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Appellate Court Date: 2017.07.19
09:30:57 -05'00'
Owens v. VHS Acquisition Subsidiary Number 3, Inc., 2017 IL App (1st) 161709
Appellate Court ERIC OWENS, Plaintiff-Appellee, v. VHS ACQUISITION
Caption SUBSIDIARY NUMBER 3, INC., d/b/a Louis A. Weiss Memorial
Hospital; VHS ACQUISITION SUBSIDIARY NUMBER 3, INC.,
d/b/a Vanguard Weiss Memorial Hospital; LEO DILAN, D.O.;
AHMED RAZIUDDIN, M.D.; and SEEMA ELAHI, M.D.,
Defendants (Seema Elahi, M.D., Defendant-Appellant).
District & No. First District, Fifth Division
Docket No. 1-16-1709
Filed March 31, 2017
Decision Under Appeal from the Circuit Court of Cook County, No. 13-L-013786; the
Review Hon. Moira S. Johnson, Judge, presiding.
Judgment Certified question answered.
Counsel on Melissa A. Murphy-Petros, Michael L. Vittori, Michelle G. Berault,
Appeal and William S. Cook, of Wilson Elser Moskowitz Edelman & Dicker
LLP, of Chicago, for appellant.
Stephanie B. Rubin and Emilio E. Machado, of Rubin, Machado &
Rosenblum, Ltd., of Chicago, for appellee.
Panel PRESIDING JUSTICE GORDON delivered the judgment of the
court, with opinion.
Justice Reyes concurred in the judgment and opinion.
Justice Lampkin dissented, with opinion.
OPINION
¶1 The instant interlocutory appeal arises from plaintiff Eric Owens’s lawsuit against the
defendant hospital and its doctors concerning plaintiff’s care and treatment at the hospital’s
emergency room in 2011. Plaintiff initially named Dr. Ahmed Raziuddin as a defendant in the
suit as the physician who treated him in the emergency room, based on Dr. Raziuddin’s name
appearing in the hospital’s records as the treating physician. However, Dr. Raziuddin filed a
motion to dismiss the lawsuit, claiming that he was not the physician who treated plaintiff and
that Dr. Seema Elahi was actually the treating physician. Plaintiff then amended his complaint,
adding Dr. Elahi as a defendant. Dr. Elahi then filed a motion to dismiss the complaint, arguing
that the statute of limitations had expired. The trial court denied the motion to dismiss, finding
that the amended complaint related back to the initial filing of the complaint, but certified the
question for review pursuant to Illinois Supreme Court Rule 308 (eff. Jan. 1, 2015). We
allowed Dr. Elahi’s petition for leave to appeal and now answer the trial court’s certified
question in the affirmative. However, while we are able to answer the question of law
presented in the certified question, the record of the case at bar is not sufficiently developed for
us to determine the application of that law to the factual circumstances present in the instant
case. Accordingly, our analysis provides a roadmap that may be used to answer this important
question in the court below, as well as in the future, and the case is remanded back to the trial
court.
¶2 BACKGROUND
¶3 On December 5, 2013, five days before the statute of limitations would have expired,
plaintiff filed a complaint against the defendant hospital, Dr. Leo Dilan, and Dr. Ahmed
Raziuddin, alleging negligence against each defendant and alleging that the named doctors
were employees and/or agents of the defendant hospital. The complaint alleged that on
December 10, 2011, and December 14, 2011, plaintiff was a patient in the hospital’s
emergency department, where he was evaluated and treated “for complaints of body aches,
malaise, chills and other signs and symptoms of major illness.” However, the complaint
alleged that defendants failed to exercise reasonable care in providing medical care and
treatment to plaintiff, causing plaintiff to be “severely and permanently injured and
hospitalized during a later hospitalization at Swedish Covenant Hospital wherein he remained
in critical condition from a pulmonary infection from pneumocystis jiroveci from which he
sustained permanent damage and physical injury and will require continued medical care in the
future.” Specifically, the complaint alleged that Dr. Dilan had committed medical negligence
in his care and treatment of plaintiff on December 10, 2011, and that Dr. Raziuddin had
committed medical negligence in his care and treatment of plaintiff on December 14, 2011.
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¶4 According to the record, the sheriff’s office attempted service on Dr. Raziuddin on
December 26, 2013, and on February 20, 2014, but was unsuccessful. On March 19, 2014, the
trial court appointed a special process server, who was given until April 2, 2014, to serve Dr.
Raziuddin. Dr. Raziuddin filed an appearance in the case on March 20, 2014, and filed an
answer on May 13, 2014, denying the material allegations of the complaint. Specifically, Dr.
Raziuddin denied that he provided medical care and services to plaintiff.
¶5 On June 30, 2014, Dr. Raziuddin filed a motion for dismissal claiming noninvolvement
pursuant to section 2-1010 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1010 (West
2012)), claiming that Dr. Raziuddin “never saw the Plaintiff or provided any care or treatment
to Plaintiff at all.” The motion claimed that plaintiff’s medical records “improperly list Dr.
Raziuddin as the admitting physician on December 14, 2011 and attach a barcode to each page
of that admission with his name identified.” However, Dr. Raziuddin was one of two attending
physicians on duty on December 14, 2011, and “believe[d] the Plaintiff was admitted and
registered to him although he was never seen or treated by Dr. Raziuddin but by his colleague,
Dr. Elahi.”1 Attached to Dr. Raziuddin’s motion to dismiss was his affidavit, in which he
averred that he never provided any care or treatment to plaintiff and that “I believe that the
patient was registered under my name as I was one of two attending physicians on-shift at the
time but that any care and treatment was provided by my colleague, Seema Elahi, M.D.”
¶6 Plaintiff was granted leave to amend his complaint to add Dr. Elahi as a defendant and, on
July 21, 2014, plaintiff filed an amended complaint. The amended complaint added Dr. Elahi
as a defendant and added a claim of medical negligence against her. In the count directed at Dr.
Elahi, the amended complaint alleged that on December 14, 2011, Dr. Elahi was a physician
and surgeon practicing emergency medicine in the State of Illinois and that “[a]t all times
herein, Defendant, SEEMA ELAHI M.D, was the agent, servant and/or employee of
Defendant, WEISS.” The amended complaint alleged that Dr. Elahi breached her duty to
exercise reasonable care in providing medical treatment and care to plaintiff, causing him
physical injury from a pulmonary infection.
