RICHARD L. GROVE еt al., Plaintiffs-Appellants, v. CARLE FOUNDATION HOSPITAL et al., Defendants-Appellees.
Fourth District No. 4-05-0488
Appellate Court of Illinois, Fourth District
Argued November 17, 2005.—Opinion filed March 28, 2006.
COOK, J., dissenting.
Edward H. Rawles (argued), of Rawles, O‘Byrne, Stanko & Kepley, P.C., of Champaign, for appellants.
Bianca T. Green (argued) and William J. Brinkmann, both of Thomas, Mamer & Haughey, of Champaign, for appellees.
JUSTICE APPLETON delivered the opinion of the court:
On March 1, 2005, the trial court entered an order denying plaintiffs’ motion to amend the complaint. On May 13, 2005, the trial court entered an order finding that its denial of the motion to amend was a final and appealable order under
On January 18, 2001, plaintiff, Richard L. Grove, was admitted to Carle Foundation Hospital for a routine colonoscopy to be performed by Dr. Eugene Greenberg. During the procedure, a wire snare became incarcerated around a tumor in plaintiff‘s colon. Greenberg could not remove the wire snare. As a result of that complication, further emergency surgery was required to remove both the tumor and the wire snare. The emergency surgery did not allow time to treat plaintiff prophylactically with antibiotics 24 hours prior to the procedure, as is typically done. Dr. David Orcutt and Dr. Paul Tender performed the second surgery that same day. Plaintiff developed a postoperative wound infection during his hospitalization, for which he was treated by Orcutt and Tender. Plaintiff remained in the hospital until January 27, 2001.
Within two years of the colonoscopy, on January 13, 2003, plaintiffs, Richard L. Grove and his wife, Shirley T. Grove, filed a complaint for personal injuries against defendants, Carle Foundation Hospital, Carle Clinic Association, Dr. David Orcutt, and Dr. Paul Tender. The original complaint alleged negligence against Orcutt and Tender for their treatment of the infection after the second surgery. The original complaint alleged negligence against the hospital for the actions of Orcutt and Tender under a theory of respondeat superior. Further, the original complaint asserted acts and omissions that took place during the Greenberg surgery but did not assert that those acts deviated from an acceptable standard of care.
On December 9, 2004, plaintiffs deposed Dr. Samuel Feinburg, a subsequent treating physician. Plaintiffs assert it was not until the Feinburg deposition that they became aware that Greenberg‘s conduct and surgical techniques, in attempting to remove a tumor with a colonoscopic wire snare, may have fallen below the minimum standard of medical care.
On December 14, 2004, plaintiffs filed a motion to amend the complaint in order to add additional elements of negligence based on information gained during the Feinburg deposition. The amendment did not seek to add Greenberg as a defendant. Instead, the amendment sought to add the following substantive changes, as indicated by the italicized language below:
“At all times mentioned herein, defendants Orcutt and Tender, as well as Dr. Eugene Greenberg, were employees and/or agents of Carle Clinic and Carle Foundation Hospital and were acting within the scope of their employment.” (Emphasis added.) (Paragraph 6)
“As a result of complications during the colonoscopic surgical procedure performed on January 18, 2001, by Dr. Eugene Green
berg, further emergency surgery was required and necessitated to remove a wire snare that was incarcerated in the colon of the plaintiff. Furthermore, the aforesaid complication and the entrapment of the wire snare, and the resulting emergency surgery, was a result of the improper utilization, technique or applicatiоn by Dr. Eugene Greenberg of the wire snare for the purpose or procedure he was attempting to perform.” (Emphases added.) (Paragraph 8) (language specifying that the subsequent surgery was performed by Tender and Orcutt was removed in the amended paragraph) “In disregard [of] their duty to plaintiff in connection with his medical care and treatment, defendants were then and there guilty of one or more of the following negligent acts or omissions:
(a) Failed to perform a deep tissue culture of the wound infection;
(b) Failed to administer type[-]IV antibiotics longer than 3 days;
(c) Following cessation of type[-]IV antibiotics, failed to place the plaintiff on oral antibiotics at discharge for a period of time to be determined through out-patient follow-up;
(d) Improperly utilized and/or applied the wire snare device for the purpose or procedure Dr. Eugene Greenburg was attempting to perform, which purpose or procedure was beyond the scope of his skills or medical specialty as well as beyond the manufacturer‘s design or intended purpose or usage of the device.” (Emphasis added.) (Paragraph 13)
On January 12, 2005, defendants filed an objection to the motion for leave to amend the complaint, arguing (1) that the amended complaint sought to add elements of negligence based on conduct of which plaintiffs were aware both at the time the conduct occurred and at the time the original suit was filed; (2) that the amended complaint sought to add a new legal theory which raised facts and issues not previously raised and not previously the subject of any discovery; and (3) that the new legal theory was barred by the two-year statute of limitations.
