Court splits on relation-back doctrine
This article first appeared in The
Trial Notebook:
Court splits on relation-back doctrine for claim of ‘negligent credentialing’
by Steven P. Garmisa
Disagreement about the relation-back doctrine produced another schism in the Illinois Appellate Court.
The 1st District fractured on whether an amended complaint against a hospital – adding a claim for “negligent credentialing” after the statute of limitations expired – flowed back in time to when the case commenced.
Contending that one of her feet had to be amputated because of bungled bunion surgery, Jean Frigo pursued a complaint against podiatrist Dr. Paul Kirchner and
The verdict against Silver Cross was $7,775,668. This was reduced by $900,000, which was paid on Kirchner’s behalf in a settlement.
Frigo’s complaint alleged that her foot was amputated because of a bone infection she contracted following bunion removal. According to Frigo, the first procedure should have been postponed because the bunion was infected. When cutting into the infected bunion, Kirchner allegedly spread the infection. Weeks later, the infection reportedly spread to the bone, and Frigo’s foot had to be cut off.
The initial complaint alleged that the hospital “carelessly and negligently managed, maintained, controlled, owned and operated said medical centers in such a manner causing the plaintiff to be injured.”
During discovery, Frigo uncovered evidence that Kirchner did not satisfy the hospital’s credentials to provide the “Level II” surgical care she received.
When Frigo requested permission to proceed with an amended complaint, the hospital objected, contending that the credentialing claim was barred by the statute of limitations.
The trial judge ruled that the amended claim ran back to the date the lawsuit was filed.
On appeal, the hospital argued that Frigo failed to prove negligent credentialing and that the amended complaint was time-barred.
Affirming, the 1st District majority rejected all of the hospital’s arguments. Frigo v Silver Cross Hosp., 2007WL 2141822 (1st Dist., July 26).
Today’s article focuses on the debate about the relation-back doctrine. Tuesday’s installment will turn to the reviewing court’s unanimous analysis of the claim for negligent credentialing.
Here are the highlights of Justice P. Scott Neville Jr.’s majority opinion, followed by Justice Patrick J. Quinn’s partial dissent (both with omissions not noted in the quoted text):
“We find McArthur v. St. Mary’s Hospital of Decatur, 307 Ill.App.3d329 (1999), and Marek v. O.B. Gyne Specialists II S.C., 319 Ill.App.3d 690 (2001), instructive,” Neville wrote.
“In McArthur, the plaintiff sued a hospital and several doctors for the death of a baby due to complications during the delivery. In the original complaint, the only allegation made against the hospital was that it ‘failed to implement and/or enforce a policy requiring a permanent radiographic image of all ultrasound sonogram examinations be maintained.’
“The allegations against other defendants included the failure to correctly read the sonograms and X-rays taken and the failure to diagnose the deceased infant’s hydrocephalus. First and second amended complaints were subsequently filed with the same sole allegation against the hospital.”
“Discovery proceeded and during the deposition of one of the defendant’s radiologists, it was discovered that the radiologist never evaluated the X-rays at issue because one of the hospital’s technicians had that responsibility. McArthur, 307 Ill.App.3d at 332.
“Though outside the limitations period, the plaintiffs moved for leave to file a third amended complaint in which seven new allegations were added against the hospital, relating to the negligent interpretation of the sonogram and X-rays by one of the hospital’s agents on a date different from the date specified in earlier complaints. The trial court granted the motion.
“The hospital filed a motion and was granted summary judgment, arguing that the new allegations set forth different conduct by different people than in the original pleadings and were therefore time-barred. McArthur, 307 Ill.App.3d at 333.
“The Appellate Court reversed, finding from the beginning of the litigation that the hospital was aware that the plaintiffs were asserting negligence in connection with the reading of the sonograms and X-rays and that these claims had already been asserted against certain agents of the hospital.
“The court found neither prejudice nor unfair surprise to the hospital in allowing the amended claims to relate back because the hospital knew of the involvement of its own personnel who were reading the films from the suit’s inception.” McArthur, 307 Ill.App.3d at 336.
“Additionally, in Marek, the plaintiff appealed the trial court’s dismissal of her second amended complaint against the defendant entity, O.B. Gyne, based upon the running of the statue of limitations.
“The original complaint named O.B. Gyne and several other defendants and alleged that those medical care providers failed to properly diagnose, advise and treat her for breast cancer. Marek, 319 Ill.App.3d at 692.
“In court 3 of her original complaint, the plaintiff sued Dr. Lupo for negligence and sued O.B. Gyne, Dr. Lupo’s employer, as a principal.
“In count 1 of her second amended complaint, filed well after the statute of limitations had run, the plaintiff alleged that her gynecologist, Dr. McGill, was an agent of O.B. Gyne because upon his retirement all of his records became the property of O.B. Gyne and, therefore, O.B. Gyne was directly negligent for failing to advise Marek of the abnormalities discovered in an mammography report subsequent to Dr. McGill’s retirement. Marek, 319 Ill.App.3d at 694.
“In count 2 of her second amended complaint, Marek alleged that she was unaware of her direct cause of action against O.B. Gyne until it answered discovery, at which time she determined that O.B. Gyne possessed McGill’s records, and only aftr this discovery, did she realize that a direct cause of action existed against O.B. Gyne. Marek, 319 Ill.App.3d at 694.