¶7 On December 22, 2014, Dr. Elahi filed a motion to dismiss plaintiff’s amended complaint
pursuant to sections 2-619(a)(5) and 13-212(a) of the Code (735 ILCS 5/2-619(a)(5),
13-212(a) (West 2012)), arguing that plaintiff’s cause of action was barred by the two-year
statute of limitations set forth in section 13-212(a) of the Code.
¶8 In response, plaintiff argued that under section 2-616(d) of the Code (735 ILCS 5/2-616(d)
(West 2012)), plaintiff’s amended complaint related back to the filing of his original
complaint. Plaintiff argued that he initially filed his complaint against “Weiss Hospital and the
Emergency Room physicians identified in his medical records as being his attending physician
on December 10th and December 14th.” Plaintiff first learned of Dr. Elahi’s involvement in
plaintiff’s care and treatment when Dr. Raziuddin filed his motion to dismiss for
noninvolvement on June 30, 2014, which included the claim that plaintiff’s records had been
“mislabeled by an error of the hospital and that his handwriting or written signature does not
appear anywhere on the records.” Plaintiff then amended his complaint on July 21, 2014, to
add Dr. Elahi and “alleg[e] the identical count against her that was previously plead[ed] in the
Complaint at Law against the Defendant, AHMED RAZIUDDIN, M.D.” Plaintiff argued that
1
While the record on appeal does not contain the court order resolving this motion, the record
indicates that the trial court granted it.
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the amended complaint related back to the filing of the initial complaint because “Plaintiff was
attempting to sue the Emergency Room physician who treated him on December 14, 2011, and
because his medical records were mislabeled, mistakenly sued the wrong doctor.” Plaintiff
argued that Dr. Elahi should have been on notice that she was the correct defendant and, since
the same counsel represented both her and Dr. Raziuddin, her counsel was fully up to date on
the case and Dr. Elahi would not be prejudiced.
¶9 Attached to plaintiff’s response was an exhibit consisting of six pages of plaintiff’s medical
records. Five of the six pages contain an admitting date of December 14, 2011, and Dr.
Raziuddin’s typed name as plaintiff’s admitting doctor.2 There is no doctor’s signature on any
of the six pages.
¶ 10 In her reply, Dr. Elahi argued that plaintiff did not make a mistake concerning Dr. Elahi’s
identity and, therefore, section 2-616(d) did not apply. Dr. Elahi argued that the hospital’s
emergency department medical records “clearly identify” Dr. Elahi as plaintiff’s attending
physician in no fewer than five places, and Dr. Elahi’s signature was also present on a
prescription that was tendered to plaintiff at the time of his discharge. Thus, Dr. Elahi argued
that plaintiff had offered no reason as to why he failed to name Dr. Elahi in his original
complaint.
¶ 11 Dr. Elahi further argued that, even if section 2-616(d) applied, plaintiff had not satisfied all
of its elements. Dr. Elahi argued that she was not served until September 16, 2014, nine months
after the statute of limitations has expired, and therefore did not have actual knowledge of the
lawsuit within the statutory period and further argued that she would be prejudiced by being
added as an additional defendant.
¶ 12 Attached to Dr. Elahi’s reply was an exhibit that purported to be three additional pages of
plaintiff’s medical records from his December 14, 2011, visit; all identifying information is
redacted from the pages. On each page, there is a space for the signature of the attending
physician, and a handwritten signature appears in that space; the signature is illegible. On the
first page and the third page, there are also spaces for the attending physician’s printed name; a
more legible name is handwritten in these two spaces but is still difficult to read.
¶ 13 On March 5, 2015, the trial court entered an order denying Dr. Elahi’s motion to dismiss
plaintiff’s amended complaint.
¶ 14 On August 10, 2015, Dr. Elahi filed a motion to certify a question under Illinois Supreme
Court Rule 308 (eff. Jan. 1, 2015) concerning whether the amended complaint related back to
the filing of the initial complaint. On August 19, 2015, Dr. Elahi’s motion was denied without
prejudice. The court found that Dr. Elahi’s proposed question was conclusory and not framed
as a legal question, but that “[i]f the defendant can come up with a legal question that they want
to have the appellate court review,” the trial court would review it.
¶ 15 On September 9, 2015, Dr. Elahi filed an amended motion to certify a question under Rule
308, which was denied on October 20, 2015, without prejudice due to the manner in which the
question was framed. On May 11, 2016, Dr. Elahi filed a second amended motion to certify a
question under Rule 308. On May 26, 2016, the trial court granted Dr. Elahi’s motion and
certified the following question for appellate review:
2
Four of the pages contain the admitting date and doctor information in a barcode that is affixed to
the top corner of the page. The page that does not contain this information has a space for a “Patient
Label” in that same area but one is not affixed.
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“Whether an Amended Complaint against a new defendant filed after the
applicable statute of limitations has expired relates back to plaintiff’s original
Complaint where (a) the new defendant’s signature was in the medical records in
plaintiff’s possession prior to filing his original Complaint, and (b) the new defendant
had no knowledge that the action would have been brought against her, but for a
mistake concerning her identity.”
¶ 16 On July 19, 2016, we allowed Dr. Elahi’s petition for leave to appeal, and this appeal
follows.
¶ 17 ANALYSIS
¶ 18 Illinois Supreme Court Rule 308 (eff. Jan. 1, 2015) provides a remedy of permissive appeal
from interlocutory orders where the trial court has deemed that they involve a question of law
as to which there is substantial ground for difference of opinion and where an immediate
appeal from the order may materially advance the ultimate termination of the litigation. We
apply a de novo standard of review to legal questions presented in an interlocutory appeal
brought pursuant to Rule 308. Simmons v. Homatas, 236 Ill. 2d 459, 466 (2010). De novo
consideration means we perform the same analysis that a trial judge would perform. Khan v.
BDO Seidman, LLP, 408 Ill. App. 3d 564, 578 (2011).