On January 28, 2005, plaintiffs filed a response to defendant‘s objection to the motion to amend the complaint. Plaintiffs argued that the trial court should allow the amendment pursuant to the relation-back exception to the statute of limitations.
On February 22, 2005, the trial court heard oral argument on the motion to amend. Defendants claimed surprise and prejudice, arguing that the original complaint never focused on conduct in the original surgery; rather, it focused on negligence occurring as a result of the infection that manifested itself after the original surgery. Also at the February 22 hearing, the trial court vacated the case-management
On March 1, 2005, the trial court entered an order denying plaintiffs’ motion to amend the complaint. The court held that the proposed amendment was untimely because it did not relate back to the filing of the original complaint.
On May 13, 2005, the trial court entered an order finding that its earlier order denying plaintiffs’ motion to amend the complaint was a final and appealable order under
This appeal followed.
II. ANALYSIS
A. Our Subject-Matter Jurisdiction
Before proceeding to the merits of this appeal, we must first consider defendants’ motion to dismiss the appeal on the ground that we lack jurisdiction under
An order must be final for an appellate court to have jurisdiction over an appeal. Rice v. Burnley, 230 Ill. App. 3d 987, 990, 596 N.E.2d 105, 107 (1992). An order is final if it terminates litigation between parties on the merits or disposes of rights of parties, either on the entire controversy or on a separate branch thereof. Hull v. City of Chicago, 165 Ill. App. 3d 732, 733, 520 N.E.2d 720, 721 (1987).
“‘If multiple parties or multiple claims for relief are involved in an action, an apрeal may be taken from a final judgment as to one or more but fewer than all of the parties or claims only if the trial court has made an express written finding that there is no just reason for delaying enforcement or appeal.‘” (Emphasis added.) Rice, 230 Ill. App. 3d at 990-91, 596 N.E.2d at 107, quoting
134 Ill. 2d R. 304(a) .
Defendants argue that the order denying plaintiffs’ motion for leave to amend is not a final order and is, therefore, not appealable. See Hull, 165 Ill. App. 3d at 733, 520 N.E.2d at 721. We recognize that
We do not believe, however, that the above cases cited by defendants speak either to the facts of the instant case, the liberality with which amendments should be allowed, or the policy behind
Here, the trial court denied plaintiffs’ motion for leave to amend the complaint, because the proposed amendment was not timely filed, was barred by the statute of limitations, and did not relate back to the original complaint. The court thereby treated the proposed amendment as a separate claim. In so denying the proposed amendment, the court made a final disposition as to that separate claim. For these reasons, we find the court correctly conferred appellate jurisdiction under
B. Motion for Leave To Amend
Illinois law supports a liberal policy of allowing amendments to the pleadings so as to enable parties to fully present their alleged cause or causes of action. Simon v. Wilson, 291 Ill. App. 3d 495, 508, 684 N.E.2d 791, 800 (1997). Moreover, medical malpractice plaintiffs in particular 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 technicalities. Castro v. Bellucci, 338 Ill. App. 3d 386, 391, 789 N.E.2d 784, 787 (2003), citing Avakian v. Chulengarian, 328 Ill. App. 3d 147, 154, 766 N.E.2d 283, 290 (2002).
Litigants, however, have no absolute right to amend their complaint. Hadley v. Ryan, 345 Ill. App. 3d 297, 303, 803 N.E.2d 48, 54 (2003). The court generally considers four factors in determining whether an amendment to a complaint should be allowed: (1) whether the proposed amendment would cure a defect in the pleading, (2) whether the proposed amendment would surprise or prejudice the op
The Illinois Code of Civil Procedure provides further guidance as to the factors of timeliness and prejudice, stating that any cause of action set up in an amended pleading shall not be time-barred, and shall be said to relate back to the date of the filing of the original pleading, so long as (1) the original pleading was timely filed and (2) it appears from the original and amended pleadings that the cause of action asserted grew out of the same transaction or ocсurrence set up in the original pleading.
The standard of review for the trial court‘s decision to allow or deny a motion to amend a complaint is whether the court abused its discretion. Bloomfield Club, 186 Ill. 2d at 432, 712 N.E.2d at 337.
