Frigo v. Silver Cross Hospital and Medical Center

SUPREME COURT CASES

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State: Illinois

Court: 1st District Appellate

Docket No: 1-05-1240 Rel

Case Date: 09/20/2007

Preview:Fourth Division September 20, 2007

No. 1-05-1240

JEAN FRIGO, Plaintiff-Appellee, v. SILVER CROSS HOSPITAL AND MEDICAL CENTER, Defendant-Appellant.

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Appeal from the Circuit Court of Cook County.

No. 00 L 11559 Honorable Donald J. O'Brien, Jr., Judge Presiding.

PRESIDING JUSTICE NEVILLE delivered the modified opinion of the court: Defendant, Silver Cross Hospital and Medical Center (Silver Cross), appeals from a jury verdict awarding plaintiff, Jean Frigo, $7,775,668.02 in damages. The jury verdict resulted from a negligent credentialing count based upon Silver Cross granting Dr. Paul Kirchner category II surgical credentials, which authorized the doctor to operate on Frigo's foot and culminated in her foot being amputated. On appeal, Silver Cross presents the following issues for review: (1) whether Frigo's action was barred by the statute of limitation because the negligent credentialing claim raised in the first amended complaint did not relate back to the allegations in the original complaint; (2) whether the negligent credentialing claim was barred by sections 8-2101 and 8-2102 of the Code of Civil Procedure, commonly known as the Medical Studies Act (735 ILCS 5/8-2101, 8-2102 (West 2000)); (3) whether the negligent credentialing claim was barred by the Hospital Licensing Act (210 ILCS -1-

1-05-1240 85/10.2 (West 2000)); (4) whether Frigo failed to prove that Silver Cross was negligent when it granted Dr. Kirchner category II surgical privileges; and (5) whether the trial court denied Silver Cross a fair trial when it used Illinois Pattern Jury Instructions, Civil, No. 30.23 (2006) (hereinafter IPI Civil (2006)) to instruct the jury. We affirm and hold that negligent credentialing is a cause of action that is a progeny of hospital or institutional negligence, which is a cause of action that was first recognized by our supreme court in Darling v. Charleston Community Memorial Hospital, 33 Ill. 2d 326, 331 (1965). BACKGROUND On October 6, 2000, Frigo brought a medical malpractice suit against Dr. Kirchner and Silver Cross, and in her original complaint she made allegations of negligence based upon her October 8, 1998, foot surgery. With respect to Dr. Kirchner, Frigo alleged that he should not have undertaken the elective bunion surgery until the ulcer in that area was allowed to heal. With respect to Silver Cross, she alleged both that Dr. Kirchner was its agent and that Silver Cross improperly managed and maintained the hospital. Through discovery, Frigo learned that Silver Cross gave Dr. Kirchner category II surgical privileges even though he did not meet the hospital's requirements for category II privileges. On April 25, 2003, Frigo filed a first amended complaint and included the allegation that Silver Cross was negligent in awarding Dr. Kirchner category II surgical credentials even though he had not completed a 12-month podiatric surgical residency and was not board certified as required by Silver Cross's bylaws and by the Joint Commission for Accreditation of Health Care Organizations' (JCAHO) standards. Frigo further alleged that Silver Cross should not have allowed Dr. Kirchner to care for her and that she would not have been injured if the hospital had not violated its duty. -2-

1-05-1240 The Trial Before the trial, Dr. Kirchner settled with Frigo for $900,000. Frigo proceeded to trial against Silver Cross. Below is a summary of the testimony presented at trial that is relevant to this appeal. Frigo's Case Paul Pawlak Paul Pawlak, Silver Cross's president and chief executive officer, testified that the hospital's board of directors (Board) had the final say in issuing credentials to physicians and that the duty was nondelegable. Pawlak testified that the hospital is governed in part by the medical staff's bylaws, which in turn must be approved by the Board. A physician's application is reviewed by the credentials committee, which forwards its recommendation to the medical staff executive committee, which in turn makes its recommendation to the Board. Pawlak testified that the Board does not usually obtain the physician's file but instead relies on the medical staff. Pawlak testified that Silver Cross is accredited by the JCAHO. The JCAHO's standards provide for the betterment of healthcare, and they apply to this hospital. Silver Cross, as part of the accreditation process, agrees to abide by the JCAHO standards. The JCAHO standards on credentialing require the hospital Board to take into account the medical staff's recommendations and the hospital's bylaws. The JCAHO's section MS 5.10 provides: "The governing body appoints and re-appoints to the Medical Staff and grants initial, renewed or revised clinical privileges based on the Medical Staff's recommendations in accordance with the Bylaws, Rules and Regulations and Policy of the Medical Staff and of the -3-