¶ 19 Additionally, the appeal in the case at bar arises from the trial court’s denial of Dr. Elahi’s
motion to dismiss the amended complaint under section 2-619 of the Code. A motion to
dismiss under section 2-619 admits the legal sufficiency of all well-pleaded facts but allows for
the dismissal of claims barred by an affirmative matter defeating those claims or avoiding their
legal effect. Janda v. United States Cellular Corp., 2011 IL App (1st) 103552, ¶ 83 (citing
DeLuna v. Burciaga, 223 Ill. 2d 49, 59 (2006)). When reviewing a motion to dismiss under
section 2-619, “a court must accept as true all well-pleaded facts in plaintiffs’ complaint and all
inferences that can reasonably be drawn in plaintiffs’ favor.” Morr-Fitz, Inc. v. Blagojevich,
231 Ill. 2d 474, 488 (2008). Additionally, a cause of action should not be dismissed under
section 2-619 unless it is clearly apparent that no set of facts can be proved that would entitle
the plaintiff to relief. Feltmeier v. Feltmeier, 207 Ill. 2d 263, 277-78 (2003). For a section
2-619 dismissal, our standard of review is de novo. Solaia Technology, LLC v. Specialty
Publishing Co., 221 Ill. 2d 558, 579 (2006); Morr-Fitz, Inc., 231 Ill. 2d at 488. As noted,
de novo consideration means we perform the same analysis that a trial judge would perform.
Khan, 408 Ill. App. 3d at 578.
¶ 20 On appeal, we are asked to consider whether plaintiff’s amended complaint relates back to
the date of filing of the original complaint under the facts and circumstances of this case.
Amendments to pleadings are governed by section 2-616 of the Code. With respect to
amending a complaint to add a defendant, section 2-616(d) provides:
“A cause of action against a person not originally named a defendant is not 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 all the following terms and conditions are
met: (1) the time prescribed or limited had not expired when the original action was
commenced; (2) the person, within the time that the action might have been brought or
the right asserted against him or her plus the time for service permitted under Supreme
Court Rule 103(b), received such notice of the commencement of the action that the
person will not be prejudiced in maintaining a defense on the merits and knew or
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should have known that, but for a mistake concerning the identity of the proper party,
the action would have been brought against him or her; and (3) it appears from the
original and amended pleadings that the cause of action asserted 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 when the condition precedent
has in fact been performed, and even though the person was not named originally as a
defendant. For the purpose of preserving the cause of action under those conditions, an
amendment adding the person as a defendant relates back to the date of the filing of the
original pleading so amended.” 735 ILCS 5/2-616(d) (West 2012).
In the case at bar, the first and third elements are not contested. The statute of limitations had
not expired at the time of the filing of plaintiff’s initial complaint, and the cause of action in the
amended pleading arose from the same occurrence as that alleged in the initial complaint.
Thus, our analysis centers on the second element: whether “the person, within the time that the
action might have been brought or the right asserted against him or her plus the time for service
permitted under Supreme Court Rule 103(b), received such notice of the commencement of the
action that the person will not be prejudiced in maintaining a defense on the merits and knew or
should have known that, but for a mistake concerning the identity of the proper party, the
action would have been brought against him or her.” 735 ILCS 5/2-616(d)(2) (West 2012).
¶ 21 The certified question on appeal concerns two parts of section 2-616(d)’s second element:
whether there was a “mistake” as contemplated by section 2-616(d) where Dr. Elahi’s
signature was contained in plaintiff’s medical records; and whether Dr. Elahi received the
appropriate notice of the commencement of the action where she alleges that she had no actual
notice that plaintiff intended to file suit against her. We consider each issue in turn.
¶ 22 I. Mistake
¶ 23 A. Analysis of Section 2-616(d)
¶ 24 As an initial matter, we must discuss Dr. Elahi’s suggestion that there is confusion over the
proper analysis to use in considering whether there is a mistake for the purposes of relation
back under section 2-616(d), namely, whether a court should look to the plaintiff’s intent in
filing the original lawsuit or the defendant’s knowledge of any alleged mistake. However, an
examination of recent case law shows that our courts’ analysis has been consistent for several
years.
¶ 25 In Borchers v. Franciscan Tertiary Province of the Sacred Heart, Inc., 2011 IL App (2d)
101257, ¶ 42, the Second District explained the history of section 2-616(d). “The relation-back
doctrine contained in section 2-616(d) has been in existence for many years. For much of that
time it required the plaintiff to show, among other things, that the failure to name the new
defendant in the initial complaint was ‘inadvertent.’ [Citation.] The focus in many of the cases
applying the doctrine was thus on what the plaintiff knew or should have known at the time the
complaint was filed and the plaintiff’s diligence in seeking to amend the complaint.
[Citation.]” Borchers, 2011 IL App (2d) 101257, ¶ 42. However, in 2002, section 2-616(d) was
amended, removing the inadvertence requirement and replacing it with the language currently
at issue in the instant appeal that a mistake was made as to the identity of the defendant. After
examining the legislative history of the amendment, the court in Compton v. Ubilluz, 351 Ill.
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App. 3d 223, 233 (2004), found that “[f]rom this history, we can see that the legislative intent
was simply to bring the Code into line with the Federal Rules of Civil Procedure.”
¶ 26 “The language of the amended section 2-616(d) is substantially similar to that of Rule
15(c) [of the Federal Rules of Civil Procedure (Fed. R. Civ. P. 15(c))], which provides that an
amended pleading naming a new party will relate back to the filing date of the original
pleading if the claims or defenses asserted in the amended pleading are the same as those in the
original and, within the limitations period for the claim plus the time allowed for service of the
pleading, the new party (1) ‘received such notice of the action that it will not be prejudiced in
defending on the merits,’ and (2) ‘knew or should have known that the action would have been
brought against it, but for a mistake concerning the proper party’s identity.’ [Citation.]”
Borchers, 2011 IL App (2d) 101257, ¶ 42.
¶ 27 “Where a provision of the Illinois Code of Civil Procedure is patterned after a Federal Rule
of Civil Procedure, federal cases interpreting the federal rule are persuasive authority with
regard to the application of the Illinois provision.” Borchers, 2011 IL App (2d) 101257, ¶ 45.