Plaintiffs first argue that the amendment to the complaint should have been allowed because the purpose of the amendment was to conform the pleadings to what plaintiffs believed the evidence at trial would be, based upon facts adduced during the course of discovery. Plaintiffs’ primary position is that the amendment did not assert a new cause of action and should have been allowed under section
Case law presented by plaintiffs in support of allowing the amendments under section
Amendments conform the pleadings to the proofs, and are allowed pursuant to section
Plaintiffs argue, in the alternative, that section
Defendant Carle Foundation Hospital argues that it is prejudiced
We find the facts in the instant case to be disparate from those in Figueroa relied upon by plaintiffs. Figueroa v. Illinois Masonic Medical Center, 288 Ill. App. 3d 921, 681 N.E.2d 64 (1997). In Figueroa, the original complaint alleged negligence for failure to use proper skill and treatment following plaintiff‘s caesarian section. Just as the original complaint in the present case noted the Greenberg colonoscopy procedure but failed to allege that this procedure fell below the standard of care, the original complaint in Figueroa noted the procedures that occurred prior to and during delivery, but did not allege that such procedures deviated from an acceptable standard of care. Figueroa, 288 Ill. App. 3d at 923, 681 N.E.2d at 65. Nearly four years after the original complaint was filed, the plaintiff filed interrogatory answers that disclosed the opinion of their expert that the defendant had acted negligently prior to and during delivery. The plaintiffs in Figueroa sought leave to file an amended complaint, alleging the defendant acted negligently prior to and during delivery. The Figueroa court found that the amended complaint related back to the original because the “defendants were made aware that plaintiffs’ claims were predicated upon the treatment that took place during [her] hospitalization.” Figueroa, 288 Ill. App. 3d at 925, 681 N.E.2d at 66-67.
Unlike the caesarian section in Figueroa, where the original complaint was for negligence in the treatment of that triggering condition, the amendment propounded by plaintiffs in this case seeks to add a completely distinct procedure to their complaint of negligence. While it is true that but for the problematic result of the сolonoscopy, no referral for emergency surgery would have been required, two separate and distinct surgical procedures are at issue.
In McCorry v. Gooneratne, 332 Ill. App. 3d 935, 775 N.E.2d 591 (2002), the plaintiff was first treated at the defendant hospital during a neurosurgery consultation in which the hospital‘s agents performed
Defendants next cite Bailey v. Petroff, 170 Ill. App. 3d 791, 797, 525 N.E.2d 278, 282 (1988), in which the original complaint alleged negligence for the prescription of a certain drug during the plaintiff‘s pregnancy. The amended complaint alleged negligence for a failure to recommend prenatal testing and a failure to diagnose the baby‘s genetic disorder. Bailey, 170 Ill. App. 3d at 793-94, 525 N.E.2d at 280. The original complaint did not assert alleged acts or omissions regarding prenatal testing, let alone assert that anything had gone wrong during prenatal testing. Bailey, 170 Ill. App. 3d at 793-94, 525 N.E.2d at 279. Further, the amended complaint dropped all references to the alleged negligence in prescribing the drug. Bailey, 170 Ill. App. 3d at 794, 525 N.E.2d at 280. The court found that the amendment did not relate back and that the nature of the incidents of the alleged malpractice was “quite different” from that alleged in the original complaint. Bailey, 170 Ill. App. 3d at 797-98, 525 N.E.2d at 282.
While all of the claims stemmed from the plaintiff‘s prenatal treatment, the original claim did not provide the defendant notice of the facts underlying the later claim. Bailey, 170 Ill. App. 3d at 798, 525 N.E.2d at 282. The amended complaint in Bailey dropped all references to the original claim of negligence in prescribing the drug and
III. CONCLUSION
For the forgoing reasons, the order of the trial court denying leave to file their amended complaint pursuant to the relation-back exception to the statute of limitations is affirmed.
Affirmed.
JUSTICE STEIGMANN, specially concurring:
After extensive (and respectful) discussion of the issues this case presents, my colleagues and I have been unable to reach agreement. On thе merits, they disagree over whether this court should affirm the trial court‘s order denying plaintiffs’ motion to amend their complaint. My preference is to dismiss this appeal and not reach the merits because I do not believe we have jurisdiction under
Justice Appleton‘s decision quotes
“[W]e recognize that [the statement of] a single claim of negligence in several ways, by multiple subparagraphs, does not warrant separate appeal upon dismissal of less than all of the subparagraphs.” 364 Ill. App. 3d at 416-17.
