Porter v. Decatur Memorial Hosp., 104441.

Citation882 N.E.2d 583,227 Ill.2d 343
Decision Date25 January 2008
Docket NumberNo. 104441.,104441.
PartiesLarry W. PORTER, Jr., Appellant, v. DECATUR MEMORIAL HOSPITAL et al. (Decatur Memorial Hospital, Appellee).
CourtSupreme Court of Illinois

Edward J. Kionka, Carbondale, Florence L. Bain, Ronald J. Kanoski, of Kanoski & Associates, Springfield, Kennith W. Blan, Jr., Danville, for appellant.

Samuels, Miller, Schroeder, Jackson & Sly, LLP, Decatur (Jerald E. Jackson, James T. Jackson, of counsel), for appellee.

OPINION

Chief Justice THOMAS delivered the judgment of the court, with opinion:

This appeal arises from a medical malpractice action filed in Macon County by plaintiff, Larry W. Porter, Jr. The primary issue for our review is whether count III of a second amended complaint, filed after the applicable statute of limitations expired, relates back to the timely filed previous complaints under section 2-616(b) of the Code of Civil Procedure (the Code) (735 ILCS 5/2-616(b) (West 2004)), so that the count is not time-barred. Under section 2-616(b), the key inquiry is whether the cause of action asserted in the newly filed pleading "grew out of the same transaction or occurrence" set up in the pleadings that were filed within the limitations period. 735 ILCS 5/2-616(b) (West 2004).

BACKGROUND

Plaintiff was involved in an automobile accident on January 12, 2001, at around 8 a.m. He suffered a spinal cord injury during the accident and was brought to the emergency room of Decatur Memorial Hospital (the Hospital) at about 8:30 a.m. that day. To monitor his neurological function, various tests and procedures were performed on plaintiff at the Hospital from the time he arrived until he was operated upon by Dr. Marie Long at 10 p.m. on January 13, 2001.

Plaintiff filed his original complaint on March 25, 2002. Count I of that complaint named Dr. Oliver Dold as a defendant and the Hospital as a respondent in discovery. Plaintiff alleged that Dr. Dold saw plaintiff in the Hospital emergency room around 11:30 a.m. on January 12, 2001. Dr. Dold diagnosed plaintiff as having an incomplete spinal cord injury and ordered him to be admitted to the intensive care unit. Dr. Dold further ordered that once the patient was stable from a pulmonary perspective and could be placed in the MRI scanner, an MRI scan should be done to determine whether any direct surgical intervention to the spine was necessary.

The original complaint further alleged that upon plaintiff's admission to the intensive care unit, Dr. Dold ordered that plaintiff's C collar and spine board be discontinued. Within three hours of ordering discontinuance of the C collar and spine board, plaintiff lost blood pressure and left leg function, which are symptoms of further spinal injury. Around 3 p.m. on January 12, 2001, Dr. Carol Cohen, a pulmonologist, ordered that plaintiff could undergo an MRI when Dr. Dold "wishes." At 4 p.m. on that same date, Dr. Dold ordered that an "MRI scan T spine" be conducted "either today or tomorrow."

The original complaint alleged that Dr. Dold was negligent in one or more of the following ways: (1) ordered a discontinuance of the plaintiff's C collar and spine board prior to the performance of the MRI; (2) discontinued spinal immobilization prior to fully appreciating the patient's spinal injury; (3) failed to obtain a timely MRI scan on January 12, 2001; and (4) failed to appreciate decreasing blood pressure and leg function as signs and symptoms of further spinal injury. As a direct result of these wrongful acts or omissions, the complaint continued, plaintiff suffered further spinal injury with loss of function in his legs.

Count II of the original complaint named the Hospital as a respondent in discovery, stating that plaintiff believed that the Hospital had essential information about additional defendants that should be named in the action.

Thereafter, the parties continued to conduct discovery in the case. Plaintiff took the deposition of Dr. Marie Long on September 9, 2002. Relevant to the issue presented in this case is her testimony with respect to a CT scan of plaintiff's cervical spine taken on January 12, 2001, and read and interpreted by Dr. Gordon Cross, a radiologist. Dr. Long stated that she looked at this CT scan on January 13, 2001, and that while she noticed that there was "a fracture to C5" she did not think that it was significant. She further stated that in her opinion the fracture shown on the CT scan did not explain the neurological deficits that she herself noted in the patient on the morning of January 13, 2001. Finally, she noted that a CT scan will not reliably reveal an injury to a disk. The proper procedure to diagnose a disc injury is an MRI.

