Appeal from the Circuit Court of Cook County. Honorable Martin S. Agran, Judge Presiding.
This appeal arises from a refiled wrongful death action by Janet Anderson, the special administrator of Mary Cooper's (decedent) estate. The original complaint, filed on July 17, 1997, was a wrongful death action against Humana Health Plans, Inc. (Humana), Dr. Robert Alter, West Suburban Hospital Medical Center (West Suburban) and Dr. Roy Horras. The complaint alleged that on February 28, 1995, Dr. Alter treated decedent at Humana and prescribed a drug called Coumadin, an anticoagulation blood thinner, and aspirin. Dr. Alter subsequently increased that dosage of Coumadin in June of 1995.
On July 21, 1995, decedent was taken to the emergency room at West Suburban and treated by Dr. Horras. She remained under the care of Dr. Horras until her death on July 24, 1995. The complaint alleged that decedent died due to Dr. Alter's and Dr. Horras's failure to diagnose excessive Coumadin. No complaints of negligence were alleged against any agents or apparent agents of West Suburban.
A second amended complaint was filed on January 20, 1999, essentially asserting the same causes of action contained in the initial complaint against the previously named defendants. Once again, no complaints of negligence were alleged against any of the agents or apparent agents of West Suburban.
All defendants subsequently filed various motions for summary judgment. In its response to defendants' motion for summary judgment, plaintiff alleged for the first time that Humana and West Suburban were vicariously liable for the acts of its agents, servants and employees. On September 7, 2000, plaintiff filed an emergency motion to file a third amended complaint adding the allegation of vicarious liability. That motion was denied. Defendants' motion for summary judgment was granted in part and denied in part. Partial summary judgment was entered in favor of defendants Dr. Alter and Humana on all allegations of negligence occurring on and after July 25, 1995, and partial summary judgment was entered in favor of defendant West Suburban as to all allegations of negligence by any hospital agent, servant or employee, other than Dr. Horras. The motions were otherwise denied, and the court struck the Rule 304(a) (155 Ill. 2d R. 304(a)) language.
On October 18, 2000, upon plaintiff's motion, the case was voluntarily dismissed and plaintiff was given leave to re-file within one year.
On April 13, 2001, plaintiff refiled her complaint against West Suburban, Humana, Dr. Alter and Dr. Horras. In her refiled complaint, she alleged negligence on the part of the named defendants and the agents and employees acting on their behalf.
All defendants subsequently filed various motions to dismiss. West Suburban and Dr. Horras' motions to dismiss argued that the circuit court's partial summary judgment order in the original suit constituted res judicata barring plaintiff's claim that West Suburban was liable for the negligent acts of its agents other than Dr. Horras; that res judicata barred plaintiff's claims that West Suburban was liable for Dr. Horras' alleged negligence because plaintiff chose to voluntarily dismiss those claims instead of litigating them in her original suit; and that the statute of repose barred plaintiff's claims that West Suburban and Dr. Horras were liable for the alleged negligence of agents other than Dr. Horras.
Humana and Dr. Alter's motions to dismiss asserted that they were not liable for any of the conduct allegedly occurring on or after decedent's admittance to West Suburban; that the new allegations of negligence were barred by the applicable statute of limitations; and that any new allegations in the refiled complaint should be dismissed based upon the doctrine of res judicata.
The trial court granted the motions to dismiss in their entirety with prejudice.
Plaintiff has raised five issues for our review: (1) whether the order denying Dr. Horras' motion for summary judgment constituted a final judgment barring the refiled cause of action; (2) whether the order granting summary judgment in favor of West Suburban as to the allegations of negligence by any hospital agent, servant, or employee other than Dr. Horras constituted a final judgment barring the refiled cause of action; (3) whether the order granting partial summary judgment in favor of Humana and Dr. Alter on all of the claims of negligence allegedly occurring on and after decedent's July 21, 1995, admission to the hospital constituted a final order that barring the refiled cause of action; (4) whether the partial summary judgment and final judgment ended the litigation between the parties on the merits so that only execution of that order remained to be accomplished; and (5) whether the original complaint placed defendants on notice as to the subject matter of this medical malpractice case so that any "new" allegations in the refiled action related back to the original complaint.
The issues raised by plaintiff may be disposed of by applying the Illinois Supreme Court's rulings in Dubina v. Mesirow Realty Development, Inc., 178 Ill. 2d 496, 687 N.E.2d 871 (1997). In Dubina, various plaintiffs filed actions due to property damage arising from a fire. Dubina, 178 Ill. 2d at 499. These causes of action were later consolidated into one case. Dubina, 178 Ill. 2d at 499. Prior to trial, plaintiffs collectively settled their cases with all defendants, except defendant Litgen. Pursuant to the settlement agreement, plaintiffs released all of their claims against Litgen to Mesirow Realty Development. Dubina, 178 Ill. 2d at 499-500. The circuit court later found that the settlement agreements were made in good faith and that plaintiffs' direct claims against Litgen remained pending in the circuit court. Dubina, 178 Ill. 2d at 500.
Plaintiffs subsequently filed a motion to voluntarily dismiss their direct claims against Litgen. Dubina, 178 Ill. 2d at 500. After plaintiffs' voluntary dismissal was granted, Litgen appealed the orders approving the settlement agreement and dismissing its contribution claims. While Litgen's appeal was still pending, plaintiffs refiled their case against Litgen in the circuit court. Dubina, 178 Ill. 2d at 500. Mesirow filed a motion to dismiss Litgen's ...