Thus, with respect to section 2-616(d), due to the similarities between section 2-616(d) and
Rule 15(c), “Illinois courts have looked to federal precedent interpreting Rule 15(c)(1)(C) for
guidance in interpreting section 2-616(d).” Zlatev v. Millette, 2015 IL App (1st) 143173, ¶ 24;
see, e.g., Borchers, 2011 IL App (2d) 101257, ¶ 45; Maggi v. RAS Development, Inc., 2011 IL
App (1st) 091955, ¶ 28; see also Porter v. Decatur Memorial Hospital, 227 Ill. 2d 343, 358
(2008) (in interpreting a different subsection of section 2-616, “find[ing] it significant” that
prior Illinois Supreme Court cases had relied on federal law for guidance in interpreting the
subsection, since its language was very similar to that of Rule 15(c)).
¶ 28 While there has been no Illinois Supreme Court case interpreting section 2-616(d) since the
2002 amendment that added the language at issue in the instant appeal, there has been a United
States Supreme Court case squarely addressing the same language. Given the similarity
between the federal rule and section 2-616(d), most Illinois courts analyzing section 2-616(d)
have relied on this case in interpreting the state statute.
¶ 29 In Krupski v. Costa Crociere S.p.A., 560 U.S. 538, 547 (2010), the United States Supreme
Court resolved a split among federal courts concerning the breadth of Rule 15(c)(1)(C)(ii)
which, like section 2-616(d), provided that relation back would only be available if the party to
be added by an amendment “ ‘knew or should have known that the action would have been
brought against it, but for a mistake concerning the proper party’s identity.’ [Citation.]” The
Court found that the court of appeals had erred when it focused on the plaintiff’s knowledge
when determining whether there was a mistake; instead, the Court indicated that “[t]he
question under Rule 15(c)(1)(C)(ii) is not whether [the plaintiff] knew or should have known
the identity of [the newly added party] as the proper defendant, but whether [the newly added
party] knew or should have known that it would have been named as a defendant but for an
error. Rule 15(c)(1)(C)(ii) asks what the prospective defendant knew or should have known
during the [period for service], not what the plaintiff knew or should have known at the time of
filing her original complaint.” (Emphases in original.) Krupski, 560 U.S. at 548. The Court
further explained that “[i]nformation in the plaintiff’s possession is relevant only if it bears on
the defendant’s understanding of whether the plaintiff made a mistake regarding the proper
party’s identity.” Krupski, 560 U.S. at 548. Applying these principles to the case before it, the
Krupski Court found that “[b]ecause the complaint made clear that [the plaintiff] meant to sue
the company that ‘owned, operated, managed, supervised and controlled’ the ship on which
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she was injured,” the newly added defendant should have known that it was not named as a
defendant in the complaint only because of the plaintiff’s misunderstanding about which entity
was in charge of the ship. Krupski, 560 U.S. at 554-55.
¶ 30 Following the United States Supreme Court’s decision in Krupski, our Illinois appellate
courts have adopted the same analysis. See, e.g., Zlatev, 2015 IL App (1st) 143173, ¶ 31
(finding Krupski “persuasive in interpreting Illinois’s relation-back provision”); Mann v.
Thomas Place, L.P., 2012 IL App (1st) 110625, ¶ 25 (relying on Krupski to find that the
relevant issue with respect to knowledge is not what the plaintiffs knew but what the
defendants knew); Borchers, 2011 IL App (2d) 101257, ¶ 52 (finding that “the principles
stated in Krupski apply equally here”); Maggi, 2011 IL App (1st) 091955, ¶¶ 33, 37 (relying on
Krupski to find that there was a mistake and that the proper focus was the defendant’s
knowledge of the mistake). “Thus, when evaluating a mistake under section 2-616(d), the
proper focus is not on whether plaintiff made a reasonable mistake, but whether or not the
defendant could reasonably believe that plaintiff had made a mistake in not naming the
defendant in the initial complaint.” Zlatev, 2015 IL App (1st) 143173, ¶ 31. A “plaintiff’s
intent in filing the original complaint is relevant only to the extent that it sheds light on whether
the prospective defendant was reasonable in concluding that the plaintiff had made a mistake
when filing the initial complaint.” Zlatev, 2015 IL App (1st) 143173, ¶ 37. This interpretation
of the “mistake” requirement, along with the requirements for notice and a lack of prejudice,
strikes the proper balance between respecting statutes of limitations while adhering to the
fundamental preference that disputes be decided on their merits. Zlatev, 2015 IL App (1st)
143173, ¶¶ 32-33. As we noted in Zlatev: “If a party is aware of a lawsuit arising out of a set of
facts in which he was involved, and if that party knows or should know that the only reason he
was not sued was due to a mistake on the plaintiff’s part, and if the notice of this lawsuit is
sufficient that the party has not been prejudiced in his ability later to defend that suit on the
merits, that party is hard-pressed to claim unfair treatment when the plaintiff later discovers the
mistake and sues him. If anything, that party was lucky to have avoided the suit when it was
originally filed.” Zlatev, 2015 IL App (1st) 143173, ¶ 33.
¶ 31 We note that, while some courts have expressly considered the issue of whether there was a
mistake as a threshold issue prior to determining whether the requirements of section 2-616(d)
were satisfied, we do not read such an analysis as imposing any additional requirements or in
any way departing from the language of section 2-616(d), as Dr. Elahi seems to believe.
Section 2-616(d) applies, by its clear terms, only to situations in which there is a “mistake
concerning the identity of the proper party.” 735 ILCS 5/2-616(d)(2) (West 2012). Thus, in
cases where there was no such mistake, the section 2-616(d) analysis would not apply. We see
no inconsistency or error for an appellate court to discuss the dispositive issue first, especially
where the conclusion is that there was no mistake. See, e.g., McCarthy v. Omega Psi Phi
Fraternity, Inc., 2011 IL App (1st) 092950, ¶ 36 (finding that there was no mistake and,
therefore, section 2-616(d) did not apply); Mann, 2012 IL App (1st) 110625, ¶¶ 22-23 (same).
¶ 32 We further see no merit to Dr. Elahi’s attempt to sow confusion by pointing to statements
in certain cases that appear to focus on the plaintiff’s intent. For instance, Dr. Elahi points to
the Zlatev court’s finding that a plaintiff’s lack of knowledge regarding a party’s involvement
in the wrongdoing may constitute a mistake for purposes of section 2-616(d) (see Zlatev, 2015
IL App (1st) 143173, ¶ 56), arguing that in making such a finding, the Zlatev court “made the
analysis more puzzling by reaching seemingly contradictory rulings.” However, the finding
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Dr. Elahi points to was an answer to a certified question that specifically asked the court to
consider whether a plaintiff’s lack of knowledge could constitute a mistake. Zlatev, 2015 IL
App (1st) 143173, ¶ 49. Furthermore, this finding was based on one made by the Krupski
Court, as the Zlatev court pointed out, and had been adopted by the Illinois Appellate Court in
both Maggi and Borchers. See Zlatev, 2015 IL App (1st) 143173, ¶ 51. As the Krupski Court
noted, “[i]nformation in the plaintiff’s possession is relevant only if it bears on the defendant’s
understanding of whether the plaintiff made a mistake regarding the proper party’s identity.
