dissenting:
Because I believe the appropriate standard of review is de novo and that the amended complaint does relate back to the two timely filed complaints, I respectfully dissent.
A. Standard of Review
The majority correctly notes that the standard of review of an order denying leave to amend is abuse of discretion. City of Champaign v. Sides, 349 Ill. App. 3d 293, 304, 810 N.E.2d 287, 297 (2004). However, whether an amended complaint relates back to the original timely filed complaint should be reviewed de novo.
In Clemons v. Mechanical Devices Co., 202 Ill. 2d 344, 781 N.E.2d 1072 (2002), the supreme court applied two standards of review when examining the trial court’s decision on a motion to amend pleadings. Clemons, 202 Ill. 2d at 351-52, 781 N.E.2d at 1078 (reviewing de novo whether the mandate required the trial court to allow the amendment and reviewing for an abuse of discretion the court’s denial of the amendment). The Clemons court stated:
“A trial court has discretion in deciding a motion to amend pleadings, and a reviewing court will not reverse the trial court’s decision absent abuse of that discretion. [Citations.] However, a trial court must exercise its discretion within the bounds of the law. [Citations.] After a remand, the trial court is required to exercise its discretion within the bounds of the remand. Whether it has done so is a question of law. [Citations.] A reviewing court determines a legal question independently of the trial court’s judgment. [Citations.]” Clemons, 202 Ill. 2d at 351-52, 781 N.E.2d at 1078.
I respectfully suggest that whether an amended complaint relates back is a legal question that is reviewed independently of the trial court’s discretion.
Such an approach makes sense. Illinois courts apply a de novo standard of review when the trial court’s decision was based on an assessment of the pleadings, not the credibility of witnesses, and the trial court was in no better position than the reviewing court to decide the merits of the motion. See People v. Pursley, 341 Ill. App. 3d 230, 234, 792 N.E.2d 378, 381-82 (2003) (involving section 116—3 of the Code of Criminal Procedure of 1963 (725 ILCS 5/116—3 (West 2000))). That is the case here. This court can as easily examine the pleadings at issue as well as the trial court.
Further, the finding that a cause of action does not relate back is essentially a finding that the action is barred by the statute of limitations. The determination that a cause of action is barred by the statute of limitations is reviewed de novo. Carlen v. First State Bank of Beecher City, 367 Ill. App. 3d 1051, 1055-56, 857 N.E.2d 696, 700 (2006). In fact, in any other posture, our review of relation back under section 2—616 would be de novo. Marek v. O.B. Gyne Specialists II, S.C., 319 Ill. App. 3d 690, 694-95, 746 N.E.2d 1, 5 (2001) (reviewing de novo whether the trial court properly dismissed the amended complaint as time-barred for failing to relate back to the original complaint); McArthur, 307 Ill. App. 3d at 333, 717 N.E.2d at 504 (reviewing de novo whether the trial court properly granted summary judgment on the basis that the amended complaint did not relate back to the timely filed original complaint).
De novo review of relation back is also used by several federal circuit courts. See Slayton v. American Express Co., 460 F.3d 215, 226 (2d Cir. 2006); Miller v. American Heavy Lift Shipping, 231 F.3d 242, 247 (6th Cir. 2000); Percy v. San Francisco General Hospital, 841 F.2d 975, 978 (9th Cir. 1988). Federal Rule of Civil Procedure 15(c)(2) is similar to section 2—616(b) of the Code, providing as follows:
“An amendment of a pleading relates back to the date of the original pleading when
(2) the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading.” Fed. R. Civ. E 15(c)(2).
While the standard of review for determining relation back in the federal courts is not uniform, the Second, Sixth, and Ninth Circuits have held the appropriate standard of review is de novo. The reasoning in these cases is instructive.