“Further, in count 3 of the second amended complaint Marek alleged that Dr. Lupo was negligent for failing to refer her for further diagnostic testing.
“The Appellate Court reversed the trial court’s dismissal of the entire case and remanded the case to the trial court, holding that O.B. Gyne’s attention was directed to the allegations of negligence made against its agents at the time the original complaint was filed, despite the fact the allegations made against it directly in earlier complaints were based upon the conduct of a different agent.
“The court reasoned that because O.B. Gyne had been made aware of the occurrence that formed the basis of the claim (the failure to properly diagnose and treat the plaintiff’s cancer), it was able to adequately prepare to meet the plaintiff’s claims regardless of the theory under which they were brought. Marek, 319 Ill.App.3d at 698-99.
“We believe that the reasoning employed in McArthur and Marek should be followed in the instant case.
“First, like McArthur and Marek, we find that Frigo’s original complaint was timely filed as required by section 13-212(a) of the code. Therefore, Frigo’s original complaint has satisfied the timely filing requirement of section 2-616(b).”
Different Case Law
Although he agreed with Neville’s analysis on most of the issues, Quinn explained:
“I am unwilling to concur in the majority conclusion even though it logically flows from the cases cited because I believe a separate line of cases is more closely related to our case factually.
“In Grove v. Carle Foundation Hospital,364 Ill.App.3d 412 (2006), a case cited by the majority, the trial court denied a plaintiff’s motion to amend his complaint, which originally alleged negligence against the hospital and physicians based on their treatment of the patient’s infection after his second surgery.
“The Appellate Court affirmed the denial, holding that the amended allegation that the original colonoscopy procedure was negligently performed did not relate back to the original complaint because the amendment ‘seeks to add a completely distinct procedure to their complaint of negligence.’ Grove v.
“Similarly, the original complaint in the instant case focused on the hospital’s actions ‘following (Frigo’s) Oct. 8, 1998, surgery.’ As in Grove, these allegations involved a post-operative infection that plaintiff’s experts uniformly testified was the cause of plaintiff’s amputation.
“Silver Cross cites McCorry v. Gooneratne, 332 Ill.App.3d 935 (2002), for its analysis of the language of section 2-616(b): ‘The later claim relates back if the original complaint directs the defendant’s attention to the facts on which the plaintiff bases the later claim.’ McCorry v. Gooneratne, 332 Ill.App.3d at 943-44.
“The majority’s statement that ‘Silver Cross was supplied with the essential information it needed to prepare a defense to the management claim in the original complaint’ certainly does not meet the standard as set out in McCorry.
“Admittedly, the problem here may be that McCorry overstates the burden placed on plaintiffs. Courts have the statute of limitations has run relate back to original complaints alleging a hospital’s negligence based on an employment or an agency relationship.
“In a case factually very similar to ours, Weidner v. Carle Foundation Hospital, 159 Ill.App. 3d 710 (1987), the plaintiff brought a medical malpractice action against a physician, against a clinic and against a hospital based on an employment or agency relationship. The plaintiff voluntarily dismissed the counts against the physician and the clinic.
“Summary judgment was entered for the hospital, but the patient was granted leave to file an amended complaint. In the amended complaint, the plaintiff alleged that the hospital had a duty of care separate from the physician’s duty to his patient to know the qualifications of its staff physicians and their standard of performance.
“The Circuit Court dismissed this amended complaint as being untimely and the patient appealed. The Appellate Court affirmed, holding that the allegations in the amended complaint that the hospital ‘was negligent for not adequately ascertaining the qualifications of its staff physicians, supervising them, and reviewing their performance’ were ‘separate from the alleged malpractice which led to plaintiff’s injuries.
“The facts established or raising a question of this type of negligence were not asserted in the initial pleadings. Therefore,
“I believe that the holdings of the Appellate Court in Castro, McArthur and Marek, cited by plaintiff, appear to be in some conflict with the holdings of the Appellate Court in Grove, McCorry and Weidner, cited by defendant, Silver Cross.
“Consequently, I believe that our Supreme Court’s holding in Zeh v. Wheller, 111, Ill.2d 266 (1986), explaining the rationale behind the relation-back doctrine as codified in section 2-616(b) is most instructive: ‘A defendant has not been prejudiced so long as his attention has been directed, within the time prescribed or limited to the facts that form the basis of the claim asserted against him.’ Zeh v. Wheeler, 111 Ill.2d at 273.
“In the instant case, the plaintiff’s initial complaint alleged that Silver Cross ‘carelessly and negligently managed, maintained, controlled, owned and operated said medical centers in such manner causing the plaintiff to be injured.’
“It would be difficult to imagine language that was more broad and nebulous.
“If this language is held to be sufficient to put hospitals on notice for the purpose of holding them directly liable for the medical malpractice of the independent contractor physicians who work there, the relation-back doctrine will essentially be applicable in all such cases, depriving hospitals of the protection of the statute of limitations and statute of repose as found in section 13-212 of the Code of Civil Procedure.
“Therefore, I respectfully dissent as to the applicability of the statute of limitations defense.”