Porter v. Decatur Memorial Hospital

Opinion

NO. 4-06-0406 Filed 1/30/07

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

LARRY W. PORTER, JR., ) Appeal from Plaintiff-Appellant, ) Circuit Court of v. ) Macon County DECATUR MEMORIAL HOSPITAL and ) No. 02L49 OLIVER N.R. DOLD, M.D., ) Defendants-Appellees. ) ) Honorable ) Katherine M. McCarthy, ) Judge Presiding. _________________________________________________________________

JUSTICE McCULLOUGH delivered the opinion of the court:

On June 21, 2004, plaintiff, Larry W. Porter, Jr.,

filed a motion seeking leave to file a second amended complaint

against defendants Decatur Memorial Hospital (hospital) and

Oliver N.R. Dold, M.D., alleging medical malpractice. Initially,

the trial court allowed plaintiff's motion to amend but, later,

it revised its ruling and denied the motion. Plaintiff appeals,

arguing the court erred by refusing to allow him to file his

second amended complaint solely because it did not "relate back"

to his timely filed original and amended pleadings pursuant to

section 2-616(b) of the Code of Civil Procedure (Code) (735 ILCS

5/2-616(b) (West 2002)). We affirm.

On March 25, 2002, plaintiff filed his original com-

plaint in this matter. He alleged, on January 12, 2001, he

sought treatment at the hospital's emergency room for injuries he received in an automobile accident and was treated by Dr. Dold,

who diagnosed plaintiff as having an incomplete spinal-cord

injury. Plaintiff asserted Dr. Dold was negligent because he (1)

ordered discontinuance of plaintiff's C collar and spine board

prior to performing a magnetic resonance imaging (MRI); (2)

discontinued spinal immobilization prior to fully appreciating

plaintiff's spinal injury; (3) failed to obtain a timely MRI on

January 12, 2001; and (4) failed to appreciate decreasing blood

pressure and decreasing leg function as signs and symptoms of

further spinal injury. Plaintiff alleged that, as a result of

Dr. Dold's negligent acts or omissions, he sustained further

spinal injury that caused him to lose function in his legs.

Additionally, plaintiff named the hospital as a defendant in

discovery.

On January 6, 2003, plaintiff filed a first amended

complaint. He repeated his allegations against Dr. Dold and

added a second count against the hospital. Plaintiff alleged

that, as a result of the wrongful acts and omissions of the

hospital, his diminishing neurological function went undiagnosed

and untreated, causing him to lose extremity function. He

asserted that Dr. Dold ordered neurological checks to be per-

formed every hour. Further, plaintiff alleged that the hospital

provided personnel, including nurses, aides, attendants, and

others for the care and treatment of its patients and that the

- 2 - hospital, through its employees and agents, breached its duty of

care to plaintiff by failing to (1) perform thorough neurological

checks every hour as ordered; (2) record complete spinal assess-

ments as part of hourly neurological checks; (3) record extremity

strength as part of hourly neurological checks on January 13,

2001, from 1 a.m. to 6 a.m.; and (4) report diminishing neurolog-

ical status to the attending neurosurgeon.

On June 21, 2004, plaintiff filed a motion for leave to

file a second amended complaint. His proposed second amended

complaint added a third count, also against the hospital.

Plaintiff alleged that he underwent a computerized tomography

(CT) scan of the cervical spine that was read and interpreted by

Dr. Gordon Cross, who plaintiff asserted was an apparent agent of

the hospital. He further alleged the hospital, through its

employees and agents, breached its duty of care, by (1) failing

to (a) properly interpret the CT scan of his cervical spine and

(b) failing to appreciate cervical fractures revealed on the CT

scan of his cervical spine and (2) misreading and misinterpreting

the CT scan of his cervical spine.

The hospital objected to plaintiff's motion. On August

10, 2004, the trial court allowed the motion and ordered plain-

tiff's second amended complaint placed on file as of that date.

The court found the second amended complaint related back to the

original and first amended complaints because it arose out of the

- 3 - same transaction or occurrence as alleged in those timely filed

pleadings pursuant to section 2-616(b) of the Code (735 ILCS 5/2-

616(b) (West 2002)).