For purposes of that inquiry, it would be error to conflate knowledge of a party’s existence
with the absence of mistake. *** That a plaintiff knows of a party’s existence does not
preclude her from making a mistake with respect to that party’s identity.” Krupski, 560 U.S. at
548-49. Thus, a plaintiff’s knowledge, or lack thereof, is relevant to the issue of whether there
was a mistake, but the discussion of such knowledge still occurs in the context of determining
what the defendant’s understanding was prior to the filing of the amended complaint.
¶ 33 B. Mistake as to Treating Doctor
¶ 34 Turning, then, to the application of the law to the instant case, we must consider the first
part of the certified question, which asks whether section 2-616(d) can apply even if Dr.
Elahi’s signature appeared in plaintiff’s medical records. Our answer to this question is that it
can. Dr. Elahi’s position is that, “[i]f the newly-added defendant’s signature is in the medical
records and plaintiff had possession of them before filing the original complaint, the plaintiff
had sufficient information to name the defendant in the initial complaint. In other words, if the
plaintiff knew or should have known about the new defendant’s role all along, there is no
mistaken identity, just a mistake by plaintiff in not naming the defendant in the first place.” We
do not find this argument persuasive. Furthermore, in the case at bar, the signature Dr. Elahi
points to was illegible and Dr. Raziuddin was repeatedly listed on the records as the treating
physician.
¶ 35 First, as the Supreme Court noted, the applicable rule “asks what the prospective defendant
knew or should have known during the [period for service of process], not what the plaintiff
knew or should have known at the time of filing her original complaint. Information in the
plaintiff’s possession is relevant only if it bears on the defendant’s understanding of whether
the plaintiff made a mistake regarding the proper party’s identity.” (Emphases in original.)
Krupski, 560 U.S. at 548. Thus, the question is not what plaintiff knew, but what Dr. Elahi
knew or should have known.
¶ 36 In determining whether there has been a mistake, we may examine the allegations of the
original complaint as objective manifestations of the plaintiff’s intent in filing the lawsuit. See,
e.g., Maggi, 2011 IL App (1st) 091955, ¶ 33 (looking to the language of the complaint);
Krupski, 560 U.S. at 554-55 (“Because the complaint made clear” that the plaintiff meant to
sue the company that owned, operated, managed, supervised, and controlled the ship, the
defendant should have known that it was not named only because the plaintiff made a mistake
as to the proper party’s identity). In the case at bar, plaintiff’s original complaint alleged that
“[o]n December 14, 2011 and thereafter, Defendant, AHMED RAZIUDDIN M.D., provided
medical care and services to the Plaintiff, ERIC OWENS” and owed plaintiff a duty to exercise
reasonable care in providing him medical care and treatment. However, the complaint alleged
that Dr. Raziuddin failed to do so by “[c]arelessly and negligently provid[ing] treatment and/or
care to the Plaintiff that was below the applicable standard of care” by failing to take a proper
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history of plaintiff’s HIV status, failing to evaluate or inquire as to plaintiff’s CD4+ count, and
failing to properly examine and diagnose plaintiff’s pulmonary infection, as well as
“[c]arelessly and negligently discharg[ing] the Plaintiff” and being “otherwise careless and
negligent in the emergency room diagnosis and treatment of the Plaintiff.” Thus, from the
allegations of the complaint, it is clear that plaintiff was filing suit against the physician who
treated him in the emergency room on December 14, 2011, and believed that Dr. Raziuddin
was that physician. Dr. Elahi, the actual physician who treated plaintiff on December 14, 2011,
in the emergency room, accordingly should have known 3 that she was not named in the
original complaint only because of plaintiff’s mistake as to the name of the doctor who treated
him.
¶ 37 Furthermore, we cannot ignore the fact that the record reveals that the reason that plaintiff
named Dr. Raziuddin as his physician was because Dr. Raziuddin’s name was listed on
plaintiff’s medical records as his doctor on the date at issue by the hospital staff. In other
words, it was the hospital itself which misled plaintiff and lulled him into believing that Dr.
Raziuddin was his treating physician. Dr. Raziuddin’s typed name was included as plaintiff’s
physician on a hospital printout containing “Admit Information,” and was included on a
barcode of plaintiff’s patient information that was affixed to his medical records. Thus, the
hospital’s official records led plaintiff to believe that Dr. Raziuddin was, in fact, the doctor
who treated him. Dr. Elahi points to the fact that her name “appears in the medical records
from that day” as evidence that plaintiff purposely chose not to file suit against her. However,
these are all places in which her name is handwritten and illegible. Even on the pages that
contain spaces for the attending physician’s printed name, the handwritten name is still
difficult to read.
¶ 38 Moreover, “[t]hat a plaintiff knows of a party’s existence does not preclude her from
making a mistake with respect to that party’s identity.” Krupski, 560 U.S. at 549. Thus, even if
plaintiff had been able to read Dr. Elahi’s name in the few places it appears, that does not mean
that plaintiff would necessarily have known that Dr. Elahi was his treating physician as a result
of the hospital’s wrongful printout and misleading information. Plaintiff’s attorney would then
have been confronted with a signature in a few places that, if readable, would be conflicting
with the typed barcode affixed to his medical records that identified a different physician. “[A]
plaintiff might know that the prospective defendant exists but nonetheless harbor a
misunderstanding about his status or role in the events giving rise to the claim at issue, and she
may mistakenly choose to sue a different defendant based on that misimpression. That kind of
deliberate but mistaken choice does not foreclose a finding” of mistake. Krupski, 560 U.S. at
549. Thus, plaintiff’s naming Dr. Raziuddin as a defendant does not foreclose a finding that
there was a mistake, even if Dr. Elahi’s name was identifiable in portions of plaintiff’s medical
records. Here, Dr. Elahi, as the treating physician in question, should have known that she was
the person plaintiff would sue once she reviewed the medical records.4
3
For purposes of the first part of the certified question, we do not consider whether Dr. Elahi had
notice of the original complaint, as is necessary for section 2-616(d) to apply. We consider that question
in our analysis of the second part of the certified question. Here, we simply consider whether the
allegations of the complaint should have led her to believe that there had been a mistake.
