ERIC OWENS, Plaintiff-Appellee, v. VHS ACQUISITION SUBSIDIARY NUMBER 3, INC., d/b/a Louis A. Weiss Memorial Hospital; VHS ACQUISITION SUBSIDIARY NUMBER 3, INC., d/b/a Vanguard Weiss Memorial Hospital; LEO DILAN, D.O.; AHMED RAZIUDDIN, M.D.; and SEEMA ELAHI, M.D., Defendants (Seema Elahi, M.D., Defendant-Appellant).
No. 1-16-1709
Appellate Court of Illinois, First District, Fifth Division
March 31, 2017
2017 IL App (1st) 161709
Hon. Moira S. Johnson, Judge, presiding.
Appeal from the Circuit Court of Cook County, No. 13-L-013786. Judgment: Certified question answered.
Stephanie B. Rubin and Emilio E. Machado, of Rubin, Machado & Rosenblum, Ltd., of Chicago, for appellee.
Justice Reyes concurred in the judgment and opinion.
Justice Lampkin dissented, with opinion.
OPINION
¶ 1 The instant interlocutory appeal arises from plaintiff Eric Owens’s lawsuit against the defendant hospital and its doctors concerning plaintiff’s care and treatment at the hospital’s emergency room in 2011. Plaintiff initially named Dr. Ahmed Raziuddin as a defendant in the suit as the physician who treated him in the emergency room, based on Dr. Raziuddin’s name appearing in the hospital’s records as the treating physician. However, Dr. Raziuddin filed a motion to dismiss the lawsuit, claiming that he was not the physician who treated plaintiff and that Dr. Seema Elahi was actually the treating physician. Plaintiff then amended his complaint, adding Dr. Elahi as a defendant. Dr. Elahi then filed a motion to dismiss the complaint, arguing that the statute of limitations had expired. The trial court denied the motion to dismiss, finding that the amended complaint related back to the initial filing of the complaint, but certified the question for review pursuant to
BACKGROUND
¶ 2 ¶ 3 On December 5, 2013, five days before the statute of limitations would have expired, plaintiff filed a complaint against the defendant hospital, Dr. Leo Dilan, and Dr. Ahmed Raziuddin, alleging negligence against each defendant and alleging that the named doctors were employees and/or agents of the defendant hospital. The complaint alleged that on December 10, 2011, and December 14, 2011, plaintiff was a patient in the hospital’s emergency department, where he was evaluated and treated “for complaints of body aches, malaise, chills and other signs and symptoms of major illness.” However, the complaint alleged that defendants failed to exercise reasonable care in providing medical care and treatment to plaintiff, causing plaintiff to be “severely and permanently injured and hospitalized during a later hospitalization at Swedish Covenant Hospital wherein he remained in critical condition from a pulmonary infection from pneumocystis jiroveci from which he sustained permanent damage and physical injury and will require continued medical care in the future.” Specifically, the complaint alleged that Dr. Dilan had committed medical negligence in his care and treatment of plaintiff on December 10, 2011, and that Dr. Raziuddin had committed medical negligence in his care and treatment of plaintiff on December 14, 2011.
¶ 5 On June 30, 2014, Dr. Raziuddin filed a motion for dismissal claiming noninvolvement pursuant to
¶ 6 Plaintiff was granted leave to amend his complaint to add Dr. Elahi as a defendant and, on July 21, 2014, plaintiff filed an amended complaint. The amended complaint added Dr. Elahi as a defendant and added a claim of medical negligence against her. In the count directed at Dr. Elahi, the amended complaint alleged that on December 14, 2011, Dr. Elahi was a physician and surgeon practicing emergency medicine in the State of Illinois and that “[a]t all times herein, Defendant, SEEMA ELAHI M.D, was the agent, servant and/or employee of Defendant, WEISS.” The amended complaint alleged that Dr. Elahi breached her duty to exercise reasonable care in providing medical treatment and care to plaintiff, causing him physical injury from a pulmonary infection.
