Court of Appeals of Illinois, First District, Fifth Division
from the Circuit Court of Cook County. No. 13 L 013786 The
Honorable Moira S. Johnson, Judge Presiding.
PRESIDING JUSTICE GORDON delivered the judgment of the court,
with opinion. Justice Reyes concurred in the judgment and
opinion. Justice Lampkin dissented, with opinion.
1 The instant interlocutory appeal arises from plaintiff Eric
Owens' lawsuit against the defendant hospital and its
doctors concerning plaintiffs care and treatment at the
hospital's emergency room in 2011. Plaintiff initially
named Dr. Ahmed Raziuddin as a defendant in the suit as the
physician who treated him in the emergency room, based on Dr.
Raziuddin's name appearing in the hospital's records
as the treating physician. However, Dr. Raziuddin filed a
motion to dismiss the lawsuit, claiming that he was not the
physician who treated plaintiff and that Dr. Seema Elahi was
actually the treating physician. Plaintiff then amended his
complaint, adding Dr. Elahi as a defendant. Dr. Elahi then
filed a motion to dismiss the complaint, arguing that the
statute of limitations had expired. The trial court denied
the motion to dismiss, finding that the amended complaint
related back to the initial filing of the complaint, but
certified the question for review pursuant to Illinois
Supreme Court Rule 308 (eff. Jan. 1, 2015). We allowed Dr.
Elahi's petition for leave to appeal and now answer the
trial court's certified question in the affirmative.
However, while we are able to answer the question of law
presented in the certified question, the record of the case
at bar is not sufficiently developed for us to determine the
application of that law to the factual circumstances present
in the instant case. Accordingly, our analysis provides a
roadmap that may be used to answer this important question in
the court below, as well as in the future, and the case is
remanded back to the trial court.
3 On December 5, 2013, five days before the statute of
limitations would have expired, plaintiff filed a complaint
against the defendant hospital, Dr. Leo Dilan, and Dr. Ahmed
Raziuddin, alleging negligence against each defendant and
alleging that the named doctors were employees and/or agents
of the defendant hospital. The complaint alleged that on
December 10, 2011, and December 14, 2011, plaintiff was a
patient in the hospital's emergency department, where he
was evaluated and treated "for complaints of body aches,
malaise, chills and other signs and symptoms of major
illness." However, the complaint alleged that defendants
failed to exercise reasonable care in providing medical care
and treatment to plaintiff, causing plaintiff to be
"severely and permanently injured and hospitalized
during a later hospitalization at Swedish Covenant Hospital
wherein he remained in critical condition from a pulmonary
infection from pneumocystis jiroveci from which he sustained
permanent damage and physical injury and will require
continued medical care in the future." Specifically, the
complaint alleged that Dr. Dilan had committed medical
negligence in his care and treatment of plaintiff on December
10, 2011, and that Dr. Raziuddin had committed medical
negligence in his care and treatment of plaintiff on December
4 According to the record, the sheriff's office attempted
service on Dr. Raziuddin on December 26, 2013, and on
February 20, 2014, but was unsuccessful. On March 19, 2014,
the trial court appointed a special process server, who was
given until April 2, 2014, to serve Dr. Raziuddin. Dr.
Raziuddin filed an appearance in the case on March 20, 2014,
and filed an answer on May 13, 2014, denying the material
allegations of the complaint. Specifically, Dr. Raziuddin
denied that he provided medical care and services to
5 On June 30, 2014, Dr. Raziuddin filed a motion for
dismissal claiming noninvolvement pursuant to section 2-1010
of the Code of Civil Procedure (Code) (735 ILCS 5/2-1010
(West 2012)), claiming that Dr. Raziuddin "never saw the
Plaintiff or provided any care or treatment to Plaintiff at
all." The motion claimed that plaintiff's medical
records "improperly list Dr. Raziuddin as the admitting
physician on December 14, 2011 and attach a barcode to each
page of that admission with his name identified."
