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Avakian v. Chulengarian
State: Illinois
Court: 2nd District Appellate
Docket No: 2-01-0089 Rel
Case Date: 03/08/2002

No. 2--01-0089

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT


 

LEON AVAKIAN and ISABEL AVAKIAN, ) Appeal from the Circuit Court
) of Lake County.
                 Plaintiffs-Appellants, )
)
v. ) No. 98--L--377
)
JACK CHULENGARIAN, )
)
                Defendant and Third-Party )
                Plaintiff )
)
(Jack Chulengarian, P.C. and  )
Associates, and Northern Illinois )
Foot and Ankle Centres, Ltd., )
Defendants and Third-Party )
Plaintiffs-Appellees; )
Robert Wolfe, American Family )
Medicine, Jonathan Parker, )
Thomas W. Engel, Grant Stover, )
Libertyville Emergency Medical )
Associates, Ltd., and Condell Medical ) Honorable
Center, Defendants; Pfizer, Inc., ) John R. Goshgarian,
Third-Party Defendant-Appellee). )  Judge, Presiding.

 


JUSTICE KAPALA delivered the opinion of the court:

Plaintiffs, Leon and Isabel Avakian, appeal the dismissal of four counts oftheir third amended complaint that were directed against Jack Chulengarian, P.C.& Associates (the corporation), and Northern Illinois Foot & Ankle Centres, Ltd.(NIFAC). These new allegations altered the plaintiffs' theory of vicariousliability by changing the identity of the treating physician-agent. The trialcourt ruled that they were filed beyond the four-year statute of repose (735 ILCS5/13--212(a) (West 2000)). On appeal, plaintiffs assert that (1) the countsrelate back to the original timely filed complaint; (2) the statute of repose doesnot bar the additional counts; (3) the affidavit and report pursuant to section2--622 of the Code of Civil Procedure (Code) (735 ILCS 5/2--622 (West 1994) weresufficient; and (4) the trial court erred in denying their motion forreconsideration. We reverse and remand.

I. FACTS

This case involves injuries suffered by Leon Avakian after ingestingDiflucan, an oral medication prescribed to him for treatment of his athlete'sfoot. Which of two doctors examined Avakian and prescribed the medicine is hotlydebated between the parties. Plaintiffs adamantly assert that Avakian was treatedby Dr. Chulengarian, while the defendants assert Chulengarian was not involved inthe care or treatment of Avakian. Rather, defendants assert that Avakian wastreated by Dr. Kachigian. Kachigian is not a party to this lawsuit and isbelieved to be in Los Angeles.

Avakian visited NIFAC on May 13, 1996, in response to a newspaper offer fora free consultation. Physician services at NIFAC are provided by the corporation,through Chulengarian and Kachigian. Avakian was advised that he had a severe caseof athlete's foot and was told to schedule a regular appointment for treatment. On May 21, 1996, Avakian reported back to NIFAC for a scheduled visit and wasagain examined and diagnosed with athlete's foot.

While the parties dispute the identity of the treating physician, it isundisputed that, during this May 21 visit to NIFAC, Avakian was given aprescription for Diflucan to treat the athlete's foot. Avakian was advised that,after two or three months, new nails would grow and the condition would be gone,and he was directed to follow up in two or three weeks. Apparently, theprescription was written and signed by Kachigian but was written on Chulengarian'sprescription pad, and it was Chulengarian's name that appeared on the prescriptionbottle. The prescription was filled at Walgreen's on May 25, 1996.

On June 16, 1996, Avakian reported to the emergency room of Condell MemorialHospital complaining of heartburn and allegedly manifesting jaundice. He wastreated by Doctors Engel and Stover, given aspirin, and sent home. The next day,Avakian still felt ill so he visited Dr. Wolfe, his regular physician, of AmericanFamily Medical Center. Wolfe took blood tests and again sent Avakian home. Thefollowing day, on June 18, 1996, Wolfe phoned Avakian and advised him that he hadtested positive for a hepatitis-like disease, and they made an appointment for thenext day to discuss treatment. However, before this appointment, plaintiffreported to the emergency room at Highland Park Memorial, where he was diagnosedwith total liver failure and slipped into a coma-like condition. He was flown toChicago and received a liver transplant on June 23, 1996.

