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Owens v. VHS Acquisition Subsidiary Number 3, Inc.

Court of Appeals of Illinois, First District, Fifth Division

March 31, 2017

ERIC OWENS, Plaintiff-Appellee,
v.
VHS ACQUISITION SUBSIDIARY NUMBER 3, INC., d/b/a Louis A. Weiss Memorial Hospital; VHS ACQUISITION SUBSIDIARY NUMBER 3, INC., d/b/a Vanguard Weiss Memorial Hospital; LEO DILAN, D.O.; AHMED RAZIUDDIN, M.D.; and SEEMA ELAHI, M.D., Defendants (Seema Elahi, M.D., Defendant-Appellant).

         Appeal 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.

          OPINION

          GORDON PRESIDING JUSTICE

         ¶ 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.

         ¶ 2 BACKGROUND

         ¶ 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 14, 2011.

         ¶ 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 plaintiff.

         ¶ 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."[1] 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 infection.

         ¶ 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 Code.

         ¶ 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.[2] 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 defendant.

         ¶ 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 complaint.

         ¶ 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 identity."

         ¶ 16 On July 19, 2016, we allowed Dr. Elahi's petition for leave to appeal, and this appeal follows.

         ¶ 17 ANALYSIS

         ¶ 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 (2011).

         ¶ 19 Additionally, the appeal in the case at bar arises from the trial court's denial of Dr.

         Elahi's 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 ...


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