¶ 7 On December 22, 2014, Dr. Elahi filed a motion to dismiss plaintiff’s amended complaint pursuant to sections
¶ 8 In response, plaintiff argued that under
¶ 9 Attached to plaintiff’s response was an exhibit consisting of six pages of plaintiff’s medical records. Five of the six pages contain an admitting date of December 14, 2011, and Dr. Raziuddin’s typed name as plaintiff’s admitting doctor.2 There is no doctor’s signature on any of the six pages.
¶ 10 In her reply, Dr. Elahi argued that plaintiff did not make a mistake concerning Dr. Elahi’s identity and, therefore,
¶ 11 Dr. Elahi further argued that, even if
¶ 12 Attached to Dr. Elahi’s reply was an exhibit that purported to be three additional pages of plaintiff’s medical records from his December 14, 2011, visit; all identifying information is redacted from the pages. On each page, there is a space for the signature of the attending physician, and a handwritten signature appears in that space; the signature is illegible. On the first page and the third page, there are also spaces for the attending physician’s printed name; a more legible name is handwritten in these two spaces but is still difficult to read.
¶ 13 On March 5, 2015, the trial court entered an order denying Dr. Elahi’s motion to dismiss plaintiff’s amended complaint.
¶ 14 On August 10, 2015, Dr. Elahi filed a motion to certify a question under
¶ 15 On September 9, 2015, Dr. Elahi filed an amended motion to certify a question under
“Whether an Amended Complaint against a new defendant filed after the applicable statute of limitations has expired relates back to plaintiff’s original Complaint where (a) the new defendant’s signature was in the medical records in plaintiff’s possession prior to filing his original Complaint, and (b) the new defendant had no knowledge that the action would have been brought against her, but for a mistake concerning her identity.”
¶ 16 On July 19, 2016, we allowed Dr. Elahi’s petition for leave to appeal, and this appeal follows.
ANALYSIS
¶ 18
¶ 19 Additionally, the appeal in the case at bar arises from the trial court’s denial of Dr. Elahi’s motion to dismiss the amended complaint under
¶ 20 On appeal, we are asked to consider whether plaintiff’s amended complaint relates back to the date of filing of the original complaint under the facts and circumstances of this case. Amendments to pleadings are governed by
“A cause of action against a person not originally named a defendant is not barred by lapse of time under any statute or contract prescribing or limiting the time within which an action may be brought or right asserted, if all the following terms and conditions are met: (1) the time prescribed or limited had not expired when the original action was commenced; (2) the person, within the time that the action might have been brought or the right asserted against him or her plus the time for service permitted under
Supreme Court Rule 103(b) , received such notice of the commencement of the action that the person will not be prejudiced in maintaining a defense on the merits and knew or
should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him or her; and (3) it appears from the original and amended pleadings that the cause of action asserted in the amended pleading grew out of the same transaction or occurrence set up in the original pleading, even though the original pleading was defective in that it failed to allege the performance of some act or the existence of some fact or some other matter which is a necessary condition precedent to the right of recovery when the condition precedent has in fact been performed, and even though the person was not named originally as a defendant. For the purpose of preserving the cause of action under those conditions, an amendment adding the person as a defendant relates back to the date of the filing of the original pleading so amended.”
