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03/29/96 ROY DAVID PETERSON v. HINSDALE WOMEN'S

March 29, 1996

ROY DAVID PETERSON, AS FATHER AND NEXT FRIEND OF DANIEL ROY PETERSON, A MINOR, PLAINTIFF-APPELLANT,
v.
HINSDALE WOMEN'S CLINIC, A CORPORATION, AND DR. DONALD A. AMSLER, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. Honorable Kenneth L. Gillis, Judge Presiding.

As Corrected April 16, 1996.

The Honorable Justice Tully delivered the opinion of the court: Rizzi, P.j., and Cerda, J., concur

The opinion of the court was delivered by: Tully

The Honorable Justice TULLY delivered the opinion of the court:

Plaintiff, Roy David Peterson (hereinafter Roy), as father and next friend of Daniel Roy Peterson (hereinafter Daniel), a minor, filed this action in the circuit court of Cook County against defendants Hinsdale Women's Clinic and Dr. Donald A. Amsler, seeking damages for extraordinary medical expenses that will be incurred in raising Daniel as a result of defendants' failure to diagnose and treat the rubella or German measles contracted by Daniel's mother in 1977, during her pregnancy.

Plaintiff's original complaint, filed on July 20, 1990, alleged claims of wrongful life against these and other defendants as well as a claim under the Rights of Married Persons Act (Ill. Rev. Stat. 1991, ch. 40, par. 1015 (now 750 ILCS 65/15 (West 1996))) (hereinafter the Act) which did not expressly name these defendants. The trial court dismissed the complaint for failure to state a cause of action pursuant to section 2-615 of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 2-615 (now 735 ILCS 5/2-615 (West 1996))) but granted plaintiff leave to amend.

Plaintiff filed a first amended complaint alleging wrongful life and wrongful birth claims against these defendants as well as a claim under the Act, which again failed to expressly name these defendants. The trial court dismissed the wrongful life claim, on the basis that such cause of action is not recognized in Illinois, and the claim under the Act, based upon the statute of limitations found in section 13-203 of the Code of Civil Procedure (735 ILCS 5/13-203 (West 1992)). The trial judge granted plaintiff leave to amend.

Plaintiff filed a second amended complaint and defendants moved to dismiss on the same basis. Plaintiff was again granted leave to amend. Plaintiff then filed a third amended complaint alleging wrongful birth against defendants. Defendants moved to dismiss the third amended complaint on the grounds that it failed to state a cause of action recognized in Illinois. The trial court ordered that defendants withdraw their motion. Defendants filed a second motion to dismiss on the grounds that plaintiff's claims were barred by the statute of limitations found in section 13-212 of the Code of Civil Procedure (735 ILCS 5/13-212 (West 1994).) The trial court ruled that, in his amended complaint, plaintiff was attempting to add a new plaintiff, Roy, in his own capacity, to the case after the applicable statute of limitations had run. Thus, the trial court granted defendants' motion to dismiss.

Plaintiff filed a motion for reconsideration in which he argued that the claims set forth in the third amended complaint should relate back to the filing of the original complaint. Plaintiff maintained that the original complaint included a claim by Roy against these defendants, even though they were not expressly named in the prayer for relief. The trial court denied plaintiff's motion. It is from the dismissal of third amended complaint that plaintiff appeals to this court pursuant to Supreme Court Rule 301 (134 Ill. 2d R. 301).

For the reasons which follow, we affirm the judgment of the circuit court.

The sole issue presented for review is whether a claim for wrongful birth relates back to an original complaint which alleged wrongful life against these defendants and a claim under the Act against other defendants. In reviewing an order on a motion to dismiss, we apply a de novo standard of review. Dace International, Inc. v. Apple Computer, Inc. (1995), 275 Ill. App. 3d 234, 237, 211 Ill. Dec. 591, 655 N.E.2d 974; see also Toombs v. City of Champaign (1993), 245 Ill. App. 3d 580, 583, 185 Ill. Dec. 755, 615 N.E.2d 50.

Under Section 2-616(b) of the Code of Civil Procedure, a cause of action asserted in an amended pleading will relate back to the date of the filing of the original pleading, despite defects in the original pleading, so long as the original pleading was timely when filed and the cause of action asserted in the amended pleading arose from the same transaction or occurrence as the cause of action set forth in the original pleading. See 735 ILCS 5/2-616(b) (West 1996).

Defendants argue that plaintiff's original complaint was untimely when filed, thus precluding the relation back of the wrongful birth claim. Section 5/212(a) of the Code of Civil Procedure provides in pertinent part that:

"no action for damages for injury or death against any physician *** or hospital duly licensed under the laws of this State, whether based upon tort, or breach of contract, or otherwise, 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, *** of the existence of the injury or death for which damages are sought in the action, whichever of such date occurs first, but in no event shall such action be brought more than 4 years ...


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