On May 20, 1998, plaintiffs filed a 16-count complaint against variousdoctors and facilities. Counts I and II were directed against Chulengarian andalleged careless and negligent acts or omissions in the treatment of Avakianstemming from the treatment Avakian received on May 21, 1996. Counts III and IV,directed against the corporation and NIFAC, alleged that Chulengarian was theagent or employee of the corporation and NIFAC and that they were vicariouslyliable for the treatment rendered to Avakian by Chulengarian. Counts V throughXVI were not directed against Chulengarian, the corporation, or NIFAC(collectively defendants), but were directed against other doctors and facilitiesthat are not involved in this appeal.

The complaint was accompanied by a section 2-622 attorney affidavit (735ILCS 5/2--622(a) (West 1994)), and eventually plaintiffs filed section 2-622physician's reports. The report regarding the care received by Avakian on May 21,1996, was concerned with the treatment rendered by NIFAC, the corporation, andChulengarian, and named Chulengarian as the treating physician. It stated thatmedication with Diflucan calls for three months of medication, 1 tablet per day;that a base value of the patient's liver status should have been taken prior toinitial treatment with Diflucan and then repeated 30 days later in order to verifythat there was no liver dysfunction; and that the care provided by thesedefendants had failed to meet the applicable standard of care and therefore proximately caused Avakian's liver condition and his need for the transplant. On November 19, 1998, in the midst of a flurry of separate motions todismiss on behalf of the various defendants, Chulengarian filed a motion todismiss pursuant to section 2--1010 of the Code. 735 ILCS 5/2--1010 (West 1998). Chulengarian asserted in his motion that he was not "directly or indirectly"involved in the care of Avakian or the occurrences alleged. The trial courtordered the expedited and limited depositions of Avakian and Chulengarian for thepurposes of ruling on the motion to dismiss, and both depositions were taken onJanuary 11, 1999. Avakian testified that he recognized Chulengarian and that itwas Chulengarian who treated him on May 21, 1996. Chulengarian's testimony duringhis own deposition was that he had no recollection of treating Avakian and thehandwriting on Avakian's chart was not his own, did not look familiar, and musthave been that of Kachigian. The court denied Chulengarian's motion.

Plaintiffs filed both a first and a second amended complaint, which allegedwith more particularity that plaintiffs' injuries were caused by the prescriptionof Diflucan. Both of these amended complaints were supplemented by the samesection 2--622 reports and affidavits. Defendants have not challenged thetimeliness of either the first or second amended complaints. Defendants did,however, file a third-party complaint against Pfizer, Inc. (Pfizer), themanufacturer of the medication. On May 25, 2000, the plaintiffs amended theircomplaint for a third time, to add the four counts that are the subject of thisappeal. Two of these four counts alleged a theory of vicarious liability againstNIFAC and the corporation for the negligent treatment of Avakian by Kachigian. The remaining two counts alleged vicarious liability for Kachigian's treatment ofAvakian based upon apparent authority. Plaintiffs did not retreat from theirclaim that Chulengarian was the treating physician, and they retained thoseallegations in the third amended complaint. These four counts were added in thealternative.

On November 14, 2000, pursuant to section 2--619(a)(5) of the Code (735 ILCS5/2--619(a)(5) (West 2000)), the trial court granted Chulengarian's motion todismiss the four counts of the third amended complaint as time-barred by thestatute of repose (735 ILCS 5/13--212(a) (West 1998)). The trial court reasonedthat plaintiffs had been aware since Chulengarian's deposition that his theory ofdefense was that he was not the treating physician. Since plaintiffs failed toadd a theory of recovery based upon negligent treatment by Kachigian within fouryears, the trial court held that the additional counts were beyond the statute ofrepose. Further, because the addition of the four counts would necessitate thatdefendants prepare a different defense, i.e., no treatment as opposed tononnegligent treatment, the trial court found that defendants would be prejudicedand held that the amendments did not relate back to an original timely filedcomplaint.

