SECOND DIVISION June 29, 2010
No. 1-09-0422
CHAKENA JOHNSON, Individually and as ) Appeal from the Special Administrator of the Estate of ) Circuit Court of Renee Rayborn, Deceased, ) Cook County. ) Plaintiff-Appellant, ) ) v. ) ) Nos. 03 L 12259 INGALLS MEMORIAL HOSPITAL, a Corporation, ) 06 L 11816 ST. FRANCIS HOSPITAL & HEALTH CENTER, ) a Corporation, LINCOLN MEDICAL CENTER, LTD., ) a Corporation, and IMRE HIDVEGI, JAMES A. ) THREATTE, and HEE HAN KIM, ) Individually and as Agents or Employees of ) LINCOLN MEDICAL CENTER, LTD., a Corporation, ) Honorable ) Claire E. McWilliams, Defendants-Appellees. ) Judge Presiding.
JUSTICE THEIS delivered the opinion of the court:
Plaintiff, Chakena Johnson, individually and as special administrator of the estate of her
deceased minor, Renee Rayborn, brought a wrongful death and survival action against various
defendants involved in her prenatal care, including Ingalls Memorial Hospital (Ingalls), St. Francis
Hospital & Health Center (St. Francis), Lincoln Medical Center, and Drs. Imre Hidvegi, James A.
Threatte, Hee Han Kim, individually and as agents or employees of Lincoln Medical Center.
Subsequently, defendants filed a motion for summary judgment, arguing, inter alia, that Johnson
was unable to establish that defendants’ alleged negligence proximately caused injury and
subsequent death to Rayborn. The circuit court granted the motion for summary judgment and 1-09-0422
denied Johnson’s motion for reconsideration.
The following issues are raised on appeal: (1) whether this court lacks jurisdiction to
consider this appeal where Johnson filed her first amended complaint, adding additional parties
and claims, without leave of court; (2) whether the circuit court properly determined that a causal
connection is lacking between defendants’ alleged negligence and the resulting injuries; and (3)
whether the circuit court erred in allowing defendant Lincoln Medical Center to adopt the
summary judgment motion of the other defendants. For the reasons that follow, we affirm the
judgment of the circuit court.
BACKGROUND
The record reveals the following undisputed facts and procedural history. Chakena
Johnson was born April 5, 1982. She had two children, one born on March 17, 1999, and the
other born on November 2, 2000. Both children were delivered by cesarean section. Three
months later, in February 2001, Johnson became aware that she was pregnant with her third child.
In June 2001, Johnson sought medical care at Lincoln Medical Center for her first prenatal
visit. Lincoln Medical Center was a multispecialty clinic located across the street from Ingalls.
Johnson was treated by defendant Dr. Imre Hidvegi, a semi-retired board-certified obstetrician.
Dr. Hidvegi previously had staff privileges at multiple hospitals, including Ingalls and St. Francis,
where he had practiced and delivered babies for over 30 years. However, in 2000, Dr. Hidvegi
voluntarily retired his staff privileges and could no longer deliver babies.
Dr. Hidvegi provided prenatal care for patients who would deliver at Ingalls by
obstetricians affiliated with the Hayes Obstetrical Group (the Hayes Group). The Hayes Group
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had a contract with Lincoln Medical Center and its obstetricians had staff privileges at Ingalls.
According to the protocol at Lincoln Medical Center, those patients who were seen by Dr.
Hidvegi for prenatal care were to be seen by one of the obstetricians in the Hayes Group in their
last month of pregnancy.
At Johnson’s June 21 visit, Dr. Hidvegi examined her and instructed her to return for
follow-up care in two weeks. About six weeks later, on August 3, 2001, Johnson sought medical
care at Ingalls Hospital complaining of light vaginal bleeding and cramping. At that time, Dr.
James Threatte of the Hayes Group ordered an ultrasound and fetal monitoring both of which
were normal. Dr. Threatte had previously treated Johnson when she delivered her second child.
Johnson was instructed to follow up at Lincoln Medical Center and was told to immediately
return to the hospital if she experienced any heavy vaginal bleeding.
Thereafter, on August 23, 2001, Johnson sought prenatal care at Lincoln Medical Center,
complaining of abdominal pain and vomiting. Dr. Hidvegi examined her and referred her for an
ultrasound, which was normal. He informed Johnson that since she already had two previous
cesarean sections, it was likely that she would also have a cesarean section with this pregnancy.
Dr. Hidvegi instructed her to return for a follow-up visit in two weeks.
On November 1, 2001, Johnson returned to Lincoln Medical Center complaining of a cold
and was seen by defendant, Dr. Hee Han Kim, a board-certified family practice physician. At that
time, Dr. Kim was aware that Johnson was eight months pregnant. Johnson had no complaints
regarding her pregnancy and Dr. Kim did not provide her with any care related to her pregnancy
at that visit. Dr. Kim referred Johnson back to Dr. Hidvegi and provided her with a referral for an
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obstetrical visit. According to Johnson, she already had a prenatal visit scheduled with Dr.
Hidvegi for November 5, 2001.
On November 5, 2001, Johnson saw Dr. Hidvegi for prenatal care at Lincoln Medical
Center. She was 37 to 38 weeks pregnant and weighed 216 pounds. Dr. Hidvegi performed an
examination. Johnson reported fetal movement, but Dr. Hidvegi had difficulty hearing a fetal
heart tone and instructed Johnson to go to Ingalls labor and delivery department to obtain fetal
heart monitoring and an ultrasound to establish the well-being of the baby.