735 ILCS 5/2-616(d) (West 2012).
In the case at bar, the first and third elements are not contested. The statute of limitations had not expired at the time of the filing of plaintiff’s initial complaint, and the cause of action in the amended pleading arose from the same occurrence as that alleged in the initial complaint. Thus, our analysis centers on the second element: whether “the person, within the time that the action might have been brought or the right asserted against him or her plus the time for service permitted under
¶ 21 The certified question on appeal concerns two parts of section 2-616(d)’s second element: whether there was a “mistake” as contemplated by
I. Mistake
A. Analysis of Section 2-616(d)
¶ 24 As an initial matter, we must discuss Dr. Elahi’s suggestion that there is confusion over the proper analysis to use in considering whether there is a mistake for the purposes of relation back under
¶ 25 In Borchers v. Franciscan Tertiary Province of the Sacred Heart, Inc., 2011 IL App (2d) 101257, ¶ 42, the Second District explained the history of
¶ 26 “The language of the amended
¶ 27 “Where a provision of the Illinois Code of Civil Procedure is patterned after a Federal Rule of Civil Procedure, federal cases interpreting the federal rule are persuasive authority with regard to the application of the Illinois provision.” Borchers, 2011 IL App (2d) 101257, ¶ 45. Thus, with respect to
¶ 28 While there has been no Illinois Supreme Court case interpreting
¶ 29 In Krupski v. Costa Crociere S.p.A., 560 U.S. 538, 547 (2010), the United States Supreme Court resolved a split among federal courts concerning the breadth of
¶ 30 Following the United States Supreme Court’s decision in Krupski, our Illinois appellate courts have adopted the same analysis. See, e.g., Zlatev, 2015 IL App (1st) 143173, ¶ 31 (finding Krupski “persuasive in interpreting Illinois’s relation-back provision“); Mann v. Thomas Place, L.P., 2012 IL App (1st) 110625, ¶ 25 (relying on Krupski to find that the relevant issue with respect to knowledge is not what the plaintiffs knew but what the defendants knew); Borchers, 2011 IL App (2d) 101257, ¶ 52 (finding that “the principles stated in Krupski apply equally here“); Maggi, 2011 IL App (1st) 091955, ¶¶ 33, 37 (relying on Krupski to find that there was a mistake and that the proper focus was the defendant’s knowledge of the mistake). “Thus, when evaluating a mistake under
¶ 31 We note that, while some courts have expressly considered the issue of whether there was a mistake as a threshold issue prior to determining whether the requirements of
¶ 32 We further see no merit to Dr. Elahi’s attempt to sow confusion by pointing to statements in certain cases that appear to focus on the plaintiff’s intent. For instance, Dr. Elahi points to the Zlatev court’s finding that a plaintiff’s lack of knowledge regarding a party’s involvement in the wrongdoing may constitute a mistake for purposes of
B. Mistake as to Treating Doctor
¶ 34 Turning, then, to the application of the law to the instant case, we must consider the first part of the certified question, which asks whether
¶ 35 First, as the Supreme Court noted, the applicable rule “asks what the prospective defendant knew or should have known during the [period for service of process], not what the plaintiff knew or should have known at the time of filing her original complaint. Information in the plaintiff’s possession is relevant only if it bears on the defendant’s understanding of whether the plaintiff made a mistake regarding the proper party’s identity.” (Emphases in original.) Krupski, 560 U.S. at 548. Thus, the question is not what plaintiff knew, but what Dr. Elahi knew or should have known.
¶ 36 In determining whether there has been a mistake, we may examine the allegations of the original complaint as objective manifestations of the plaintiff’s intent in filing the lawsuit. See, e.g., Maggi, 2011 IL App (1st) 091955, ¶ 33 (looking to the language of the complaint); Krupski, 560 U.S. at 554-55 (“Because the complaint made clear” that the plaintiff meant to sue the company that owned, operated, managed, supervised, and controlled the ship, the defendant should have known that it was not named only because the plaintiff made a mistake as to the proper party’s identity). In the case at bar, plaintiff’s original complaint alleged that “[o]n December 14, 2011 and thereafter, Defendant, AHMED RAZIUDDIN M.D., provided medical care and services to the Plaintiff, ERIC OWENS” and owed plaintiff a duty to exercise reasonable care in providing him medical care and treatment. However, the complaint alleged that Dr. Raziuddin failed to do so by “[c]arelessly and negligently provid[ing] treatment and/or care to the Plaintiff that was below the applicable standard of care” by failing to take a proper
¶ 37 Furthermore, we cannot ignore the fact that the record reveals that the reason that plaintiff named Dr. Raziuddin as his physician was because Dr. Raziuddin’s name was listed on plaintiff’s medical records as his doctor on the date at issue by the hospital staff. In other words, it was the hospital itself which misled plaintiff and lulled him into believing that Dr. Raziuddin was his treating physician. Dr. Raziuddin’s typed name was included as plaintiff’s physician on a hospital printout containing “Admit Information,” and was included on a barcode of plaintiff’s patient information that was affixed to his medical records. Thus, the hospital’s official records led plaintiff to believe that Dr. Raziuddin was, in fact, the doctor who treated him. Dr. Elahi points to the fact that her name “appears in the medical records from that day” as evidence that plaintiff purposely chose not to file suit against her. However, these are all places in which her name is handwritten and illegible. Even on the pages that contain spaces for the attending physician’s printed name, the handwritten name is still difficult to read.
