specially concurring in part and dissenting in part:
I concur with the majority that the Hospital Licensing Act (210 ILCS 85/1 et seq. (West 2000)) does not immunize Silver Cross against plaintiffs claims based upon the hospital’s credentialing decisions. I also concur with the majority that the Medical Studies Act (735 ILCS 5/8—2101, 8—2102 (West 2000)) did not prevent Silver Cross from defending itself. I further concur with the majority that negligent credentialing constitutes a recognized cause of action in Illinois under the broader theory of institutional negligence. Indeed, I completely agree with the majority’s analysis and holding that sufficient evidence was presented to support the jury’s verdict finding Silver Cross liable for plaintiffs injuries as they were proximately caused by the negligent granting of category II surgical privileges to Dr. Kirchner. I agree with the majority as to the elements which comprise a negligent credentialing claim and I agree that the jury was properly instructed as to these elements. Finally, I concur with the majority that the jury was properly instructed when it was given IPI Civil (2006) No. 30.23. I base this concurrence upon the evidence, of postoperative negligence on the part of the hospital which resulted in further injury to the plaintiff. However, I am concerned that in negligent credentialing cases which do not have evidence of postoperative direct negligence on the part of the hospital, the use of IPI Civil (2006) No. 30.23 could lead to hospitals being held liable for all of the actions of the physician to whom they negligently gave medical privileges.
In spite of my complete agreement with the majority as to the issues above, I respectfully dissent as to their holding that the negligent credentialing allegations in the first amended complaint relate back to Frigo’s original complaint and were therefore timely filed.
The majority correctly point out that the two-year statute of limitations and four-year statute of repose applicable to this action against Silver Cross appear in section 13—212 of the Illinois Code of Civil Procedure (735 ILCS 5/13—212 (West 2000)). The surgery at issue was performed on October 8, 1998, and the first complaint was filed on October 6, 2000.
Plaintiffs initial complaint alleged that Silver Cross:
“(A) Carelessly and negligently managed, maintained, controlled, owned and operated said medical centers in such manner causing the plaintiff to be injured[.]”
Subparagraphs (B) through (E) made four specific allegations against Silver Cross for actions “following her 10/08/98 surgery.”
Plaintiff filed her first amended complaint on April 25, 2003. This amended complaint alleged, among other things, that Silver Cross: “(B) Failed to exercise reasonable skill and care in the selection, retention, credentialing and continuing evaluation of the medical staff, agents, physicians and nurses who provided treatment to plaintiff, including but not limited to Dr. Paul Kirchner in violation of its own hospital regulations/Bylaws and applicable JCAHO Standards.”
The majority state: “we find that Silver Cross was supplied with the essential information it needed to prepare a defense to the management claim in the original complaint because similar but more specific and detailed allegations were later alleged in the first amended complaint with respect to the hospital’s management— selection, retention, and credentialing of its physicians.” 377 Ill. App. 3d at 64.
In arriving at this conclusion, the majority provide a thoughtful analysis of several cases which address when an amended pleading that is filed after the statute of limitations has expired relates back to the prior pleading that was timely filed. In analyzing section 2—616(b) of the Code of Civil Procedure, the majority rely on several cases addressing when amended pleadings in medical malpractice actions relate back to the original pleadings, notably Castro v. Bellucci, 338 Ill. App. 3d 386 (2003), McArthur v. St. Mary’s Hospital of Decatur, 307 Ill. App. 3d 329 (1999), and Marek v. O.B. Gyne Specialists II, S.C., 319 Ill. App. 3d 690 (2001), amongst others. The majority’s analysis is very thorough and correctly states the holdings in all of the cases they cite.
I am unwilling to concur in the majority conclusion even though it logically flows from the cases cited because I believe a separate line of cases is more closely related to our case factually.
