RICHARD L. GROVE et al., Plaintiffs-Appellants, v. CARLE FOUNDATION HOSPITAL et al., Defendants-Appellees, 364 Ill. App. 3d 412

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 Supreme Court Rule 304(a) (155 111. 2d R. 304(a)). Plaintiffs appeal, seeking reversal of the trial court’s order of March 1, 2005. We affirm. I. BACKGROUND 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 plaintiffs 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 surgeiy 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 application 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. 735 ILCS 5/2 — 616(b) (West 2004). 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 order that had previously required all discovery to be completed by February 5, 2005, allowing more time for further discovery. 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 Supreme Court Rule 304(a) (155 111. 2d R. 304(a)). 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 Supreme Court Rule 304(

a) to review the denial of plaintiffs’ motion to amend the complaint. 155 Ill. 2d R. 304(a). 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). Rule 304(

a) permits appeals from orders that do not dispose of an entire proceeding: “ ‘If multiple parties or multiple claims for relief are involved in an action, an appeal 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 Rule 304(

a) does not enable a trial court to confer appellate jurisdiction simply by using the Rule 304(

a) language that there is no just reason for delaying enforcement or appeal. Rice, 230 Ill. App. 3d at 991, 596 N.E.2d at 107. Further, we recognize that stating 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. Hull, 165 Ill. App. 3d at 733-34, 520 N.E.2d at 721; see also Brown v. K.J.S. Co., 189 Ill. App. 3d 768, 770, 545 N.E.2d 555, 556 (1989).

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 Rule 304(a). None of the cases cited by defendants involves a ruling as to finality on a motion for leave to amend. The Illinois Supreme Court has long recognized that substance, not form, determines whether an order is final. Pfaff v. Chrysler Corp., 155 Ill. 2d 35, 62-63, 610 N.E.2d 51, 63 (1992), citing St. Joseph Data Service, Inc. v. Thomas Jefferson Life, 73 Ill.

App. 3d 935, 938, 393 N.E.2d 611, 614 (1979). “The law is more than a game of semantics. *** [FJinality of the judgment or order depends on the basis and substance of the dismissal and the effect of the adjudication.” (Emphasis added.) Martin v. Masini, 90 Ill. App. 2d 348, 354, 232 N.E.2d 770, 773 (1967). 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 Rule 304(a), and we deny defendants’ motion to dismiss the appeal. 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 opposing party, (3) whether the proposed amendment was timely filed, and (4) whether the moving party had previous opportunities to amend the complaint. 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).

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 occurrence set up in the original pleading. 735 ILCS 5/2- — 616(b) (West 2004).

Additionally, a “pleading may be amended at any time, before or after judgment, to conform the pleadings to the proofs, upon terms as to costs and continuance that may be just.” 735 ILCS 5/2 — 616(c) (West 2004). 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 2- — 616(c). We do not find adequate grounds, under the authority of

section 2 — 616(c), to interfere with the trial court’s discretion in denying the amendment. Case law presented by plaintiffs in support of allowing the amendments under

section 2 — 616(

c) is not persuasive as applied to the facts of the instant case. See Lee v. Chicago Transit Authority, 152 Ill. 2d 432, 605 N.E.2d 493 (1992); Mills v. County of Cook, 338 Ill. App. 3d 219, 788 N.E.2d 169 (2003); Zook v. Norfolk & Western Ry. Co., 268 Ill. App. 3d 157, 642 N.E.2d 1348 (1994); Giacalone v. Chicago Park District, 231 Ill. App. 3d 639, 596 N.E.2d 731 (1992). Amendments conform the pleadings to the proofs, and are allowed pursuant to

section 2 — 616(c), if the evidence that supports the amendments is “inextricably intertwined” with evidence relating to other alleged acts and omissions already alleged in the original complaint. Zook, 268 Ill. App. 3d at 167, 642 N.E.2d at 1356. Thus, the focus is on whether the amendment alters the nature and quality of proof required for the defendant to defend itself. Lee, 152 Ill. 2d at 469, 605 N.E.2d at 509. The proposed amendment in the present case would require defendants to produce different testimony than the testimony required to defend against the original complaint.

Allegations in the original complaint required defendants to defend themselves against the claim that the treatment of plaintiff by Dr. Tender and Dr. Orcutt, including plaintiffs infection, fell below the reasonable standard of care. Thus, defendants would need to present evidence relating to the original alleged acts or omissions of failure to perform a deep-tissue culture, failure to administer type-IV antibiotics for longer than three days, and failure to place plaintiff on oral antibiotics at discharge.

