First Division

March 31, 2003

JUSTICE O'MALLEY delivered the opinion of the court:

Plaintiff, Sophia Marie Castro, appeals from the trialcourt's grant of dismissal as to portions of count III and countIV of her fourth amended complaint against defendants, FamilyMedicine Specialists, Inc. (Family Medicine) and John B.Bellucci, M.D. For the reasons that follow, we reverse thejudgment of the trial court and remand for further proceedings.

The facts necessary to our resolution of this appeal are asfollows. On May 7, 1996, Castro had an initial office visit withDr. Jennifer Bellucci-Jackson for dysfunctional uterine bleeding. Although Dr. Bellucci-Jackson did not take a complete history orperform a complete physical, she was made aware that Castro wasexperiencing painful headaches. Dr. Bellucci-Jackson scheduledCastro for a pelvic ultrasound. On May 12, Castro experienced asevere headache and dizziness, pursuant to which she was taken tothe emergency room of Elmhurst Memorial Hospital. There, she wasevaluated and subsequently discharged.

On May 14, as a follow-up to both her emergency room visitand her May 7 visit with Dr. Bellucci-Jackson, Castro saw Dr.John Bellucci, one of Dr. Bellucci-Jackson's partners at FamilyMedicine. Dr. Bellucci was made aware of Castro's headaches andrelated symptoms.

On May 15, Castro's mother, Stella Herrick, telephoned Dr.Bellucci-Jackson and informed her that Castro was suffering froma severe headache and dizziness. Mrs. Herrick wanted to takeCastro to a chiropractor; Dr. Bellucci-Jackson stated that shedid not know of one to suggest for referral purposes. Later thatday, Castro saw W. John Cox, D.C., and underwent cervicalmanipulation. Castro, who was 31 at the time, subsequentlysuffered a stroke.

On July 15, 1996, Castro filed a complaint at law againstDr. Cox and John Cox Chiropractic, Ltd., in which she allegedthat Dr. Cox negligently failed to perform a neurologic examprior to administering cervical manipulation. Castro filed afirst amended complaint on May 12, 1998. Relevant to ourdecision here, in her first amended complaint, Castro named Drs.Bellucci and Bellucci-Jackson as respondents in discovery.⁽¹⁾ Bothwere subsequently deposed.

On February 11, 1999, Castro filed a second amendedcomplaint, in which she converted Dr. Bellucci to a defendant onthe basis of the May 14, 1996, visit. Specifically, Castroalleged in count VII of that complaint that Dr. Bellucci wasnegligent in one or more of the following respects:

"(a) [he] failed to perform appropriate neurologic examination on SOPHIA prior to chiropractic treatment; or

(b) [he] failed to refer SOPHIA to a neurologist; or

(c) [he] was otherwise negligent in treating SOPHIA."

Family Medicine was also named as a defendant, based upon itsagency relationship with Dr. Bellucci.⁽²⁾ On April 16, 1999, Dr.Bellucci-Jackson was dismissed from the case.

On August 10, 2001, Castro filed a fourth amended complaint.The initial counts are essentially the same as the second amendedcomplaint in that they are directed against Family Medicinethrough its agent, Dr. John Bellucci. Count III includes thefollowing allegations: Castro's May 13 appointment with Dr.Jennifer Bellucci-Jackson was changed to May 14 at a differentlocation; on May 14 Castro was evaluated by Dr. Bellucci; Dr.Belluci was negligent in his diagnosis and treatment on May 14and those negligent acts were the direct and proximate cause ofCastro's injuries. Count IV, however, is different in that 16 paragraphs of count IV make specific reference to allegedlynegligent conduct on the part of Dr. Jennifer Bellucci-Jackson ondates in May 1996, when she either saw plaintiff or spoke withher mother on the phone. These allegations are identical or atleast substantially the same (i.e. failing to diagnose and treatsymptoms of potential stroke) as those alleged against hercolleague, Dr. John Bellucci. Count IV alleges that FamilyMedicine, through its agents, was negligent in one or more of thefollowing respects:

"(a) failing to refer SOPHIA to a neurologist; or

(b) failing to properly diagnose Sophia's condition; or

(c) failing to properly evaluate and assess Sophia's condition; or

(d) [was] otherwise negligent in treating SOPHIA."

The physician's certificate of merit attached to the fourthamended complaint identifies the conduct of Dr. JenniferBellucci-Jackson as the basis of the amended claims againstFamily Medicine.