In Slayton, 460 F.3d at 226, the Second Circuit examined the appropriate standard of review of district-court decisions under Rule 15(c)(2). The court noted that while the standard of review for denials of leave to amend is for an abuse of discretion, that standard of review makes sense because whether to allow leave to amend requires the application of the district court’s discretion. Slayton, 460 F.3d at 226, 227. In contrast, the court found a determination under Rule 15(c)(2) that relation back required no discretion and review should be de novo. Slayton, 460 F.3d at 227. In fact, the Slayton court noted a reviewing court is in as good a position to determine whether the facts in the amended complaint arose out of conduct alleged in the original complaint as the district court. Slayton, 460 F.3d at 227; see also Miller, 231 F.3d at 247 (holding that the determination of whether a claim in the amended complaint arose out of the same transaction or occurrence contained in the original pleading requires application of the legal standard contained in Rule 15(c)(2), a task the appellate court is as equipped to perform as the district court); Percy, 841 F.2d at 978 (appellate court reviews de novo whether the relation-back doctrine of Rule 15(c) should be" applied when an amendment seeks to add a claim against an existing party; the appellate court is in as good a position as the district court to “decide whether the ‘conduct, transaction, or occurrence’ test of the Rule has been met”).
For these reasons, I would review de novo whether the second amended complaint relates back to the timely filed complaints.
B. Relation Back
Section 2—616(b) of the Code provides, in relevant part, as follows:
“The cause of action *** 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 *** 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 *** asserted, if the condition precedent has in fact been performed, and for the purpose of preserving the cause of action *** 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.” 735 ILCS 5/2—616(b) (West 2004).
Section 2—616(b) is remedial in nature and should be liberally construed. Bryson v. News America Publications, Inc., 174 Ill. 2d 77, 106, 672 N.E.2d 1207, 1223 (1996) (finding that the false-light claim related back to the timely filed defamation claim based on the same transaction or occurrence).
Pleadings may be amended at any time, even after judgment. 735 ILCS 5/2—616(c) (West 2004). Under certain circumstances, new claims may even be asserted against new defendants after the statute of limitations has run. 735 ILCS 5/2—616(d) (West 2004). “Pleadings shall be liberally construed with a view to doing substantial justice between the parties.” 735 ILCS 5/2—603(c) (West 2004).
Plaintiffs original complaint alleged he arrived at the hospital on January 12, 2001. Plaintiff alleged Dr. Dold was negligent in the following ways:
“a. Ordered discontinuance of the patient’s C collar and spine board prior to performance of an MRI scan;
b. Discontinued spinal immobilization prior to fully appreciating the patient’s spinal injury;
c. Failed to obtain a timely MRI scan on January 12, 2001;
d. Failed to appreciate decreasing blood pressure and decreasing leg function as signs and symptoms of further spinal injury.”
A section 2—622 (735 ILCS 5/2—622 (West 2004)) certificate prepared by James N. Campbell, M.D., noted the evaluation performed by Dr. Dold. The evaluation included reviewing “CT scanning and plain film [X]-rays.” Dr. Campbell concluded that some of Dr. Dold’s actions— the actions identified in the complaint — deviated from the standard of care because Dr. Dold failed to appreciate the extent of plaintiffs injuries.
Plaintiffs timely filed first amended complaint contained the same allegations of negligence against Dr. Dold. The complaint added a cause of action against the hospital through its employees and agents. The first amended complaint alleged that on January 12, 2001, Dr. Dold ordered neurological checks for plaintiff to be performed every hour by the hospital personnel. Plaintiff alleged the hospital, through its employees and agents, breached its duty of care in the following ways:
“(a) Failed to perform thorough neuro checks every hour as ordered;
(b) Failed to record complete spinal assessments as part of hourly neuro checks;
(c) Failed to record extremity strength as part of hourly neuro checks on January 3, 2001[,] from 1:00 A.M. to 6:00 A.M.;
(d) Failed to report diminishing neurological status to the attending neurosurgeon.”
Plaintiff further alleged that, as a direct result of the hospital’s wrongful acts or omissions, plaintiffs diminishing neurological function went undiagnosed and untreated.