In Grove v. Carle Foundation Hospital, 364 Ill. App. 3d 412 (2006), a case cited by the majority, the trial court denied a plaintiffs motion to amend his complaint, which originally alleged negligence against the hospital and physicians based on their treatment of the patient’s infection after his second surgery. The appellate court affirmed the denial, holding that the amended allegation that the original colonoscopy procedure was negligently performed did not relate back to the original complaint because the amendment “seeks to add a completely distinct procedure to their complaint of negligence.” Grove v. Carle Foundation Hospital, 364 Ill. App. 3d at 420. Similarly, the original complaint in the instant case focused on the hospital’s actions “following [Frigo’s] 10/8/98 surgery.” As in Grove, these allegations involved a postoperative infection that plaintiffs experts uniformly testified was the cause of plaintiffs amputation.
Silver Cross cites McCorry v. Gooneratne, 332 Ill. App. 3d 935 (2002), for its analysis of the language of section 2—616(b): “The later claim ‘grew out of the same *** occurrence’ as the claim in the original complaint if the original complaint provided the defendant with all of the information necessary for preparation of the defense for the claim asserted later. Williams v. Board of Education of the City of Chicago, [222 Ill. App. 3d 559, 563 (1991)]. The later claim relates back if the original complaint directs the defendant’s attention to the facts on which the plaintiff bases the later claim.” McCorry v. Gooneratne, 332 Ill. App. 3d at 943-44. The majority’s statement that “Silver Cross was supplied with the essential information it needed to prepare a defense to the management claim in the original complaint” (377 Ill. App. 3d at 64) certainly does not meet the standard as set out in McCorry. Admittedly, the problem here may be that McCorry overstates the burden placed on plaintiffs.
Courts have specifically rejected the assertion that negligent credentialing claims filed after the statute of limitations has run relate back to original complaints alleging a hospital’s negligence based on an employment or an agency relationship.
In a case factually very similar to ours, Weidner v. Carle Foundation Hospital, 159 Ill. App. 3d 710 (1987), the plaintiff brought a medical malpractice action against a physician, against a clinic and against a hospital based on an employment or agency relationship. The plaintiff voluntarily dismissed the counts against the physician and the clinic. Summary judgment was entered for the hospital but the patient was granted leave to file an amended complaint. In the amended complaint, the plaintiff alleged that the hospital had a duty of care separate from the physician’s duty to his patient to know the qualifications of its staff physicians and their standard of performance. The circuit court dismissed this amended complaint as being untimely and the patient appealed. The appellate court affirmed, holding that the allegations in the amended complaint that the hospital “was negligent for not adequately ascertaining the qualifications of its staff physicians, supervising them, and reviewing their performance” were “separate from the alleged malpractice which led to plaintiffs injuries. The facts established or raising a question of this type of negligence were not asserted in the initial pleadings. Therefore, Carle Foundation Hospital was not placed on notice of the subsequent claim.” Weidner v. Carle Foundation Hospital, 159 Ill. App. 3d at 713.
I believe that the holdings of the appellate court in Castro, McArthur and Marek, cited by plaintiff, appear to be in some conflict with the holdings of the appellate court in Grove, McCorry and Weidner, cited by defendant, Silver Cross. Consequently, I believe that our supreme court’s holding in Zeh v. Wheeler, 111 Ill. 2d 266 (1986), explaining the rationale behind the relation back doctrine as codified in section 2—616(b) is most instructive: “ ‘[A] defendant has not been prejudiced so long as his attention has been directed, within the time prescribed or limited, to the facts that form the basis of the claim asserted against him.’ ” Zeh v. Wheeler, 111 Ill. 2d at 273, quoting Simmons v. Hendricks, 32 Ill. 2d 489, 495 (1965).
In the instant case, the plaintiff’s initial complaint alleged that Silver Cross “[c]arelessly and negligently managed, maintained, controlled, owned and operated said medical centers in such manner causing the plaintiff to be injured.” It would be difficult to imagine language that was more broad and nebulous. If this language is held to be sufficient to put hospitals on notice for the purpose of holding them directly liable for the medical malpractice of the independent contractor physicians who work there, the relation back doctrine will essentially be applicable in all such cases, depriving hospitals of the protection of the statute of limitations and statute of repose as found in section 13 — 212 of the Code of Civil Procedure (735 ILCS 5/13 — 212 (West 2000)). Therefore, I respectfully dissent as to the applicability of the statute of limitations defense.