In their motion, defendants also asserted that the section 2--622 reportspoke to treatment rendered by Chulengarian rather than Kachigian, and thereforecould not support the four additional counts. Whether or not the trial courtrelied on this basis for granting the motion to dismiss is not clear from itsorder. Plaintiffs filed a motion for reconsideration, which was denied on January4, 2001. Plaintiffs timely appealed pursuant to Supreme Court Rule 304(a) (155Ill. 2d R. 304(a)).

II. DISCUSSION

We first address plaintiffs' contention on appeal that Pfizer lacks standingto assert its position on this matter. It has been recognized that there is aneed for a liberal method of appeal in multiparty litigation. See Kenney v.Churchill Truck Lines, Inc., 6 Ill. App. 3d 983, 989 (1972). Pfizer is a partyto this multiparty lawsuit and will be affected by our ruling inasmuch as itsliability is derived from that of the defendants who seek to affirm the trialcourt's ruling. As a party to this lawsuit whose liability is directly affectedby our resolution of this matter, Pfizer has standing to argue to this court andbe heard regarding such resolution. Furthermore, while not raised by Pfizer orany other party, we recognize that Pfizer's interest in this appeal is furtherexemplified by the collateral issue of whether the third-party complaint, filedagainst it on May 22, 2000, is also time-barred.

A. Repose Period and Relation-Back Doctrine
A cause of action may be dismissed if it has not been "commenced within thetime limited by law." 735 ILCS 5/2--619(a)(5) (West 2000). A motion to dismisspursuant to section 2--619 of the Code (735 ILCS 5/2--619 (West 2000)) admits thelegal sufficiency of the complaint and all well-pleaded facts and the inferencesdrawn therefrom, but asserts an affirmative matter that avoids or defeats theclaim. Ferrara v. Wall, 323 Ill. App. 3d 751, 754 (2001). The dismissal of acomplaint due to its failure to have been filed within the appropriate time limitsis reviewed de novo. Ferrara, 323 Ill. App. 3d at 754.

Plaintiffs' medical malpractice action must be filed within the time periodprovided in section 13--212(a) of the Code of Civil Procedure (735 ILCS 5/13--212(a) (West 1998)), which mandates that an action against a physician arising outof patient care must be brought within two years after the claimant knew or shouldhave known of the injury for which the damages are sought. 735 ILCS 5/13--212(a)(West 2000). The section further states:

"[I]n no event shall such action be brought more than 4 years afterthe date on which occurred the act or omission or occurrence alleged in suchaction to have been the cause of such injury or death." 735 ILCS 5/13--212(a) (West 1998).

Thus, the section provides both the statute of limitations and the statute ofrepose applicable to plaintiffs' cause. The repose period of four years servesto keep the incorporated discovery rule from rendering the limitations periodwithout end. Meyers v. Underwood, 316 Ill. App. 3d 970, 986 (2000). Accordingly,while the limitations period does not begin to run until the plaintiff discoversthe injury, the repose period begins to run as soon as the negligent act occursand does so without regard to the plaintiff's knowledge of injury. Ferrara, 323Ill. App. 3d at 755.

Plaintiffs' third amended complaint was filed on May 25, 2000. The partiesappear to agree that May 21, 1996, the day the prescription for Diflucan was givento Avakian, began the repose period. Assuming this is true, the amendedcomplaint, filed four years and four days after May 21, 1996, is outside thestatutory repose period. However, plaintiffs assert that their third amendedcomplaint is not barred by the four-year statute of repose, because itsufficiently relates back to their timely filed complaint. See 735 ILCS 5/2--616(b) (West 2000).