1-05-1240 hospital." Pawlak testified that the Board issues credentials in conjunction with the medical staff and has the power to reject its recommendations. The Board bases its issuance of privileges on the medical staff's recommendations and on the bylaws and regulations. The JCAHO mandates that the hospital must follow its bylaws; it cannot follow only its staff's recommendations. Pawlak also testified that the Board at Silver Cross follows the credentialing committee's recommendation if it is positive. However, it does not independently investigate credentials. Pawlak testified that the JCAHO requires that the Board make an independent examination separate from the staff. Pawlak further testified that the hospital's rules have the same force as its bylaws. The rules and regulations listed the requirements for podiatrists seeking privileges in 1993 (the year after Dr. Kirchner first applied). Before 1993, applicants had to complete an approved surgical residency. For more advanced category II privileges, the hospital's rules required that the applicant be licensed and have completed a 12-month podiatric surgical residency, be accepted and approved by the American Board of Podiatric Surgery (board certification), and submit documentation of prior performance of procedures including at least 30 operative reports. Specifically, the 1992 rules provided: "This category assumes the practitioner has had additional post-graduate surgical training: e.g. completion of approved surgical residency or has become Board Certified by the American Board of Podiatric Surgery, or Board Eligible by the American Board of Podiatric Surgery, and in this instance must submit documentary proof -4-

1-05-1240 of having performed the surgical procedures to the satisfaction of the Department of Surgery." The 1993 rules provided: "Any Illinois licensed podiatrist who has completed a 12 month podiatric surgical residency program accepted by the [American Board of Podiatric Surgery] ABPS and approved by the [Council on Podiatric Medical Education] CPME of the [American Podiatric Medical Association] APMA. In addition, the candidate shall have completed successfully the written eligibility examination. Podiatrists requesting this category must submit documentation of prior performance of requested procedures, including 30 Category II operative reports reflecting procedures performed during the past 12 months." The rules were amended again before the surgery. Next, Pawlak testified that Dr. Kirchner did not have a podiatric surgery residency and was not board certified. Pawlak testified that he never reviewed Kirchner's application because the medical staff felt that Dr. Kirchner was qualified for category II privileges through a grandfather clause. Pawlak testified that there was no grandfather clause in the rules. He also stated that grandfathering was reserved for physicians with many, many years of experience and that Kirchner did hot have such experience in 1993. The JCAHO provides that at the discretion of the

organization, specific information may differ for the information required for reappointment. Pawlak -5-

1-05-1240 testified that according to the bylaws and rules, reappointment to the medical staff and continued privileges at Silver Cross are granted only on formal application that occurs every two years. When Kirchner reapplied, he had to submit an application. Dr. Richard Kusunose Dr. Richard Kusunose, Frigo's expert podiatrist, testified that he performed 250 procedures a year during his two-year podiatric surgical residency and almost half of those procedures were bunionectomies. He also described the board-certification process, which involves acquiring a certain amount of experience and passing an examination. Dr. Kusunose testified that he reviewed Dr. Kirchner's surgical logs from his primary care residency, which was significantly different from a surgical residency because it was focused on conservative management with very little exposure to foot surgery. Dr. Kusunose testified that Dr. Kirchner's log showed five to six category II procedures related to the foot, and none of them was a procedure done at Silver Cross in 1998. In only one of the procedures did the resident participate more than 50%. Dr. Kusunose stated that Dr. Kirchner had not completed an approved surgical residency in 1992. Dr. Kusunose also stated that Dr. Kirchner did not meet the credentialing requirements for category II privileges in 1993 or 1998. Kirchner needed the podiatric surgical residency and the written exam for board certification. Dr. Kusunose testified that "grandfathering" is the situation where an applicant who obtained privileges before a change in the prerequisites is not required to satisfy the new requirements "if that's so delineated in the bylaws." Dr. Kusunose reviewed Silver Cross's bylaws and he stated that there is no mention in them of a grandfather clause. Next, Dr. Kusunose summarized Frigo's care. Frigo developed an infected ulcer on her left -6-