Johnson went to Ingalls where she was informed that the hospital would not accept her
insurance. She was told to go to St. Francis for services. Thereafter, Johnson went directly to St.
Francis where she was seen and examined by Deidre Bell, a labor and delivery nurse. Johnson
informed Bell that Dr. Hidvegi wanted her tested for fetal heart tones and wanted her to have an
ultrasound. Nurse Bell took a history from Johnson, which included her previous cesarean
sections, and placed her on an external fetal heart monitor for approximately 45 minutes. Johnson
informed her that she had been having some contractions. The monitor as well as palpation
revealed what Nurse Bell deemed to be mild to moderate Braxton Hicks contractions, which were
not labor contractions. The monitor also revealed reassuring heart tones. Johnson had no
complaints of pain or bleeding, and there was nothing unusual about the way Johnson felt that
day.
Nurse Bell advised the on-call obstetrician at St. Francis, Dr. Edward Coupet, of the
results of the fetal heart monitor, including the contraction pattern, and the history as relayed to
her by Johnson. Dr. Coupet advised Nurse Bell to contact Johnson’s treating doctor, Dr.
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Hidvegi, concerning those findings, as well as any follow-up care, and the need for an ultrasound.
According to Nurse Bell, she contacted Dr. Hidvegi and informed him of the reassuring results of
the fetal monitoring, and about the mild to moderate contractions. Her care notes reveal that
Johnson was to call or return to see Dr. Hidvegi to have the ultrasound done, and that Dr.
Hidvegi agreed to see Johnson. Dr. Coupet ordered that Johnson be discharged and return to see
Dr. Hidvegi. The discharge notes revealed that Johnson was ambulatory in stable condition and
that she was going back to Dr. Hidvegi for follow-up care.
After being discharged from St. Francis, Johnson spoke with Dr. Hidvegi’s nurse over the
telephone. Johnson relayed to the nurse her experience at Ingalls, told her that she had fetal
monitoring at St. Francis and told her that the results were positive. The nurse told Johnson that
she would notify Dr. Hidvegi. Johnson intended to see Dr. Hidvegi at her next scheduled visit in
two weeks. The rest of the day on November 5th was uneventful for Johnson and she noticed no
changes in her physical condition between the time she left St. Francis and the time she went to
bed that night.
The next day, on November 6, 2001, Johnson stayed in bed to rest. She continued to have
slight contractions which would last for “like one hour” and then would “just go away and be
nonexistent for like seven or eight hours.” She noticed no change in the contractions until about 3
or 4 a.m. on November 7, 2001, when she began to experience a severe and constant pain along
with more frequent, stronger contractions. She was taken to Ingalls where she had an emergency
cesarean section. Upon surgery, it was discovered that she had ruptured her uterus and the baby
was inside the abdominal cavity. The baby, Renee Rayborn, was diagnosed with brain damage
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and subsequently died on November 17, 2001.
Thereafter, on October 13, 2003, Johnson, as special administrator of the estate of
Rayborn, filed a two-count wrongful death and survival action against Ingalls and the delivery
doctor, Dr. Tony Jones, alleging negligence arising out of her care and treatment in the delivery
on November 7, 2001. That complaint was never served on those parties.
Three weeks later, on November 5, 2003, Johnson filed her first amended complaint
without leave of court. Therein, Johnson again asserted wrongful death and survival claims in her
capacity as special administrator. She dropped Dr. Jones from the suit and added several
defendants, including St. Francis, Lincoln Medical Center, and Drs. Hidvegi, Threatte,1 and Kim,
individually and as agents of Lincoln Medical Center. Therein, she alleged that on or about
November 7, 2001, defendants were negligent in failing to render proper medical care and
treatment and negligently failed to timely deliver her baby. Additionally, Johnson added individual
claims against these defendants for medical negligence and claims under the Family Expense Act.
The case proceeded with discovery. On November 10, 2005, Johnson voluntarily
dismissed Dr. Kim pursuant to section 2-1009 of the Code of Civil Procedure (735 ILCS 5/2-
1009 (West 2004)). Thereafter, on November 9, 2006, Johnson refiled her action against Dr.
Kim, alleging, inter alia, that Dr. Kim negligently failed to refer Johnson to a specialist capable of
1 Dr. Threatte’s motion to dismiss was granted on January 27, 2005, without prejudice
pursuant to section 2-1010 of the Code of Civil Procedure (735 ILCS 5/2-1010 (West 2004)) due
to the fact that he did not treat Johnson during the period of time alleged in the first amended
complaint.
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providing proper medical care. This new action was then consolidated with the action filed in
2003.
Subsequently, on September 25, 2008, Ingalls filed a motion for summary judgment which
was adopted by Dr. Hidvegi, Dr. Kim, and St. Francis. Therein, defendants argued that summary
judgment was warranted because Johnson failed to present competent evidence to establish that
the alleged deviations from the standard of care proximately caused the injury and subsequent
death. Defendants attached to their motion for summary judgment the depositions of Johnson,
Dr. Hidvegi, Nurse Bell, and Johnson’s medical expert, Dr. Charles Bird, as well as Dr. Bird’s
answers to interrogatories pursuant to Supreme Court Rule 213(f)(3). 210 Ill. 2d R. 213(f)(3).
In Dr. Bird’s opinion, Dr. Hidvegi deviated from the standard of care by failing to advise
Johnson on November 5 that she was at an increased risk for a ruptured uterus due to her two
prior cesarean sections. He explained that a scar from a previous cesarean section lacks the
strength of normal uterine tissue. As the uterus contracts, it begins to thin from the forces of the
contractions, and in a small percentage of patients, the pressure is sufficient enough that a rupture
can occur. Johnson was never advised of the risks associated with her condition.
