Appeal from the Circuit Court of Vermilion County; the Hon.
Paul M. Wright, Judge, presiding.
JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:
Medical malpractice limitations question.
May a plaintiff file suit alleging medical malpractice on the basis of actions occurring toward the end of a continuous course of treatment, then subsequently file a timely amended complaint based on completely different conduct commencing early on in that course of treatment nearly 10 years after the initial conduct occurred?
Chestnut filed her initial complaint alleging medical malpractice on March 26, 1981. The gravamen of the allegations contained therein was defendants' alleged tortious conduct in inserting a Kuntscher rod of improper length into Chestnut's left femur on December 19, 1977. (This operation was part of a course of treatment of Chestnut by defendants which commenced in June 1974, following Chestnut's involvement in an automobile accident.)
The next event of significance to the issues involved in this appeal occurred on November 5, 1982, when Chestnut filed a motion to amend her complaint. Chestnut alleged that as a result of a deposition which took place on November 3, 1982, she determined that the negligent care and treatment alleged in her initial complaint arose from facts other than those stated therein and that the "claim or demand sought to be amended" arose out of the same transaction or occurrence as that alleged in the initial complaint, "even though the original pleading was defective in that it failed to allege the performance of the act which is a necessary prerequisite to the plaintiff's right to recover."
On November 17, 1982 (prior to the time that the above motion was ruled upon), Chestnut filed, without leave of court, a "First Amended Complaint." At a hearing held on Chestnut's motion to amend and the objections of defendants thereto on December 13, 1983, Chestnut admitted that she inadvertently and erroneously filed her "First Amended Complaint" without leave of court, and that the only complaint properly on file at that time was the initial 1981 complaint. At the conclusion of the hearing, the court granted Chestnut leave to withdraw the document entitled "First Amended Complaint" and to file an amended pleading. Chestnut did so on February 1, 1984, and on the same date the court struck the amended complaint with leave to further amend.
Chestnut filed her second amended complaint on February 15, 1984. The allegations of this complaint are similar to those of the first amended complaint filed February 1, 1984. The gist of both amended complaints is that on June 4, 1974, defendant Adeli performed a left femoral plating and open reduction with screw fixation of Chestnut's severely fractured left femur; that this was the improper procedure to remedy Chestnut's condition; and that during the remainder of Adeli's and Lakeview Hospital's (Lakeview) treatment (which ended on August 15, 1978), Adeli and Lakeview failed to take other proper steps to cause Chestnut's fractured left femur to heal, and did not advise Chestnut of the true cause of her continuing affliction. Chestnut's second amended complaint was likewise dismissed on defendants' motion following a hearing held April 24, 1984.
• 1 The first question which we must determine is whether Chestnut's amended complaints alleging a cause of action based on the entire course of treatment beginning in 1974 (as distinguished from the act of inserting a Kuntscher rod of improper length in 1977) may for limitations purposes be deemed to have been first filed in 1981 (when Chestnut filed her initial complaint) or in 1984. Section 2-616(b) of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2-616(b)) provides that an amended complaint relates back to the time of the filing of the initial complaint if the initial complaint was timely 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." The circumstances under which an amended complaint may be deemed to relate back to the date of filing of the initial complaint were ably stated by the court in Krieger v. Village of Carpentersville (1972), 8 Ill. App.3d 243, 246-47, 289 N.E.2d 481, 483:
"The right to amend and the relation back of an amendment * * * depend on whether the original complaint furnishes to the defendant all of the information necessary to prepare its defense to the claim subsequently asserted in the amended complaint. [Citation.] The requirement that a cause of action be stated at the outset with precise accuracy has been shifted to a test of the identity of the transaction or occurrence, on the rationale that the defendant has not been prejudiced so long as his attention has been directed to the facts which form the basis of the claim within the prescribed time. [Citation.]"
The 1981 complaint, alleging as it did medical malpractice on the basis of the insertion of a Kuntscher rod of improper length, cannot reasonably be said to have furnished the defendants with all of the information necessary to defend against the amended complaint. Indeed, the only reasonable conclusion which defendants could have drawn from the 1981 complaint was that Chestnut sought to hold them liable for medical malpractice solely on the basis of the insertion of a Kuntscher rod of improper length in 1977. The mutual exclusivity of the causes of action asserted in the initial 1981 complaint and the 1984 amended complaints is demonstrated by Chestnut's complete failure to allege the insertion of a Kuntscher rod of improper length as a cause of the damages alleged in the 1984 amended complaints. Moreover, it is not inconceivable that the defendants would be prejudiced by now having to defend against the allegations of the 1984 amended complaints, since in reliance on the 1981 complaint, defendants may well have failed to take the steps necessary to preserve evidence pertaining to their treatment of Chestnut prior to December 1977.
Chestnut seeks to demonstrate that the 1984 complaints state the same cause of action as the 1981 complaint and may thus be deemed timely filed, by pointing out that the events mentioned in both the 1984 and 1981 complaints were part of the same continuous course of treatment. The only cases which she cites in support of this argument are Connell v. Hayden (1981), 83 App. Div.2d 30, 443 N.Y.S.2d 383, and Schmit v. Esser (1931), 183 Minn. 354, 236 N.W. 622, which hold that for statute of limitations purposes, a cause of action as to ...