Docket No. 104441.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
LARRY W. PORTER, JR., Appellant, v. DECATUR MEMORIAL
HOSPITAL et al. (Decatur Memorial Hospital, Appellee).
Opinion filed January 25, 2008.
CHIEF JUSTICE THOMAS delivered the judgment of the court,
with opinion.
Justices Freeman, Fitzgerald, Kilbride, Garman, Karmeier, and
Burke concurred in the judgment and opinion.
OPINION
This appeal arises from a medical malpractice action filed in
Macon County by plaintiff, Larry W. Porter, Jr. The primary issue for
our review is whether count III of a second amended complaint, filed
after the applicable statute of limitations expired, relates back to the
timely filed previous complaints under section 2–616(b) of the Code
of Civil Procedure (the Code) (735 ILCS 5/2–616(b) (West 2004)),
so that the count is not time-barred. Under section 2–616(b), the key
inquiry is whether the cause of action asserted in the newly filed
pleading “grew out of the same transaction or occurrence” set up in
the pleadings that were filed within the limitations period. 735 ILCS
5/2–616(b) (West 2004).
BACKGROUND
Plaintiff was involved in an automobile accident on January 12,
2001, at around 8 a.m. He suffered a spinal cord injury during the
accident and was brought to the emergency room of Decatur
Memorial Hospital (the Hospital) at about 8:30 a.m. that day. To
monitor his neurological function, various tests and procedures were
performed on plaintiff at the Hospital from the time he arrived until he
was operated upon by Dr. Marie Long at 10 p.m. on January 13,
2001.
Plaintiff filed his original complaint on March 25, 2002. Count I
of that complaint named Dr. Oliver Dold as a defendant and the
Hospital as a respondent in discovery. Plaintiff alleged that Dr. Dold
saw plaintiff in the Hospital emergency room around 11:30 a.m. on
January 12, 2001. Dr. Dold diagnosed plaintiff as having an
incomplete spinal cord injury and ordered him to be admitted to the
intensive care unit. Dr. Dold further ordered that once the patient was
stable from a pulmonary perspective and could be placed in the MRI
scanner, an MRI scan should be done to determine whether any direct
surgical intervention to the spine was necessary.
The original complaint further alleged that upon plaintiff’s
admission to the intensive care unit, Dr. Dold ordered that plaintiff’s
C collar and spine board be discontinued. Within three hours of
ordering discontinuance of the C collar and spine board, plaintiff lost
blood pressure and left leg function, which are symptoms of further
spinal injury. Around 3 p.m. on January 12, 2001, Dr. Carol Cohen,
a pulmonologist, ordered that plaintiff could undergo an MRI when
Dr. Dold “wishes.” At 4 p.m on that same date, Dr. Dold ordered that
an “MRI scan T spine” be conducted “either today or tomorrow.”
The original complaint alleged that Dr. Dold was negligent in one
or more of the following ways: (1) ordered a discontinuance of the
plaintiff’s C collar and spine board prior to the performance of the
MRI; (2) discontinued spinal immobilization prior to fully appreciating
the patient’s spinal injury; (3) failed to obtain a timely MRI scan on
January 12, 2001; and (4) failed to appreciate decreasing blood
pressure and leg function as signs and symptoms of further spinal
injury. As a direct result of these wrongful acts or omissions, the
complaint continued, plaintiff suffered further spinal injury with loss
of function in his legs.
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Count II of the original complaint named the Hospital as a
respondent in discovery, stating that plaintiff believed that the Hospital
had essential information about additional defendants that should be
named in the action.
Thereafter, the parties continued to conduct discovery in the case.
Plaintiff took the deposition of Dr. Marie Long on September 9, 2002.
Relevant to the issue presented in this case is her testimony with
respect to a CT scan of plaintiff’s cervical spine taken on January 12,
2001, and read and interpreted by Dr. Gordon Cross, a radiologist.
Dr. Long stated that she looked at this CT scan on January 13, 2001,
and that while she noticed that there was “a fracture to C5” she did
not think that it was significant. She further stated that in her opinion
the fracture shown on the CT scan did not explain the neurological
deficits that she herself noted in the patient on the morning of January
13, 2001. Finally, she noted that a CT scan will not reliably reveal an
injury to a disk. The proper procedure to diagnose a disc injury is an
MRI.