On January 6, 2003, plaintiff filed a first amended complaint, repeating the allegations against Dr. Dold, but now naming the Hospital as a defendant. The first amended complaint alleged that, as a result of the wrongful acts and omissions of the Hospital, plaintiff's diminishing neurological function went undiagnosed and untreated, causing him to lose extremity function. Specifically, plaintiff alleged that around noon on January 12, 2001, Dr. Dold ordered neurological checks for plaintiff every hour and that those checks were to be performed by Hospital personnel. Plaintiff further alleged that the Hospital, through its employees and agents, breached its duty of care by failing to (1) perform thorough neurological checks every hour as ordered by Dr. Dold, (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. The amendment sought to add a new allegation to count I against Dr. Dold, alleging that he failed to recognize a fracture of the cervical spine on the CT scan performed on January 12, 2001.

The proposed second amended complaint also added a third count, which was directed against the Hospital. The third count alleged that plaintiff underwent a CT scan of the cervical spine on January 12, 2001, which was read and interpreted by Dr. Gordon Cross, a radiologist. Plaintiff asserted that Dr. Cross was an apparent agent of the Hospital. Plaintiff further alleged that the Hospital, through its agents and employees, breached its duty of care by one or more of the following acts or omissions: (1) failed to properly interpret the CT scan of plaintiff's cervical spine; (2) failed to appreciate cervical fractures revealed on that CT scan of the cervical spine; and (3) misread and misinterpreted the CT scan of the cervical spine. Finally, plaintiff alleged that as a result of these wrongful acts and omissions, his diminishing neurological function went undiagnosed and untreated, causing plaintiff to lose extremity function.

Plaintiff attached to his motion for leave to amend a Hospital radiology report of the January 12, 2001, CT scan, along with the discovery deposition of Dr. Leon Sykes, Jr., taken on January 21, 2004. The radiology report indicates that Dr. Cross read the CT scan of plaintiff's spine and found no fractures. Dr. Sykes, an associate professor of surgery at the Chicago Medical School, stated in his deposition that there are two fractures shown on plaintiff's CT scan that are "very evident." He further stated that the fractures unequivocally show that this patient had a cervical spine injury. According to Dr. Sykes, the fact that fractures were missed in the reading of the CT scan affected the entire management of the patient. If the CT scan had been read properly, it should have meant that the C collar should not have been removed and that an MRI should have been done early on to see where the spinal cord injury was occurring.

The Hospital objected to the motion for leave to amend, arguing that the claim against it based on the negligence of Dr. Cross was a new and different claim and therefore barred by the two-year statute of limitations set forth in section 13-212 of the Code (735 ILCS 5/13-212 (West 2004)). In response, plaintiff argued that count III of the second amended complaint met the requirements of section 2-616(b) of the Code to avoid the statute of limitations because the claim against the Hospital, based on the negligence of Dr. Cross, arose out of the same treatment as alleged in the original and first amended complaints. Plaintiff explained that the previous complaints put the Hospital on notice that he was asserting negligent treatment by the employees and agents of the Hospital in failing to appreciate and report diminishing neurological status. Count III of the second amended complaint, he maintained, merely sought to further identify the conduct of the Hospital in its failure to appreciate his diminishing neurological status by its agent's failure to interpret the CT scan.

The trial court allowed the motion to amend on August 10, 2004, and the second amended complaint was filed as of that date. On August 27, 2004, however, the Hospital filed a motion to dismiss count III of the second amended complaint pursuant to section 2-619 of the Code (735 ILCS 5/2-619 (West 2004)), again arguing that it was barred by the statute of limitations and that it did not relate back under section 2-616(b).

Following a hearing, the trial court this time decided that the allegations contained in count III did not relate back to the original counts plaintiff filed against the Hospital. The trial court found that the Hospital was not apprised of facts concerning the alleged medical malpractice of Dr. Cross before the running of the statute of limitations, neither by the allegations of the previous complaints nor by the depositions and exhibits. The court believed that the original, alleged liability of the Hospital was centered exclusively around the conduct of its nurses' failure...

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