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Case law: Collateral Estoppel in Medical Malpractice

Long v. Elborno, No. 1-08-1733 (1-21-10) answered the question of whether the refilling of an action against physician was not continuation of previous action, but created entirely new action, thus law of the case doctrine inapplicable. Court had previously found Plaintiff failed to exercise reasonable diligence in serving Hospital; thus, collateral estoppel applies to prevent Plaintiff from asserting that she was reasonably diligent in serving physician, when her actions were identical for both parties during this time, and physician was not served for an additional four months after service on Hospital. Plaintiff cannot be given credit for time it took her to obtain Section 2-622 reviewing physician’s report in considering her reasonable diligence of service. This case will impact Illinois medical malpractice law.