In Dr. Bird’s opinion, had Johnson been referred to an appropriate delivering obstetrician
on November 5, Dr. Bird initially stated that the standard of care would have required that
Johnson have very close observation, meaning visits every other day or third day, that she be
made aware that she was very high risk, and that if she had any problems she should notify the
Hayes Group and be “evaluated appropriately.”
Dr. Bird believed to a reasonable degree of medical certainty that the outcome of the case
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would have been different had Dr. Threatte or one of his obstetrical associates seen her on
November 5. The standard of care would have required him to discuss a delivery plan with
Johnson. If she decided to have a repeat cesarean section, they would have scheduled it for a date
in the 39th week which would be approximately the 10th or 12th of November. If, alternatively,
she chose a “vaginal birth after cesarean” (VBAC) and a trial of labor, she would have been
instructed to contact him or one of his associates if she had any contractions.
Then he stated that given her presentation on November 5, it would have been within the
standard of care for an obstetrician to perform a cesarean section, or after thorough instructions
to the patient regarding the significance of her risk, let her go home, probably see her the next day
if nothing has changed, or admit her to the hospital for continued observation. He agreed that
other than what the standard of care required, he would not speculate as to what would have
happened to Johnson had she been seen by Dr. Threatte on November 5, 2001, stating, “I’m not a
swami.”
Dr. Bird agreed that if an obstetrician had chosen not to perform a cesarean section on
November 5, his conduct would have been an exercise of medical judgment within the standard of
care. He agreed that given Johnson’s presentation with a history of two cesarean sections, 37 or
38 weeks pregnant, presenting with concerns about fetal well-being because heart tones couldn’t
be heard, presenting with an irregular contraction pattern as noted on the fetal monitor strips, and
having a closed cervix and no indications of being in active labor, the standard of care did not
require that a cesarean section be performed on November 5, 2001. Nevertheless, Dr. Bird stated
that had the standard of care been followed in this case, “I really feel she would have been
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delivered before the uterine rupture.”
Dr. Bird was critical of Ingalls for failing to refer Johnson to labor and delivery to have the
necessary monitoring. If they had done that, then Johnson would have had a proper evaluation
which may or may not have included an ultrasound, and she should have then been seen by a
doctor in the Hayes Group who could have made a medical decision whether a cesarean section
should be performed based on “all the factors that this doctor from the Hayes group would have
received from the patient and the nurses at Ingalls.”
He then acknowledged that if the fetal heart tones were reassuring, then an ultrasound
would not have been required under the standard of care. He had no opinion as to what a sterile
vaginal examination would have shown if it had been performed prior to 4 a.m. on November 7.
He had no opinion as to what a fetal ultrasound would have shown if performed on November 5.
He indicated he was not qualified to give an opinion as to whether ultrasounds are reliable
indicators to show early signs of placental abruption. He agreed that he would “have no idea
what they would have done” if they had evaluated Johnson in labor and delivery at Ingalls.
With respect to St. Francis, Dr. Bird opined that St. Francis deviated from the standard of
care by Dr. Coupet’s failure to evaluate Johnson and by monitoring her for only 45 minutes. The
standard of care required a minimum of three hours. It was a deviation from the standard of care
for St. Francis and Dr. Coupet to discharge the patient without a delivery plan in effect. Johnson
was given a false sense of reassurance about her condition at the time she left the hospital.
Dr. Bird acknowledged that throughout the time Johnson was at St. Francis she did not
display any symptoms that suggested a placental abruption or uterine rupture. He believed the
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contractions on the fetal monitor strip “might be meaningful,” but it would depend on the
interpretation of the medical health professional taking Johnson’s history in consideration. He
agreed that he had no way of knowing what the fetal monitor strips would have shown had she
been monitored for a longer period of time. He could not give an opinion as to whether
Johnson’s contraction pattern would have changed between the time she was discharged from St.
Francis until 4 a.m. on November 7 when the rupture occurred. Had Dr. Coupet evaluated and
monitored Johnson for additional time, and had the cervix remained closed, and had the
contraction pattern remained irregular, Dr. Coupet would have complied with the standard of care
had he sent Johnson home with instructions to follow up with Dr. Threatte.
Dr. Bird was then asked questions regarding informed consent which he stated requires
communication with the patient to inform her of the potential ways to treat her condition. If
Johnson had chosen a cesarean section after being advised of all of the risks, the standard of care
would have required the physician to do it. However, contrary to Johnson’s statement of facts,
and as conceded by counsel at oral argument, the record reveals that Johnson was never asked
nor did she ever testify at her deposition that if had she been given the option to have a cesarean
section on November 5 she would have chosen that option. 2
In Johnson’s response to the motion for summary judgment, she argued that if Johnson
had been referred to the appropriate physician with delivery privileges and closely monitored
“then the lack of communication and the falling between the cracks that occurred at Ingalls and
St. Francis never would have occurred.” If the standard of care had been met, Johnson would
2 Accordingly, we grant defendants’ motion to strike the statement from Johnson’s brief.
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have either been admitted to the hospital, had a cesarean section that day or would have been seen
the next day for a complete evaluation, and would have delivered her baby prior to the rupture of
her uterus.
On November 14, 2008, the circuit court granted summary judgment in favor of
defendants, finding that “after reviewing all those documents and hearing the oral argument of
counsel, the court is still left with what I would characterize as a vortex of facts in this case that
have any connection whatsoever between the injury of [Johnson] and her child to the conduct of
[defendants].”