4
We take judicial notice that it is proper hospital protocol for a physician to review their medical
records. However, Dr. Elahi’s review of her records has not been developed in this case.
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¶ 39 Dr. Elahi draws an analogy between her situation and that present in McCarthy, where we
found that there was no mistake. However, the factual situations in the two cases are quite
different. In McCarthy, the plaintiff filed suit against the district representative of a fraternity,
alleging slander, libel, and defamation per se based on the representative’s dissemination of
false information and suspension of the plaintiff from the fraternity. After trial, and after the
expiration of the statute of limitations, the plaintiff sought to amend the complaint to add the
national fraternity and its regional district as defendants, claiming that he learned through the
trial evidence that they had encouraged the representative to suspend the plaintiff. McCarthy,
2011 IL App (1st) 092950, ¶ 34. On appeal, we found that the omission of the newly added
defendants had not been a mistake pursuant to section 2-616(d). McCarthy, 2011 IL App (1st)
092950, ¶ 35. We found that “the record reveals plaintiff’s intent was to sue [the
representative] for defaming him by disseminating false information and suspending him from
the fraternity.” McCarthy, 2011 IL App (1st) 092950, ¶ 34. We further noted that the plaintiff
“decided 43 months after the statute of limitations had run that defendants were additionally
responsible for the defamation action. Plaintiff, however, always had intended to sue [the
representative] for his participation in the alleged defamation ***. Therefore, this was not a
case where, but for a mistake concerning the identity of defendants, plaintiff would not have
sued [the representative]. Clearly, plaintiff intended to sue whoever perpetuated the alleged
falsehood, namely, [the representative].” (Emphasis added.) McCarthy, 2011 IL App (1st)
092950, ¶ 35.
¶ 40 In the case at bar, by contrast, there is no indication that plaintiff always intended to sue Dr.
Raziuddin and only later decided that Dr. Elahi was additionally responsible. Instead, the
allegations of the complaint make clear that plaintiff intended to sue the physician who treated
him, who he mistakenly believed was Dr. Raziuddin based on false information contained in
the hospital records. Once he discovered that Dr. Elahi was actually the physician who treated
him, he sought to add her as a defendant. Again, Dr. Elahi should have known that plaintiff
only named Dr. Raziuddin due to his misapprehension as to the identity of his treating doctor.
Accordingly, we find that section 2-616(d) can apply even though Dr. Elahi’s name, although
illegible, appeared in plaintiff’s medical records when the hospital indicated in the records that
Dr. Raziuddin was the treating physician.
¶ 41 II. Notice
¶ 42 The second part of the certified question asks whether section 2-616(d) applies where Dr.
Elahi claims she had no actual knowledge that plaintiff would have filed suit against her absent
a mistake as to the identity of his doctor. Specifically, the second part of the certified question
asks “[w]hether an Amended Complaint against a new defendant filed after the applicable
statute of limitations has expired relates back to plaintiff’s original Complaint where *** (b)
the new defendant had no knowledge that the action would have been brought against her, but
for a mistake concerning her identity.”
¶ 43 As noted, the second element of section 2-616(d) asks whether “the person, within the time
that the action might have been brought or the right asserted against him or her plus the time for
service permitted under Supreme Court Rule 103(b), received such notice of the
commencement of the action that the person will not be prejudiced in maintaining a defense on
the merits and knew or should have known that, but for a mistake concerning the identity of the
proper party, the action would have been brought against him or her.” 735 ILCS 5/2-616(d)(2)
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(West 2012). In the case at bar, Dr. Elahi claims that she received no such notice and that the
first she learned of the lawsuit was when she was served with the amended complaint several
months after the limitations period expired.
¶ 44 There are two Illinois cases discussing section 2-616(d)’s notice requirement, both of
which rely on federal case law for guidance due to the similarity between section 2-616(d) and
Rule 15(c), as discussed above.5 In Polites v. U.S. Bank National Ass’n, 361 Ill. App. 3d 76, 88
(2005), we noted that “[f]ederal courts have decided three types of notice comply with Federal
Rule of Civil Procedure 15(c): (1) actual notice received by the party [citation]; (2) actual
notice received by the party’s agent [citation]; or (3) constructive notice [citation].” In the case
at bar, there is no allegation that Dr. Elahi received actual notice of the lawsuit within the
limitations period, and there is no allegation that anyone acting as Dr. Elahi’s agent received
notice of the lawsuit.6 However, section 2-616(d)’s notice requirement can still be satisfied if
Dr. Elahi received constructive notice of the lawsuit within the limitations period.
¶ 45 “Constructive notice occurs where a defendant does not receive notice of an impending
lawsuit, but due to its relationship with an entity that received actual notice, knowledge of the
action is imputed to the defendant for purposes of adding it as a new party.” Polites, 361 Ill.
App. 3d at 90. “Under federal law, there are three ways to establish constructive notice: (1)
notice via sharing an attorney with the original defendant [citation]; (2) notice via an identity of
interest with the original defendant [citation]; or (3) notice via someone who handles the
would-be defendant’s insurance claims [citations].” Polites, 361 Ill. App. 3d at 90-91.
¶ 46 We first consider whether the shared-attorney method of notice would be applicable to the
case at bar. “The ‘shared attorney’ method of imputing *** notice is based on the notion that,
when an originally named party and the party who is sought to be added are represented by the
same attorney, the attorney is likely to have communicated to the latter party that he may very
well he joined in the action.” Singletary v. Pennsylvania Department of Corrections, 266 F.3d
186, 196 (3d Cir. 2001). “In order to support an argument that knowledge of the pendency of a
lawsuit may be imputed to a defendant or set of defendants because they have the same
attorney(s), there must be some showing that the attorney(s) knew that the additional
defendants would be added to the existing suit.” Gleason v. McBride, 869 F.2d 688, 693 (2d
Cir. 1989); Scott v. Village of Spring Valley, 577 F. App’x 81, 82 (2d Cir. 2014) (summary
order).