Family Medicine moved to dismiss those portions of count IIIthat made reference to physicians other than Dr. John Bellucciand dates other than May 14, 1996, and count IV in its entirety,on the grounds that these claims are barred by the applicablestatutes of limitations and repose. On November 13, 2001, thetrial court granted that motion with prejudice pursuant tosection 2-619(a)(5) of the Code of Civil Procedure (the Code),finding that the claims at issue are time-barred. 735 ILCS 5/2-619(a)(5) (West 1998).

On January 30, 2002, the trial court granted plaintiff'srequest for a finding pursuant to Supreme Court Rule 304(a) (155Ill. 2d R. 304(a)) that there was no just reason to delayenforcement or appeal of the November 13 order of dismissal.

In this timely appeal, Castro contends that the trialcourt's dismissal of portions of count III and all of count IVwas in error, because the claims at issue relate back to thetimely filed second amended complaint under section 2-616(b) ofthe Code. 735 ILCS 5/2-616(b) (West 1998).

Review of a trial court's order granting dismissal pursuantto section 2-619 is de novo. Epstein v. Chicago Board ofEducation, 178 Ill. 2d 370, 383 (1997). The question on appealis "whether the existence of a genuine issue of material factshould have precluded the dismissal or, absent such an issue offact, whether dismissal is proper as a matter of law." Kedzie &103rd Currency Exchange v. Hodge, 156 Ill. 2d 112, 116-17 (1993). The statute of limitations for a medical malpractice actionis found in section 13-212(a) of the Code and provides:

"[N]o action for damages for injury or death against any physician *** arising out of patient care shall be brought more than 2years after the date on which the claimant knew, or through the use of reasonable diligence should have known, or receivednotice in writing of the existence of the injury or death for which damages are sought in the action, whichever of such dateoccurs first, but in no event shall such action be brought more than 4 years after the date on which occurred the act oromission or occurrence alleged in such action to have been the cause of such injury or death." 735 ILCS 5/13-212(a) (West1998).

Castro's fourth amended complaint, filed over five yearsafter the events giving rise to the claims of medical negligence,is accordingly time-barred unless the amendments "relate back" tothe second amended complaint, in which Family Medicine was firstmade a party defendant. Section 2-616 governs amendments topleadings filed after the statute of limitations period hasexpired. That section provides in relevant part:

"(b) The cause of action *** set up in any amended pleading shall not be barred by lapse of time under any statute or contractprescribing or limiting the time within which an action may be brought or right asserted, if the time prescribed or limited hadnot expired when the original pleading was filed, and if it shall appear from the original and amended pleadings that the causeof 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 1998).

The purpose of section 2-616(b) is to insure fairness tolitigants rather than to unduly enhance the technicalconsiderations of common law pleadings. Sompolski v. Miller, 239Ill. App. 3d 1087, 1090 (1992), citing Albany Park Service, Inc.v. Kenny-Pashen Joint Venture, 209 Ill. App. 3d 432, 436 (1991);United Parcel Service v. Church's Fried Chicken, Inc., 174 Ill.App. 3d 378, 380 (1988). To further this purpose, this courtshould liberally construe the requirements of section 2-616(b) infavor of hearing a plaintiff's claim. Sompolski, 239 Ill. App.3d at 1090, citing Williams v. Board of Education, 222 Ill. App.3d 559, 565 (1991). "Medical malpractice plaintiffs, inparticular, are afforded every reasonable opportunity toestablish a case, and to this end, amendments to pleadings areliberally allowed to enable the action to be heard on the meritsrather than brought to an end because of proceduraltechnicalities." Avakian v. Chulengarian, 328 Ill. App. 3d 147,154 (2002).

Central to our inquiry is the question of whether the recordreveals that the defendant was on notice, before the expirationof the statutory time period, of the facts upon which the claimset out in the amended complaint is based. Cammon v. WestSuburban Hospital Medical Center, 301 Ill. App. 3d 939, 946(1998), citing Wolf v. Meister-Neiberg, Inc., 143 Ill. 2d 44,46-48 (1991). In determining whether the subsequent pleadingrelates back to the filing of the initial pleading, the focus isnot on the nature of the causes of action, but on the identity ofthe transaction or occurrence. Zeh v. Wheeler, 111 Ill. 2d 266,272-73 (1986); Figueroa v. Illinois Masonic Medical Center, 288Ill. App. 3d 921, 924 (1997). However, the cause of actionasserted in the later complaint need not be identical to orsubstantially the same as the claim raised in the originalpleading. Weber v. Cueto, 253 Ill. App. 3d 509, 516 (1993). Relation back will be allowed where the defendant has been madeaware of the occurrence or transaction that is the basis for theplaintiff's claim. Zeh, 111 Ill. 2d at 279. The rationale forthis rule is that a defendant will not be prejudiced so long ashis attention has been directed within the limitations period tothe facts that form the basis of the claim asserted against him. Zeh, 111 Ill. 2d at 273, citing Simmons v. Hendricks, 32 Ill. 2d489, 495 (1965).