Section 2--616 of the Code provides that a pleading may be amended any timebefore final judgment. 735 ILCS 5/2--616(a) (West 2000). The amended pleadingsmay change the cause of action and will not be time-barred so long as (1) theoriginal pleading was timely filed and (2) the cause of action added in theamended pleading grew out of the same transaction or occurrence as was set up inthe original pleading. 735 ILCS 5/2--616(b) (West 2000). The "original pleading"need not be the first complaint filed, but can be an amended pleading so long asit was also filed within the appropriate time period. See Digby v. Chicago ParkDistrict, 240 Ill. App. 3d 88, 91 (1992). Because defendants do not challenge thetimeliness of either the first or second amended complaints, we find they, also,are "timely filed" for purposes of section 2--616(b) (735 ILCS 5/2--616(b) (West2000)).

Section 2--616(b) provides that an amended claim will not be barred by thestatute of repose, even if filed outside the four-year period, as long as itrelates back to an original timely filed complaint. Zeh v. Wheeler, 111 Ill. 2d266, 270-71 (1986); Marek v. O.B. Gyne Specialists II, S.C., 319 Ill. App. 3d 690,702-03 (2001). Thus, we must determine if the four counts of the third amendedcomplaint that allege a theory of vicarious liability against the corporation andNIFAC for the acts and omissions of Kachigian sufficiently relate back to any ofthe three previous, timely filed complaints, which alleged a theory of vicariousliability for the acts and omission of Chulengarian. In other words, we mustdecide whether an amendment that alleges that a principal is vicariously liablefor the acts of an agent relates back to an original timely filed pleading whereboth pleadings allege vicarious liability and the only factual discrepancy betweenthe two is the identity of the agent. See Zeh, 111 Ill. 2d at 277.

We first note the liberality with which courts are to construe a plaintiff'spleadings. Section 2--603(c) of the Code of Civil Procedure explicitly providesthat pleadings are to be liberally construed in order to do substantial justicebetween the parties. 735 ILCS 5/2--603(c) (West 2000). Further, the "relationback" doctrine, located in section 2--616, is remedial in nature and should beapplied liberally to favor hearing a plaintiff's claim. Bryson v. News AmericaPublications, Inc., 174 Ill. 2d 77, 106 (1996). Thus, plaintiffs are not to bebarred from having the merits heard because of technical rules of pleading, andcourts are to elevate issues of substance over form. Jablonski v. Rothe, 287 Ill.App. 3d 752, 754-55 (1997). Medical malpractice plaintiffs, in particular, areafforded every reasonable opportunity to establish a case, and to this end,amendments to pleadings are liberally allowed to enable the action to be heard onthe merits rather than brought to an end because of procedural technicalities. Peterson v. Hinsdale Hospital, 233 Ill. App. 3d 327, 332 (1992).

Our supreme court examined, explained, and applied the relation-backdoctrine in Zeh. 111 Ill. 2d 266 (1986). Zeh involved plaintiff's attempt toamend her complaint to change the address of the location where she was allegedlyinjured. Zeh, 111 Ill. 2d at 269. In affirming the dismissal, the supreme courttraced the history of section 2--616, noting that the section no longer requiredthat the original and amended pleadings state the same cause of action. Zeh, 111Ill. 2d at 272-73. The court explained that the legislature's reason for thischange was its belief that defendants would not be prejudiced by the addition ofclaims so long as they were given the facts that form the basis of the claimasserted against them prior to the end of the limitations period. Zeh, 111 Ill.2d at 273. This emphasis on the identity of the occurrence rather than theidentity of the cause of action still provides protection to defendants because,as long as they are aware of the occurrence or transaction that is the basis ofthe claim, they can be prepared to defend against that claim, whatever theory isadvanced. Zeh, 111 Ill. 2d at 279. Thus, the critical inquiry is:

" 'whether there is enough in the original description to indicate thatplaintiff is not attempting to slip in an entirely distinct claim inviolation of the spirit of the limitations act.' " Simmons v. Hendricks,32 Ill. 2d 489, 497 (1965), quoting McCaskill, Illinois Civil Practice ActAnnotated, 1936 Supplement, pp. 126, 127.