At that time, Johnson also filed a motion for entry of a default judgment against Lincoln
Medical Center. Lincoln Medical Center had been served on January 28, 2004. It had filed for
bankruptcy protection and was subject to an automatic stay in the bankruptcy court. However,
Johnson attached a copy of a dismissal order issued by the Bankruptcy Court for the Northern
District of Illinois, dated September 14, 2004. On November 21, 2008, the circuit court denied
Johnson’s motion for default, and granted Lincoln Medical Center until December 2, 2008, to file
its appearance and to otherwise plead. It filed its appearance on November 25, 2008, and on
December 2, 2008, it filed a motion to adopt the summary judgment motions previously filed by
the other defendants.
On December 11, 2008, Johnson filed a motion to reconsider the circuit court’s order
granting summary judgment to the other defendants. Therein, she reiterated that Dr. Bird testified
that the standard of care required defendants to treat her as a high-risk pregnancy. Had they done
that, she “would have understood the risks of allowing her contractions to proceed and obtained
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the treatment she required before her uterus ruptured.”
On January 14, 2009, Johnson filed a motion to strike Lincoln Medical Center’s motion to
adopt the other defendants’ motion for summary judgment and, alternatively, responded to its
motion for summary judgment. Thereafter, on February 5, 2009, the circuit court allowed
Lincoln Medical Center’s motion to adopt the summary judgment motions of the other
defendants, denied Johnson’s motion to strike that pleading, granted summary judgment to
Lincoln Medical Center, and denied Johnson’s motion for reconsideration of the order of
November 14, 2008, granting summary judgment to the other defendants.
ANALYSIS
I. Jurisdiction
Initially, we consider defendants’ argument, raised for the first time on appeal, that
Johnson’s failure to obtain leave of court before filing her first amended complaint adding
additional parties deprived the circuit court of jurisdiction, rendering the amended complaint a
nullity and requiring this court to dismiss the appeal. 3 Johnson filed her original complaint on
October 13, 2003. Three weeks later, on November 5, 2003, within the time frame for serving
the original defendants, Johnson filed an amended complaint, without leave of court, dropping a
defendant, adding new defendants, and adding new claims. Johnson maintains that defendants
forfeited this issue not only by their failure to raise it in the circuit court, but also because they
were properly served, they appeared, and they participated in the merits of the litigation for
3 We note that Ingalls does not raise this issue on appeal because it was already a party to
the original complaint.
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several years.
Amendments to pleadings are governed by section 2-616 of the Code of Civil Procedure
(the Code) (735 ILCS 5/2-616 (West 2002)). Specifically, section 2-616(a) provides that at any
time before final judgment, amendments to pleadings, including those adding parties or causes of
action, “may be allowed on just and reasonable terms.” 735 ILCS 5/2-616 (West 2002)
(Emphasis added). Thus, under the statute, a party’s right to amend a pleading is not absolute or
unlimited (Lee v. Chicago Transit Authority, 152 Ill. 2d 432, 467 (1998)), and it has been
generally held that a party is required to obtain the court’s permission to file an amendment
(Savage v. Mui Pho, M.D., 312 Ill. App. 3d 553, 557 (2000); Stichauf v. Cermak Road Realty,
236 Ill. App. 3d 557, 564 (1992)).
Nevertheless, courts are conflicted as to the consequences of the failure to obtain leave of
court. Specifically, the question we are presented with is whether the failure to obtain leave to
amend to add new claims and new parties is a jurisdictional defect which renders the amendment a
nullity or whether the failure is a procedural deficiency that can be forfeited if raised for the first
time on appeal.
Several appellate court decisions stand for the proposition that it is “well settled” that the
requirement to obtain leave is jurisdictional and, therefore, an amendment filed without leave of
court is a “nullity” and not subject to forfeiture. See, e.g., Stichauf, 236 Ill. App. 3d at 564 ( “A
court does not have jurisdiction over a party where leave is not granted to amend the complaint to
add that party.”); Callaghan Paving v. Keeneyville Construction Co., 197 Ill. App. 3d 937, 939
(1990) (finding the error jurisdictional and holding that “a pleading filed without leave of court
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must be disregarded on review”). However, the holdings in these cases have been called into
question by subsequent decisions of the supreme court and appellate court. Ragan v. Columbia
Mutual Insurance Co., 183 Ill. 2d 342 (1998); Fischer v. Senior Living Properties, L.L.C., 329 Ill.
App. 3d 551 (2002); Ganci v. Blauvelt, 294 Ill. App. 3d 508 (1998). Thus, we consider the
jurisdictional question as it relates specifically to the facts presented here.
We begin our analysis with an understanding of the circuit court’s jurisdiction, a question
subject to de novo review. In re Estate of Ahern, 359 Ill. App. 3d 805, 809 (2005). The court’s
jurisdiction is composed of two aspects including subject matter and personal jurisdiction. In re
M.W., 232 Ill. 2d 408, 414 (2009). Subject matter jurisdiction refers to the court’s power “to
hear and determine cases of the general class to which the proceeding in question belongs.”
Belleville Toyota, Inc. v. Toyota Motor Sales U.S.A., Inc., 199 Ill. 2d 325, 334 (2002). In the
general civil context, circuit courts enjoy, with limited exceptions, “original jurisdiction of all
justiciable matter.” Ill. Const. 1970, art. VI, §9; see Steinbrecher v. Steinbrecher, 197 Ill. 2d 514,
529-30 (2001).