¶ 38 Moreover, “[t]hat a plaintiff knows of a party’s existence does not preclude her from making a mistake with respect to that party’s identity.” Krupski, 560 U.S. at 549. Thus, even if plaintiff had been able to read Dr. Elahi’s name in the few places it appears, that does not mean that plaintiff would necessarily have known that Dr. Elahi was his treating physician as a result of the hospital’s wrongful printout and misleading information. Plaintiff’s attorney would then have been confronted with a signature in a few places that, if readable, would be conflicting with the typed barcode affixed to his medical records that identified a different physician. “[A] plaintiff might know that the prospective defendant exists but nonetheless harbor a misunderstanding about his status or role in the events giving rise to the claim at issue, and she may mistakenly choose to sue a different defendant based on that misimpression. That kind of deliberate but mistaken choice does not foreclose a finding” of mistake. Krupski, 560 U.S. at 549. Thus, plaintiff’s naming Dr. Raziuddin as a defendant does not foreclose a finding that there was a mistake, even if Dr. Elahi’s name was identifiable in portions of plaintiff’s medical records. Here, Dr. Elahi, as the treating physician in question, should have known that she was the person plaintiff would sue once she reviewed the medical records.4
¶ 40 In the case at bar, by contrast, there is no indication that plaintiff always intended to sue Dr. Raziuddin and only later decided that Dr. Elahi was additionally responsible. Instead, the allegations of the complaint make clear that plaintiff intended to sue the physician who treated him, who he mistakenly believed was Dr. Raziuddin based on false information contained in the hospital records. Once he discovered that Dr. Elahi was actually the physician who treated him, he sought to add her as a defendant. Again, Dr. Elahi should have known that plaintiff only named Dr. Raziuddin due to his misapprehension as to the identity of his treating doctor. Accordingly, we find that
II. Notice
¶ 42 The second part of the certified question asks whether
¶ 43 As noted, the second element of
¶ 44 There are two Illinois cases discussing section 2-616(d)’s notice requirement, both of which rely on federal case law for guidance due to the similarity between
¶ 45 “Constructive notice occurs where a defendant does not receive notice of an impending lawsuit, but due to its relationship with an entity that received actual notice, knowledge of the action is imputed to the defendant for purposes of adding it as a new party.” Polites, 361 Ill. App. 3d at 90. “Under federal law, there are three ways to establish constructive notice: (1) notice via sharing an attorney with the original defendant [citation]; (2) notice via an identity of interest with the original defendant [citation]; or (3) notice via someone who handles the would-be defendant’s insurance claims [citations].” Polites, 361 Ill. App. 3d at 90-91.
¶ 46 We first consider whether the shared-attorney method of notice would be applicable to the case at bar. “The ‘shared attorney’ method of imputing *** notice is based on the notion that, when an originally named party and the party who is sought to be added are represented by the same attorney, the attorney is likely to have communicated to the latter party that he may very well he joined in the action.” Singletary v. Pennsylvania Department of Corrections, 266 F.3d 186, 196 (3d Cir. 2001). “In order to support an argument that knowledge of the pendency of a lawsuit may be imputed to a defendant or set of defendants because they have the same attorney(s), there must be some showing that the attorney(s) knew that the additional defendants would be added to the existing suit.” Gleason v. McBride, 869 F.2d 688, 693 (2d Cir. 1989); Scott v. Village of Spring Valley, 577 F. App’x 81, 82 (2d Cir. 2014) (summary order).