On January 6, 2003, plaintiff filed a first amended complaint,
repeating the allegations against Dr. Dold, but now naming the
Hospital as a defendant. The first amended complaint alleged that, as
a result of the wrongful acts and omissions of the Hospital, plaintiff’s
diminishing neurological function went undiagnosed and untreated,
causing him to lose extremity function. Specifically, plaintiff alleged
that around noon on January 12, 2001, Dr. Dold ordered neurological
checks for plaintiff every hour and that those checks were to be
performed by Hospital personnel. Plaintiff further alleged that the
Hospital, through its employees and agents, breached its duty of care
by failing to (1) perform thorough neurological checks every hour as
ordered by Dr. Dold, (2) record complete spinal assessments as part
of hourly neurological checks, (3) record extremity strength as part of
hourly neurological checks on January 13, 2001, from 1 a.m. to 6
a.m., and (4) report diminishing neurological status to the attending
neurosurgeon.
On June 21, 2004, plaintiff filed a motion for leave to file a second
amended complaint. The amendment sought to add a new allegation
to count I against Dr. Dold, alleging that he failed to recognize a
fracture of the cervical spine on the CT scan performed on January 12,
2001.
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The proposed second amended complaint also added a third count,
which was directed against the Hospital. The third count alleged that
plaintiff underwent a CT scan of the cervical spine on January 12,
2001, which was read and interpreted by Dr. Gordon Cross, a
radiologist. Plaintiff asserted that Dr. Cross was an apparent agent of
the Hospital. Plaintiff further alleged that the Hospital, through its
agents and employees, breached its duty of care by one or more of the
following acts or omissions: (1) failed to properly interpret the CT of
plaintiff’s cervical spine; (2) failed to appreciate cervical fractures
revealed on that CT of the cervical spine; and (3) misread and
misinterpreted the CT of the cervical spine. Finally, plaintiff alleged
that as a result of these wrongful acts and omissions, his diminishing
neurological function went undiagnosed and untreated, causing
plaintiff to lose extremity function.
Plaintiff attached to his motion for leave to amend a Hospital
radiology report of the January 12, 2001, CT scan, along with the
discovery deposition of Dr. Leon Sykes, Jr., taken on January 21,
2004. The radiology report indicates that Dr. Cross read the CT scan
of plaintiff’s spine and found no fractures. Dr. Sykes, an associate
professor of surgery at the Chicago Medical School, stated in his
deposition that there are two fractures shown on plaintiff’s CT scan
that are “very evident.” He further stated that the fractures
unequivocally show that this patient had a cervical spine injury.
According to Dr. Sykes, the fact that fractures were missed in the
reading of the CT scan affected the entire management of the patient.
If the CT scan had been read properly, it should have meant that the
C collar should not have been removed and that an MRI should have
been done early on to see where the spinal cord injury was occurring.
The Hospital objected to the motion for leave to amend, arguing
that the claim against it based on the negligence of Dr. Cross was a
new and different claim and therefore barred by the two-year statute
of limitations set forth in section 13–212 of the Code (735 ILCS
5/13–212 (West 2004)). In response, plaintiff argued that count III of
the second amended complaint met the requirements of section
2–616(b) of the Code to avoid the statute of limitations because the
claim against the Hospital, based on the negligence of Dr. Cross, arose
out of the same treatment as alleged in the original and first amended
complaints. Plaintiff explained that the previous complaints put the
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Hospital on notice that he was asserting negligent treatment by the
employees and agents of the Hospital in failing to appreciate and
report diminishing neurological status. Count III of the second
amended complaint, he maintained, merely sought to further identify
the conduct of the Hospital in its failure to appreciate his diminishing
neurological status by its agent’s failure to interpret the CT scan.
The trial court allowed the motion to amend on August 10, 2004,
and the second amended complaint was filed as of that date. On
August 27, 2004, however, the Hospital filed a motion to dismiss
count III of the second amended complaint pursuant to section 2–619
of the Code (735 ILCS 5/2–619 (West 2004)), again arguing that it
was barred by the statute of limitations and that it did not relate back
under section 2–616(b).
