dissenting:
I do not believe that it is necessary to determine here the status of the continuing course of treatment doctrine in Illinois. The case at bar must be resolved in the Clinic’s favor on a separate ground, and thus we have no occasion to consider in the present appeal whether a health care provider’s continuing treatment of a patient may serve to extend the time for bringing suit under the repose provision of section 13 — 212 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 13 — 212).
The plaintiff was last treated by Dr. Merrill Huffman in December 1983. The plaintiff next sought treatment at Carle Clinic in June 1986. She did not return to Dr. Huffman but chose instead to see a different physician, Dr. Dabrowski. In November 1988, the plaintiff sought treatment at the Carle emergency room, and the attending physician referred her to another Carle physician, Dr. Powell. The plaintiff filed the present action in March 1989. In counts I and II of the complaint, the plaintiff sought recovery from both Dr. Huffman and Carle Clinic Association. Count III was directed against Dr. Dabrowski and Carle Clinic, and count IV was directed against Dr. Powell and Carle Clinic. The trial court dismissed counts I and II as time-barred. The court later denied the plaintiffs motions to amend her complaint by adding counts V and VI, directed against Carle Clinic and Drs. Huffman, Dabrowski, and Powell. The plaintiff voluntarily dismissed counts III and IV, and those claims are not involved in the present appeal.
In the appellate court, the plaintiff conceded that her claims against Dr. Huffman were barred by the four-year statute of repose, and the appellate court affirmed the dismissal of those portions of the plaintiff’s complaint on the basis of counsel’s concession. (223 Ill. App. 3d 878, 887, 889.) The plaintiff does not challenge that ruling in the present appeal. The sole issue before us concerns the Clinic’s liability for acts occurring during the time of Dr. Huffman’s treatment of the plaintiff.
In the present case, the majority declines to adopt the continuous course of treatment doctrine, believing that the doctrine is inconsistent with the limitations and repose periods provided by the legislature in section 13— 212. Nonetheless, the majority adopts an allied theory, holding that a cause of action is not time-barred if a defendant is guilty of continuing acts of negligence and suit is brought within four years of the time of the last act complained of. The majority bases this result on a construction of the term “occurrence,” as it is used in the repose provision of section 13 — 212. Although the majority refers to this theory as a cause of action (154 Ill. 2d at 406-07), I believe it is more properly considered a construction of the repose provision, not a separate theory of liability.
There may be some justification for this interpretation when a plaintiff’s injury allegedly results from a continuing regimen of treatment, such as the administering of drugs or X rays; in those circumstances, tracing the onset of the injury to a particular act or specific moment can be difficult, if not impossible. (See, e.g., Page v. United States (D.C. Cir. 1984), 729 F.2d 818, 821-22; Comstock v. Collier (Colo. 1987), 737 P.2d 845, 848-49.) In cases of that nature, the “occurrence” complained of may be fairly characterized as a series of interrelated acts that involve a single course of treatment, are directed at the same condition, and produce injury by their cumulative effect.
Although this interpretation of the statute would postpone the start of the repose period, it need not suspend operation of the discovery rule. Thus, a plaintiff’s actual or constructive knowledge that he has sustained a wrongfully caused injury (see Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 415; Witherell v. Weimer (1981), 85 Ill. 2d 146, 156) could be sufficient to trigger the two-year limitations period provided by section 13— 212 of the Code of Civil Procedure. (See Ewing v. Beck (Del. 1987), 520 A.2d 653, 663-64.) Possessing that knowledge, a patient could then be required to commence the action in a timely manner, even while the negligent course of treatment was continuing.
It is not clear that the plaintiff would be able to make use of the interpretation of the repose statute I have outlined above, assuming there is no other bar to recovery. The gravamen of the plaintiff’s complaint is the repeated failure by her doctors to correctly determine the cause of her condition. Unlike a continuing regimen of negligent treatment, the acts complained of in the present case more closely resemble discrete wrongs, and each failure to render a correct diagnosis could support a separate cause of action. In these circumstances, the justification for interpreting the term “occurrence” in the repose statute as embracing successive acts is greatly diminished.