On August 27, 2004, the hospital filed a motion to

dismiss count III of plaintiff's second amended complaint. On

October 29, 2004, following a hearing, the trial court granted

the hospital's motion to dismiss. It stated the allegations

contained in count III did not relate back to the original counts

plaintiff filed against the hospital. Specifically, the court

found that the original complaints did not put the hospital "on

notice or provide it with any information necessary to prepare

its defense as to the conduct of Dr. Cross or any radiological

issues." On November 11, 2004, the hospital filed a motion for a

finding pursuant to Supreme Court Rule 304(a) (155 Ill. 2d R.

304(a)) that there was no just reason to delay enforcement or

appeal of the court's dismissal of count III of the second

amended complaint. Plaintiff objected to the hospital's motion

and on November 15, 2004, he filed a motion to reconsider the

dismissal of count III.

On November 11, 2005, following a hearing, the trial

court revised its ruling on plaintiff's motion for leave to file

the second amended complaint and denied that motion, finding

count III of the complaint was untimely and did not relate back

to the timely filed original and amended pleadings. The court

- 4 - noted the inconsistency in its grant of plaintiff's motion to

file a second amended complaint and its grant of defendant's

motion to dismiss count III of that complaint. In rendering its

decision, it stated as follows:

"The [c]ourt previously identified the

'same transaction or occurrence' as the en-

tire hospitalization of [plaintiff] which the

[c]ourt now feels is too broad for purposes

of the relation[-]back doctrine since there

was absolutely no indication in the original

pleadings or medical reports which would have

apprised [the hospital] of these allegations

of misconduct against Dr. Cross."

On May 3, 2006, the court entered a Rule 304(a) finding.

This appeal followed.

On appeal, plaintiff argues the trial court erred by

denying his motion for leave to file a second amended complaint.

Specifically, he contends his second amended complaint is not

untimely because it relates back to his timely filed original and

amended pleadings pursuant to section 2-616(b) of the Code (735

ILCS 5/2-616(b) (West 2002)).

Generally, amendments to pleadings should be liberally

allowed to permit a party to fully present his or her cause of

action. Grove v. Carle Foundation Hospital, 364 Ill. App. 3d

- 5 - 412, 417, 846 N.E.2d 153, 157-58 (2006). In particular, medical-

malpractice plaintiffs "are to be afforded every opportunity to

establish a case, and amendments to the pleadings are to be

liberally allowed to enable the action to be heard on the merits,

rather than brought to an end because of procedural technicali-

ties." Grove, 364 Ill. App. 3d at 417, 846 N.E.2d at 158.

There is, however, no absolute right to amend a com-

plaint (Grove, 364 Ill. App. 3d at 417, 846 N.E.2d at 158), and

a court's decision whether to allow or deny an amendment is a

matter of discretion that will not be reversed absent an abuse of

discretion (Board of Directors of Bloomfield Club Recreation

Ass'n v. Hoffman Group, Inc., 186 Ill. 2d 419, 432, 712 N.E.2d

330, 337 (1999)). In determining whether an amendment should be

allowed, a court considers whether (1) a defect in the pleading

would be cured, (2) the opposing party would be surprised or

prejudiced by the amendment, (3) the proposed amendment was

timely filed, and (4) the moving party had previous opportunities

to amend the complaint. Grove, 364 Ill. App. 3d at 417-18, 846

N.E.2d at 158, citing Bloomfield Club, 186 Ill. 2d at 432, 712

N.E.2d at 337.

Initially, we note plaintiff argues the proper standard

of review is de novo, not whether the trial court abused its

discretion. He contends "the instant appeal represents a special

case" because the trial court initially granted his motion to

- 6 - amend but then reconsidered and reversed that decision based upon

a reinterpretation of the statute. He maintains that the inter-

pretation of a statute is an issue of law subject to de novo

review (People v. Collins, 214 Ill. 2d 206, 214, 824 N.E.2d 262,

266 (2005)) and, since that is what occurred in this case, it

must follow that the de novo standard of review is the appropri-

ate standard. Plaintiff further notes that if this appeal arose

from a section 2-619 (735 ILCS 5/2-619 (West 2002)) motion to

dismiss, the standard of review would also be de novo.

We disagree with plaintiff's contention that the

appropriate standard of review is de novo. Although the trial

court initially permitted plaintiff to file his second amended

complaint, it reconsidered that decision and denied plaintiff's

motion for leave to amend. That is the decision that is subject

to review, and the appropriate standard of review in such in-

stances is the abuse-of-discretion standard. Moreover, we do not

find that this issue involves matters of statutory interpreta-

tion. Instead, it requires a close examination of the facts of

this case and application of those facts to the requirements set

forth in section 2-616(b).