In Zeh, the court explained that, because maintaining a stairway at onelocation involved different conduct by different persons at a different time anda different place from maintaining a stairway at another location, changing theaddress would involve two different locations (occurrences) and could not relateback to the original pleading. Zeh, 111 Ill. 2d at 275. However, simply changinga word in an address from "street" to "place" would relate back because itconstituted two different descriptions of the same occurrence or locality. Zeh,111 Ill. 2d at 276-77.

For their assertion that these four counts of the third amended complaintrelate back, the plaintiffs rely on Marek, where the difference between theoriginal and amended pleadings was that the original complaint named only thedoctor-agent while the second amended complaint charged both the doctor-agent andthe facility-principal separately with negligently failing to notify her of theresults of her mammography. Marek, 319 Ill. App. 3d at 698-699. The courtallowed the amendment adding the cause of action against the facility-principalbecause the facility-principal could not claim surprise or prejudice sinceidentical allegations had been made against its agent in the original complaint.Marek, 319 Ill. App. 3d at 699. The court reasoned that the heart of theplaintiff's complaint had been the allegations against the doctor-agent and thatthe facility-principal had been made aware of them when the original complaint wasfiled. Marek, 319 Ill. App. 3d at 699. Thus, the plaintiff was allowed to allegedirect liability against the principal for acts that had previously been allegedonly as the acts of the agent.

Defendants rely on the case of Weidner v. Carle Foundation Hospital, 159Ill. App. 3d 710 (1987). However, the amended counts in Weidner sought to add acount of direct liability against the principal for violation of its duty to beaware of the qualifications of its employees and the level of their performance. Weidner, 159 Ill. App. 3d at 711. This duty is different from that alleged in theoriginal complaint, which alleged vicarious liability for the acts of thephysician. Weidner, 159 Ill. App. 3d at 711. In the case before us, no newtheory of recovery is being alleged in the amended counts, as each of the previouscomplaints and amended counts alleges defendants' vicarious liability arising fromthe treatment Avakian received on May 21, 1996, at defendants' facility.

Defendants' other cases are similarly distinguishable. Viirre v. ZayreStores, Inc., 212 Ill. App. 3d 505, 516 (1991), involved the addition of a partyto a lawsuit. The addition of a party requires a different analysis under thestatute than amending a claim (735 ILCS 5/2--616(d) (West 2000)), and plaintiffsdo not seek to add Kachigian as a party. The plaintiff in Nickels v. Reid, 277Ill. App. 3d 849 (1996), sought to add the driver of the vehicle as a defendantand add negligent maintenance and vicarious liability as additional counts. Nickels, 277 Ill. App. 3d at 854. We note that the specific acts of negligentlymaintaining a vehicle are different from those of negligently driving a vehicleand would provide no notice to a defendant of the acts upon which liability wasbased. See Zeh, 111. Ill. 2d at 275, 277. In Flynn v. Szwed, 224 Ill. App. 3d107 (1991), the plaintiff attempted to amend her complaint to allege negligenttreatment during years previous to those alleged in the original complaint. Flynn, 224 Ill. App. 3d at 112. Thus, while the general act of "treatment"remained the same, the specific acts of that treatment were not the same and couldprovide no notice to defendant. Finally, Kennedy v. King, 252 Ill. App. 3d 52(1993), held that an amended complaint that alleged vicarious liability andnegligent entrustment did not relate back to the original theory of negligentoperation of an automobile. Kennedy, 252 Ill. App. 3d at 57. Hence, the decisionto allow another to drive one's vehicle is a different act from negligentlydriving a vehicle oneself. Each of these cases involves an original complaintbased upon one set of facts and an amended complaint based upon a new set offacts.

The defendants' assertions notwithstanding, the issue before us is not theaddition of a party to this lawsuit, the addition of a new cause of action, or theaddition of claims of negligent medical treatment that predate those alreadyalleged in the original complaint. Rather, the issue before us is whetherdefendants' liability is changed by the alternative identity of the treatingphysician. We find that it is not.