¶ 47 In the case at bar, plaintiff alleges that Dr. Raziuddin, Dr. Elahi, and Dr. Dilan (who was sued for his treatment of plaintiff on December 10, 2011) were employees or agents of the defendant hospital, and we must take these allegations as true at this stage of the proceedings.7
In medical malpractice cases against hospitals and employee physicians, the hospital’s insurance company, or its administrator of a self-insurance program, retains a law firm to represent the individual doctors who are employed as agents or employees and are named in the complaint. The record reveals, and Dr. Elahi does not dispute, that Dr. Elahi is represented by the same counsel that initially represented Dr. Raziuddin and continues to represent8 Dr. Dilan. Furthermore, not only is Dr. Elahi represented by the same law firm as the original defendants, she is also represented by at least some of the same individual attorneys. These attorneys would have known, during the statutory period, that Dr. Raziuddin was not plaintiff’s treating physician and that Dr. Elahi, the only other physician working in the emergency room on December 14, 2011, was actually plaintiff’s treating physician. Thus, they would have known that Dr. Elahi would be added to the lawsuit once plaintiff discovered his mistake. See Gleason, 869 F.2d at 693. Moreover, as the counsel retained on behalf of all of the individual doctors, the attorneys would also have known that they would be retained to represent Dr. Elahi.
¶ 48 Dr. Elahi claims that the knowledge of these attorneys cannot be imputed to her because she did not have any contact with them until she was served with the amended complaint on September 16, 2014, after the expiration of the limitations period. However, “the fundamental issue here is whether the attorney’s later relationship with the newly named defendant gives rise to the inference that the attorney, within the [period for service], had some communication or relationship with, and thus gave notice of the action to, the newly named defendant.” Singletary, 266 F.3d at 196-97. Here, as counsel for all of the individual doctors, the attorneys who later represented Dr. Elahi could have had “some *** relationship with” (Singletary, 266 F.3d at 196) Dr. Elahi even before they were formally retained to represent her such that notice can be imputed to her. A finding otherwise would encourage a law firm in such a situation to intentionally forego informing a known future client of a lawsuit against her, despite counsel being fully aware that the lawsuit would be imminent, in hopes that the lawsuit would be dismissed on statute of limitations grounds. Such procedural gamesmanship does not comport with our courts’ interpretation of
¶ 49 We are not persuaded by Dr. Elahi’s attempt to analogize her situation to that present in Borchers. There, the appellate court found that there was no notice because, although the new defendant was represented by the same counsel as her employer, “there [was] no evidence that she communicated with [the employer’s] attorneys about the suit within the statutory period.” Borchers, 2011 IL App (2d) 101257, ¶ 60. However, Borchers involved a different type of “mistake” than is present in the case at bar; there, the mistake was the failure to name all of the individuals involved in causing the plaintiff’s injury while, here, the mistake was the identity of the treating physician. The “shared attorney” is different as well; there, the shared attorney
¶ 50 We also note that Dr. Elahi could have also received constructive notice through an identity of interest. “We also will impute notice if the parties are so closely related in their business operations or other activities that filing suit against one serves to provide notice to the other of the pending litigation.” Garvin v. City of Philadelphia, 354 F.3d 215, 227 (3d Cir. 2003). Here, the amended complaint alleges that, “[a]t all times herein, Defendant, SEEMA ELAHI M.D, was the agent, servant and/or employee of Defendant, WEISS.” Thus, we must consider whether plaintiff’s allegation that Dr. Elahi was an agent of the defendant hospital is sufficient to provide Dr. Elahi with constructive notice of the original lawsuit.