However, Dr. Raziuddin was one of two attending physicians on
duty on December 14, 2011, and "believe[d] the Plaintiff
was admitted and registered to him although he was never seen
or treated by Dr. Raziuddin but by his colleague, Dr.
Elahi." Attached to Dr. Raziuddin's motion to
dismiss was his affidavit, in which he averred that he never
provided any care or treatment to plaintiff and that "I
believe that the patient was registered under my name as I
was one of two attending physicians on-shift at the time but
that any care and treatment was provided by my colleague,
Seema Elahi, M.D."
6 Plaintiff was granted leave to amend his complaint to add
Dr. Elahi as a defendant and, on July 21, 2014, plaintiff
filed an amended complaint. The amended complaint added Dr.
Elahi as a defendant and added a claim of medical negligence
against her. In the count directed at Dr. Elahi, the amended
complaint alleged that on December 14, 2011, Dr. Elahi was a
physician and surgeon practicing emergency medicine in the
State of Illinois and that "[a]t all times herein,
Defendant, SEEMA ELAHI M.D, was the agent, servant and/or
employee of Defendant, WEISS." The amended complaint
alleged that Dr. Elahi breached her duty to exercise
reasonable care in providing medical treatment and care to
plaintiff, causing him physical injury from a pulmonary
7 On December 22, 2014, Dr. Elahi filed a motion to dismiss
plaintiff's amended complaint pursuant to sections
2-619(a)(5) and 13-212(a) of the Code (735 ILCS
5/2-619(a)(5), 13-212(a) (West 2012)), arguing that
plaintiff's cause of action was barred by the two-year
statute of limitations set forth in section 13-212(a) of the
8 In response, plaintiff argued that under section 2-616(d)
of the Code (735 ILCS 5/2- 616(d) (West 2012)),
plaintiff's amended complaint related back to the filing
of his original complaint. Plaintiff argued that he initially
filed his complaint against "Weiss Hospital and the
Emergency Room physicians identified in his medical records
as being his attending physician on December 10th and
December 14th." Plaintiff first learned of Dr.
Elahi's involvement in plaintiff's care and treatment
when Dr. Raziuddin filed his motion to dismiss for
noninvolvement on June 30, 2014, which included the claim
that plaintiff's records had been "mislabeled by an
error of the hospital and that his handwriting or written
signature does not appear anywhere on the records."
Plaintiff then amended his complaint on July 21, 2014, to add
Dr. Elahi and "alleg[e] the identical count against her
that was previously plead[ed] in the Complaint at Law against
the Defendant, AHMED RAZIUDDIN, M.D." Plaintiff argued
that the amended complaint related back to the filing of the
initial complaint because "Plaintiff was attempting to
sue the Emergency Room physician who treated him on December
14, 2011, and because his medical records were mislabeled,
mistakenly sued the wrong doctor." Plaintiff argued that
Dr. Elahi should have been on notice that she was the correct
defendant and, since the same counsel represented both her
and Dr. Raziuddin, her counsel was fully up to date on the
case and Dr. Elahi would not be prejudiced.
9 Attached to plaintiff's response was an exhibit
consisting of six pages of plaintiff's medical records.
Five of the six pages contain an admitting date of December
14, 2011, and Dr. Raziuddin's typed name as
plaintiff's admitting doctor. There is no doctor's
signature on any of the six pages.
10 In her reply, Dr. Elahi argued that plaintiff did not make
a mistake concerning Dr. Elahi's identity and, therefore,
section 2-616(d) did not apply. Dr. Elahi argued that the
hospital's emergency department medical records
"clearly identify" Dr. Elahi as plaintiff's
attending physician in no fewer than five places, and Dr.
Elahi's signature was also present on a prescription that
was tendered to plaintiff at the time of his discharge. Thus,
Dr. Elahi argued that plaintiff had offered no reason as to
why he failed to name Dr. Elahi in his original complaint.