Section 13-212(a) (735 ILCS 5/13-212(a) (West 2002)) of

the Code provides that an action for damages against a physician

or hospital for injury or death must be brought within two years

after the date on which the plaintiff knew, should have known, or

- 7 - received written notice of injury or death. Further, "in no

event shall such action be brought more than [four] years after

the date on which occurred the act or omission or occurrence

alleged in such action to have been the cause of such injury or

death." 735 ILCS 5/13-212(a) (West 2002).

Nevertheless, a cause of action in an amended pleading

shall not be barred by lapse of time and shall relate back to the

date of the filing of the original pleading if (1) the original

pleading was timely filed and (2) it appears from the original

pleading that the cause of action asserted in the amended plead-

ing grew out of the same transaction or occurrence set up in the

original pleading. 735 ILCS 5/2-616(b) (West 2002). Pursuant to

section 2-616(b), an amended complaint does not have to state the

same or substantially similar cause of action as the original;

instead, an amended complaint will relate back to the original if

it states a cause of action that grew out of the same transaction

or occurrence. Zeh v. Wheeler, 111 Ill. 2d 266, 272-73, 489

N.E.2d 1342, 1345 (1986). "The 'original pleading' need not be

the first complaint filed, but can be an amended pleading so long

as it was also filed within the appropriate time period."

Avakian v. Chulengarian, 328 Ill. App. 3d 147, 153, 766 N.E.2d

283, 289 (2002).

"The rationale behind the same[-]transaction[-]or[-]

occurrence rule is that a defendant will not be prejudiced by an

- 8 - amendment so long as 'his attention was directed, within the time

prescribed or limited, to the facts that form the basis of the

claim asserted against him.' [Citation]." Boatmen's National

Bank of Belleville v. Direct Lines, Inc., 167 Ill. 2d 88, 102,

656 N.E.2d 1101, 1107 (1995). "[T]he original complaint should

supply a defendant with all of the information necessary to

prepare its defense to the subsequently asserted claim."

McArthur v. St. Mary's Hospital of Decatur, 307 Ill. App. 3d 329,

334, 717 N.E.2d 501, 505 (1999). Further, when applying the

relation-back doctrine, a court may examine the entire record "to

determine (1) if a defendant is on notice of a claim prior to the

expiration of the statute of limitations and (2) the true facts

upon which the amended claim against [the] defendant is based."

McArthur, 307 Ill. App. 3d at 335, 717 N.E.2d at 505-06.

Here, the parties do not dispute that both the original

complaint and the first amended complaint were filed within the

time period set forth in the relevant statute of limitations.

Therefore, the only question before this court is whether the

second amended complaint grew out of the same transaction or

occurrence as set forth in those timely filed original pleadings.

In this instance, the first amended complaint is the relevant

"original pleading" for relation-back purposes.

Illinois courts have had several opportunities to

address section 2-616(b) and whether an untimely amended com-

- 9 - plaint related back to the timely filed original and amended

pleadings. Most recently, in Grove, 364 Ill. App. 3d at 422, 846

N.E.2d at 161, a divided panel of this court held that a proposed

amendment did not relate back to the original complaint. There,

the plaintiff underwent a routine colonoscopy that resulted in

complications, necessitating emergency surgery. Grove, 364 Ill.

App. 3d at 414, 846 N.E.2d at 155. Following his emergency

surgery, the plaintiff developed a postoperative wound infection.

Grove, 364 Ill. App. 3d at 414, 846 N.E.2d at 155.

The plaintiff's original complaint alleged negligence

against the doctors who performed the emergency surgery and

treated the plaintiff's infection and against the hospital for

those doctors' actions under the theory of respondeat superior.

Grove, 364 Ill. App. 3d at 414, 846 N.E.2d at 155. After the

relevant statute-of-limitations term had expired, the plaintiff

filed a motion to amend his complaint, adding elements of negli-

gence based on the conduct of the doctor who performed the

colonoscopy. Grove, 364 Ill. App. 3d at 414-15, 846 N.E.2d at

155-56. That doctor was not one of the doctors who performed the

emergency surgery or treated the plaintiff's infection, and the

plaintiff did not seek to add him as a defendant in the amended

complaint. Grove, 364 Ill. App. 3d at 414, 846 N.E.2d at 155.