1-05-1240 foot prior to her October 8, 1998, surgery at Silver Cross. He noted that you would not prescribe an antibiotic for an ulceration, as Dr. Kirchner did, if the ulcer was not infected. Thus, prescribing an antibiotic showed that Dr. Kirchner felt the ulcer was infected. The unhealed ulcer was still present at the time of surgery. This surgery was elective and never should have moved forward in the presence of the ulceration. He noted that it had taken 50 years for the bunion to develop and there was no rush to take care of it now, especially in light of the infection. Further, because Frigo was diabetic, that predisposed her to a greater risk of infection. Dr. Kusunose opined that proceeding with this surgery absolutely breached the standard of care. That was especially true in light of the fact that an earlier procedure on the opposite foot proceeded only after the ulcer healed and no complication occurred there. If Dr. Kirchner had not performed the October 1998 surgery, Frigo never would have had the amputation. The surgical incision here went through the infected ulcer and carried the infection into the wound. There were clear signs of infection within a week after Dr. Kirchner's surgery. Dr. Kusunose testified that everyone agreed this patient had osteomyelitis and that it was caused by the infection that was brought about by the incision through the infected ulcer. The podiatrist should have cultured the wound and drained and X-rayed it, and his failure violated the standard of care. According to Dr. Kusunose, Dr. Kirchner's use of a single screw in that surgery was inappropriate. The patient weighed 280 pounds and she put weight on the foot when she walked. She was allowed to walk, rather than put on a non-weight-bearing device, and the bone fractured during the first week. Walking caused the fracture and allowing Frigo to walk violated the standard of care. After the fracture, the screw no longer served any purpose and should have been removed. -7-

1-05-1240 Dr. Kirchner could not remove the screw because he could not find it, and that was because he did not have the training and experience. The doctor's failure was also a deviation from the standard of care. By the time the screw was removed, the bacteria had had five months to grow. The failure here resulted from Dr. Kirchner's lack of experience and his lack of competence, both in doing the surgery and in not being able to recognize and treat the complications that are learned in a surgical residency. Dr. Kusunose testified that Frigo should have been admitted to Silver Cross immediately for a team approach of care, with the wound opened up and antibiotics started. No team approach was ordered by Dr. Kirchner and that also violated the standard of care. If that had been done, the likelihood is that the infection would have been controlled. He added that this patient did not have Charcot disease and that none of the doctors that treated Frigo made such a diagnosis. He had no way of knowing if he saw all the materials that the credentialing committee considered. Dr. Kusunose testified that he did not know how the credentialing process was performed at Silver Cross but said the process is fairly standard because hospitals all operate under the same JCAHO standards. Dr. Paul Kirchner Dr. Paul Kirchner testified that he did a one-year primary care residency after graduating from podiatry college in 1991. He testified that he did do a surgical residency. Dr. Kirchner testified that he submitted his application for full category II privileges at Silver Cross in 1992 and that is all he submitted. He testified that he had not taken the boards as of October of 1995 and was not board certified in podiatry or podiatric surgery at that time. He still had not done a surgical residency when he performed the procedure on Frigo in October of 1998. Dr. Kirchner testified that he had surgical privileges only at Silver Cross. -8-

1-05-1240 Dr. Kirchner testified that the year prior, 1997, he had operated on a bunion on Frigo's right foot. He testified that there had been an ulcer on that foot, but it was resolved with antibiotics under the care of a vascular surgeon before that surgery. The next year, on July 13, Frigo presented with a bunion and a diabetic ulcer on her left foot. When she returned on August 10, the area was red and swollen, which he agreed could be consistent with an infection. On September 22, she still had pain and a blister, and Dr. Kirchner prescribed an antibiotic. Dr. Kirchner testified that he performed the category II elective surgery on October 9, 1998. He placed a screw into the top of the metatarsal. At his deposition, he said Frigo had a diabetic ulcer on that foot on the date of surgery, but he denied this fact at trial. The pathology report showed left foot bunion with diabetic ulcer. Dr. Kirchner testified that ulcers can carry bacteria and that such areas can become infected. Four days after the surgery, there was redness and swelling, which can be consistent with an infection. He believed there was infection at the surgical site. An X-ray on November 6 showed the bone had fractured. Dr. Kirchner stated that he corrected the fracture in a closed reduction. He stated that Frigo had cellulitis, not osteomyelitis. Dr. Kirchner testified that he tried but was unable to remove the screw on February 18, 1999, at Silver Cross. Dr. Lawrence Mozan Dr. Lawrence Mozan, Frigo's expert, who was a board-certified surgeon, testified that he analyzed Dr. Kirchner's surgery. Dr. Mozan stated that Frigo had osteomyelitis, which is a bone infection. Dr. Mozan testified that he premised that opinion in part because she was given antibiotics before surgery and that you do not use those unless someone has an infection. He stated that the ulcer was present at the surgery. The infection began with the bacteria in the ulcer and that caused -9-