Following a hearing, the trial court this time decided that the
allegations contained in count III did not relate back to the original
counts plaintiff filed against the Hospital. The trial court found that
the Hospital was not apprised of facts concerning the alleged medical
malpractice of Dr. Cross before the running of the statute of
limitations, neither by the allegations of the previous complaints nor
by the depositions and exhibits. The court believed that the original,
alleged liability of the Hospital was centered exclusively around the
conduct of its nurses’ failure to conduct neurological checks and not
the radiologist’s negligent interpretation of the CT scan. The court
noted that its previous identification of the “same transaction or
occurrence” as the entire hospitalization of the patient was too broad
for purposes of the relation-back doctrine. The trial court granted the
motion to dismiss count III with prejudice.
Plaintiff filed a motion to reconsider. On January 11, 2005, the
trial court denied the motion, but also decided that its earlier ruling to
grant leave to file count III of the second amended complaint was
inconsistent with its later ruling to grant the section 2–619 motion to
dismiss. The court then proceeded to reconsider, sua sponte, its initial
ruling on plaintiff’s motion for leave to file the second amended
complaint. It then revised that earlier ruling to deny leave to amend.
Plaintiff appealed both the October 29, 2004, ruling granting the
section 2–619 dismissal and the January 11, 2005, ruling denying his
motion to reconsider. A divided appellate court affirmed the judgment
of the circuit court. 372 Ill. App. 3d 310. The majority pointed out
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that there were no references in any of plaintiff’s previous complaints
to Dr. Cross or to the CT scan. Nor was there anything in the
deposition of Dr. Long to indicate a possible claim about the CT scan.
The majority therefore concluded that the trial court did not abuse its
discretion in ruling that the Hospital’s “attention was not directed,
within the relevant statutory time period, to the facts that formed the
basis of the claim against it in plaintiff’s second amended complaint.”
372 Ill. App. 3d at 319-20. According to the majority, plaintiff’s
defining of “same transaction or occurrence” as the entire course of
events from the time he was admitted into the hospital was too broad.
372 Ill. App. 3d at 319.
Justice Myerscough dissented, stating that the Hospital knew
when the first amended complaint was filed that plaintiff breached its
duty of care to plaintiff during the initial 36 hours prior to surgery.
Thus, the second amended complaint relates back, as it grew out of
the same transaction or occurrence, i.e., the negligent care of
plaintiff’s injury in the first 36 hours of hospitalization. 372 Ill. App.
3d at 325 (Myerscough, J., dissenting). The dissenting justice believed
that reading the statute to mean that each individual act of medical
care–e.g., reading X-rays, taking temperatures, performing
neurological checks–constituted a separate transaction or occurrence
was entirely too narrow an interpretation of the relation-back doctrine.
372 Ill. App. 3d at 325 (Myerscough, J., dissenting).
We allowed plaintiff’s petition for leave to appeal. 210 Ill. 2d R.
315.
ANALYSIS
We initially note that an assertion that a claim is barred by the
statute of limitations is a matter properly raised by a section 2–619
motion to dismiss. 735 ILCS 5/2–619(a)(5) (West 2004). A section
2–619 motion admits as true all well-pleaded facts, along with all
reasonable inferences that can be gleaned from those facts. Calloway
v. Kinkelaar, 168 Ill. 2d 312, 325 (1995). Furthermore, when ruling
on a section 2–619 motion to dismiss, a court must interpret all
pleadings and supporting documents in the light most favorable to the
nonmoving party. DeSmet v. County of Rock Island, 219 Ill. 2d 497,
504 (2006). It is well settled that our review of a section 2–619
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dismissal is de novo. DeLuna v. Burciaga, 223 Ill. 2d 49, 59 (2006);
Van Meter v. Darien Park District, 207 Ill. 2d 359, 367-68 (2003);
Bryson v. News America Publications, Inc., 174 Ill. 2d 77, 86 (1996)
(applied de novo standard of review to trial court’s section 2–619
dismissal of a claim on the basis of statute of limitations and the failure
of the new claim to relate back under section 2–616(b)).