In Ragan, the supreme court addressed the issue of the court’s subject matter jurisdiction
in the context of a plaintiff who amended his complaint without leave of court to add a claim for
prejudgment interest. The defendant did not object, filed a responsive pleading, and the
prejudgment interest was awarded. Ragan, 183 Ill. 2d at 354. On appeal, the defendant argued
for the first time that the circuit court lacked jurisdiction over the amended complaint, citing a line
of cases in support, including Greene v. Helis, 252 Ill. App. 3d 957 (1993); Torley v. Foster
McGraw Hospital, 116 Ill. App. 3d 19 (1983); and Glickauf v. Moss, 23 Ill. App. 3d 679 (1974).
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Ragan, 183 Ill. 2d at 354.
In rejecting the defendant’s jurisdictional argument, the supreme court found these cited
cases to be “unpersuasive.” Ragan, 183 Ill. 2d at 354. Additionally, the court distinguished these
cases on the basis that they involved an amendment to add a new party, rather than a new claim
against a party already before the court. The court focused on the liberal pleading requirements in
the Code of Civil Procedure aimed at the substantive rights of the parties. Ragan, 183 Ill. 2d at
354. The court reasoned that “to interpret the failure to obtain leave to add a prayer for relief
against a party already before the court as a jurisdictional defect would frustrate the purpose of
the foregoing provisions.” Ragan, 183 Ill. 2d at 354. Accordingly, the court held that the “failure
to obtain leave to amend a complaint is not a jurisdictional defect and that a party may waive its
right to object to the defect.” Ragan, 183 Ill. 2d at 354. By its holding, the supreme court was
recognizing the circuit court’s subject matter jurisdiction over the newly-added claim.
Additionally, the appellate court in Ganci specifically addressed whether the failure to
obtain leave to file a third-party complaint bringing in an additional party deprived that court of
jurisdiction to hear that complaint. Ganci, 294 Ill. App. 3d at 515-16. Therein, the court rejected
the proposition of law that an amended complaint adding a party without leave of court was a
nullity. The court explained that “treating obtaining leave as an element of jurisdiction is contrary
to the most recent theories of circuit court jurisdiction.” Ganci, 294 Ill. App. 3d at 516. The
court reiterated that circuit court jurisdiction is conferred by the constitution and strict compliance
with the statute is no longer necessary. Ganci, 294 Ill. App. 3d at 519; accord Fischer, 329 Ill.
App. 3d at 555 (rejecting the idea that filing an amended complaint without obtaining leave
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constituted a jurisdictional error); see also In re Estate of Zander v. Illinois Department of Public
Aid, 242 Ill. App. 3d 774, 777 (1993) (provision of section 2-616 requiring permission is
directory, not mandatory, and may be forfeited).
Furthermore, we find that the cases holding that failure to obtain leave is a jurisdictional
defect, including Stichauf and Callaghan, rely for authority on cases found by the court in Ragan
to be unpersuasive. See Ragan, 183 Ill. 2d at 534. Additionally, the holdings in those cases are
stated without any rationale or analysis of the modern trend of cases related to jurisdiction, and
without any discussion specifying which aspect of jurisdiction the court was considering. See,
e.g., Allen v. Archer-Daniels-Midland Co., 129 Ill. App. 3d 783, 786 (1985) (merely stating that
the rule is “undisputed”); Petrella v. Leisky, 92 Ill. App. 3d 880, 881-82 (1981) (merely states the
rule was to be “found in Illinois case law”); George F. Mueller & Sons, Inc. v. Volpe, 74 Ill. App.
3d 879, 881 (1979) (court held that the amended complaint was “void” without any citation to
authority, and stated that the rationale was based on the “orderly administration of legal
proceedings”); see also Midwest Bank and Trust Co. v. Village of Lakewood, 113 Ill. App. 3d
962, 967-68 (1983); Hallmark Personnel, Inc. v. Pickens-Kane Moving & Storage Co., 82 Ill.
App. 3d 18, 22 (1980) (merely stating that an amended complaint without leave “should be
disregarded on appeal”).
Accordingly, we find the circuit court had subject matter jurisdiction to hear and
determine Johnson’s amended complaint despite the procedural failure to obtain leave because it
was “a justiciable matter to which the court's constitutionally granted original jurisdiction
extends.” Belleville Toyota, 199 Ill. 2d at 340. See Ragan, 183 Ill. 2d at 534; Fischer, 329 Ill.
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App. 3d at 555; Ganci, 294 Ill. App. 3d at 516; and In re estate of Zander, 242 Ill. App. 3d at
777.
With respect to the court’s personal jurisdiction over the parties, it is well settled that
personal jurisdiction may be acquired over a defendant by his appearance or by effective service of
summons. In re M.W., 232 Ill. 2d at 426. It is undisputed that defendants appeared and were
served with summons. Even if there were deficiencies, section 2-301(a-5) of the Code of Civil
Procedure specifically provides that a party forfeits all objections to the court’s personal
jurisdiction over the party by filing a responsive pleading or motion (other than one seeking an
extension of time to answer or otherwise appear). 735 ILCS 5/2-301(a-5) (West 2004); In re
Estate of Pellico, 394 Ill. App. 3d 1052, 1066 (2009). Here, under these circumstances,
defendants appeared, filed an answer, and filed numerous motions including motions to dismiss
and for summary judgment. They participated in the proceedings for several years. Therefore,
defendants have forfeited any purported objection to the court’s personal jurisdiction over them.