¶ 47 In the case at bar, plaintiff alleges that Dr. Raziuddin, Dr. Elahi, and Dr. Dilan (who was
sued for his treatment of plaintiff on December 10, 2011) were employees or agents of the
defendant hospital, and we must take these allegations as true at this stage of the proceedings.7
5
We note that Dr. Elahi’s brief only briefly discusses one of the two cases, and neither party
discusses any federal case law.
6
While Dr. Elahi was represented by the same counsel that represented Dr. Raziuddin, Dr. Elahi
claims that she did not retain counsel until she was named in the amended complaint. Thus, notice to
counsel that did not represent Dr. Elahi at the time would not have been considered notice to Dr. Elahi’s
agent during the limitations period.
7
In her brief, Dr. Elahi claims that she did not receive constructive notice of the lawsuit through the
hospital because “she is not a hospital employee.” However, the instant appeal arises from Dr. Elahi’s
filing of a motion to dismiss the complaint based on the statute of limitations. When reviewing a motion
to dismiss under section 2-619, “a court must accept as true all well-pleaded facts in plaintiffs’
complaint and all inferences that can reasonably be drawn in plaintiffs’ favor.” Morr-Fitz, Inc., 231 Ill.
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In medical malpractice cases against hospitals and employee physicians, the hospital’s
insurance company, or its administrator of a self-insurance program, retains a law firm to
represent the individual doctors who are employed as agents or employees and are named in
the complaint. The record reveals, and Dr. Elahi does not dispute, that Dr. Elahi is represented
by the same counsel that initially represented Dr. Raziuddin and continues to represent8 Dr.
Dilan. Furthermore, not only is Dr. Elahi represented by the same law firm as the original
defendants, she is also represented by at least some of the same individual attorneys. These
attorneys would have known, during the statutory period, that Dr. Raziuddin was not plaintiff’s
treating physician and that Dr. Elahi, the only other physician working in the emergency room
on December 14, 2011, was actually plaintiff’s treating physician. Thus, they would have
known that Dr. Elahi would be added to the lawsuit once plaintiff discovered his mistake. See
Gleason, 869 F.2d at 693. Moreover, as the counsel retained on behalf of all of the individual
doctors, the attorneys would also have known that they would be retained to represent Dr.
Elahi.
¶ 48 Dr. Elahi claims that the knowledge of these attorneys cannot be imputed to her because
she did not have any contact with them until she was served with the amended complaint on
September 16, 2014, after the expiration of the limitations period. However, “the fundamental
issue here is whether the attorney’s later relationship with the newly named defendant gives
rise to the inference that the attorney, within the [period for service], had some communication
or relationship with, and thus gave notice of the action to, the newly named defendant.”
Singletary, 266 F.3d at 196-97. Here, as counsel for all of the individual doctors, the attorneys
who later represented Dr. Elahi could have had “some *** relationship with” (Singletary, 266
F.3d at 196) Dr. Elahi even before they were formally retained to represent her such that notice
can be imputed to her. A finding otherwise would encourage a law firm in such a situation to
intentionally forego informing a known future client of a lawsuit against her, despite counsel
being fully aware that the lawsuit would be imminent, in hopes that the lawsuit would be
dismissed on statute of limitations grounds. Such procedural gamesmanship does not comport
with our courts’ interpretation of section 2-616, which have “historically *** liberally
construed section 2-616 of the Code so that cases are decided on their merits rather than on a
procedural technicality.” Compton, 351 Ill. App. 3d at 233.
¶ 49 We are not persuaded by Dr. Elahi’s attempt to analogize her situation to that present in
Borchers. There, the appellate court found that there was no notice because, although the new
defendant was represented by the same counsel as her employer, “there [was] no evidence that
she communicated with [the employer’s] attorneys about the suit within the statutory period.”
Borchers, 2011 IL App (2d) 101257, ¶ 60. However, Borchers involved a different type of
“mistake” than is present in the case at bar; there, the mistake was the failure to name all of the
individuals involved in causing the plaintiff’s injury while, here, the mistake was the identity
of the treating physician. The “shared attorney” is different as well; there, the shared attorney
2d at 488. Thus, we must accept as true plaintiff’s allegation that the physicians were the hospital’s
“agent[s], servant[s] and/or employee[s].”
8
As noted, Dr. Dilan was named as a defendant due to his treatment of plaintiff on December 10,
2011. The record contains the appearance of Dr. Dilan but does not contain any further information
about the progress of the case with respect to him. Thus, we have no reason to believe that Dr. Dilan has
changed counsel since the filing of his appearance.
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was between an employer and an employee while, here, the shared attorney is between the
incorrect doctor and the correct doctor. These differences are significant because the attorneys
in Borchers would not necessarily have faced the same issue as the attorneys in the case at bar,
namely, the knowledge that the correct doctor would be brought into the lawsuit once the
mistake was discovered. Instead, the employer and its attorneys would have known only that
the new defendant was a potential defendant. See Borchers, 2011 IL App (2d) 101257, ¶ 57.
Moreover, that court also noted that the issue of notice was “a close one” (Borchers, 2011 IL
App (2d) 101257, ¶ 57), and our consideration of the issue leads us to reach a different
conclusion than that court. Accordingly, we find that Dr. Elahi may have received constructive
notice of the lawsuit through the shared-attorney method of notice.
¶ 50 We also note that Dr. Elahi could have also received constructive notice through an identity
of interest. “We also will impute notice if the parties are so closely related in their business
operations or other activities that filing suit against one serves to provide notice to the other of
the pending litigation.” Garvin v. City of Philadelphia, 354 F.3d 215, 227 (3d Cir. 2003). Here,
the amended complaint alleges that, “[a]t all times herein, Defendant, SEEMA ELAHI M.D,
was the agent, servant and/or employee of Defendant, WEISS.” Thus, we must consider
whether plaintiff’s allegation that Dr. Elahi was an agent of the defendant hospital is sufficient
to provide Dr. Elahi with constructive notice of the original lawsuit.
¶ 51 An employee can receive constructive notice through his or her employer, but it is a
fact-specific inquiry as to whether such constructive notice should be imputed. “[A]bsent other
circumstances that permit the inference that notice was actually received, a non-management
employee *** does not share a sufficient nexus of interests with his or her employer so that
notice given to the employer can be imputed to the employee for [relation-back] purposes.”