There is, however, a more fundamental obstacle to the plaintiff’s maintenance of the present action against Carle Clinic. As provided by our Rule 273 (134 Ill. 2d R. 273), the involuntary dismissal of the plaintiff’s claims against Dr. Huffman represents an adjudication on the merits, and the appellate court affirmed that portion of the circuit court judgment. The plaintiff has made no challenge to that determination in the present appeal. Accordingly, the plaintiff is now precluded, by principles of res judicata, from relitigating against Carle its vicarious liability for the acts of Dr. Huffman. As this court has explained:
“The doctrine of res judicata provides that an adjudication upon the merits rendered by a court of competent jurisdiction is conclusive as to the rights of the parties and their privies, and as to them constitutes an absolute bar to subsequent action involving the same claim, demand, or cause of action. [Citation.] The doctrine has special applicability in suits against masters or servants. Thus, the rule has evolved that a judgment for either the master or servant, arising out of an action predicated upon the alleged negligence of the servant, bars a subsequent suit against the other for the same claim of negligence where the agency relationship is not in question.” (Towns v. Yellow Cab Co. (1978), 73 Ill. 2d 113, 122-23.)
In light of Towns, the plaintiff’s claims against Carle Clinic for conduct occurring while she was Dr. Huffman’s patient must fail unless she presents an exception to the rule in Towns regarding vicarious liability or, alternatively, a ground for finding the Clinic independently liable.
The majority agrees with the plaintiff that her claims against Carle Clinic are being brought against the Clinic “as an entity” and that the alleged negligence of the individual physicians involved in her treatment may serve to extend the time for bringing suit against the Clinic, under the rule adopted here. As proof of Carle Clinic’s corporate liability, the majority asserts that the plaintiff sought treatment from the Clinic as a whole, rather than from any individual member of its staff, and that the plaintiff had no choice in the selection of the individual physicians who treated her. (154 Ill. 2d at 408.) For these reasons, the majority concludes that the dismissal of the portion of the plaintiffs action against Dr. Huffman is no bar to the plaintiffs action against the Clinic for conduct occurring while she was Dr. Huffman’s patient.
Contrary to the majority’s view, however, there is no indication in the present case that the Clinic ever assigned the plaintiff to Dr. Huffman, or that the plaintiff did not control the selection of the physicians who treated her during the period of time relevant here. The pleadings and. other documents on file point to the opposite conclusion, and demonstrate that the plaintiff’s decision to discontinue seeing Dr. Huffman, and her choices of her subsequent treating physicians, do not warrant our disregarding the principle expressed in Towns, and do not supply a ground for establishing the Clinic’s independent liability.
Indeed, virtually all the allegations against Carle Clinic, both in the original complaint and in counts V and VI, which the plaintiff later sought to file, charge the Clinic with vicarious, rather than independent, liability. To be sure, the one ground on which the Clinic, “as an entity,” could be independently liable is the allegation, made in count VI, that the Clinic’s system for maintaining patient records was inadequate. But even this allegation, if proved, would not render the Clinic liable for conduct occurring while the plaintiff was a patient of Dr. Huffman. The gravamen of this additional allegation is that physicians who later treated the plaintiff were not made aware of Dr. Huffman’s failure to remove the intrauterine device. From the face of the complaint, however, it appears that the plaintiff’s claims against Carle regarding her subsequent treatment by other Carle physicians would not have been barred by the four-year repose provision anyway, when the action was commenced.
The plaintiff has failed to demonstrate why Towns should not govern any claim against Carle Clinic for vicarious liability, and she has failed to present any ground on which the Clinic could be independently liable. The plaintiff’s claims against Carle Clinic for conduct occurring while she was Dr. Huffman’s patient must therefore be denied. Accordingly, we need not determine in the present appeal whether the continuous course of (negligent) treatment doctrine should be recognized in Illinois.