We find the case of Cammon v. West Suburban Hospital Medical Center, 301Ill. App. 3d 939 (1998), particularly helpful because the court held that someclaims related back to the original complaint, while others did not. Cammon, 301Ill. App. 3d at 947-48. In Cammon, plaintiff appealed the dismissal of threecounts of her complaint against the facility-principal. Cammon, 301 Ill. App. 3dat 941. The counts directed against the facility-principal in plaintiff'soriginal complaint alleged vicarious liability based upon a reading of decedent'smedical scans by three radiologist-agents. Cammon, 301 Ill. App. 3d at 942. Anadditional count, directed at a doctor-agent, alleged negligence for failing toachieve adequate hemostasis following decedent's surgery. Cammon, 301 Ill. App.3d at 942. After voluntarily dismissing the counts against the radiologists,plaintiff amended her complaint, adding three new counts against the hospital thatwere based upon the actions of unnamed nurses and other personnel for failing toachieve adequate hemostasis following surgery and for negligence in theadministration of a drug known as Dilaudid. Cammon, 301 Ill. App. 3d at 943. Thehospital filed a section 2--619 motion to dismiss, alleging that the three countswere time-barred by the statute of repose, and the trial court granted thehospital's motion. Cammon, 301 Ill. App. 3d at 943.

On appeal, the hospital argued that it had not been supplied with thenecessary information to defend itself against the new claims for the treatmentrendered by the different agents, since the claims asserted against it in theoriginal complaint were based solely on the acts of the three radiologists. Cammon, 301 Ill. App. 3d at 945. Therefore, the hospital asserted, the new countsin the amended complaint did not arise out of the same transaction or occurrence.Cammon, 301 Ill. App. 3d at 945. The court agreed that the allegations involvingthe Dilaudid did not relate back because none of the previous complaints containedanything to indicate that plaintiff was asserting liability based upon theadministration of medication. Cammon, 301 Ill. App. 3d at 947. However, thecourt found that the allegations concerning a failure to achieve adequatehemostasis did relate back because the original complaint had charged the doctorwith failing to achieve adequate hemostasis following the procedure. Cammon, 301Ill. App. 3d at 947. The court held that this constituted sufficient notice tothe hospital that plaintiff was alleging a failure to achieve satisfactoryhemostasis as a cause of death. Cammon, 301 Ill. App. 3d at 947.

There is a distinction that we find instructive between those claims heldto relate back and those that did not in Cammon. Those claims that related backsought only to change the identity of the actor from agent to principal, whilethose claims that did not relate back attempted to change both the identity of theactor and the acts that allegedly gave rise to the facility's liability. See Cammon, 301 Ill. App.3d at 947-48.

In counts XIV, XV, XVI, XVII of the third amended complaint, plaintiffs seekto hold defendants vicariously liable for damages resulting from the treatmentrendered by Kachigian, their alleged agent. Each of the three previous complaintsalleged a cause of action for negligence predicated upon an agency relationship. The third amended complaint adds two additional counts predicated upon thealternative agency theory of apparent authority. However, we note that both thetwo counts of the earlier complaints and the four new counts of the third amendedcomplaint are based upon agency, albeit slightly different, and the theory remainsthe vicarious liability of defendants for another's acts, which has not changedfrom the original complaint.

We find it important to emphasize that the specific acts giving rise todefendants' alleged liability remain the same. The original complaint allegedthat defendants' agent Chulengarian prescribed a treatment and failed to warn ofits adverse effects. The first and second amended complaints, the timeliness ofwhich defendants do not question, specifically alleged that Chulengarian'sprescribing Diflucan caused plaintiffs' injuries. Therefore, defendants havereceived adequate notice that plaintiff was alleging damages as a result of theprescription. See Cammon, 301 Ill. App. 3d at 947. Thus, the only criticaldifference between the first amended and third amended pleadings is the identityof the agent. We do not think such a change is sufficient to prevent theallowance of plaintiffs' amendment.