Here, the appellate court majority applied an abuse of discretion
standard of review, apparently believing that because the trial court
revised its earlier ruling that had granted leave to amend to be
consistent with its later ruling to grant the section 2–619 dismissal, it
was not actually reviewing a section 2–619 dismissal, but was instead
reviewing a routine denial of a motion for leave to amend. The
circumstances of the present case, however, indicate that the only
question considered by the trial court with respect to either ruling was
whether the new claim in count III of the second amended complaint
related back under section 2–616(b) so as to avoid the affirmative
matter of the bar of the statute of limitations. In this situation, we
believe that the appropriate standard of review is de novo.
The parties agree that count III of plaintiff’s third amended
complaint is barred by the two-year statute of limitations of section
13–212 of the Code unless the claim “relates back” to the date of
filing of any of the timely filed previous complaints. Section 2–616(b)
governs the relation-back doctrine and provides in relevant part as
follows:
“The cause of action, cross claim or defense set up in any
amended pleading shall not be barred by lapse of time under
any statute or contract prescribing or limiting the time within
which an action may be brought or right asserted, if the time
prescribed or limited had not expired when the original
pleading was filed, and if it shall appear from the original and
amended pleadings that the cause of action asserted, or the
defense or cross claim interposed in the amended pleading
grew out of the same transaction or occurrence set up in the
original pleading, even though the original pleading was
defective in that it failed to allege the performance of some act
or the existence of some fact or some other matter which is a
necessary condition precedent to the right of recovery or
defense asserted, if the condition precedent has in fact been
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performed, and for the purpose of preserving the cause of
action, cross claim or defense set up in the amended pleading,
and for that purpose only, an amendment to any pleading shall
be held to relate back to the date of the filing of the original
pleading so amended.” (Emphasis added.) 735 ILCS
5/2–616(b) (West 2004).
Plaintiff argues that the phrase “same transaction or occurrence”
means the same event or series of connected events, occurring
proximately to each other in time and space. He maintains that the
“transaction or occurrence” in this case was the treatment he received
for his back injury in the Hospital from the time of his admission on
the morning of January 12, 2001, until the discectomy surgery
performed by Dr. Long on the evening of January 13, 2001. The basis
for the appellate court’s decision, he notes, was its rule that “ ‘[t]he
original complaint should supply a defendant with all of the
information necessary to prepare its defense to the subsequently
asserted claim.’ ” 372 Ill. App. 3d at 315, quoting McArthur v. St.
Mary’s Hospital of Decatur, 307 Ill. App. 3d 329, 334 (1999).
Plaintiff contends that the appellate court essentially interpreted this
requirement to mean that all of the relevant facts must have been
pleaded in a complaint filed prior to the expiration of the statute of
limitations. But plaintiff points out that a requirement that all the
relevant facts must have appeared in a prior, timely-filed pleading is
nowhere found in section 2–616(b). Instead, the statute prefaces the
“same transaction and occurrence” language with another key phrase,
“grew out of,” which means that the new allegations need not be
based on the same specific facts of the prior allegations.
The Hospital in response argues that count III of the second
amended complaint essentially seeks to add a new party with new
claims against that party. Despite the differing results in the cases
interpreting section 2–616(b), the statute has one guiding element,
which is notice to the defendant. The facts alleged in the original
complaint must put a defendant on notice of the matter covered by the
amendment. The Hospital contends that there was no notice from the
prior pleadings or from anything in the record on appeal that would
indicate that the Hospital should have been on notice that plaintiff
might eventually seek to amend his complaint to assert a claim against
the Hospital based on Dr. Cross’ reading of the CT scan. According
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to the Hospital, plaintiff is simply selecting an arbitrary time interval
of a hospital stay and claiming that this is a transaction or occurrence.