Family Medicine contends that its attention was not directedto the allegations at issue in the fourth amended complaint priorto the expiration of the statutes of limitations and repose. Onthe contrary, Family Medicine argues, the original complaint didnot involve Family Medicine, Dr. John Bellucci or Dr. JenniferBellucci-Jackson. Both Drs. Bellucci and Bellucci-Jackson werenamed as respondents in discovery in the first amended complaint,after which the second amended complaint named only Dr. Belluccias a defendant (and Family Medicine as Dr. Bellucci's principal). Dr. Bellucci-Jackson was dropped from the lawsuit entirely. Assuch, Family Medicine asserts, there was no reason for it to haveexplored the potential negligence of Dr. Bellucci-Jackson in thediscovery that has taken place thus far in the litigation.

Castro insists that the fourth amended complaint neitheradds party defendants nor sets forth any new theories ofliability. According to Castro, the allegations against FamilyMedicine (already a defendant) made in the fourth amendedcomplaint grew out of the same occurrence alleged in the secondamended complaint, i.e., the conduct of Family Medicine via itsemployee or agent prior to Castro's May 15, 1996, stroke. This,she urges, constitutes sufficient notice to trigger theapplication of the relation back doctrine.

In support, Castro relies upon the holdings in McArthur v.St. Mary's Hospital of Decatur, 307 Ill. App. 3d 329 (1999),Cammon v. West Suburban Hospital, 301 Ill. App. 3d 939 (1998),and Marek v. O.B. Gyne Specialsts, II, S.C., 319 Ill. App. 3d 690(2001).

In McArthur, the plaintiff sued the defendant hospital andseveral defendant doctors for the death of a baby due tocomplications during the birth process. In the originalcomplaint, the only allegation made against the hospital was thatit "'[f]ailed to implement and/or enforce a policy requiring apermanent radiographic image of all ultrasound sonogramexaminations be maintained.'" McArthur, 307 Ill. App. 3d at 331.The allegations against other defendants included the failure tocorrectly read the sonograms and X rays taken and the failure todiagnose the hydrocephalus from which the deceased infantsuffered. First and second amended complaints were subsequentlyfiled with the same sole allegation against the hospital. McArthur, 307 Ill. App. 3d at 331-32.

Discovery proceeded among the parties, and during thedeposition of one of the defendant radiologists, it wasdiscovered that the radiologist never evaluated the X rays atissue and that, instead, one of the hospital technicians had thatresponsibility. McArthur, 307 Ill. App. 3d at 332. Thoughoutside of the statute of limitations period by that time, theplaintiffs moved for leave to file a third amended complaint, inwhich seven new allegations were added against the hospital,relating to the negligent interpretation of the sonogram and Xrays by one of its agents on a date different from that specifiedin earlier complaints.

The hospital moved for and was granted summary judgment,arguing that the new allegations set forth different conduct bydifferent people than in the original pleadings, and weretherefore time barred. McArthur, 307 Ill. App. 3d at 333. Thiscourt reversed, finding that from the beginning of thelitigation, the hospital was aware that the plaintiffs wereasserting negligence in connection with the reading of thesonogram and X ray in that these claims had already been assertedagainst certain agents of the hospital (the doctors). The courtfound neither prejudice nor unfair surprise to the hospital inallowing the amended claims to relate back, since the hospitalknew the involvement of its own personnel in the reading of thefilms from the suit's inception. McArthur, 307 Ill. App. 3d at336.

In Cammon, the defendant hospital was sued vicariously inthe original complaint for the negligence of three doctors inmisinterpreting the decedent's CT scans. In separate counts, thedefendant surgeon was accused of failing to achieve adequatehemostasis (arrest of bleeding) following surgery on thedecedent. Cammon, 301 Ill. App. 3d at 942. After summaryjudgment motions by certain defendants, the plaintiff voluntarilydismissed all of the defendants except for the hospital and thesurgeon. Although the original complaint specifically attributednegligence in decedent's postoperative care to the surgeon andnot the hospital (other than as his employer), the plaintifffiled a second amended complaint, after the statute oflimitations had run, in which she asserted several claims againstthe hospital itself for the acts and omissions of unnamed nurses,residents, medical technicians, anesthesiologists and otherhealth care professionals for the failure to achieve adequatehemostasis. Cammon, 301 Ill. App. 3d at 943.