Justice Appleton‘s decision (joined on this point by Justice Cook) then goes on to explain why this analysis of
In Hull, the plaintiff sued the city of Chicago for negligence regarding its maintenance and repair of the roadway where an automobile accident occurred. Paragraph 7 of count I of the complaint described thе city‘s negligent acts or omissions in 12 separate subparagraphs. Hull, 165 Ill. App. 3d at 733, 520 N.E.2d at 721. On the defendant‘s motion, the trial court dismissed all but one of those subparagraphs, leaving only the subparagraph that alleged that the defendant was negligent in permitting a chunk or block of concrete to remain on the roadway‘s driving lanes. The trial court then made a
The appellate court dismissed the appeal, explaining as follows:
“Plaintiff‘s action involves a single claim of negligence against one defendant. Although paragraph 7 of plaintiff‘s complaint alleged various negligent acts or omissions, only one theory of recovery was advanced—negligence. The statement of a single claim in several ways, by multiple subparagraphs, does not warrant a separate appeal upon dismissal of less than all of those subparagraphs. [Citation.] Thus, the dismissal of subрaragraphs (b) through (l), which left subparagraph (a) standing, did not determine the merits of a separate cause of action or terminate any litigation between the parties. The order of dismissal merely determined which allegations of negligence would be allowed to remain. The order was not final and appealable. [Citation.]
The Rule 304(a) [citation] finding *** is intended to apply only where multiple claims or parties are involved. It is not designed to permit appeals from orders that dispose of less than all of the issues in an action involving a single party and a single claim.” Hull, 165 Ill. App. 3d at 733-34, 520 N.E.2d at 721.
In Rice, the First District Appellate Court followed its earlier decision in Hull and similarly dismissed an appeal that had been brought purportedly on the basis of
“As in Hull, the plaintiff here has advanced only one theory of recovery—negligence. *** While the dismissed counts and the remaining counts deal with different aсts or omissions, they advance the same theory of recovery—namely, negligence—and accordingly we conclude that the dismissal of counts VII and VIII did not determine the merits of a separate claim, and therefore is not a final order.” Rice, 230 Ill. App. 3d at 992, 596 N.E.2d at 108.
In Brown, the Second District Appellate Court also followed the
“Plaintiff‘s single-count, second amended complaint did not involve multiple claims, but only a single claim of negligence, as does the third amended complaint. While plaintiff‘s second amended complaint alleged various sources of a duty owed by defendant to plaintiff, it only advanced one theory of recovery, negligence. [Citing Hull, 165 Ill. App. 3d at 733, 520 N.E.2d at 721.] It is well established that the statement of a single claim in several ways, even by multiple counts, does not warrant a separate appeal.” Brown, 189 Ill. App. 3d at 770-71, 545 N.E.2d at 556.
As in the foregoing cases, this case presents a single claim of negligence couched in different terms. In December 2004, when plaintiffs sought to amеnd their complaint against the hospital, the complaint already alleged the hospital was responsible (under a theory of respondeat superior) for the negligent conduct of Orcutt and Tender. The proposed amendment did not change plaintiffs’ claim of negligence; instead, it merely sought to add a third actor, Greenberg, for whose negligent conduct the hospital was also supposedly responsible, again under the theory of respondeat superior. Because the complaint at issue, whether amended or not, presents a single claim of negligence,
My distinguished colleagues conclude that Hull, Rice, and Brown are distinguishable because they do not “speak either to the facts of the instant case, the liberality with which amendments should be allowed, or the policy behind
First, while it is true that the facts in this case differ from those in Hull, Rice, and Brown, that observation does nothing to defeat the precedential effect of those cases regarding the meaning and application of
Second, whatever “liberality” governs in amending complaints is irrelevant to whether this appeal meets the requirements of
Last, the policy considerations underlying
“As this court has repeatedly stated, *** the appellate and circuit courts of this state must enforce and abide by the rules of this court. The appellate court‘s power ‘attaches only upon compliance with the rules governing appeals.’ [Citation.] ‘[N]either the trial court nor the appellate court has the “authority to excuse compliance with the filing requirements of the supreme court rules governing appeals.“’ [Citation.] ***
*** The appellate court‘s jurisdiction turns on litigants’ compliance with our rules ***.” (Emphasis in original.) People v. Lyles, 217 Ill. 2d 210, 216-17, 840 N.E.2d 1187, 1191 (2005).
Lyles should serve as a reminder that when deciding whether we have jurisdiction, we must strictly enforce and abide by the “policy considerations” the supreme court took into account when it promulgated its rules governing appellate court jurisdiction.
My colleagues may be correct that hearing this appeal now would be good policy and further the ends of justice. However, until such time as the Supreme Court of Illinois amends supreme court rules accordingly, our personal views about policy in this area simply do not matter.