The purpose of the relation-back doctrine of section 2–616(b) is
to preserve causes of action against loss by reason of technical default
unrelated to the merits. Bryson, 174 Ill. 2d at 106-07; Boatmen’s
National Bank of Belleville v. Direct Lines, Inc., 167 Ill. 2d 88, 102
(1995). Courts should therefore liberally construe the requirements of
section 2–616(b) to allow resolution of litigation on the merits and to
avoid elevating questions of form over substance. Bryson, 174 Ill. 2d
at 106; Boatmen’s National Bank, 167 Ill. 2d at 102. Additionally,
both the statute of limitations and section 2–616(b) are designed to
afford a defendant a fair opportunity to investigate the circumstances
upon which liability is based while the facts are accessible. Boatmen’s
National Bank, 167 Ill. 2d at 102. Thus, it has been stated that the
rationale behind the “same transaction or occurrence” rule is that a
defendant is not prejudiced if “ ‘his attention was directed, within the
time prescribed or limited, to the facts that form the basis of the claim
asserted against him.’ “ Boatmen’s National Bank, 167 Ill. 2d at 102,
quoting Simmons v. Hendricks, 32 Ill. 2d 489, 495 (1965). A court
should consider the entire record, including depositions and exhibits,
to determine whether the defendant had such notice. Wolf v. Meister-
Neiberg, Inc., 143 Ill. 2d 44, 46 (1991).
When this court construes a statute, that construction is
considered a part of the statute itself unless and until the legislature
amends it contrary to this court’s interpretation. Miller v. Lockett, 98
Ill. 2d 478, 483 (1983). The parties cite a number of decisions of this
court that have construed section 2–616(b). None of these decisions
are particularly close factually to the case now before us. Zeh v.
Wheeler, 111 Ill. 2d 266 (1986), however, contains the most
comprehensive discussion of the “same transaction and occurrence”
language of section 2–616(b), and we find its analysis instructive.
There, the plaintiff brought a slip-and-fall action against defendant for
failure to maintain a common stairway of an apartment that the
defendant owned. The plaintiff attempted to amend his complaint to
allege a different location of the accident, which was an address that
was two blocks away from the address named in the original
complaint.
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In considering whether the amendment related back for purposes
of section 2–616(b), Zeh traced the historical development of the
relation-back doctrine. The doctrine first came into existence in
statutory form in 1929. That statute provided for a relation back if the
cause of action grew out of the same transaction or occurrence and
was substantially the same as that set up in the original pleading. Zeh,
111 Ill. 2d at 272. In 1933, the statute was amended to omit the
words “and is substantially the same as” so that amendments could be
made if the matter introduced by the amended pleading “grew out of
the same transaction or occurrence set up in the original pleading.”
Zeh, 111 Ill. 2d at 272; Ill. Rev. Stat. 1939, ch. 110, par. 46(2). The
1933 amendment thus shifted from the common law requirement that
the amended pleading set up the same cause of action as the original
pleading to a test of identity of transaction or occurrence. Zeh, 111 Ill.
2d at 272-73. The legislative change was based on the rationale that
“ ‘a defendant has not been prejudiced so long as his attention was
directed, within the time prescribed or limited, to the facts that form
the basis of the claim asserted against him.’ ” Zeh, 111 Ill. 2d at 273,
quoting Simmons, 32 Ill. 2d at 495. The court further noted that the
shift in focus from the identity of the cause of action to the identity in
the occurrence or transaction under the current practice act is
“bottomed on the belief that if the defendant has been made aware of
the occurrence or transaction which is the basis for the claim, he can
prepare to meet plaintiff’s claim, whatever theory it may be based on.”
Zeh, 111 Ill. 2d at 279.
Zeh then looked to Rule 15(c) of the Federal Rules of Civil
Procedure (Fed. R. Civ. P. 15(c)) for guidance. Federal Rule 15(c) is
similar to section 2–616(b) and provides that the filing of an amended
complaint relates back to the filing of the original complaint if the
claim asserted in the amended complaint arose out of the same
“conduct, transaction or occurrence” set forth in the original pleading.
Zeh, 111 Ill. 2d at 279; Fed. R. Civ. P. 15(c). Zeh noted that under
Federal Rule 15(c), it is generally held that among the factors to
consider in determining whether the amended complaint relates back
to the filing of the original complaint are whether the defendant
received adequate notice of the claim against him and whether the
defendant would be unfairly prejudiced if the amendment were
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allowed to relate back to the date of the filing of the original
complaint. Zeh, 111 Ill. 2d at 280.
Zeh also discussed the United States Supreme Court’s decision in
Tiller v. Atlantic Coast Line R.R. Co., 323 U.S. 574, 89 L. Ed. 465,
65 S. Ct. 421 (1945), which found that an amendment to a complaint
filed beyond the limitations period related back to the original
complaint where the conduct in the amendment related to the same
general transaction and occurrence described in the original complaint.