The trial court granted the hospital's motion for dismissalof the hemostasis allegations against hospital employees otherthan the surgeon originally named pursuant to section 2-619(a)(5). Although the negligence alleged against the hospitalinvolved different conduct by different persons than allegedagainst the hospital in the original complaint, this courtreversed. Specifically, the court in Cammon stated that becausean allegation related to the failure to achieve adequatehemostasis was made against the surgeon in the originalcomplaint, claims related to the decedent's surgery in theamended complaint related back to the original complaint. Cammon, 301 Ill. App. 3d at 947. The court reasoned that, basedon the record, the defendant hospital was put on notice from theoutset of the litigation, prior to the expiration of thelimitations period, that the plaintiff was claiming that afailure to achieve adequate hemostasis in connection with theabdominal wall surgery was a proximate cause of the decedent'sinjury and subsequent death. Cammon, 301 Ill. App. 3d at 947.

Most recently, in Marek, the plaintiff appealed the trialcourt's dismissal of her second amended complaint against thedefendant entity, O.B. Gyne, based on the running of the statuteof limitations. The original complaint named O.B. Gyne andseveral other defendants, and alleged that these medical careproviders failed to properly diagnose, advise and treat her forbreast cancer. Marek, 319 Ill. App. 3d at 691. In count III ofher original complaint, the plaintiff sued Dr. Lupo fornegligence, and sued O.B. Gyne, Dr. Lupo's employer, as aprincipal. In count I of her second amended complaint, filedwell after the statute of limitations had run, the plaintiffalleged that her gynecologist, Dr. McGill, was an agent of O.B.Gyne, upon his retirement all of his records became the propertyof O.B. Gyne and, therefore, O.B. Gyne was directly negligent forfailing to advise Marek of the abnormalities discovered in amammography report subsequent to Dr. McGill's retirement. Marek,319 Ill. App. 3d at 694. In count II of her second amendedcomplaint, Marek alleged that she was unaware of her direct causeof action against O.B. Gyne until it answered discovery, at whichtime she determined that O.B. Gyne possessed McGill's records andonly after this discovery did she realize that a direct cause ofaction existed against O.B. Gyne. Marek, 319 Ill. App. 3d at694. Further, the second amended complaint alleged that Lupo wasnegligent by failing to refer Marek for further diagnostictesting.

This court reversed the trial court's dismissal of theentire case and remanded, holding that O.B. Gyne's attention wasdirected to the allegations of negligence made against its agentat the time the original complaint was filed, despite the factthat the allegations made against it directly in earliercomplaints were based upon the conduct of a different agent. Thecourt reasoned that because O.B. Gyne had been made aware of theoccurrence that formed basis for the claim (the failure toproperly diagnose and treat the plaintiff's cancer), it was ableto adequately prepare to meet the plaintiff's claims regardlessof the theory under which they were brought. Marek, 319 Ill.App. 3d at 698, citing Zeh, 111 Ill. 2d at 279.

We find the reasoning employed in McArthur, Cammon and Marekto be persuasive in the case at bar and reflective of the court'sliberal application of the relation back doctrine to achieveresolution on the merits in medical malpractice cases. First, wenote that the second amended complaint naming Dr. John Bellucciand Family Medicine as defendants was filed within the statutoryperiod and it is that complaint which is relevant in ouranalysis. The second amended complaint essentially alleged thatDr. John Bellucci and vicariously, Family Medicine, werenegligent in failing to identify and diagnose plaintiff'ssymptoms which proximately led to a stroke. Four years later andoutside the statutory period, plaintiff filed a fourth amendedcomplaint claiming that a different agent, Dr. Jennifer Bellucci-Jackson (as well as Family Medicine, which was already named) wasnegligent for the same conduct and on related, but different,dates in May 1996. Family Medicine does not dispute that Dr.Bellucci-Jackson was also its employee and agent in May 1996 whenshe saw Castro at the clinic. As such, Family Medicine was, atall relevant times, aware that Dr. Bellucci-Jackson was involvedin Castro's treatment.

Though Family Medicine claims to have been prejudiced by thelack of focus on the actions of Dr. Bellucci-Jackson, we findthat it was nevertheless supplied with the essential informationnecessary to prepare a defense to a claim related to her part inthe same occurrence, when the identical allegations were laterleveled with respect to her conduct. See Zeh, 111 Ill. 2d at272-73. We believe that Family Medicine was aware, from theoutset, of plaintiff's potential claim against Dr. Bellucci-Jackson because she treated Castro for the same symptoms--albeiton dates immediately prior and subsequent to the time she wasseen by Dr. John Bellucci. The fact that she was dismissed fromthe case after being named a respondent in discovery does notdiminish our conviction that the hospital was aware of thisagent's role in plaintiff's treatment long before her dismissal. Family Medicine, therefore, had the opportunity to investigate.