1-05-1240 the osteomyelitis. If you cut through the ulcer, you spread the bacteria. The bacteria also gets on the screw, where it cannot be treated. Leaving the screw in, when a patient has an infection, makes it tremendously more difficult to combat the infection. If the screw had been removed and the infection treated earlier, Frigo's foot could have been saved. Dr. Mozan testified that the elective surgery was the cause of Frigo's amputation. Dr. Carl Bakken Dr. Carl Bakken, Frigo's board-certified expert in internal medicine, infectious disease and emergency medicine, testified that Frigo had osteomyelitis caused by methicillin-resistant staph aureus (MRSA).1 He opined that the originating event for Frigo's infection was the October 1998 surgery. Dr. Bakken testified that, after the signs of infection, the X-ray showed the fracture and the bleeding caused by it, which in turn became a place where bacteria could grow and led to the infection spreading quickly. No antibiotic was used. Dr. Bakken opined that the originating event for the infection was the surgery performed in the presence of the ulcer. Arthur Shorr Arthur Shorr, Frigo's board-certified expert in health care administration, described how a hospital is managed. Shorr testified that a hospital must be accredited by the JCAHO, which sets the minimum acceptable way to run a hospital. The hospital must have corporate bylaws and medical staff bylaws approved by the hospital board. Shorr testified that the board of trustees has legal responsibility for the hospital. Shorr testified that the JCAHO has a section on credentialing and that

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Methicillin-resistant staph aureus is a bacteria. -10-

1-05-1240 anyone who wants to join the hospital staff must know what the requirements are. Shorr stated that there are criteria for credentialing. When the board is invited to give privileges, the board can rely on the fact that the hospital rules are consistent with the JCAHO's rules, which maximizes patient safety. The chief executive officer reports to the board on credentialing and cannot delegate that duty. Privileges are ultimately granted by the board. Next, Shorr opined that Silver Cross did not act reasonably when it initially granted category II privileges to Dr. Kirchner. Silver Cross ignored its bylaws. Shorr testified that Dr. Kirchner did not meet the minimum requirements. He was qualified for category I privileges at that time, but category II privileges assume that the practitioner has had additional postgraduate surgical training. Dr. Kirchner spent a year in a residency, but Shorr would not categorize the training as a surgical residency experience because it was more medical than surgical. The hospital's credentialing rule contains three examples of things that might qualify as such additional surgical training. The bylaw does not say that such additional training must be more than modest (Dr. Kirchner had modest surgical training in his residency), but the three examples provide clear guidelines. Shorr testified that Dr. Kirchner's application for privileges never should have been considered by the board because the application was missing this basic information. Shorr stated that the 1992 rules did not say they required a 12-month surgical residency - that did not appear until the next rule change. Shorr testified that Dr. Kirchner's application should have been sent back to the credentials committee because the rule required definitive training in surgical podiatry. For recredentialing later, Dr. Kirchner required a surgical residency and passing the board-certification exam as a prerequisite for category II privileges. The medical staff had concluded those requirements were the way to -11-

1-05-1240 maximize patient safety. Dr. Kirchner never should have been credentialed, pursuant to the bylaws, and he could not do surgery without being credentialed. Shorr stated that the JCAHO's MS section 5 said the information required for reappointment may differ from the information required for appointment. In addition to information reviewed the first time, there may be additional information that is a classical industry-wide interpretation. However, the applicant has to meet the credentials in place when he applies. Here, this podiatrist never met the tightened standards. His reappointment applications never indicated that he met the bylaws' requirements. Shorr testified that he was familiar with grandfathering, saying "it's a common practice when applied correctly." If a physician is credentialed, and the staff later imposes additional requirements, that physician does not have to meet the new requirements. But the presumption is that the doctor was credentialed correctly in the original credentialing. If the first credentialing is wrong, you do not grandfather someone who did not qualify under the old rules. Jean Frigo Jean Frigo testified that she was born in 1948 and that she had been a nurse for 30 years. She testified that she saw Dr. Smith, now her managing doctor, because of the first ulcer on her right bunion and that ulcer was resolved before Dr. Kirchner performed that surgery. She was back to her job as a critical care nurse two weeks after that. She then saw Dr. Kirchner again for her left foot. This time the ulcer was still there when she went for the surgery on October 8, 1998. Frigo testified that she went to Silver Cross because that is where Dr. Kirchner worked. She was not put on crutches after the surgery until after the bone fractured. The pain and swelling in the foot continued and she finally called Dr. Smith, who told her the hardware had to come out. Frigo testified that her -12-

1-05-1240 foot was amputated on August 30, 1999. She has not returned to work. Frigo testified that she was not told of Dr. Kirchner's lack of credentials. Dr. Robert Eilers Dr. Robert Eilers, Frigo's physiatrist, testified that he saw her in July of 1999. The diagnosis was left lower extremity bunion surgery complicated by a staph infection and possible Charcot disease. Dr. Eilers testified that Frigo did not have Charcot disease. He described the amputation done on February 19, 1999, and stated that Frigo required the amputation because of a mid-foot bone infection (osteomyelitis). Dr. Eilers testified that Frigo initially had a good blood flow and good profusion in the leg and that she did not have diabetic vascular disease or nerve disease. Dr. Eilers testified that a nurse cannot work in an intensive care unit if she cannot bear weight and walk. Dr. Eilers testified that Frigo would have difficulty returning to work as a critical care floor nurse. Dr. Brent Smith Dr. Brent Smith, Frigo's general physician, testified that he examined the ulcers and confirmed that she had osteomyelitis. He also testified that she would not be able to return to work as a critical care nurse. Dr. Irving Rudman Dr. Irving Rudman, Silver Cross's former vice-president of medical affairs, testified that a 12month surgical residency contains more surgery than does a 12-month primary care podiatric residency. There would be more education and study involving conditions that lead to surgery of the foot. Category II privileges involve surgery to the foot, including internal fixation. Dr. Rudman knew in 1995 that Dr. Kirchner was not board certified and had not completed either a 12-month -13-