Zeh quoted with approval Tiller’s observation that “ ‘[t]here is no
reason to apply a statute of limitations when, as here, the respondent
has had notice from the beginning that petitioner was trying to enforce
a claim against it because of the events leading up to the death of the
deceased in the respondent’s yard.’ ” Zeh, 111 Ill. 2d at 280, quoting
Tiller, 323 U.S. at 581, 89 L. Ed. at 472, 65 S. Ct. at 424-25.
Zeh concluded its analysis by holding:
“[Because] the facts alleged in the original complaint failed
to put the defendants on notice of the matter covered by the
amendment, the defendants could properly claim surprise that
the plaintiff was seeking to recover damages for injuries
occurring at an entirely different building. To allow the
amended complaint to relate back under the circumstances
would be to disregard the purpose of a statute of limitations
which is ‘to afford a defendant a fair opportunity to investigate
the circumstances upon which liability against him is
predicated while the facts are accessible.’ ” Zeh, 111 Ill. 2d at
282-83, quoting Geneva Construction Co. v. Martin Transfer
& Storage Co., 4 Ill. 2d 273, 289-90 (1954).
Zeh recognized that Illinois courts are liberal in allowing
amendments to the pleadings after the running of the limitations
period and that the Code reflects the modern approach to pleading of
resolving litigation on the merits and the avoidance of elevating
questions of form over questions of substance. Zeh, 111 Ill. 2d at 278.
But Zeh in essence concluded that these concerns do not trump
considerations of whether a defendant was given adequate notice and
knowledge of the incident giving rise to the lawsuit. Zeh, 111 Ill. 2d
at 278-79.
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We find it significant that this court in Zeh looked to federal law
for guidance. While federal law is, of course, only persuasive authority
on the issue before us, the language employed in both our state and
federal statutes is very similar, and there is some interest in having a
uniform body of precedent where many cases involving a diversity of
citizenship could be brought in either state or federal court.
Under both Illinois and federal law, there is no question that
relation back is appropriate where a party seeks to add a new legal
theory to a set of previously alleged facts. In re Olympia Brewing Co.
Securities Litigation, 612 F. Supp. 1370, 1371-72 (N.D. Ill. 1985);
see also Bryson, 174 Ill. 2d at 108 (relation back is not prohibited
merely based on the fact that the name of the cause of action or the
legal theory used to support the claim for damages is changed in the
amended pleading). It is also clear that an amendment which states an
entirely new and distinct claim for relief based on completely different
facts will not relate back. Simmons, 32 Ill. 2d at 497 (a plaintiff cannot
be allowed to slip in an entirely distinct claim in violation of the
limitations act); Olympia Brewing Co., 612 F. Supp. at 1372, citing
3 J. Moore, Moore’s Federal Practice, ¶15.15[2], at 15–196 (1985
& Supp. 1985). Between these two clear principles, however, is a grey
area where courts have allowed relation back when amendments have
added new factual allegations that can be characterized as falling
within the general “transaction” alleged in the original complaint. See
Olympia Brewing Co., 612 F. Supp. at 1372. The court in Olympic
Brewing Co. noted that an amendment is considered distinct from the
original pleading and will not relate back where (1) the original and
amended set of facts are separated by a significant lapse of time, or (2)
the two sets of facts are different in character, as for example when
one alleges a slander and the other alleges a physical assault, or (3) the
two sets of facts lead to arguably different injuries. Olympia Brewing
Co., 612 F. Supp. at 1372. But new factual additions will be
considered to relate back where there is a “sufficiently close
relationship” between the original and new claims, both in temporal
proximity and in the general character of the sets of factual allegations
and where the facts are all part of the events leading up to the
originally alleged injury. Olympia Brewing Co., 612 F. Supp. at 1372-
73.
