¶ 115 CONCL USI ON

¶ 116 For the fore g oing rea sons, we aff irm the circ uit court’s order denying plaintiff’s motion for substitut ion of judge and denying plaintiff’s motion for judgme nt n.o.v. ; we reve rse and

vacate the order awa

rding costs and expenses, as well as the judgme nt in favor of defe ndant. We remand f

or fur ther proc eeding s consistent with this opi nion.

¶ 117 Affir

med in part, va cate d in part, and r ever sed; ca use re manded.

-21-