1-05-1240 surgical residency or the written board-eligibility exam. Dr. Rudman testified that he had no reason to doubt the statement by another podiatrist that 250 surgical opportunities would be available to a resident enrolled in a surgical residency program. He also stated that he saw nothing in the bylaws that applied to grandfather exemptions for podiatrists who did not meet the written prerequisites. Silver Cross's Case Dr. Benjamin Lipsky Dr. Benjamin Lipsky, Silver Cross's internal medicine and infectious diseases expert, testified that Frigo suffered a fracture and developed cellulitis, which was treated successfully with antibiotics. He opined that her condition was compatible with Charcot osteoarthropathy,2 with a foot infection as her secondary problem that was dealt with by antibiotics. The bones lose mineralization and fracture. Charcot osteoarthropathy occurs in patients with severe neuropathy where they cannot feel pain or pressure and occurs in the absence of any break in the skin. Dr. Lipsky testified that he believes her condition was not very compatible with osteomyelitis. Most patients who get

osteomyelitis get it from an ulceration. He agreed she had an infection and that her diagnosis in February was osteomyelitis.

Dr. David Armstrong Dr. David Armstrong, an expert who was board certified in podiatry, opined that Frigo was

Dr. Lipsky explained that Charcot osteoarthropathy is "a process where the bones lose mineralization, the joints lose their inherent structure, bones fracture, joints sublux or dislocate and eventually the normal architecture of the foot is lost." -14-

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1-05-1240 an appropriate candidate for a bunionectomy. He testified that he believed she had neuropathy, because a diabetic with ulcers has neuropathy in almost every case. He thought her ulcer was healed, but said surgery was appropriate even if it was not healed because she had a high risk of developing another wound due to the bunion deformity. Her ulcer had healed by the time of the surgery. Dr. Armstrong testified that Frigo did not have an infected ulcer. Dr. Armstrong testified that Dr. Kirchner's diagnosis was osteomyelitis when he removed the screw, and he did not mention Charcot disease. Dr. Armstrong opined that Dr. Kirchner's follow-up care met the standard of care and that treating the cellulitis with antibiotics was appropriate. The rapid disorganization of the bone in her foot was characteristic of Charcot disease and not osteomyelitis. Dr. Armstrong testified that different antibiotics would not have made a difference. Dr. Armstrong also stated that the delay in removing the screw did not violate the standard of care. Dr. Armstrong testified that Charcot disease caused the amputation. Dr. Joseph Lentino Dr. Joseph Lentino, a specialist in infectious disease, testified that the Trovan given by Dr. Kirchner was effective against MRSA, that the patient had Charcot disease, and that she had an earlier episode of osteomyelitis. Dr. Lentino testified that the drug of choice for MRSA was Vancomycin, and he believed that Frigo did have osteomyelitis. Dr. David Benfer Dr. David Benfer, defendant's healthcare administration expert, described some of the documents typically submitted when applying for credentials and the process. He testified that the JCAHO's guidelines prevent hospitals from varying the credentialing procedure to any extent. Dr. -15-

1-05-1240 Benfer testified that there is an expectation that institutions will meet the JCAHO's standards. Privileges must be granted consistent with the bylaws. The chief executive officer is responsible for seeing that credentialing is done in accordance with the bylaws. Silver Cross's chief executive officer delegated that duty, but it remained his responsibility. Dr. Benfer stated that Pawlak, Silver Cross's chief executive officer, said he was not aware that a podiatrist had to have a 12-month surgical residency and complete the written eligibility exam for board certification. It is clear that the chief executive officer did not know what the bylaws required for podiatrists. Pawlak said that he did not investigate whether credentials were being granted in accordance with Silver Cross's bylaws. Neither the chief executive officer nor the hospital's staff investigated Dr. Kirchner's credentials. In addition, Dr. Benfer reviewed the 1992 privilege application card. When category II privileges are requested, the applicant must submit evidence of additional postgraduate surgical training. Dr. Benfer opined that does not require a 12-month surgical training. The application gives a series of examples of such training, but does not specifically state that applicants must complete a certain 12-month experience. The applicant simply had to show such training. Dr. Benfer testified that he believed that Dr. Kirchner complied with the prerequisites for the 1992 category II surgical credentials. Dr. Benfer testified that Dr. Kirchner had completed a primary care residency. Dr. Benfer also testified that the credentialing requirements in effect at that time included examples of postgraduate training using the words "completion of an approved surgical residency," rather than just any experience with surgery. After 1993, the requirements for category II privileges could not have been clearer. He did not know if Kirchner met the 12-month surgical residency requirement imposed at that time or 1998. -16-