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An example of a case that satisfies this close-relationship standard
is the Supreme Court’s decision in Tiller. There, the plaintiff’s
husband was killed when he was struck by a train while working for
the defendant railroad in its railroad yard. Plaintiff’s original complaint
alleged that the railroad failed to keep a proper lookout for the
decedent, to warn him of the approaching train, to keep the head
railroad car properly lighted, and to warn him of the sudden change in
shifting cars. The amended complaint added an allegation based on the
violation of a federal statute that required locomotives to have a rear
light. The Court found that both the original and amended claims
“related to the same general conduct, transaction and occurrence
which involved the death of the deceased.” Tiller, 323 U.S. at 581, 89
L. Ed. at 471-72, 65 S. Ct. at 424. As noted above in our discussion
of Zeh, Tiller found that there was no reason to apply a statute of
limitations where the defendant was on notice of the events leading up
to the death of the deceased. Tiller, 323 U.S. at 581, 89 L. Ed. at 472,
65 S. Ct. at 424-25.
We adopt the sufficiently-close-relationship test as set forth in
Olympia Brewing Co. to determine whether the new allegations of
count III of the second amended pleading grew out of the transaction
or occurrence set up in the earlier pleadings, and to determine whether
the Hospital can be considered to have had adequate notice. Under
that test, a new claim will be considered to have arisen out of the same
transaction or occurrence and will relate back if the new allegations as
compared with the timely filed allegations show that the events alleged
were close in time and subject matter and led to the same injury.
Olympia Brewing Co., 612 F. Supp. at 1373. 1
1
In adopting the federal court’s test in Olympia Brewing Co., we
acknowledge that Illinois is a fact-pleading jurisdiction, while federal courts
represent a notice-pleading jurisdiction. The difference is not important to
our analysis, however, because section 2–616(b) and Federal Rule 15(c)
have similar “transaction and occurrence” language. It is this language that
is at issue in this case, not whether the pleadings set forth enough factual
specificity to avoid a motion to dismiss. Moreover, we note that the Olympia
Brewing Co. court did have a detailed factual proffer before it, just as it if
was a fact-pleading jurisdiction, because the court ordered plaintiff to set
forth more factual detail so that the court would be better equipped to
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Applying that test, we note that plaintiff’s timely filed first
amended complaint alleged that the Hospital provided personnel,
including nurses, aides, attendants and others for the care and
treatment of patients, including plaintiff. One of the allegations of
negligence in that complaint was that the Hospital, through its
employees and agents, failed to report diminishing neurological status
to the attending neurosurgeon. The complaint further alleged that as
a direct result of this wrongful act, plaintiff’s diminishing neurological
function went undiagnosed and untreated, causing plaintiff to lose
extremity function. Count III of the second amended complaint added
allegations that essentially alleged that an agent of the Hospital, Dr.
Cross, misread and misinterpreted the CT scan of plaintiff’s spine and
that, as a result, plaintiff’s diminishing neurological function went
undiagnosed and untreated, causing plaintiff to lose extremity
function.
We find that there is a sufficiently close relationship between the
two allegations to show that the later allegation grew out of the same
transaction or occurrence set up in the earlier one. The two allegations
were part of the same events leading up to the same ultimate injury for
which damages are sought. They were closely connected in both time
and location. They were also similar in character and general subject
matter, as they involved allegations of medical malpractice that
resulted in failure to appreciate plaintiff’s diminishing neurological
status. Furthermore, the Hospital was on notice from the earlier
allegation that plaintiff was asserting negligent treatment by the
employees and agents of the Hospital in failing to appreciate and
report diminishing neurological status. We believe that the Hospital
should have been aware that this would include any procedure or
test–including a CT scan–performed by agents or employees of the
Hospital that might have impacted their ability to appreciate and
report on plaintiff’s diminishing neurological status in the critical
hours of January 12, 2001, leading up to plaintiff’s surgery the next
day.
The Hospital’s argument that it had no notice that plaintiff
intended to rely on the CT scan because neither plaintiff’s original nor
his first amended complaint mentioned a CT scan is not persuasive. It
determine whether the newly alleged claim related back. See Olympia
Brewing Co., 612 F. Supp. at 1371, 1375.
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takes too narrow a view of the “same transaction or occurrence”
language. Furthermore, it seems to us that the Hospital’s argument
ignores the “grew out of” language of section 2–616(b), as well as the
additional proviso that relation back may be appropriate “even though
the original pleading *** failed to allege the performance of some act
or the existence of some fact.” 735 ILCS 5/2–616(b) (West 2004).