735 ILCS 5/2-301(a-5) (West 2004).
Accordingly, the failure to obtain leave of court to add a party is not, in and of itself, a
jurisdictional defect, rendering the amendment a “nullity.” Rather, the failure to obtain leave of
court to amend a complaint is a procedural deficiency, and any failure to timely object to it is
subject to forfeiture. See Ragan, 183 Ill. 2d at 534; Fischer, 329 Ill. App. 3d at 555; Ganci, 294
Ill. App. 3d at 516; and In re Estate of Zander, 242 Ill. App. 3d at 777. See also Pestka v. Town
of Fort Sheridan Co., 371 Ill. App. 3d 286 (2007) (where the defendant timely objected to the
failure to obtain leave in the circuit court).
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Given that the court had subject matter jurisdiction over the claims as well as personal
jurisdiction over the parties, the amended complaint and subsequent judgment of the circuit court
could not be deemed a “nullity” or void. Accordingly, where defendants failed to object to the
filing without leave of court, and instead filed an answer, motions, and argued the merits of the
pleadings, defendants’ claim is procedurally forfeited. Ragan, 183 Ill. 2d at 355 (a question not
raised in the circuit court cannot be raised for the first time on appeal).
In a related argument, Dr. Kim contends for the first time on appeal that Johnson’s claims
against him are barred by the statute of limitations and repose applicable to medical malpractice
actions. Specifically, he argues that since the amended complaint was a “nullity,” any subsequent
refiling in 2006 of the voluntarily dismissed lawsuit against him could not relate back to the
invalid filing of the amended complaint. Therefore, the filing of the lawsuit in November 2006
was barred by the statute of limitations and repose applicable to medical malpractice actions
because the injury accrued on November 1, 2001. We need not address this argument because we
have rejected Dr. Kim’s premise, finding that the amended complaint was not a “nullity.”
Accordingly, Dr. Kim’s argument lacks merit.
II. Summary Judgment
We next consider Johnson’s contention that the circuit court erred in granting summary
judgment in favor of defendants. Summary judgment is proper where the pleadings, depositions,
admission, and affidavits on file, when viewed in the light most favorable to the nonmoving party,
reveal that there is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2006). Although the nonmoving party
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is not required to prove her case at the summary judgment stage, she must nonetheless present a
factual basis that would arguably entitle her to judgment. McNamee v. Sandore, 373 Ill. App. 3d
636, 648 (2007). If the plaintiff fails to establish an element of her cause of action, summary
judgment is proper. Bagent v. Blessing Care Corp., 224 Ill. 2d 154, 163 (2007). In appeals from
summary judgment rulings, our review is de novo. Bagent, 224 Ill. 2d at 163.
To sustain an action for medical negligence, plaintiff must show: (1) the standard of care
in the medical community by which the physician’s treatment was measured; (2) that the physician
deviated from the standard of care; and (3) that a resulting injury was proximately caused by the
deviation from the standard of care. Purtill v. Hess, 111 Ill. 2d 229, 241-42 (1986).
The question raised on appeal is whether Johnson’s expert adequately established a
material question of fact regarding whether defendants’ alleged negligent treatment proximately
caused the injury and subsequent death. Although the issue of proximate cause is generally a
question of fact, at the summary judgment stage the plaintiff must present some affirmative
evidence that it is “more probably true than not true” that the defendant’s negligence was a
proximate cause of the plaintiff’s injuries. Borowski v. Von Solbrig, 60 Ill. 2d 418, 424 (1975);
Weidenbeck v. Searle, 385 Ill. App. 3d 289, 292 (2008).
Proximate cause must be established by expert testimony to a reasonable degree of
medical certainty, and the causal connection must not be “contingent, speculative, or merely
possible.” Ayala v. Murad, 367 Ill. App. 3d 591, 601 (2006). An expert’s opinion is only as valid
as the basis for the opinion. Weidenbeck, 385 Ill. App. 3d at 293. Conclusory opinions based on
sheer, unsubstantiated speculation are irrelevant. Weidenbeck, 385 Ill. App.3d at 293.
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With these principles in mind, we consider whether Johnson has presented some
affirmative evidence of a causal nexus between the alleged deviations and the injury. On appeal,
in her opening brief, Johnson’s theory of the case is that defendants’ deviations from the standard
of care “increased her risk of harm.” Specifically, she argues that by failing to communicate to
Johnson about the increased risk of uterine rupture, and by failing to refer her to an obstetrician
with delivery privileges on November 5, 2001, she did not receive “the treatment she required.”
Had she been seen by the appropriate physician she would have had a cesarean section prior to
her ruptured uterus on November 7, 2001, which would have prevented her injuries and the
subsequent death of her child.
At oral argument, Johnson maintained that the “overriding deviation” from the standard of
care as expressed by Dr. Bird was allowing Johnson to return home on November 5th without
explaining the significance of her contractions and increased risk of uterine rupture. She should
have been informed of the need to return to the hospital if she was continuing to experience
contractions. Had she been aware of the significance of the contractions she would have had the
appropriate care which would have prevented the rupture.
Dr. Bird testified that had Dr. Kim or Dr. Hidvegi complied with the standard of care,
there were several factual scenarios that might have occurred. Dr. Threatte or another Hayes
Group obstetrician would have discussed delivery options including both a cesarean section and a
“vaginal birth after cesarean” (VBAC) which would entail a trial of labor. The obstetrician would
have outlined a plan of management which could have included a myriad of acceptable options.
He could have scheduled a cesarean section for November 10 or his plan “could have even
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include[d] a cesarean section at that time based on everything that he found.” Alternatively, his
management plan could have been, after thorough instructions to the patient, close observation
with either follow-up visits every other day or “let her go home, probably see her the next day if
nothing has changed,” or “admit her to the hospital for continued observation.”