¶ 51 An employee can receive constructive notice through his or her employer, but it is a fact-specific inquiry as to whether such constructive notice should be imputed. “[A]bsent other circumstances that permit the inference that notice was actually received, a non-management employee *** does not share a sufficient nexus of interests with his or her employer so that notice given to the employer can be imputed to the employee for [relation-back] purposes.” Singletary, 266 F.3d at 200. For instance, in Singletary, the facts present in that case led the Third Circuit Court of Appeals to conclude that a prison psychologist did not receive constructive notice through the filing of a lawsuit against the prison because the psychologist “was a staff level employee at [the prison] with no administrative or supervisory duties at the prison. Thus, [his] position at [the prison] cannot alone serve as a basis for finding an identity of interest, because [the psychologist] was clearly not highly enough placed in the prison hierarchy for us to conclude that his interests as an employee are identical to the prison’s interests.” Singletary, 266 F.3d at 199; see also Borchers, 2011 IL App (2d) 101257, ¶ 60 (finding no constructive notice where the newly added defendant “was a nonmanagerial employee whose awareness of the suit cannot be presumed from [her employer’s or her supervisor’s] knowledge“). By contrast, in Ayala Serrano v. Lebron Gonzalez, 909 F.2d 8, 12-13 (1st Cir. 1990), the First Circuit Court of Appeals concluded that a prison officer received constructive notice sufficient for the relation-back doctrine where his supervisors were named in the complaint and he was present during the alleged assault on the plaintiff.
¶ 52 In the case at bar, the record does not provide sufficient information to resolve this factual issue. Plaintiff has alleged that Dr. Elahi was an “agent, servant and/or employee” of the defendant hospital, and the record reveals that Dr. Elahi was one of two emergency room physicians working at the defendant hospital emergency room on December 14, 2011. This is simply not enough information to draw any conclusions as to Dr. Elahi’s position within the hospital, her level of responsibility, her duties, or her interactions with Dr. Raziuddin, all of which would be relevant to the determination of whether notice should be imputed. Thus, it
¶ 53 Finally, although it was not developed by the parties in the case at bar, notice may be imputed via someone who handles the defendant’s insurance claims. See Polites, 361 Ill. App. 3d at 91. We can take judicial notice that all physicians or hospitals have medical malpractice insurance or are covered by self-insurance administered by professionals under the same programs used by insurance companies. It is the insurance companies or the self-insurance administrators that retain the lawyers. It is the insurance companies or self-insurance administrators that plaintiffs’ lawyers contact and negotiate with before they file suit. Whatever knowledge the insurance company or self-insurance administrator had in this case was not developed by plaintiff in the case at bar. The insurance company or self-insurance administrator would be the agent of the physician, and any knowledge they have would be imputed to their insured. See Korn v. Royal Caribbean Cruise Line, Inc., 724 F.2d 1397, 1401 (9th Cir. 1984) (finding constructive notice to the insured where the insurance company who handled its personal injury claims had knowledge of the suit).
¶ 54 In the case at bar, once a notice of attorney’s lien was served on Dr. Raziuddin and/or the hospital, that notice of attorney’s lien would have been sent to the insurance company or administrator of a self-insurance program for the hospital and Dr. Raziuddin and a claim file would have been created and the matter investigated. The knowledge of the insurance company or administrator of self-insurance claims could be imputed to Dr. Elahi. Again, this factual issue was not sufficiently developed for us to make any determination.
¶ 55 In conclusion, we answer the second part of the certified question in the affirmative: a defendant may receive notice under
CONCLUSION
¶ 57 For the reasons set forth above, plaintiff’s omission of Dr. Elahi as a defendant can be considered a mistake for purposes of applying
¶ 58 Certified question answered.
¶ 59 JUSTICE LAMPKIN, dissenting.
¶ 60 I respectfully dissent. I would decline to address the certified question. Although defendant Dr. Elahi attempted to frame the certified question as a question of law, the resolution of the question involves merely the application of the law to the facts of the instant case. See Thomas
¶ 61
¶ 62 The circuit court’s denial of Dr. Elahi’s motion to dismiss the amended complaint as barred by the statute of limitations was based on the application of