1-05-1240 Next, Dr. Benfer testified that recredentialing occurs every two years, pursuant to the JCAHO's standards. That assures the general public and the institution that there is ongoing monitoring. Benfer opined that there is no need for the doctor to go back and meet formal education requirements like additional residencies. He also opined that the new 12-month surgical residency would not be imposed on someone like Dr. Kirchner, who had already been credentialed. Dr. Benfer testified that it is very common to grandfather individuals so they do not have to return for a training program. He said it would be unfair to require a doctor to go back to school for two or three years, so grandfathering became common. Dr. Benfer stated that he did not find a grandfathering provision in the bylaws. The Jury Verdict and Posttrial Motions After the presentation of evidence, the jury was instructed that plaintiff claimed Silver Cross "failed to exercise ordinary care in granting Category 2 surgical privileges to Paul Kirchner, D.P.M., which resulted in Dr. Kirchner's negligent treatment of the plaintiff. The plaintiff further claims that the foregoing was a proximate cause of her injuries." The jury was also instructed that if it decided Silver Cross was guilty of that conduct, then it was to "consider whether podiatrist Paul Kirchner was professionally negligent." On August 26, 2004, the jury returned a verdict for Frigo and awarded her $7,775,668.02 in damages. On November 24, 2004, Silver Cross filed a posttrial motion arguing that: (1) Frigo's action was barred by the statute of limitation because the negligent credentialing claim raised in the first amended complaint did not relate back to the allegation in the original complaint; (2) Frigo's negligent credentialing claim was barred by the Medical Studies Act; (3) Frigo's negligent credentialing claim -17-

1-05-1240 was barred by the Hospital Licensing Act; (4) Frigo failed to prove that Silver Cross was negligent in granting Dr. Kirchner category II surgical privileges; and (5) the trial court denied Silver Cross a fair trial when it instructed the jury with IPI Civil (2006) No. 30.23. The motion was denied. The trial court credited Silver Cross with the $900,000 paid in the settlement by Dr. Kirchner before trial, resulting in a net judgment of $6,875,668.02. ANALYSIS We begin our analysis with Silver Cross's argument that the trial court erred when it denied the hospital's motion for judgment notwithstanding the verdict. A judgment notwithstanding the verdict is to be entered only when all the evidence, viewed in the light most favorable to the nonmovant, so overwhelmingly favors the movant that no contrary verdict could stand based on the evidence. McClure v. Owens Corning Fiberglas Corp., 188 Ill. 2d 102, 132 (1999). In deciding whether to grant such a judgment, the trial court may not reweigh the evidence and set aside the verdict simply because a jury could have drawn different conclusions or inferences from the evidence or because it feels other possible results may have been far more reasonable. McClure, 188 Ill. 2d at 132, quoting Maple v. Gustafson, 151 Ill. 2d 445, 453 (1992). Likewise, a reviewing court may not usurp the role of the jury and substitute its own judgment on factual questions fairly submitted, tried, and determined from evidence which did not overwhelmingly favor either position. McClure, 188 Ill. 2d at 132. Therefore, appellate courts apply a de novo standard of review when reviewing decisions on motions for judgments notwithstanding the verdict. McClure, 188 Ill. 2d at 132, quoting Maple, 151 Ill. 2d at 453. I. Statute of Limitations -18-

1-05-1240 First, Silver Cross argues that the trial court erred in denying its motion for a judgment notwithstanding the verdict because Frigo's negligent credentialing claim is barred by the two-year statute of limitations and the four-year statute of repose. Specifically, Silver Cross contends that although Frigo's original complaint was timely filed, the allegations of negligent credentialing were not made until Frigo filed her amended complaint, which was more than two years after her cause of action accrued and more than four years after her last visit to Dr. Kirchner. Silver Cross argues that the allegations of negligent credentialing did not relate back to Frigo's original, timely filed complaint, which only alleged that Dr. Kirchner was negligent in providing surgical and postsurgical care. Frigo concedes that the first amended complaint was filed after the running of the two-year statute of limitations, but argues that the trial court correctly determined that the allegations in the first amended complaint related back to the allegations in Frigo's original complaint that were timely filed. "The application of statutes of limitations is a question of law that is evaluated according to a de novo standard of review." First Baptist Church of Lombard v. Toll Highway Authority, 301 Ill. App. 3d 533, 540 (1998), citing Tatara v. Peterson Diving Service, 283 Ill. App. 3d 1031, 1037 (1996). The statute of limitations for a medical malpractice action is found in section 13-212(a) of the Code of Civil Procedure (Code), which provides: "[N]o action for damages for injury or death against any physician *** arising out of patient care shall be brought more than 2 years after the date on which the claimant knew, or through the use of reasonable diligence should have known, or received notice in writing of the existence of the injury or death for which damages are sought -19-