In finding that the new allegations in the amended complaint did

not grow out of the same transaction or occurrence as those

- 10 - alleged in the original pleading, we noted that the amendment

sought to add a completely distinct procedure to the plaintiff's

complaint and that "two separate and distinct surgical procedures

[were] at issue." Grove, 364 Ill. App. 3d at 420, 846 N.E.2d at

160.

In McArthur, 307 Ill. App. 3d at 331, 717 N.E.2d at

502-03, the plaintiff brought suit against a hospital and several

other defendants after her baby developed hydrocephalus in utero,

the condition went undiagnosed, and the baby died during deliv-

ery. The plaintiff's sole allegation against the hospital in

each of her timely filed pleadings was that it "'[f]ailed to

implement and/or enforce a policy requiring a permanent radio-

graphic image of all ultrasound sonogram examinations be main-

tained.'" McArthur, 307 Ill. App. 3d at 331, 717 N.E.2d at 503.

After the relevant statute-of-limitations term had expired, the

plaintiff moved for leave to file an amended complaint adding

several new allegations against the hospital, including allega-

tions that there had been a failure to properly read and/or

interpret sonograms and flat plate X-rays. McArthur, 307 Ill.

App. 3d at 332, 717 N.E.2d at 503.

This court determined that the allegations in the

plaintiff's untimely amended complaint were "at the heart of

[her] case from the beginning." McArthur, 307 Ill. App. 3d at

335, 717 N.E.2d at 505. Additionally, we noted that, although

- 11 - the plaintiff failed to raise those allegations against the

hospital, she had raised them against the hospital's

codefendants. McArthur, 307 Ill. App. 3d at 335, 717 N.E.2d at

505. For those reasons, we determined that the hospital was

neither prejudiced nor unfairly surprised by the allegations in

the untimely amended complaint and that it related back to the

plaintiff's timely filed original pleadings. McArthur, 307 Ill.

App. 3d at 336, 717 N.E.2d at 506.

Further, in Yette v. Casey's General Stores, Inc., 263

Ill. App. 3d 422, 422-23, 635 N.E.2d 1091, 1091 (1994), the

plaintiff brought suit against the defendant after he fell on an

icy sidewalk adjacent to the defendant's building and was in-

jured. The plaintiff alleged the defendant negligently failed to

salt or remove ice from the sidewalk. Yette, 263 Ill. App. 3d at

423, 635 N.E.2d at 1091-92. After the relevant statute of

limitations had run, the plaintiff filed an amended complaint

adding a new allegation that the building's design resulted in

the unnatural accumulation of ice on the sidewalk. Yette, 263

Ill. App. 3d at 423, 635 N.E.2d at 1092. This court declined to

find that the amended complaint related back to the original and

stated that the amended pleading was "based on conduct or condi-

tions different from those alleged in the original complaint and

for which [the] defendant had no notice." Yette, 263 Ill. App.

3d at 426, 635 N.E.2d at 1094. Specifically, we noted that

- 12 - "[t]he original complaint did not apprise [the] defendant prior

to the running of the statute that the condition of its building

was a material element of [the] plaintiff's claim." Yette, 263

Ill. App. 3d at 426, 635 N.E.2d at 1094.

In support of his argument, plaintiff cites Figueroa v.

Illinois Masonic Medical Center, 288 Ill. App. 3d 921, 923, 681

N.E.2d 64, 65 (1997), where the plaintiff filed her original

complaint, alleging the defendants acted negligently in treating

her following the delivery of the plaintiff's child by caesarean

section. However, the plaintiff's untimely filed complaint

alleged negligence during the plaintiff's labor and prior to the

delivery of her child. Figueroa, 288 Ill. App. 3d at 923, 681

N.E.2d at 65. The First District determined that the untimely

pleadings related back to the original complaint because, al-

though the original complaint focused solely on the defendants'

conduct following the delivery, the relevant transaction or

occurrence had to "be defined as the period of labor immediately

preceding delivery as well as the post[]partum care received in

the hospital." Figueroa, 288 Ill. App. 3d at 925, 681 N.E.2d at

66. The court noted that "labor, delivery, and post[]partum care

are *** a progression of the various stages of the birthing

process" and that they "frequently occur in a very compressed

time frame and, accordingly, must be treated as a single event."

Figueroa, 288 Ill. App. 3d at 925, 681 N.E.2d at 67.