Plaintiff attached to the first amended complaint a section 2—622 (735 ILCS 5/2—622 (West 2004)) certificate completed by Leon Sykes, M.D. This certificate also noted the CT scanning that occurred on January 12, 2001. In particular, Dr. Sykes noted that the “C-spine [X]-ray revealed a small bony density off the anterior inferior aspect of C5, which raised the possibility of an avulsion fracture.” However, Dr. Sykes did not include any statement that the hospital, through its agents or employees, failed to properly interpret the CT scans.
The second amended complaint at issue herein added an additional allegation of negligence against Dr. Dold — that he “[flailed to recognize a fracture of the cervical spine on the CT scan performed January 12, 2001.” That allegation is not at issue in this appeal. The second amended complaint also added a second count against the hospital. Count III alleged that, while a patient at the hospital, plaintiff underwent a CT scan of the cervical spine. The films were read and interpreted by Gordon Cross, M.D., a radiologist. The complaint alleged that Dr. Cross was an apparent agent of the hospital. Plaintiff alleged that the hospital, through its employees and agents, breached the duty owed to plaintiff in the following ways:
“a. Failed to properly interpret a CT of the cervical spine performed January 12, 2001;
b. Failed to appreciate cervical fractures revealed on a CT of the cervical spine performed January 12, 2001; and
c. Misread and misinterpreted a cervical spine CT performed January 12, 2001.”
The majority in this case ignores the supreme court’s directive that section 2—616(b) be liberally construed in favor of hearing a plaintiffs claim. See Bryson, 174 Ill. 2d at 106, 672 N.E.2d at 1223 (section 2—626(b) should be liberally construed). In fact, “[mjedical malpractice plaintiffs, in particular, are afforded every reasonable opportunity to establish a case, and to this end, amendments to pleadings are liberally allowed to enable the action to be heard on the merits rather than brought to an end because of procedural technicalities.” Avakian, 328 Ill. App. 3d at 154, 766 N.E.2d at 290, citing Peterson v. Hinsdale Hospital, 233 Ill. App. 3d 327, 332, 599 N.E.2d 84, 89 (1992).
Here, the hospital argues that because the timely filed complaint did not allege any error regarding the reading of the CT scan, the claim cannot relate back. But if the timely filed complaint had contained such an allegation, no need to relate back would have arisen because the claim would have been made.
The hospital knew when the first amended complaint was filed that plaintiff alleged the hospital, through its employees or agents, breached its duty of care to plaintiff during the initial 36 hours of his hospital stay. As plaintiff pointed out to the trial court at a hearing on the motion, the allegations in all the complaints relate to only the first 36 hours of plaintiffs treatment at the hospital (the time prior to the surgery). The amendment clearly relates back as it grew out of the same transaction or occurrence, the negligent care of plaintiffs injury in the first 36 hours of hospitalization. A reading of the statute that each individual act of medical care — e.g., reading X-rays, taking temperatures, performing neurological checks — constitutes a separate transaction or occurrence is entirely too narrow an interpretation of the relation-back doctrine.
In light of Grove, the trial court’s reversal of its prior grant of leave to amend is understandable. However, given the plurality opinion in Grove, I question its precedential value. See, e.g., Ferguson v. McKenzie, 202 Ill. 2d 304, 315 n.l, 780 N.E.2d 660, 667 n.l (2001) (McMorrow, J., dissenting) (noting that “ ‘plurality decisions of a state supreme court, in which no majority agrees to the reasoning, are not binding under the doctrine of stare decisis’ ”), quoting 5 Am. Jur. 2d Appellate Review §602, at 298 (1995). And while I disagree with Grove, it is nonetheless factually distinguishable. In Grove, two separate surgical procedures were at issue. Grove, 364 Ill. App. 3d at 414, 846 N.E.2d at 155. The timely filed complaint only drew the defendant’s attention to one of those surgeries. In this case, the different “procedures” — CT scan versus neurological checks, spinal assessments, extremity strength, and diminishing neurological status— cannot be so easily distinguished. All relate to the diagnosis of plaintiff’s condition. The “transaction” or “occurrence” at issue in this case is the 36 hours of care preceding the MRI and surgery.