Dr. Bird indicated that any of these options would have been within the appropriate
standard of care, and agreed that other than what the standard of care required, he would not
speculate as to what would have happened to Johnson had she been seen by Dr. Threatte on
November 5. Notably, Dr. Threatte was deposed, but was never asked, nor did he give any
opinion, on what treatment he would have provided to Johnson had she been seen by him on
November 5, or whether he would have provided a different course of treatment had Johnson
been referred to him. See Holton v. Memorial Hospital, 176 Ill. 2d 95 (1997) (where evidence
was presented by the treating doctor that a different course of treatment would have been
provided).
As to the first option, it is undisputed that a scheduled cesarean section after November 7
could not have prevented the uterine rupture. Furthermore, despite Dr. Bird’s conclusory
assertion that Dr. Threatte could have done a cesarean section “based on everything that he
found,” Dr. Bird acknowledged that given Johnson’s presentation on November 5th, including her
irregular contraction pattern as noted on the fetal monitor strips at St. Francis, her closed cervix,
and no other indication of being in labor, the standard of care did not require that Johnson have a
cesarean section on November 5. Rather, he stated that given her presentation, it would have
been an exercise of medical judgment within the standard of care not to have done a cesarean
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section that day.
Thus, there was no expert testimony to a reasonable degree of medical certainty that a
referral by any defendant to a delivering obstetrician would have led to the need for surgical
intervention on November 5 and, therefore, no evidence that the alleged deviations from the
standard of care “increased her risk of harm.” Furthermore, we have previously held that merely
stating that treatment would have been sooner and sooner would have been better is insufficient
to establish proximate cause. Weidenback, 385 Ill. App. 3d at 294. Similarly, here, the expert’s
opinion would have left a jury to improperly speculate as to when definitive treatment would have
been undertaken.
With respect to the second option, to provide thorough instructions to the patient
regarding her risk of rupture and instruct her to return for follow-up care the next day, Dr. Bird
had no opinion as to what would have been revealed had Johnson returned the next day that
would have caused a need for intervention. He agreed that she was not in early labor. He did not
have an opinion regarding what an ultrasound would have shown or what a vaginal exam would
have shown had she been further evaluated prior to 4 a.m. on November 7. He had no opinion as
to whether Johnson’s contraction pattern would have changed between the time she was
discharged from St. Francis on November 5 until 4 a.m. on November 7. Johnson’s own
testimony revealed that she experienced no changes in her intermittent contraction pattern, from
the time she left St. Francis until 4 a.m. on November 7.
Thus, there was no testimony regarding what developments in her condition would have
occurred even had she understood the significance of her risk and returned the next day that
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would have caused an obstetrician to intervene and do a cesarean section prior to 4 a.m. on
November 7. Without any factual support for Dr. Bird’s conclusions that a cesarean section
would have been done sooner, the conclusion alone cannot create a question of fact.
Weidenbeck, 385 Ill. App. 3d at 294.
The same result applies to Dr. Bird’s third option, continued monitoring in the hospital.
Dr. Bird had no opinion as to what would have been revealed had Johnson been further monitored
at Ingalls or St. Francis. Although he criticized St. Francis for failing to continue fetal monitoring
for more than 45 minutes, Dr. Bird could not render an opinion as to what a fetal monitor would
have shown had she been monitored for a longer period. He did not have an opinion regarding
what an ultrasound would have shown or what a vaginal exam would have shown had she been
further evaluated prior to 4 a.m. on November 7. According to Johnson, there was no change in
her intermittent contraction pattern.
We find Johnson v. Loyola University Medical Center, 384 Ill. App. 3d 115 (2008), to be
illustrative. There, in a failure to adequately monitor case, the court found sufficient evidence to
establish proximate cause where the expert testified that had the patient been adequately
monitored, changes in his heart rate, cardiac status, or oxygen levels would have been revealed,
leading to earlier intervention and treatment for the patient’s impending cardiac arrest. Johnson,
384 Ill. App. 3d at 272. In contrast, here, it is merely a possibility that additional monitoring
would have caused earlier intervention. The mere possibility of a causal connection is not
sufficient to sustain the burden of proof of proximate causation. Susnis v. Radfar, 317 Ill. App.
3d 817, 827 (2000).
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Johnson cites Northern Trust Company v. University of Chicago Hospitals and Clinics,
355 Ill. App. 3d 230 (2004), Walton v. Dirkes, 388 Ill. App. 3d 58 (2009), Wodziak v. Kash, 278
Ill. App. 3d 901 (1996), and Holton v. Memorial Hospital, 176 Ill. 2d 95 (1997), in support of her
argument that she has established sufficient evidence as to causation.
We find these cases distinguishable. Initially, these cases involved a failure to diagnose or
a delay in diagnosis which resulted in a delay in treatment or which lessened the effectiveness of
treatment. Furthermore, the expert causation opinions in these cases were not merely contingent,
speculative or possible. In Northern Trust Co., the expert specifically testified that had the fetal
heart monitor been placed at 3:30 p.m., as required by the standard of care, an abnormal fetal
heart rate would have been revealed, and the need for a cesarean section would have been
recognized, and performed no later than 4:30 p.m. Northern Trust Co., 355 Ill. App. 3d at 238-
39.
In Walton, the expert testified that the defendant’s negligent failure to order a blood test
resulted in a delayed diagnosis of leukemia. Had the test been done timely, an abnormality in the
blood would have been detected, certain specific procedures would have been undertaken and his
condition treated. Walton, 388 Ill. App. 3d at 67-68. Similarly, in Wodziak, a delay in
diagnosing a stenosis lessened the effectiveness of the “definitive treatment” for the stenosis
because the emergency treatment the patient received was less effective. Wodziak, 278 Ill. App.