- 13 - Although plaintiff relies heavily on Figueroa, we find

Cammon v. West Suburban Hopsital Medical Center, 301 Ill. App. 3d

939, 704 N.E.2d 731 (1998), more instructive given the facts of

this particular case. In that case, the plaintiff filed an

original complaint against a hospital and several doctors.

Cammon, 301 Ill. App. 3d at 942, 704 N.E.2d at 734. A count

directed against one of the doctors alleged his failure to

achieve adequate hemostasis following an exploratory laparotomy,

and the counts directed against the other doctors alleged they

negligently misinterpreted CT scans. Cammon, 301 Ill. App. 3d at

942, 704 N.E.2d at 734. Additionally, the only counts against

the hospital alleged that it was vicariously liable for the

doctors' conduct in negligently misinterpreting the CT scans.

Cammon, 301 Ill. App. 3d at 942, 704 N.E.2d at 734.

With leave of the trial court, the plaintiff filed an

amended complaint adding allegations against the hospital based

on its alleged vicarious liability for the acts and omissions of

unnamed nurses and other personnel for (1) failing to achieve

adequate hemostasis following the exploratory laparotomy, (2)

failing to properly monitor the plaintiff's decedent during and

following the exploratory laparotomy to adequately assess his

condition and his respiratory status, and (3) negligently admin-

istering the drug Dilaudid. Cammon, 301 Ill. App. 3d at 943, 704

N.E.2d at 734. The hospital filed a motion to dismiss the

- 14 - additional counts, alleging they were time barred, and the trial

court granted its motion. Cammon, 301 Ill. App. 3d at 943, 704

N.E.2d at 734-35.

In reaching its decision, the First District noted that

the plaintiff's position was "that the transaction or occurrence

set out in her original complaint encompasse[d] the entire course

of treatment rendered to [the decedent] from his admission to

[the hospital] until his death." Cammon, 301 Ill. App. 3d at

944, 704 N.E.2d at 735. Conversely, the hospital's position was

that the transaction or occurrence set forth in the plaintiff's

original complaint was the decedent's preoperative radiological

care because the claims asserted against it in the original

complaint were premised solely on the acts of radiologists in

misreading the decedent's CT scans. Cammon, 301 Ill. App. 3d at

945, 704 N.E.2d at 735-36. The court found the hospital's

analysis too restrictive and the plaintiff's analysis too encom-

passing. Cammon, 301 Ill. App. 3d at 945, 704 N.E.2d at 736.

In determining whether to apply the relation-back

doctrine, the court found that the hospital was not placed on

notice that the plaintiff was claiming that the effects of

Dilaudid upon the decedent or a failure to monitor his respira-

tory status in any way contributed to his injury or death.

Cammon, 301 Ill. App. 3d at 947, 704 N.E.2d at 737. The court

stated it found no suggestion of such claims in either the

- 15 - original complaint or the record. Cammon, 301 Ill. App. 3d at

947, 704 N.E.2d at 737.

However, the court pointed out that the plaintiff

alleged negligence for failing to achieve adequate hemostasis

following the exploratory laparotomy in the original complaint

against one of the hospital's codefendants. Cammon, 301 Ill.

App. 3d at 947, 704 N.E.2d at 737. Further, pertinent informa-

tion regarding that alleged failure was also contained in the

health-care-professional's report that was attached to the

original complaint. Cammon, 301 Ill. App. 3d at 947, 704 N.E.2d

at 737. Thus, the court determined that only the allegation in

the amended complaint concerning the failure to achieve adequate

hemostasis related back to the original complaint. Cammon, 301

Ill. App. 3d at 948, 704 N.E.2d at 737.

As in Cammon, plaintiff here defines the same transac-

tion or occurrence set forth in its timely filed pleadings as

"the entire course of events from the time the plaintiff was

admitted into the hospital until the injury for which he has

brought suit occurred." Like the court in Cammon, we find

plaintiff's position to be overly broad for section 2-616(b)

purposes. Although all of plaintiff's claims stemmed from his

hospitalization following his automobile accident and his resul-

tant condition of incomplete quadriplegia, the new allegations in

his second amended complaint did not grow out of the same trans-

- 16 - action or occurrence as those alleged in his timely filed first

amended complaint.

