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Cammon v. West Suburan Hospital Medical Center

November 25, 1998

BONITA CAMMON, SPECIAL ADMINISTRATOR OF THE ESTATE OF EDDIE CAMMON, DECEASED, PLAINTIFF-APPELLANT,
v.
WEST SUBURBAN HOSPITAL MEDICAL CENTER, DEFENDANT-APPELLEE, AND MARK TOMERA, DEFENDANT.



The opinion of the court was delivered by: Justice Hoffman

APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY

HONORABLE SOPHIA H. HALL, PRESIDING JUDGE.

The plaintiff, Bonita Cammon, special administrator of the estate of Eddie Cammon, deceased, appeals from an order of the circuit court dismissing counts III, IV, and V of her amended complaint against the defendant, West Suburban Hospital Medical Center (West Suburban). For the reason which follow, we: 1) affirm in part and reverse in part the dismissal of counts III and IV; 2) reverse the dismissal of count V; and 3) remand the case to the circuit court for further proceedings.

The facts necessary to our resolution of this appeal are not in dispute. Eddie Cammon (Cammon) suffered from renal disease and malig-nant hypertension. He was admitted to West Suburban for treatment on June 19, 1992, after experiencing abdominal pain. Upon admission, it was determined that Cammon's peritoneal catheter was not functioning. On July 2, 1992, Dr. Mark Tomera removed the catheter, but Cammon's abdominal pain increased after the procedure. CT scans were performed on July 7, 8, and 9, 1992. Drs. Reza Lofti, Julio Rossi, and Regina Liebman, all radiologists, interpreted the scans as revealing the presence of an abdominal abscess. On July 10, 1992, Tomera performed an exploratory laparotomy which revealed the presence of an inter-abdominal hematoma, not an abscess. Within hours of that surgery, Cammon experienced sudden cardiopulmonary arrest. He died on July 11, 1992.

On January 24, 1994, the plaintiff filed the instant action. In her eight-count original complaint, she sought recovery against Tomera, Lofti, Rossi, Liebman, and West Suburban. Counts I and II of the plaintiff's original complaint charged Tomera with negligence in his performance of the surgeries on July 2 and 10, 1992; his misdiagnosis of the inter-abdominal hematoma; his failure to order timely CT scans; and his failure to achieve adequate hemostasis following the exploratory laparotomy. Counts III through VIII of that complaint were directed against Lofti, Rossi, Liebman, and West Suburban. The plaintiff charged that Lofti, Rossi, and Liebman were negligent in that they misinterpreted the CT scans and that West Suburban was vicariously liable for their negligent conduct. The plaintiff attached to her original complaint the report of a health care professional as required by section 2-622 of the Code of Civil Procedure (Code) (735 ILCS 5/2-622 (West 1996)).

Liebman filed a motion for summary judgment on May 7, 1997. On May 14, 1997, prior to a hearing on Liebman's motion, the plaintiff voluntarily dismissed her claims against Lofti, Rossi, and Liebman. The counts against Tomera and West Suburban remained pending. On May 27, 1997, West Suburban moved for summary judgment on all claims pending against it. The plaintiff did not respond to that motion, instead moving for leave to file an amended complaint. On June 11, 1997, the circuit court granted the plaintiff's motion, and she filed her amended complaint that same day.

Counts I and II of the plaintiff's amended complaint set forth claims against Tomera which are still pending and are not the subject of this appeal. Counts III, IV, and V of the plaintiff's amended complaint were directed solely against West Suburban. Count III, a survival action, and count IV, a wrongful death action, were based on the same allegations of negligence. Unlike the counts directed against West Suburban in the plaintiff's original complaint, however, neither of these counts sought recovery for the conduct of Lofti, Rossi, and Liebman. Rather, the claims asserted in counts III and IV of the amended complaint were based on West Suburban's alleged vicarious liability for the acts and omissions of unnamed nurses, residents, medical technicians, anesthesiologists, and other health care professionals in failing to: (1) achieve adequate hemostasis following the exploratory laparotomy; (2) properly monitor Cammon during and after the exploratory laparotomy; (3) recognize the effects of Dilaudid on Cammon; (4) order or administer the proper dosage of Dilaudid; (5) monitor the administration of Dilaudid; and (6) properly treat Cammon to reverse the effects of excessive doses of Dilaudid.

Count V of the plaintiff's amended complaint was a negligence action against West Suburban for spoliation of evidence (hereinafter referred to as the "spoliation claim"). In that count, the plaintiff alleged that West Suburban breached its duty to preserve the operative report for the exploratory laparotomy performed on July 10, 1992, thereby prejudicing her claims against Tomera and West Suburban.

On July 2, 1997, West Suburban filed a motion, pursuant to section 2-619 of the Code (735 ILCS 5/2-619 (West 1996)), seeking the involuntary dismissal of counts III, IV, and V of the plaintiff's amended complaint. West Suburban asserted that: 1) all three counts were time-barred pursuant to the four-year statute of repose set forth in section 13-212(a) of the Code (735 ILCS 5/13-212(a) (West 1996)); and 2) the plaintiff had failed to comply with the affidavit and health care professional report requirements of section 2-622 of the Code (735 ILCS 5/2-622 (West 1996)). A plaintiff's failure to comply with the requirements of these two Code sections is the basis for dismissal under sections 2-619(a)(5) and 2-619(a)(9) of the Code respectively. 735 ILCS 5/2-619(a)(5),(9) (West 1996).

On August 25, 1997, the circuit court granted West Suburban's motion on both 2-619(a)(5) and (9) grounds, and dismissed counts III, IV, and V of the plaintiff's amended complaint. The circuit court inserted in its dismissal order the requisite findings of finality and appealability as set forth in Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a)), and this appeal followed.

As the counts in issue were dismissed in response to a motion for involuntary dismissal pursuant to section 2-619 of the Code, our review is de novo. Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 116, 619 N.E.2d 732 (1993).

The parties do not dispute that the claims asserted against West Suburban in counts III and IV of the plaintiff's amended complaint are based on allegations of medical negligence, making them subject to the provisions of sections 13-212(a) and 2-622 of the Code. There is, however, a dispute regarding the applicability of those Code sections to count V. Consequently, we will address the propriety of the dismissal of counts III and IV before turning our attention to the dismissal of count V.

The plaintiff's original and amended complaints were filed on January 24, 1994, and June 11, 1997, respectively. Under section 13-212(a) of the Code, an action seeking damages for injury or death resulting from patient care cannot be brought more than two years after the date on which the plaintiff knew or should have known of the injury or death and, in no event, more than four years past the date on which the act or omission alleged to have caused the injury or death occurred. 735 ILCS 5/13-212(a) (West 1996). West Suburban argues that counts III and IV of the amended complaint are time-barred as they were filed more than four years after Cammon's death, which occurred on July 11, 1992. The plaintiff, relying on the provisions of section 2-616(b) of the Code (735 ILCS 5/2-616(b) (West 1996)), contends that the claims are not time-barred as the filing of her amended complaint relates back to the date she filed her original complaint.

Section 2-616(b) of the Code allows the filing of an amended pleading to relate back to the date of the original pleading if the original pleading was timely filed and if the causes of action asserted in the amended pleading grew out of the same transaction or occurrence as was set up in the original pleading. 735 ILCS 5/2-616(b)(West 1996); Zeh v. Wheeler, 111 Ill. 2d 266, 270-71, 489 N.E.2d 1342 (1986). There is no question that the plaintiff's original complaint was filed within the applicable two-year limitations period set forth in section 13-212(a) of the Code. Our analysis will focus on the question of whether the claims asserted ...


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