1-05-1240 in the action, whichever of such date occurs first, but in no event shall such action be brought more than 4 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 2000). Frigo acknowledges that her first amended complaint was filed after the expiration of the statute of limitations. However, Frigo contends that the negligent credentialing allegations in the first amended complaint are not time-barred because the allegations "relate back" to the original complaint, which named Silver Cross as a party defendant. Section 2-616(b), which governs amendments to pleadings filed after the statute of limitations period has expired, provides: "(b) The cause of action *** set up in any amended pleading shall not be barred by lapse of time under any statute or contract prescribing or limiting the time within which an action may be brought or right asserted, if the time prescribed or limited had not expired when the original pleading was filed, and if it shall appear from the original and amended pleadings 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 2000). Section 2-616(b) makes it clear 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 -20-

1-05-1240 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 2000); see also Grove v. Carle Foundation Hospital, 364 Ill. App. 3d 412, 418 (2006). In Zeh v. Wheeler, 111 Ill. 2d 266, 278 (1986), our supreme court noted a trend and held that Illinois courts are liberal in allowing amendments to pleadings that relate back after the statute of limitations has expired. We note that "[t]he purpose of section 2-616(b) is to insure fairness to litigants rather than to unduly enhance the technical considerations of common law pleadings." Castro v. Bellucci, 338 Ill. App. 3d 386, 390-91 (2003), citing Sompolski v. Miller, 239 Ill. App. 3d 1087, 1090 (1992). To further this purpose, appellate courts have liberally construed the

requirements of section 2-616(b) in favor of hearing a plaintiff's claim. Bellucci, 338 Ill. App. 3d at 391, citing Sompolski, 239 Ill. App. 3d at 1090. " 'Medical malpractice plaintiffs, in particular, are afforded every reasonable opportunity to establish a case, and to this end, amendments to pleadings are liberally allowed to enable the action to be heard on the merits rather than brought to an end because of procedural technicalities.' " Bellucci, 338 Ill. App. 3d at 391, quoting Avakian v. Chulengarian, 328 Ill. App. 3d 147, 154 (2002). "Central to this inquiry is whether the record reveals that the defendant was on notice, before the expiration of the [limitations] period, of the facts upon which the claim set out in the amended complaint is based." Bellucci, 338 Ill. App. 3d at 391, citing Cammon v. West Suburban Hospital Medical Center, 301 Ill. App. 3d 939, 946 (1998), and Wolf v. Meister-Neiberg, Inc., 143 Ill. 2d 44, 46-48 (1991). "In determining whether the subsequent pleading relates back to the filing of the initial -21-

1-05-1240 pleading, the focus is not on the nature of the causes of action, but on the identity of the transaction or occurrence." Bellucci, 338 Ill. App. 3d at 391, citing Zeh, 111 Ill. 2d at 272-73. "However, the cause of action asserted in the later complaint need not be identical to or substantially the same as the claim raised in the original pleading." Bellucci, 338 Ill. App. 3d at 391, citing Weber v. Cueto, 253 Ill. App. 3d 509, 516 (1993). Relation back will be allowed where the defendant received adequate notice of the occurrence or transaction that is the basis of the plaintiff's claim. Zeh, 111 Ill. 2d at 279. The rationale for this rule is that a defendant will not be prejudiced so long as his attention has been directed, within the limitations period, to the facts that form the basis of the claim asserted against him. Zeh, 111 Ill. 2d at 273. We find McArthur v. St. Mary's Hospital of Decatur, 307 Ill. App. 3d 329 (1999), and Marek v. O.B. Gyne Specialists, II, S.C., 319 Ill. App. 3d 690 (2001), instructive. In McArthur, the plaintiff sued a hospital and several doctors for the death of a baby due to complications during the delivery. In the original complaint, the only allegation made against the hospital was that it " '[f]ailed 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. The allegations against other defendants included the failure to correctly read the sonograms and X-rays taken and the failure to diagnose the deceased infant's hydrocephalus. First and second amended complaints were subsequently filed with the same sole allegation against the hospital. McArthur, 307 Ill. App. 3d at 331-32. Discovery proceeded and during the deposition of one of the defendant's radiologists, it was discovered that the radiologist never evaluated the X-rays at issue because one of the hospital's technicians had that responsibility. McArthur, 307 Ill. App. 3d at 332. Though outside the -22-