Singletary, 266 F.3d at 200. For instance, in Singletary, the facts present in that case led the
Third Circuit Court of Appeals to conclude that a prison psychologist did not receive
constructive notice through the filing of a lawsuit against the prison because the psychologist
“was a staff level employee at [the prison] with no administrative or supervisory duties at the
prison. Thus, [his] position at [the prison] cannot alone serve as a basis for finding an identity
of interest, because [the psychologist] was clearly not highly enough placed in the prison
hierarchy for us to conclude that his interests as an employee are identical to the prison’s
interests.” Singletary, 266 F.3d at 199; see also Borchers, 2011 IL App (2d) 101257, ¶ 60
(finding no constructive notice where the newly added defendant “was a nonmanagerial
employee whose awareness of the suit cannot be presumed from [her employer’s or her
supervisor’s] knowledge”). By contrast, in Ayala Serrano v. Lebron Gonzalez, 909 F.2d 8,
12-13 (1st Cir. 1990), the First Circuit Court of Appeals concluded that a prison officer
received constructive notice sufficient for the relation-back doctrine where his supervisors
were named in the complaint and he was present during the alleged assault on the plaintiff.
¶ 52 In the case at bar, the record does not provide sufficient information to resolve this factual
issue. Plaintiff has alleged that Dr. Elahi was an “agent, servant and/or employee” of the
defendant hospital, and the record reveals that Dr. Elahi was one of two emergency room
physicians working at the defendant hospital emergency room on December 14, 2011. This is
simply not enough information to draw any conclusions as to Dr. Elahi’s position within the
hospital, her level of responsibility, her duties, or her interactions with Dr. Raziuddin, all of
which would be relevant to the determination of whether notice should be imputed. Thus, it
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may be that, as a question of fact, Dr. Elahi received such constructive notice as an employee
of the defendant hospital.
¶ 53 Finally, although it was not developed by the parties in the case at bar, notice may be
imputed via someone who handles the defendant’s insurance claims. See Polites, 361 Ill. App.
3d at 91. We can take judicial notice that all physicians or hospitals have medical malpractice
insurance or are covered by self-insurance administered by professionals under the same
programs used by insurance companies. It is the insurance companies or the self-insurance
administrators that retain the lawyers. It is the insurance companies or self-insurance
administrators that plaintiffs’ lawyers contact and negotiate with before they file suit.
Whatever knowledge the insurance company or self-insurance administrator had in this case
was not developed by plaintiff in the case at bar. The insurance company or self-insurance
administrator would be the agent of the physician, and any knowledge they have would be
imputed to their insured. See Korn v. Royal Caribbean Cruise Line, Inc., 724 F.2d 1397, 1401
(9th Cir. 1984) (finding constructive notice to the insured where the insurance company who
handled its personal injury claims had knowledge of the suit).
¶ 54 In the case at bar, once a notice of attorney’s lien was served on Dr. Raziuddin and/or the
hospital, that notice of attorney’s lien would have been sent to the insurance company or
administrator of a self-insurance program for the hospital and Dr. Raziuddin and a claim file
would have been created and the matter investigated. The knowledge of the insurance
company or administrator of self-insurance claims could be imputed to Dr. Elahi. Again, this
factual issue was not sufficiently developed for us to make any determination.
¶ 55 In conclusion, we answer the second part of the certified question in the affirmative: a
defendant may receive notice under section 2-616(d) even in the absence of actual notice,
provided that there is constructive notice. However, in the case at bar, the record is not
sufficiently developed for us to determine, as a matter of fact, whether any of the three methods
of constructive notice are applicable in the instant case. That is a factual determination that
needs to be decided by the trial court below.
¶ 56 CONCLUSION
¶ 57 For the reasons set forth above, plaintiff’s omission of Dr. Elahi as a defendant can be
considered a mistake for purposes of applying section 2-616(d)’s relation-back doctrine,
despite the fact that Dr. Elahi’s handwritten name appears in plaintiff’s medical records.
Additionally, a defendant may receive notice under section 2-616(d) in the absence of actual
notice through the theory of constructive notice. In the case at bar, whether Dr. Elahi received
constructive notice has not yet been developed in this case, and as a result, we remand this
matter to the circuit court of Cook County so that the parties can develop the record and the
trial court can make this factual determination.
¶ 58 Certified question answered.
¶ 59 JUSTICE LAMPKIN, dissenting.
¶ 60 I respectfully dissent. I would decline to address the certified question. Although defendant
Dr. Elahi attempted to frame the certified question as a question of law, the resolution of the
question involves merely the application of the law to the facts of the instant case. See Thomas
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v. Page, 361 Ill. App. 3d 484, 494 (2005). Moreover, there is not “substantial ground for
difference of opinion” concerning the area of law involved, and an immediate appeal from the
interlocutory order would not “materially advance the ultimate termination of the litigation.”
Ill. S. Ct. R. 308(a) (eff. Jan. 1, 2015). Thus, any answer this court provides is an advisory
opinion (Dowd & Dowd, Ltd. v. Gleason, 181 Ill. 2d 460, 469 (1998)), and Illinois courts do
not issue advisory opinions to guide future litigation (Golden Rule Insurance Co. v. Schwartz,
203 Ill. 2d 456, 469 (2003)).
¶ 61 Illinois Supreme Court Rule 308, which governs interlocutory appeals, is an exception to
the general rule that only final orders from a court are subject to appellate review. Morrissey v.
City of Chicago, 334 Ill. App. 3d 251, 257 (2002). Rule 308 was intended to be used sparingly
and limited to those special circumstances set forth in the rule; it was never intended to serve as
a vehicle to appeal interlocutory orders involving little more than an application of the law to
the facts of a specific case. Thomas, 361 Ill. App. 3d at 494.
¶ 62 The circuit court’s denial of Dr. Elahi’s motion to dismiss the amended complaint as barred
by the statute of limitations was based on the application of section 2-616(d) of the Code to the
alleged facts in the instant case, and this appeal does not show any substantial ground for
difference of opinion concerning the interpretation or application of section 2-616(d). After
reviewing the briefs and record in this case, I do not believe this certified question presents a
question of law. Therefore, I would vacate our order allowing this interlocutory appeal and
dismiss this appeal.
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