3d at 912.
In Holton, a delay in reporting the patient’s progression of paralysis lessened the
effectiveness of treatment. There was expert testimony that had the doctors been given the
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opportunity to properly diagnose her condition based on accurate and complete information, they
would have had an opportunity to treat her paralysis by ordering the appropriate surgical
intervention to ease the pressure on the spinal cord. Because of the hospital’s negligent failure to
accurately and timely report her symptoms, the appropriate treatment could not even be
considered. Holton, 176 Ill. 2d at 108.
In contrast, as we have discussed, there is insufficient evidence here to support a causal
nexus between the alleged deviations from the standard of care and the resulting injury and
subsequent death. Therefore, the circuit court properly granted summary judgment in defendants’
favor.
III. Local Rule Violation
Lastly, we address Johnson’s contention that the circuit court erred in allowing Lincoln
Medical Center to adopt the other defendants’ motions for summary judgment because it violated
Supreme Court Rule 191(a) (210 Ill. 2d R. 191(a)), providing that motions for summary judgment
“must be filed before the last date, if any, set by the trial court for the filing of dispositive
motions,” and Cook County Circuit Court Rule 2.1(f), which provides that a motion for summary
judgment must be presented to the court at least 45 days before the trial date “except by prior
leave of court and for good cause shown.” Cook Co. Cir. Ct. R. 2.1(f) (eff. June 15, 1988).
Generally, decisions made by a trial judge with respect to case management are reviewed
for abuse of discretion. In re D.T., 212 Ill. 2d 347, 356 (2004). The trial date was originally set
for November 10, 2008. Lincoln filed its motion to adopt on December 2, 2008. Nevertheless,
during the pendency of the summary judgment proceedings, the trial date was continued.
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Accordingly, at the time Lincoln Medical Center filed its motion to join, there was no definitive
trial date assigned to the case.
Furthermore, we find no grounds for reversal where, as here, there were no genuine issues
of material fact for a jury to consider. Seef v. Ingalls Memorial Hospital, 311 Ill. App. 3d 7, 18-
19 (1999) (late filing of motion in violation of local rule not grounds for reversal where there was
no issue of material fact for jury to consider). Here, the liability of Lincoln Medical Center is
predicated upon the alleged acts of its agents or employees, Dr. Kim and Dr. Hidvegi. The law is
clear that the claims asserted against Lincoln Medical Center under the theory of vicarious liability
and those claims asserted against Dr. Kim and Dr. Hidvegi are “one and the same.” Towns v.
Yellow Cab Co., 73 Ill. 2d 113, 123-24 (1978). These defendants are all “unified tortfeasors.”
Towns, 73 Ill. 2d at 124. Accordingly, where the proximate cause was lacking as to the agents,
the court would have properly granted a directed verdict for Lincoln Medical Center had it
proceeded to trial.
Accordingly, for all of the foregoing reasons, the judgment of the circuit court is affirmed.
Affirmed.
HOFFMAN and KARNEZIS, JJ., concur.
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REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT ____________________________________________________________________________________________
CHAKENA JOHNSON, Individually and as Special Administrator of the Estate of Renee Rayborn, Deceased,
Plaintiff-Appellant,
v.
INGALLS MEMORIAL HOSPITAL, a Corporation, ST. FRANCIS HOSPITAL & HEALTH CENTER, a Corporation, LINCOLN MEDICAL CENTER, LTD., a Corporation, and IMRE HIDVEGI, JAMES A. THREATTE, and HEE HAN KIM, Individually and as Agents or Employees of LINCOLN MEDICAL CENTER, LTD., a Corporation,
Defendants-Appellees. ____________________________________________________________________________________________
Appellate Court of Illinois First District, Second Division
Filed: June 29, 2010 ____________________________________________________________________________________________
JUSTICE THEIS delivered the opinion of the court.
Cunningham, P.J., and Hoffman, J., concur. ____________________________________________________________________________________________
Appeal from the Circuit Court of Cook County Honorable Claire E. McWilliams, Judge Presiding ____________________________________________________________________________________________
For PLAINTIFF- Barbara D. Klein For DEFENDANT- Steven C. Steinback APPELLANT Kimberly R. Vaughn APPELLEE Scott E. Irvin Barbara D. Klein & Associates (Ingalls Memorial Barker & Castro, LLC 33 N. Dearborn St., Ste. 1900 Hospital) 115 S. LaSalle St., Ste. 2900 Chicago, Illinois 60606 Chicago, Illinois 60603
For DEFENDANT- Julie A. Teuscher For DEFENDANT- Dennis A. Ferraro APPELLANT Susan E. Conner APPELLANT Chuhak & Tecson, P.C. (St. Francis Cassiday Schade LLP (Imre Hidvegi, 30 S. Wacker Dr., Ste. 2600 Hospital and 20 N. Wacker Dr., Ste. 1040 M.D.) Chicago, Illinois 60606 Health Center) Chicago, Illinois 60606
For DEFENDANT- Stephen A. Kolodziej For DEFENDANT- Ronald L. Boorstein APPELLANT Amy L. Anderson (Lincoln Medical 150 S. Wacker Dr., Ste. 450
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(Hee Han Kim, Brenner, Ford, Monroe & Center, Ltd.) Chicago, Illinois 60606 M.D.) Scott, Ltd. 33 N. Dearborn St., Ste. 300 Chicago, Illinois 60602
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