Specifically, the first amended complaint did not

provide the hospital with notice of the facts underlying plain-

tiff's later claim that Dr. Cross had improperly interpreted a CT

scan of plaintiff's cervical spine. Neither the allegation that

the CT scan had been misinterpreted nor references to Dr. Cross

can be found in the first amended complaint. Further, no similar

claims were raised against Dr. Dold, the hospital's codefendant,

in either the original or first amended complaint as was the case

in both McArthur and Cammon. Additionally, although medical

reports attached to the original and first amended complaints

generally reference that a CT scan had been performed, those

reports contain no additional information that would put the

hospital on notice of plaintiff's later claim of negligence as a

result of Dr. Cross's reading of those CT scans.

Plaintiff also contends the hospital was put on notice

of its claims concerning Dr. Cross and the misreading of the CT

scan from the deposition of Dr. Marie Long, a physician who

treated plaintiff during the relevant time period and whose

deposition was taken before the statute of limitations had run.

In her deposition, Dr. Long stated she reviewed the results of

all of plaintiff's spine films, including the CT scan of his

cervical spine, which was normal. Her testimony was not suffi-

- 17 - cient to put the hospital on notice of plaintiff's later claims

that Dr. Cross misread or misinterpreted the CT scan.

Here, the trial court did not abuse its discretion in

finding that the hospital's attention was not directed, within

the relevant statutory time period, to the facts that formed the

basis of the claim against it in plaintiff's second amended

complaint. The claims alleged against the hospital in that

untimely pleading did not grow out of the same transaction or

occurrence as set forth in the first amended complaint, and the

relation-back doctrine does not apply.

For the reasons stated, we affirm the trial court's

judgment.

Affirmed.

APPLETON, J., concurs.

MYERSCOUGH, J., dissents.

- 18 - JUSTICE MYERSCOUGH, 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

- 19 - 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 decid-

ing a motion to amend pleadings, and a re-

viewing court will not reverse the trial

court's decision absent abuse of that discre-

tion. [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 exer-

cise 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

- 20 - 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).

- 21 - 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 Fran-

cisco 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 at-

tempted to be set forth in the original

pleading." Fed. R. Civ. P. 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 exam-

ined the appropriate standard of review of district-court deci-

sions 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

- 22 - 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 is 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 con-

tained 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 com-

plaints.

B. Relation Back

- 23 - 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 pre-

scribing or limiting the time within which an

action may be brought or right asserted, if

the time prescribed or limited had not ex-

pired 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 plead-

ing, 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 pre-

cedent 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

- 24 - 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).

Plaintiff's 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 immobiliza-

tion prior to fully appreciating the

patient's spinal injury;

- 25 - 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 fur-

ther spinal injury."

A section 2-622 (735 ILCS 5/2-622 (West 2004)) certificate

prepared by James N. Campbell, M.D., noted the evalua-

tion 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 plaintiff's injuries.

Plaintiff's timely filed first amended com-

plaint contained the same allegations of negligence

against Dr. Dold. The complaint added a cause of ac-

tion 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 hospi-

- 26 - tal 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 spi-

nal 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 hospi-

tal's wrongful acts or omissions, plaintiff's diminishing neuro-

logical function went undiagnosed and untreated.

Plaintiff attached to the first amended complaint a

section 2-622 (735 ILCS 5/2-622 (West 2004)) certificate com-

pleted by Leon Sykes, M.D. This certificate also noted the CT

scanning that occurred on January 12, 2001. In particular, Dr.

- 27 - 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

"[f]ailed 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 frac-

tures revealed on a CT of the cervical spine

performed January 12, 2001; and

c. Misread and misinterpreted a cervical

- 28 - 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 plaintiff's claim. See Bryson, 174 Ill. 2d at 106,

672 N.E.2d at 1223 (section 2-626(b) should be liberally con-

strued). In fact, "[m]edical malpractice plaintiffs, in particu-

lar, 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 plain-

- 29 - tiff's 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 plaintiff's

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.1, 780 N.E.2d 660, 667 n.1 (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 neurolog-

- 30 - ical 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 func-

tion of informing an opponent of one's posi-

tion is largely accomplished through discov-

ery, 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

- 31 - limitations through depositions and produc-

tion requests). McCorry concedes that dis-

covery may satisfy the notice requirement but

adds a further requirement, that 'the defen-

dant must have notice not only of the opera-

tive facts, but also of the plaintiff's in-

tention 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 su-

preme 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

- 32 - 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 plaintiff's neurological deficits.

The trial court imposed not only this notice require-

ment 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

- 33 - by the hospital and the hospital was not prejudiced by an inabil-

ity 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

plaintiff's 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.

- 34 -