JUSTICE COOK, dissenting:
I respectfully dissent. I would reverse the trial court‘s decision and direct that the amendment be allowed.
I. JURISDICTION UNDER RULE 304(a)
I agree with Justice Appleton‘s opinion that we have jurisdiction under
I disagree with Justice Steigmann‘s special concurrence that we do not have jurisdiction under
When do we have the “multiple claims for relief” required for a
The supreme court has taken a broad view of what constitutes a “claim” under
All that is necessary for a
Under Cunningham and Heinrich, different theories of recovery were one way to show that different claims were involved, but not the only way. Later cases seem to have elevated the presence of different theories into an absolute requirement. “While the dismissed counts and the remaining counts deal with different acts or omissions, they advance the same theory of recovery—namely, negligence—and accordingly we conclude that the dismissal of counts VII and VIII did not determine the merits of a separate claim, and therefore is not a final order.” Rice, 230 Ill. App. 3d at 992, 596 N.E.2d at 108. I suggest that such rigidity is inappropriate. In the present case, the fact that the dismissed count sounded in negligence and the remaining counts sound in negligence should not bar a
Immediate appeal will certainly aid in the resolution of the present case. Consider how the amendment issue would have to be presented if we did not accept jurisdiction under
II. AMENDMENT UNDER SECTION 2—616(b)
Section
There is no “entirely distinct claim” in this case. Dr. Greenberg performed the colonoscopy on January 18, 2001. Drs. Orcutt and Tender performed the emergency surgery that same day. The events in the present case occurred during a single stay in the hospital, involved only a single patient, and occurred during a relatively brief period of time. (Plaintiff left the hospital on January 27, 2001.)
Section
The hospital‘s argument that “the original complaint did not focus on the actions of Greenberg but instead focused on the actions of Tender and Orcutt” (364 Ill. App. 3d at 420), is a formalistic pleadings
It is interesting to contrast the obligations imposed on plaintiffs to proceed with litigation despite their imperfect knowledge. There is a discovery rule that tolls the running of the statute of limitations; however, “[t]he rule does not mandate that a plaintiff know with precision the legal injury that has been suffered, but anticipates that plaintiff be possessed of sufficient information to cause plaintiff to inquire further in order to determine whether a legal wrong has occurred.” Martin v. A&M Insulation Co., 207 Ill. App. 3d 706, 710, 566 N.E.2d 375, 378 (1990). Just as precise knowledge should not be required for plaintiffs, precise knowledge should not be required for defendants.
I disagree 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 added.) McCorry, 332 Ill. App. 3d at 944, 775 N.E.2d at 599. Again, those statements take a view of pleadings that has now been discarded. “Today the function of informing an opponent of one‘s position is largely accomplished through discovery, a function that was largely fulfilled by the pleadings at an earlier time.” 3 R. Michael, Illinois Practice § 23.1, at 300 (1989) (Civil Procedure Before Trial); Wolf v. Meister-Neiberg, Inc., 143 Ill. 2d 44, 46-48, 570 N.E.2d 327, 328-29 (1991) (defendants provided with notice of correct
I disagree with the argument that if the amendment sets up a new theory or a new focus, it cannot be allowed. Illinois is a fact-pleading state. It is not necessary to plead any specific theory of recovery. “A complaint need only allege facts which establish the right to recovery; not only are allegations of law or conclusions not required, they are improper.” Illinois Graphics Co. v. Nickum, 159 Ill. 2d 469, 488-89, 639 N.E.2d 1282, 1291 (1994); 3 R. Michael, Illinois Practice § 24.2, at 340 (1989) (Civil Procedure Before Trial). “A motion to dismiss does not lie as long as a good cause of actiоn is stated even if that cause of action is not the one intended to be asserted by the plaintiff.” Illinois Graphics, 159 Ill. 2d at 488, 639 N.E.2d at 1291. Precise pleadings are not required. Amendment may be allowed “even though the original pleading was defective.”
Finally, what will now happen on remand under the majority‘s order? Will plaintiffs be limited in the evidence they present at trial? Will they be foreclosed from discussing the conduct of Dr. Greenberg? Will the damages be limited to that caused by the other defendants? I suggest not. The injury to Richard appears to be an indivisible one for which all defendants are jointly liable. See Burke v. 12 Rothschild‘s Liquor Mart, Inc., 148 Ill. 2d 429, 438-39, 593 N.E.2d 522, 525-26 (1992). Plaintiff is entitled to present a complete picture of his injury. Evidence of Dr. Greenberg‘s conduct would certainly be admissible to explain the conduct of the other defendants.