1-05-1240 limitations period, the plaintiffs moved for leave to file a third amended complaint in which seven new allegations were added against the hospital, relating to the negligent interpretation of the sonogram and X-rays by one of the hospital's agents on a date different from the date specified in earlier complaints. The trial court granted the motion. The hospital filed a motion and was granted summary judgment, arguing that the new allegations set forth different conduct by different people than in the original pleadings and were therefore time-barred. McArthur, 307 Ill. App. 3d at 333. The appellate court reversed finding from the beginning of the litigation that the hospital was aware that the plaintiffs were asserting negligence in connection with the reading of the sonograms and X-rays and that these claims had already been asserted against certain agents of the hospital. The court found neither prejudice nor unfair surprise to the hospital in allowing the amended claims to relate back because the hospital knew of the involvement of its own personnel who were reading the films from the suit's inception. McArthur, 307 Ill. App. 3d at 336. Additionally, in Marek, the plaintiff appealed the trial court's dismissal of her second amended complaint against the defendant entity, O.B. Gyne, based upon the running of the statute of limitations. The original complaint named O.B. Gyne and several other defendants and alleged that those medical care providers failed to properly diagnose, advise and treat her for breast cancer. Marek, 319 Ill. App. 3d at 692. In count III of her original complaint, the plaintiff sued Dr. Lupo for negligence and sued O.B. Gyne, Dr. Lupo's employer, as a principal. In count I of her second amended complaint, filed well after the statute of limitations had run, the plaintiff alleged that her gynecologist, Dr. McGill, was an agent of O.B. Gyne because upon his retirement all of his records -23-

1-05-1240 became the property of O.B. Gyne and, therefore, O.B. Gyne was directly negligent for failing to advise Marek of the abnormalities discovered in a mammography report subsequent to Dr. McGill's retirement. Marek, 319 Ill. App. 3d at 694. In count II of her second amended complaint, Marek alleged that she was unaware of her direct cause of action against O.B. Gyne until it answered discovery, at which time she determined that O.B. Gyne possessed McGill's records, and only after this discovery did she realize that a direct cause of action existed against O.B. Gyne. Marek, 319 Ill. App. 3d at 694. Further, in count III of the second amended complaint Marek alleged that Dr. Lupo was negligent for failing to refer her for further diagnostic testing. The appellate court reversed the trial court's dismissal of the entire case and remanded the case to the trial court, holding that O.B. Gyne's attention was directed to the allegations of negligence made against its agents at the time the original complaint was filed, despite the fact the allegations made against it directly in earlier complaints were based upon the conduct of a different agent. The court reasoned that because O.B. Gyne had been made aware of the occurrence that formed the basis of the claim (the failure to properly diagnose and treat the plaintiff's cancer), it was able to adequately prepare to meet the plaintiff's claims regardless of the theory under which they were brought. Marek, 319 Ill. App. 3d at 698-99. We believe that the reasoning employed in McArthur and Marek should be followed in the instant case. First, like McArthur and Marek, we find that Frigo's original complaint was timely filed as required by section 13-212(a) of the Code. Therefore, Frigo's original complaint has satisfied the timely filing requirement of section 2-616(b). See 735 ILCS 5/2-616(b) (West 2000); Grove, 364 Ill. App. 3d at 418. -24-

1-05-1240 Next, we must review the allegations set forth in Frigo's original complaint, which was filed on October 6, 2000, to determine whether the cause of action for negligent credentialing in the first amended complaint grew out of an occurrence or transaction set forth in the original complaint. See 735 ILCS 5/2-616(b) (West 2000); Grove, 364 Ill. App. 3d at 418. In her original complaint, Frigo alleged that Silver Cross, by and through its duly authorized agents, including Dr. Kirchner, owed her a duty to possess and apply the knowledge and use the skill and care that physicians specializing in the practice of podiatrics would use in similar cases and circumstances. Frigo argued that Silver Cross, through Dr. Kirchner, was negligent in failing to adequately observe, monitor, and treat her left foot following her surgery on October 8, 1998. We note that, like McArthur and Marek, Frigo's original complaint specifically named Silver Cross as a defendant. Paragraph 11 of the original complaint alleged that Silver Cross: "(A) Carelessly and negligently managed, maintained, controlled, owned and operated said medical centers in such manner causing the Plaintiff to be injured." We also note that, similar to McArthur and Marek, the original complaint in this case specifically included negligence allegations against Silver Cross. Next, we must review Frigo's first amended complaint, which was filed on April 25, 2003, approximately 2

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