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May 30, 1997


Appeal from the Circuit Court of Cook County. Honorable Philip L. Bronstein, Judge Presiding.

Released for Publication July 21, 1997.

The Honorable Justice Zwick delivered the opinion of the court. Greiman, P.j., and Theis, J., concur.

The opinion of the court was delivered by: Zwick

The Honorable Justice ZWICK delivered the opinion of the court:

Plaintiffs instituted this action seeking recovery for personal injuries allegedly caused by the negligent medical treatment rendered by defendant to Cecilia Figueroa. The trial court dismissed plaintiffs' complaint against defendant, Illinois Masonic Medical Center, finding that the claim asserted in that pleading was barred because it was not presented until after expiration of the applicable statute of limitations. Plaintiffs have appealed the dismissal, contending that the trial court erred in finding that the refiled complaint did not relate back to the timely filing of the initial complaint.

The record reveals that plaintiff Cecilia Figueroa was admitted to defendant's hospital on June 3, 1990, where she underwent labor and the subsequent delivery of her first child by caesarean section. Following the caesarean section procedure, plaintiff was returned to surgery for treatment of internal bleeding. After a period of hospitalization, she was discharged. Three days after her discharge, plaintiff was required to undergo a complete abdominal hysterectomy necessitated by a hemorrhage of her uterus.

On September 10, 1991, plaintiffs brought suit against defendant and two individual physicians, alleging that they acted negligently in treating Cecilia Figueroa after the delivery of her baby during her hospitalization. Specifically, plaintiffs alleged that on June 3, 1990, Cecilia Figueroa was accepted as a patient by defendant which undertook to diagnose and treat her condition. Plaintiffs alleged further that defendants were negligent in failing to use proper skill and care in treatment of Cecilia following her cesarean section.

On May 12, 1992, plaintiffs filed an amended complaint which named an additional doctor as a respondent in discovery and which alleged injuries resulting from medical malpractice during the June 3, 1990, hospital stay.

Approximately three years later, on March 16, 1995, plaintiffs filed their interrogatory answers which disclosed the opinion of their testifying expert. In plaintiffs' expert's opinion, defendant acted negligently during Cecilia's June 3, 1990, admission to the hospital, and specifically, during the labor and delivery of her baby. Plaintiffs' expert also concluded that during Cecilia's labor and delivery, defendant deviated from acceptable standards of care, resulting in massive bleeding and the necessity of a hysterectomy.

On July 10, 1995, defendant filed a motion to bar the testimony of plaintiffs' expert and a motion for summary judgment, asserting that the opinion of plaintiffs' expert reflected a theory not stated in the amended complaint, i.e., that the defendant's negligence occurred during Cecilia's labor prior to the delivery of her baby.

Plaintiffs voluntarily dismissed their claims on July 18, 1995, and filed a new action on July 24, 1995. In their refiled action, plaintiffs alleged that defendant acted negligently during Cecilia's hospital stay which commenced on June 3, 1990, and continued at least until June 4, 1990, when she delivered by cesarean section. The physician's report which was attached to this complaint specifically asserted that defendant was negligent in treating Cecilia during the period of her labor and prior to the delivery of her baby by cesarean section.

On December 6, 1995, defendant brought a motion to dismiss pursuant to section 2-619 of the Illinois Code of Civil Procedure (735 ILCS 5/2-619 (West 1994)), contending that the medical malpractice claims asserted in plaintiffs' refiled complaint were barred because they were not presented within the applicable two-year limitations period (735 ILCS 13-212 (West 1996)) and because those claims did not relate back to the filing of the original complaint in September 1991.

The trial court agreed, dismissing plaintiffs' action with prejudice on March 6, 1996, and plaintiffs have appealed.

It is undisputed that the original complaint was timely filed. Consequently, the sole question raised on appeal is whether the refiled complaint related back to the ...

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