Grove v. Carle Foundation Hosp., 4-05-0488.

• Decision Date: 28 March 2006
• Docket Number: No. 4-05-0488.,4-05-0488.
• Citation: 846 N.E.2d 153
• Parties: Richard L. GROVE and Shirley T. Grove, Plaintiffs-Appellants, v. CARLE FOUNDATION HOSPITAL; Carle Clinic Association; Dr. David Orcutt; and Dr. Paul Tender, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

846 N.E.2d 153

Richard L. GROVE and Shirley T. Grove, Plaintiffs-Appellants, v. CARLE FOUNDATION HOSPITAL; Carle Clinic Association; Dr. David Orcutt; and Dr. Paul Tender, Defendants-Appellees.

No. 4-05-0488.

Appellate Court of Illinois, Fourth District.

Argued November 17, 2005.

Decided March 28, 2006.

Edward H. Rawles (argued), Rawles, O'Byrne, Stanko & Kepley, P.C., Champaign, for Richard L. Grove.

Bianca T. Green (argued), William J. Brinkmann, Thomas, Mamer & Haughey, Champaign, for Carle Foundation Hospital.

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 Ill.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 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 Greenberg, 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 Ill.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, 172 Ill.Dec. 826, 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, 117 Ill. Dec. 369, 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, 172 Ill.Dec. 826, 596 N.E.2d at 107 (1992), quoting 134 Ill.2d R. 304(a).

Defendants argue that the order denying plaintiff's motion for leave to amend is not a final order and is, therefore, not appealable. See Hull, 165 Ill. App.3d at 733, 117 Ill.Dec. 369, 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, 172 Ill.Dec. 826, 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, 117 Ill.Dec. 369, 520 N.E.2d at 721; see also Brown v. K.J.S. Co., 189 Ill.App.3d 768, 770, 136 Ill.Dec. 1031, 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, 182 Ill.Dec. 627, 610 N.E.2d 51, 63 (1992), citing St. Joseph Data Service, Inc. v. Thomas Jefferson Life, 73 Ill.App.3d 935, 938, 30 Ill.Dec. 575, 393 N.E.2d 611, 614 (1979). "The law is more than a game of semantics. * * * [F]inality 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' ...