Such testimony would inevitably include testimony from surgical and infectious disease experts regarding Dr. Tender’s and Dr. Orcutt’s treatment of plaintiffs infection. In contrast, evidence supporting the allegations contained in the proposed amendment would at the very least require (1) testimony regarding Dr. Greenberg’s training, skills, and experience to determine if the procedure was “beyond the scope of his skills or medical specialty” and (2) testimony regarding the wire snare’s design and intended purpose.

The evidence supporting the amendment is not “inextricably intertwined” with the evidence supporting the alleged negligent acts or omissions already present in the original complaint. See Zook, 268 Ill. App. 3d at 167, 642 N.E.2d at 1356. Plaintiffs argue, in the alternative, that

section 2 — 616(

b) provides an avenue by which the proposed amendment should have been allowed.

Section 2 — 616(

b) does not require that the amendment state the same cause of action as the original pleading, or even a substantially similar cause of action; rather, the test is whether the amended pleadings state 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).

Section 2 — 616(

b) aims to limit the danger of prejudice to the nonmoving party in a motion for leave to amend the complaint while still providing claimants an opportunity to fully present their cause or causes of action: a defendant will not be “ ‘prejudiced so long as his attention [is] directed, within the [statute-of-limitations period], to the facts that form the basis of the claim asserted against him.’ ” Zeh, 111 Ill. 2d at 273, 489 N.E.2d at 1345, quoting Simmons v. Hendricks, 32 Ill. 2d 489, 495, 207 N.E.2d 440, 443 (1965).

The true inquiry, in this careful balance of interests, is whether the plaintiff is “ ‘attempting to slip in an entirely distinct claim in violation of the [statute] of *** limitations act.’ ” Simmons, 32 Ill. 2d at 497, 207 N.E.2d at 444, quoting O. McCaskill, Illinois Civil Practice Act Annotated 126-27 (Supp. 1936). Defendant Carle Foundation Hospital argues that it is prejudiced because the original complaint did not focus on the actions of Green-berg but instead focused on the actions of Tender and Orcutt. The original complaint pleaded that the first surgery was performed by Dr.

Greenberg on January 18, 2001, and that it was the initial occurrence for the events that led up to the infection at issue. The original complaint dates the Greenberg surgery as occurring on January 18, 2001; dates the plaintiffs hospitalization between January 18, 2001, and January 27, 2001; and dates the infection as occurring sometime between January 18, 2001, and January 27, 2001. Also, the original complaint indicated that “complications” arose during the colonos-copy performed by Dr.

Greenberg and that, because things did not go as planned, “further surgery was required.” 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 plaintiffs 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 colonoscopy, 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 a preoperative MRI. The plaintiff then underwent surgery to alleviate pain from disc herniations at two locations. When the plaintiff woke from surgery, plaintiff was unable to move his legs. Agents of the defendant hospital then performed a postoperative MRI. McCorry, 332 Ill. App. 3d at 938, 775 N.E.2d at 594. The plaintiff sued the hospital for negligence under a theory of respondeat superior. McCorry, 332 Ill.

App. 3d at 938, 775 N.E.2d at 595. The original complaint referenced only the preoperative MRI and alleged that it had been misread and misinterpreted. McCorry, 332 Ill. App. 3d at 938, 775 N.E.2d at 594. After the statute of limitations had passed, the plaintiff moved to file an amended complaint, which added a new count for direct liability against the hospital for failure to have certain policies regarding transmittal of postoperative MRI evaluations and for failure to timely perform and interpret the plaintiffs postoperative MRI. McCorry, 332 Ill. App. 3d at 938, 775 N.E.2d at 598.

In holding that the amended complaint did not relate back to the original complaint, the MeCorry court noted that the original complaint did not even assert that the plaintiff had a postoperative MRI. McCorry, 332 Ill. App. 3d at 944, 775 N.E.2d at 599. As in MeCorry, the claim arising from Dr. Green-berg’s colonoscopy and the subsequent surgery by Dr. Tender and Dr. Orcutt are not of the same causative and interrelated nature. The plaintiff in MeCorry was already paralyzed before the postoperative MRI took place. 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 plaintiffs 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 plaintiffs 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 replaced it with a completely different allegation. Bailey, 170 Ill. App. 3d at 794, 525 N.E.2d at 280. The amended complaint in the instant case did not drop any of the substantive allegations of the original; rather, the amended complaint alleged that acts or omissions already described in the original complaint did in fact constitute negligence. The reference in the original complaint to the colonoscopy performed by Dr. Greenberg serves only to set out a historical fact.

It does not establish a single cause of ongoing treatment for which defendant Carle was put on notice as to its potential liability. 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.