In Steinberg v. Dunseth, 276 Ill. App. 3d 1038 (1995), it was held that,when the original complaint incorrectly named the anesthesiologist, the plaintiffwas able to amend the complaint in order to name the true anesthesiologist, whereplaintiff's theory had, from the beginning, faulted the performance of theanesthesiologist, "whoever that person might have been" (Steinberg, 276 Ill. App.3d at 1043). We also note that our supreme court in Downing v. Chicago TransitAuthority, 162 Ill. 2d 70 (1994), had little difficulty with allowing a plaintiffto proceed on a claim of vicarious liability after amending his complaint to namethe agent, where the original complaint merely referred to him as "unknownemployee and agent," despite the dismissal of the claim against the agent asbeyond the time limitation. See Downing, 162 Ill. 2d at 77.

Defendants also assert that Chulengarian's deposition testimony putplaintiffs on notice that he did not treat Avakian and plaintiffs were thereforeobligated to seek the true identity of the physician. See Nickels v. Reid, 277Ill. App. 3d 849, 857 (1996). However, as noted, Nickels involved the additionof a party, as well as a new cause of action (Nickels, 277 Ill. App. 3d at 854),and the relation-back doctrine is predicated upon a defendant's awareness of theoccurrence or transaction that is the basis for the claim (see Zeh, 111 Ill. 2dat 279), and not upon what diligence a plaintiff exerts. In fact, if a defendantis aware of the true facts prior to the expiration of the limitations period, thecomplaint may be amended to reflect these known facts. Wolf v. Meister-Neiberg,Inc., 143 Ill. 2d 44, 47-48 (1991) (holding that plaintiff's amended complaintchanging the address of the construction site where plaintiff was injured relatedback because both defendants had notice of the correct location prior to theexpiration of the limitations period); see also Zeh, 111 Ill. 2d at 280-81, citingwith approval Harastej v. Reliable Car Rental, Inc., 58 F.R.D. 197 (D.P.R. 1972)(where a change in address was allowed because the defendant's identity did notchange and the defendant had been aware that the accident had occurred on itsproperty).

While defendants protest that they did not have notice of the claim againstthem for the acts or omissions of Kachigian, it is their own theory that Kachigianwas the treating physician and not Chulengarian. Defendants were in possessionof Avakian's treatment records and could determine from the start who the treatingphysician was. Since it is they who adamantly assert the treating physician wasKachigian, they cannot be said to lack notice of the claim against them for thecare Kachigian gave to Avakian.

Pfizer argues that it would be prejudiced by the reversal of the trialcourt's order dismissing counts XIV through XVII of the third amended complaintbecause it will be unable to file a contribution action against Kachigian due tothe expiration of the repose period. While we make no comment regarding thelikelihood of success Pfizer may have in bringing a contribution action againstKachigian or what further action they may pursue in this case, we note that Pfizerhas failed to provide any explanation or authority as to why our holding thatthese four counts relate back to the original complaint precludes their abilityto file a contribution action.

B. Section 2--622 Report

Defendants also asserted in their motion to dismiss that plaintiffs' healthprofessional's report, which must be filed along with the complaint pursuant tosection 2--622 of the Code (735 ILCS 5/2--622 (West 1994)), failed to meet therequirements of that section and therefore dismissal was proper. The ordergranting defendants' motion does not specify on what basis the trial court granteddefendants' motion to dismiss, but the transcript of the hearing suggests that thetrial court granted the dismissal on this basis as well.

Section 2--622 requires plaintiffs who seek damages for injuries resultingfrom healing art malpractice to file an affidavit along with the complaint. 735ILCS 5/2--622(a)(1) (West 1994). This affidavit must establish that the affianthas consulted a health professional who has determined, upon a review of themedical record, that there is a reasonable and meritorious cause for filing theaction. 735 ILCS 5/2--622(a)(1) (West 1994). The report of the reviewing healthprofessional must also be attached to the complaint. 735 ILCS 5/2--622(a)(1)(West 1994).

The purpose of section 2--622 is to deter frivolous suits. Cato v. Attar,210 Ill. App. 3d 996, 998 (1991). While examining issues surrounding section 2--622, we must keep in mind the liberality with which amendments to medicalmalpractice pleadings are to be allowed. Cato, 210 Ill. App. 3d at 999.