Section 2–616(b) itself was largely designed to notify a party that
claims will be asserted that grow out of the general fact situation set
forth in the original pleading. See Olympia Brewing Co., 612 F. Supp.
at 1371 (“Commentators and courts agree that Rule 15(c) was largely
designed to notify a party that claims will be asserted that arise out of
the ‘general fact situation set forth in the original pleading’ ”). Here,
the allegations of the first amended complaint, particularly the general
allegation about the failure to report plaintiff’s diminishing
neurological function, supplied the appropriate notice.
Our analysis is supported by Huntoon v. Pritchard, 371 Ill. 36
(1939), a case not cited by the parties, but one which does share some
commonality with the case before us, even though it was decided
under the statute in effect prior to the 1933 amendment, which
dropped the “substantially the same” cause-of-action requirement. In
Huntoon, the plaintiff’s original complaint alleged that the defendant
physician treated the plaintiff for a period of 21 days for a “certain
sickness and malady.” The original complaint further alleged that as
a result of the defendant’s negligent treatment, the plaintiff’s sickness
and malady became greatly increased and aggravated. After the
applicable statute of limitations expired, the plaintiff filed an
amendment to her pleading striking “a certain sickness and malady”
and inserting in lieu thereof the words “a certain spinal injury which
consisted of one or more crushed vertebrae.” Huntoon, 371 Ill. at 39.
The plaintiff also added allegations that the defendant negligently (1)
failed to diagnose the plaintiff’s condition and injury; (2) failed to
properly perform an operation on the plaintiff’s spine; (3) and failed
to reset her vertebrae so as to permit the plaintiff’s spine and injured
vertebrae to heal.
Huntoon found that the amendment related back to the original
pleading. Huntoon, 371 Ill. at 43. The court stated that “[t]he facts
alleged in the amended declaration were simply a more particular
statement of the facts alleged in the original declaration, and it is quite
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apparent that they arose out of the same occurrence, although as first
alleged they may have been too general.” Huntoon, 371 Ill. at 43.
Similar to Huntoon, we find that the allegation in plaintiff’s second
amended complaint about Dr. Cross’ reading of the CT scan was an
amplification that grew out of the earlier allegation about failing to
report diminishing neurological function, both of which arose out of
the same transaction or occurrence. Thus, we find that the Hospital
had sufficient notice of the new allegations and was not prejudiced
thereby.
Finally, we note that there are a host of appellate court decisions
that have considered the “same transaction or occurrence” language
in the context of medical malpractice claims. See, e.g., Frigo v. Silver
Cross Hospital & Medical Center, 377 Ill. App. 3d 43 (2007); Grove
v. Carle Foundation Hospital, 364 Ill. App. 3d 412 (2006); Castro v.
Bellucci, 338 Ill. App. 3d 386 (2003); McCorry v. Gooneratne, 332
Ill. App. 3d 935 (2002); Avakian v. Chulengarian, 328 Ill. App. 3d
147 (2002); McArthur v. St. Mary’s Hospital of Decatur, 307 Ill.
App. 3d 329 (1999); Cammon v. West Suburban Hospital Medical
Center, 301 Ill. App. 3d 939 (1998); Figueroa v. Illinois Masonic
Medical Center, 288 Ill. App. 3d 921, (1997); Steinberg v. Dunseth,
276 Ill. App. 3d 1038 (1995); Flynn v. Szwed, 224 Ill. App. 3d 107
(1991); Bailey v. Petroff, 170 Ill. App. 3d 791 (1988); Weidner v.
Carle Foundation Hospital, 159 Ill. App. 3d 710 (1987). A close
examination of these cases shows that various panels of our appellate
court have divided over how broadly or narrowly to interpret section
2–616(b)’s relation-back provision. We see no need, however, to
undertake an in-depth analysis of each of these cases. Our decision
today should provide adequate guidance for future cases.
CONCLUSION
For the foregoing reasons, we reverse the judgments of the
appellate and circuit courts. We remand the cause to the circuit of
Macon County for further proceedings consistent with this opinion.
Judgments reversed;
cause remanded.
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