I agree with Justice Cook’s dissent in Grove, noting his disagreement with the statements in McCorry and Bailey that the original complaint must provide the defendant “ ‘with all of the information necessary for preparation of the defense for the claim asserted later.’ ” (Emphasis in original.) Grove, 364 Ill. App. 3d at 430, 846 N.E.2d at 168 (Cook, J., dissenting), quoting McCorry v. Gooneratne, 332 Ill. App. 3d 935, 944, 775 N.E.2d 591, 599 (2002).
“[T]hose statements take a view of pleadings that has now been discarded. ‘Today the function of informing an opponent of one’s position is largely accomplished through discovery, a function that was largely fulfilled by the pleadings at an earlier time.’ 3 R. Michael, Illinois Practice §23.1, at 300 (1989) (Civil Procedure Before Trial); Wolf v. Meister-Neiberg, Inc., 143 Ill. 2d 44, 46-48, 570 N.E.2d 327, 328-29 (1991) (defendants provided with notice of correct location of occurrence before expiration of statute of limitations through depositions and production requests). McCorry concedes that discovery may satisfy the notice requirement but adds a further requirement, that ‘the defendant must have notice not only of the operative facts, but also of the plaintiffs intention to assert a claim on the basis of those facts.’ McCorry, 332 Ill. App. 3d at 946, 775 N.E.2d at 601. There is no support in the statute or the decisions of the supreme court for that additional requirement. A litigant investigating a case does not limit his investigation to his opponent’s allegations but attempts to learn everything he can about the incident. We should not encourage litigants to close their eyes to facts that are readily apparent.” Grove, 364 Ill. App. 3d at 430-31, 846 N.E.2d at 168 (Cook, J., dissenting).
Moreover, defendants in this case were on notice within the statute of limitations that the 36 hours of medical care, including the CT scan, might be an issue. At the very least, the hospital knew from Dr. Long’s deposition testimony (September 9, 2002) and the medical certificate attached to the first amended complaint that the CT scan revealed a bony density at C5, raising the possibility of an avulsion fracture. Further, Dr. Long, in her deposition, admitted the normal readings of the CT scan were not compatible with plaintiffs neurological deficits.
The trial court imposed not only this notice requirement but also a presumption-of-prejudice prong to the relation-back doctrine. The trial court’s January 11, 2005, docket entry concluding that the claims did not relate back found the hospital had been “prejudiced by not being able to preserve evidence concerning these new allegations.” Contrary to the court’s finding, nothing in the record reflects any prejudice to the hospital’s preparation of its defense. The court cannot presume prejudice without evidence of prejudice. The record contains no indication that the hospital was unable to preserve the evidence relating to the CT scan.
In fact, the record reflects the hospital did maintain the evidence. Exhibits attached to Dr. Dold’s November 2004 witness disclosure include correspondence between Dr. Dold’s counsel, Sarah Moskowitz, and retained witness, Gregory J. Przybylski, M.D. Beginning in October 2003, Moskowitz sought the CT scans from counsel for the hospital, apparently at Dr. Przybylski’s request. Apparently, Moskowitz finally received them from counsel for the hospital in May 2004.
This evidence demonstrates the CT scans were maintained by the hospital and the hospital was not prejudiced by an inability to preserve the evidence relating thereto. Such evidence also supports the conclusion that the CT scans were part of the same transaction or occurrence. Clearly, Dr. Przybylski needed those documents even prior to the allegations being made against Dr. Dold relating to the CT scans (plaintiff did not seek to file the second amended complaint until June 2004). In this case, when the hospital was put on notice in January 2003 that its employees and agents may have failed to diagnose and treat plaintiffs diminishing neurological function, the hospital would have been under a duty to preserve all the evidence relating to that care. In this case, that was the 36-hour period before plaintiff was diagnosed and had surgery. Denying plaintiff leave to amend under these circumstances constitutes not only a mistake of law but an abuse of discretion.
For these reasons, I would reverse the trial court.