11 Dr. Elahi further argued that, even if section 2-616(d)
applied, plaintiff had not satisfied all of its elements. Dr.
Elahi argued that she was not served until September 16,
2014, nine months after the statute of limitations has
expired, and therefore did not have actual knowledge of the
lawsuit within the statutory period and further argued that
she would be prejudiced by being added as an additional
12 Attached to Dr. Elahi's reply was an exhibit that
purported to be three additional pages of plaintiff's
medical records from his December 14, 2011, visit; all
identifying information is redacted from the pages. On each
page, there is a space for the signature of the attending
physician, and a handwritten signature appears in that space;
the signature is illegible. On the first page and the third
page, there are also spaces for the attending physician's
printed name; a more legible name is handwritten in these two
spaces, but is still difficult to read.
13 On March 5, 2015, the trial court entered an order denying
Dr. Elahi's motion to dismiss plaintiff's amended
14 On August 10, 2015, Dr. Elahi filed a motion to certify a
question under Illinois Supreme Court Rule 308 (eff. Jan. 1,
2015) concerning whether the amended complaint related back
to the filing of the initial complaint. On August 19, 2015,
Dr. Elahi's motion was denied without prejudice. The
court found that Dr. Elahi's proposed question was
conclusory and not framed as a legal question, but that
"[i]f the defendant can come up with a legal question
that they want to have the appellate court review, " the
trial court would review it.
15 On September 9, 2015, Dr. Elahi filed an amended motion to
certify a question under Rule 308, which was denied on
October 20, 2015, without prejudice due to the manner in
which the question was framed. On May 11, 2016, Dr. Elahi
filed a second amended motion to certify a question under
Rule 308. On May 26, 2016, the trial court granted Dr.
Elahi's motion and certified the following question for
appellate review: "Whether an Amended Complaint against
a new defendant filed after the applicable statute of
limitations has expired relates back to plaintiff's
original Complaint where (a) the new defendant's
signature was in the medical records in plaintiff's
possession prior to filing his original Complaint, and (b)
the new defendant had no knowledge that the action would have
been brought against her, but for a mistake concerning her
16 On July 19, 2016, we allowed Dr. Elahi's petition for
leave to appeal, and this appeal follows.
18 Illinois Supreme Court Rule 308 (eff. Jan. 1, 2015)
provides a remedy of permissive appeal from interlocutory
orders where the trial court has deemed that they involve a
question of law as to which there is substantial ground for
difference of opinion and where an immediate appeal from the
order may materially advance the ultimate termination of the
litigation. We apply a de novo standard of review to
legal questions presented in an interlocutory appeal brought
pursuant to Rule 308. Simmons v. Homatas, 236 Ill.2d
459, 466 (2010). De novo consideration means we
perform the same analysis that a trial judge would perform.
Khan v. BDO Seidman, LLP, 408 Ill.App.3d 564, 578
19 Additionally, the appeal in the case at bar arises from
the trial court's denial of Dr.
motion to dismiss the amended complaint under section 2-619
of the Code. A motion to dismiss under section 2-619 admits
the legal sufficiency of all well-pleaded facts but allows
for the dismissal of claims barred by an affirmative matter
defeating those claims or avoiding their legal effect.
Janda v. United States Cellular Corp., 2011 IL App
(1st) 103552, ¶ 83 (citing DeLuna v. Burciaga,
223 Ill.2d 49, 59 (2006)). When reviewing a motion to dismiss
under section 2-619, "a court must accept as true all
well-pleaded facts in plaintiffs' complaint and all
inferences that can reasonably be drawn in plaintiffs'
favor." Morr-Fitz, Inc. v. Blagojevich, 231
Ill.2d 474, 488 (2008). Additionally, a cause of action
should not be dismissed under section 2-619 unless it is
clearly apparent that no set of facts can be proved that
would entitle the plaintiff to relief. Feltmeier v.
Feltmeier, 207 Ill.2d 263, 277-78 (2003). For a section
2-619 dismissal, our standard of review is de ...