Defendants assert that our standard of review on this issue is an abuse ofdiscretion, citing Premo v. Falcone, 197 Ill. App. 3d 625 (1990). Premo addressedwhether the dismissal of the plaintiff's complaint with prejudice was proper. Premo, 197 Ill. App. 3d at 629. We appropriately applied the abuse of discretionstandard in that case. Premo, 197 Ill. App. 3d at 630. However, prior todetermining whether or not a complaint warrants dismissal with prejudice, a courtmust determine whether the physician's report complies with section 2-622 of theCode, as this is the basis for dismissal under section 2--619 (735 ILCS 5/2--619(West 2000) (735 ILCS 5/2--622(g) (West 1994)). We review dismissals undersection 2--619 de novo. Mueller v. North Suburban Clinic, Ltd., 299 Ill. App. 3d568, 572 (1998). Accordingly, we review de novo the issue of whether aphysician's report complies with section 2--622. Mueller, 299 Ill. App. 3d at572. Defendants' sole assertion is that the section 2--622 report is inadequatebecause it speaks of treatment rendered by Chulengarian, rather than Kachigian,and therefore it cannot support the four new counts. We disagree.

The statute requires that, for each defendant who has been named in acomplaint and each named at a later time, there must be a separate certificate andwritten report. 735 ILCS 5/2--622(b) (West 1994). However, this court hasrecognized that, when a single report is sufficiently broad to cover eachdefendant and discusses deficiencies in the medical care given by the defendants,the report can apply to more than one defendant and comply with section 2--622. Premo v. Falcone, 197 Ill. App. 3d at 632. Furthermore, a report speaking to theacts of an agent is sufficient to support a count against the principal, eventhough the principal is not specifically named in the report. Comfort v. WheatonFamily Practice, 229 Ill. App. 3d 828, 833 (1992).

The requirement that the report clearly identify the reasons that ameritorious cause exists further supports our holding in Comfort. The identityof the treating physician means little to the health professional who reviews apatient's medical record in order to assess the standard of care received by thatpatient. This is so because the expertise of the health professional lends itselfto a review of the acts performed by the treating physician, not to a review ofhis or her identity. The reviewing physician must state with precision that theacts fell below the standard of care and why. Thus, it is the actions of thetreating physician that give rise to liability. Accordingly, the theory ofsection 2--622 does not require a separate report for the addition of a partywhose liability is not based upon different acts or omissions. See Premo, 197Ill. App. 3d at 632 (multiple defendants whose acts giving rise to liability werethe same).

Defendants' assertion would require plaintiffs to incur the cost of anotherphysician's report, which merely substitutes the name Kachigian for Chulengarian. There would be no additional review of the treatment because the treatment itselfwould remain unchanged. We do not see how justice would be served by requiringplaintiffs to incur the cost of a physician's expertise where such expertise isnot utilized.

The amended pleading before us changes only the identity of the agent, notthe actions that give rise to defendants' liability. The theory of liabilityasserted against defendants is that in their capacity as principals or employersthey are responsible for the acts of their agent. In two of the four new counts,the cause of action remains one of agency, and in the remaining two, largely thesame facts will be utilized to establish apparent authority. Moreover, theidentity of the defendants and the acts giving rise to their liability have notchanged from the first amended complaint to the third amended complaint. Therefore, under these facts, we hold that, when the counts are directed againsta principal, and the acts upon which liability is predicated remain the same,plaintiff does not need to change the section 2-622 report to correct the agent'sidentity.

Because we hold that the amended counts relate back to an originally timelyfiled complaint and that plaintiffs' section 2--622 physician's report issufficient to support the amended complaint, we need not address plaintiffs'remaining argument that the trial court erred by denying their motion forreconsideration.

III. CONCLUSION

For the foregoing reasons, we reverse the trial court's order grantingdefendants' motion to dismiss counts XIV, XV, XVI, and XVII of the third amendedcomplaint, and we remand the cause for proceedings consistent herewith.

Reversed and remanded.

McLAREN and BYRNE, JJ., concur.

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