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DeLuna v. Treister

February 19, 1999

OSCAR DELUNA, ADM'R OF THE ESTATE OF ALICIA DELUNA, DECEASED, APPELLEE, V. DR. MICHAEL TREISTER ET AL.,APPELLANTS.


The opinion of the court was delivered by: Justice McMORROW

Agenda 12-March 1998.

In this medical malpractice action, plaintiff Oscar DeLuna, as administrator of the estate of Alicia DeLuna, filed a single-count complaint in the circuit court of Cook County against defendants Michael Treister, M.D., and St. Elizabeth's Hospital. Plaintiff alleged that Dr. Treister negligently caused decedent's death and that St. Elizabeth's, as Dr. Treister's employer, shared vicarious liability for decedent's death. The circuit court ruled that the doctrine of res judicata barred plaintiff's claim against Dr. Treister, and granted Dr. Treister's motion to dismiss. The circuit court ruled further that the dismissal of Dr. Treister necessitated the dismissal of plaintiff's respondeat superior action against St. Elizabeth's.

The appellate court reversed, with one Justice Dissenting.We granted defendants' petitions for leave to appeal (166 Ill. 2d R. 315) and now must decide whether: (1) an involuntary dismissal for failure to comply with section 2-622 of the Illinois Code of Civil Procedure (735 ILCS 5/2-622 (West 1994)) constitutes an "adjudication upon the merits," as defined in Illinois Supreme Court Rule 273 (134 Ill. 2d R. 273); (2) an allegedly vicariously liable principal must be dismissed from a lawsuit when the principal's agent is dismissed for reasons unrelated to the merits of plaintiff's claim(s); and (3) plaintiff's claim against the hospital is barred by the statute of limitations.

BACKGROUND

This is the second time this matter is before this court. The present appeal, which we may refer to as DeLuna II, cannot be understood absent a recitation of pertinent events occurring in the first appeal, which we identify as DeLuna I. DeLuna v. St. Elizabeth's Hospital, 147 Ill. 2d 57 (1992).

DeLuna I

On April 16, 1986, plaintiff Guadalupe DeLuna, *fn1 as administrator of the estate of decedent Alicia DeLuna, filed a six-count complaint, alleging that during an operation to perform a lumbar laminectomy, defendant Michael Treister, M.D., negligently cut decedent's left common iliac artery, and failed to timely discover and correct his negligent error. Plaintiff further alleged that Dr. Treister's negligence caused decedent to exsanguinate and eventually die. Plaintiff also asserted that St. Elizabeth's Hospital, as Dr. Treister's employer, was vicariously liable for decedent's injuries and death.

Citing section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 1994)), St. Elizabeth's moved to dismiss plaintiff's claims against the hospital. Plaintiff failed to file an affidavit, required by section 2-622 of the Code (735 ILCS 5/2-622 (West 1994)), attesting to a review of plaintiff's claims by a health professional, and failed to file a report from the health professional stating that plaintiff alleged a reasonable and meritorious cause of action. The circuit court granted the motion and dismissed St. Elizabeth's without prejudice on October 23, 1986.

On February 25, 1987, the circuit court dismissed all counts against Dr. Treister on identical grounds. The order dismissing Dr. Treister was entered with prejudice.

Plaintiff chose not to file the section 2-622 affidavit and report, but instead appealed the orders dismissing the defendants, in order to challenge the constitutionality of section 2-622. The appellate court reversed, and held section 2-622 unconstitutional. DeLuna v. St. Elizabeth's Hospital, 184 Ill. App. 3d 802 (1989).