Family Medicine, however, contends that the allegationscontained in Counts III and IV of the fourth amended complaint"vastly broaden" its exposure in that they allege differentconduct as grounds for vicarious liability and new dates on whichthe allegedly negligent conduct occurred. In support, FamilyMedicine relies on Bailey v. Petroff, 170 Ill. App. 3d 791(1988). In Bailey, the plaintiff's child was born with seriousbirth defects. In her original complaint, the plaintiff allegedmedical malpractice against the defendant doctor in that he:

"(a) Negligently and carelessly gave plaintiff, Barbara Bailey, a prescription for the drug Bendectin when defendant knew orshould have known of its ability to cause birth defects; 

(b) Negligently and carelessly failed to keep informed of the medical literature concerning adverse effects of Bendectin when prescribed for pregnancy;

(c) Failed to recommend the proper dosage of Bendectin for the plaintiff, Barbara Bailey." Bailey, 170 Ill. App. 3d at 793-94. 

After the expiration of the statute of limitations period,the plaintiff filed a first amended complaint, in which shedropped all references to the prescribing of the drug Bendectinand instead alleged:

"(a) Defendant [doctor] negligently and carelessly ailed to inform the plaintiff that the complications of her pregnancy were not normal;

(b) Defendant negligently and carelessly failed to inform the plaintiff of the availability of diagnostic tests to detect abnormalitiesof fetuses;

(c) Defendant negligently and carelessly failed to prescribe diagnostic tests to determine whether the fetus was normal;

(d) Defendant negligently and carelessly assured the plaintiff that her pregnancy was proceeding normally, when there was reason to believe that it was not."

Bailey, 170 Ill. App. 3d at 794.

Affirming the trial court's dismissal of the first amendedcomplaint on the grounds that it was time barred and did notrelate back to the original complaint, the court in Bailey notedthat the negligent conduct alleged in the two complaints waswholly different. In particular, the original complaint chargedactive negligence in the form of prescribing a drug that wasknown to cause birth defects, whereas the first amended complaintabandoned that approach altogether and instead charged negligencebased on the failure to recommend prenatal testing and tootherwise diagnose the baby's disorder. Bailey, 170 Ill. App. 3dat 797-98.

Stating that this was "obviously" not "a situation where thetwo versions of the complaint merely set forth different theoriesof liability," the court concluded that the original complaintdid not adequately inform the defendant of the facts necessary toinvestigate the claim that was ultimately asserted against him inthe second amended complaint. Bailey, 170 Ill. App. 3d at 798,citing Whitney v. City of Chicago, 155 Ill. App. 3d 714, 719(1987).

We find Bailey distinguishable. Here, it was Castro'stheory, from the time Family Medicine was first named, that thefailure to properly diagnose and treat Castro's symptomsproximately caused her to suffer a stroke. Unlike Bailey, Castrodid not drop all or any of the allegations contained in hersecond amended complaint, nor did she replace allegations earlierstated with ones that are entirely new. On the contrary, theearlier made allegations of negligence are repeated in the fourthamended complaint, and the facts upon which the claims in countsIII and IV of the complaint are based did not change, despite thefact that the conduct of a different agent or agents were calledinto question.

We find this case more analogous to McArthur where the courtstated: "Because these allegations were made against thehospital's codefendants and were at the heart of plaintiff'scase, the hospital was aware of them and knew the extent of theinvolvement of its own personnel." McArthur, 307 Ill. App. 3d at335.

Accordingly, we are unable to conclude that Family Medicinesuffered prejudice or unfair surprise as a result of theadditional claims.

For the reasons set forth herein, we determine that FamilyMedicine was adequately apprised, before the expiration of thestatutory time period, of the facts upon which the claims set outin counts III and IV of the fourth amended complaint are based. The trial court's order dismissing those claims is thereforereversed, and the cause remanded for further proceedings.

Reversed and remanded.

GORDON, P.J. and MCNULTY, J. concur.

1. Drs. Richard De Angelo and Lee Nicholas Dennis, theirprofessional corporations and Elmhurst Hospital were also namedas respondents in discovery. Dr. De Angelo and Elmhurst Hospitalwere later converted to defendants in a third amended complaint. Their inclusion is not a subject of this appeal.

2. Count VII of the second amended complaint containedidentical allegations and was brought on behalf of Castro'shusband, Conrad, for loss of consortium.