LARRY W. PORTER, JR., Plaintiff-Appellant, v. DECATUR MEMORIAL HOSPITAL et al., Defendants-Appellees, 372 Ill. App. 3d 310

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 plaintiffs 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 complaint 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 plaintiffs C collar and spine board prior to performing a magnetic resonance imaging (MRI); (2) discontinued spinal immobilization prior to fully appreciating plaintiffs 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 performed 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 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 assessments 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 neurological 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 plaintiffs motion. On August 10, 2004, the trial court allowed the motion and ordered plaintiff’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 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 plaintiffs 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 plaintiffs 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 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 entire 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 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 technicalities.” Grove, 364 Ill. App. 3d at 417, 846 N.E.2d at 158.

There is, however, no absolute right to amend a complaint (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 amend but then reconsidered and reversed that decision based upon a reinterpretation of the statute. He maintains that the

interpretation 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 appropriate 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 plaintiffs motion for leave to amend. That is the decision that is subject to review, and the appropriate standard of review in such instances is the abuse-of-discretion standard. Moreover, we do not find that this issue involves matters of statutory

interpretation. 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 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 pleading 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 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 complaint 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 plaintiffs original complaint alleged negligence against the doctors who performed the emergency surgery and treated the plaintiffs 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 negligence 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 plaintiffs 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 alleged in the original pleading, we noted that the amendment sought to add a completely distinct procedure to the plaintiffs 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 útero, the condition went undiagnosed, and the baby died during delivery. The plaintiffs sole allegation against the hospital in each of her timely filed pleadings was that it “ ‘[flailed to implement and/or enforce a policy requiring a permanent radiographic image of all ultrasound sonogram examinations be maintained.’ ” 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 allegations 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 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 plaintiffs 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 injured. 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 conditions 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 “[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] plaintiffs 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 plaintiffs 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, although 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. 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.

Common, 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. Common, 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. Common, 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 administering the drug Dilaudid. Common, 301 Ill. App. 3d at 943, 704 N.E.2d at 734.

The hospital filed a motion to dismiss the additional counts, alleging they were time barred, and the trial court granted its motion. Common, 301 Ill. App. 3d at 943, 704 N.E.2d at 734-35. In reaching its decision, the First District noted that the plaintiffs 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. Common, 301 Ill. App. 3d at 945, 704 N.E.2d at 735-36. The court found the hospital’s analysis too restrictive and the plaintiffs analysis too encompassing. Common, 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 respiratory status in any way contributed to his injury or death. Common, 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 original complaint or the record. Common, 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 information 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 transaction 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 plaintiffs claims stemmed from his hospitalization following his automobile accident and his resultant condition of incomplete quadriplegia, the new allegations in his second amended complaint did not grow out of the same transaction 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 plaintiffs later claim that Dr. Cross had improperly interpreted a CT scan of plaintiffs 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 plaintiffs 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 plaintiffs spine films, including the CT scan of his cervical spine, which was normal. Her testimony was not sufficient to put the hospital on notice of plaintiffs 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 plaintiffs 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.