On appeal, this court found the affidavit and report requirements of section 2-622 constitutional, and affirmed the circuit court's decision to dismiss with prejudice the negligence counts asserted against Dr. Treister. DeLuna I, 147 Ill. 2d at 75-76. To this end, the court expressly rejected plaintiff's request that the "action *** be remanded so that the necessary affidavit and report [could] be filed." DeLuna I, 147 Ill. 2d at 76. We were precluded from granting plaintiff's request because plaintiff elected, at the time of dismissal, to challenge the constitutionality of section 2-622 (DeLuna I, 147 Ill. 2d at 76), instead of exercising his option to seek leave to refile the action with the required documentation (134 Ill. 2d R. 273). Accordingly, we "decline[d] to order further proceedings." DeLuna I, 147 Ill. 2d at 76. Also, this court dismissed plaintiff's appeal from the circuit court's order dismissing St. Elizabeth's without prejudice. Plaintiff had appealed the order pursuant to Supreme Court Rule 304(a), which permits appeals from certain orders, so long as the orders are "final and appealable," and the circuit court finds that there is no just reason to delay enforcement or appeal of the orders. 155 Ill. 2d R. 304(a). Because the circuit court dismissed St. Elizabeth's without prejudice, we held that the order of dismissal lacked the finality necessary to appeal the order under Rule 304(a). DeLuna I, 147 Ill. 2d at 76. Therefore, it was not a "final and appealable order" subject to review by either this or the appellate court. DeLuna I, 147 Ill. 2d at 76.

DeLuna II

On November 10, 1993, plaintiff refiled his medical malpractice action against St. Elizabeth's and Dr. Treister. Plaintiff's single-count complaint also named a third defendant, Dr. T. Kolather, who was subsequently voluntarily dismissed from the lawsuit.

The allegations set forth in the DeLuna II complaint were virtually identical to those asserted in the DeLuna I complaint. The parties in both suits were identical, except for the replacement of Guadalupe DeLuna with Oscar DeLuna as administrator of the estate. Dr. Treister filed a motion to dismiss the 1993 complaint. Dr. Treister argued that his prior dismissal with prejudice in DeLuna I was a dismissal "on the merits" under Supreme Court Rule 273. 134 Ill. 2d R. 273. Continuing, Dr. Treister maintained that when, as here, a court has addressed the merits of a prior, identical claim involving identical parties, the doctrine of res judicata bars further litigation of the claim. Dr. Treister therefore insisted that plaintiff's claims in DeLuna II were res judicata as to him. The circuit court granted Dr. Treister's motion to dismiss with prejudice.

St. Elizabeth's filed a separate motion to dismiss the complaint, arguing that the res judicata doctrine also barred plaintiff's renewed action against the hospital. In denying this motion, the circuit court held that the dismissal entered in favor of St. Elizabeth's in DeLuna I had been without prejudice and thus did not reach the merits of the plaintiff's claim.

However, the circuit court granted St. Elizabeth's subsequent motion to dismiss, which challenged the hospital's purported derivative liability to plaintiff. Where respondeat superior is the sole theory of liability asserted against a principal, the hospital insisted, the dismissal with prejudice of the principal's agent from the lawsuit compels dismissal of the principal, as well. Stated differently, the hospital argued that the derivative liability of the principal depends on a finding of liability against the principal's agent; if the agent will never be found liable, then, logically, the principal may not be found liable, either. Plaintiff appealed the orders dismissing St. Elizabeth's and Dr. Treister. A divided appellate court reversed the circuit court. 286 Ill. App. 3d 25. Regarding plaintiff's lawsuit against Dr. Treister, the appellate majority ruled that plaintiff's failure to comply with section 2-622 in DeLuna I was a purely procedural fault that did not require the circuit court to reach the merits of the case. 286 Ill. App. 3d at 33-35. The appellate court likened dismissals for failure to comply with section 2-622 with dismissals for "lack of jurisdiction," which are explicitly excepted from the operation of Rule 273. 286 Ill. App. 3d at 38. Thus, the court reasoned, the dismissal was not on the merits and the doctrine of res judicata did not apply. 286 Ill. App. 3d at 38. The appellate court found that the dismissal of St. Elizabeth's was also in error, since the hospital's agent, Dr. Treister, had been improperly dismissed from DeLuna II. 286 Ill. App. 3d at 38.

We granted petitions for leave to appeal filed by Dr. Treister and by St. Elizabeth's. 166 Ill. 2d R. 315(a). The Illinois Trial Lawyers Association was granted leave to file an amicus curiae brief in support of plaintiff's position. 155 Ill. 2d R. 345(a). For the reasons stated below, we reverse the decision of the appellate court as to Dr. Treister, and ...


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