Court of Appeals of Illinois, First District, Fourth Division
JOHNNIE WATKINS, as Guardian of the Estate of Johnnice Ford, a Disabled Person, Plaintiff-Appellant,
INGALLS MEMORIAL HOSPITAL, a Corporation, INGALLS HEALTH SYSTEM, a Corporation, SOUTH SUBURBAN NEUROLOGY, LTD., a Corporation, MARVIN ZELKOWITZ, M.D., SAIF NAZIR, M.D., and LARRY FOSTER, M.D., Defendants-Appellees.
from the Circuit Court of Cook County No. 2016-L-687
Honorable Kathy M. Flanagan, Judge Presiding.
PRESIDING JUSTICE BURKE delivered the judgment of the court,
with opinion. Justices Gordon and Ellis concurred in the
judgment and opinion.
1 On August 20, 2010, Johnnice Ford filed a complaint in the
circuit court of Cook County "individually, and as
mother and next best friend of Jaiyana Ford, a minor."
In her complaint, Ford alleged medical malpractice against
various medical professionals, including each of the
defendants here. Ford contended that the defendants
negligently failed to diagnose and treat her during her
September 2008 visit to Ingalls Memorial Hospital. The
complaint was filed shortly before the expiration of the
two-year statute of limitations period applicable to medical
malpractice actions under section 13-212(a) of the Code of
Civil Procedure (Code) (735 ILCS 5/13-212(a) (West 2008)). On
September 14, 2010, the circuit court granted Ford's
motion to voluntarily dismiss the complaint. On July 15,
2014, plaintiff, Johnnie Watkins, "as Guardian of the
Estate of Johnnice Ford, a disabled person, " filed a
complaint in the circuit court, naming as defendants Ingalls
Memorial Hospital and Ingalls Health System (collectively,
Ingalls) and Bari Parks-Ballard, M.D. The allegations in the
complaint largely mirrored the allegations raised in the 2010
complaint concerning Ford's treatments at Ingalls
Memorial Hospital in September 2008. Ingalls filed a motion
to dismiss, but before the circuit court could address
plaintiff's complaint, the case was removed to federal
court by the Unites States of America, which substituted
itself as defendant for Dr. Parks-Ballard, who was a federal
employee. The federal district court dismissed the case,
finding that plaintiff had failed to exhaust her
administrative remedies. Plaintiff never sought to transfer
the remaining state law claims against Ingalls to the circuit
2 In September 2015, plaintiff filed a complaint in the
federal district court for the northern district of Illinois
against the United States, as the principal of Dr.
Parks-Ballard. Plaintiff alleged negligence against the
United States for the treatment provided to Ford at Ingalls
in September 2008, echoing the claims from the 2010 and 2014
complaints. The federal district court granted the United
States's motion to dismiss the complaint, and the United
States Court of Appeals for the Seventh Circuit affirmed that
3 On January 21, 2016, plaintiff filed the instant action,
the fourth complaint concerning the same operative facts and
cause of action. The principal allegations of the complaint
once again concerned Ford's treatment at Ingalls in
September 2008. All defendants moved to dismiss the action
under section 2-619 of the Code (735 ILCS 5/2-619 (West
2014)), chiefly contending that the action was barred by the
statute of limitations, the statute of repose, and the
refiling limitation of section 13-217 of the Code (735 ILCS
5/13-217 (West 1994)). Ingalls also contended that the conduct of
plaintiff's attorneys was sanctionable under Illinois
Supreme Court Rule 137 (eff. July 1, 2013). The circuit court
granted defendants' motions, finding that the 2016
complaint was an unpermitted refiling of the original action.
The court determined that the 2014 complaint was the one, and
only, refiling of the 2010 action permitted pursuant to
section 13-217. The court also found that plaintiff's
claims were barred by res judicata. The court
subsequently denied Ingalls motion for Rule 137 sanctions.
4 On appeal, plaintiff asserts that the circuit court erred
in granting defendants' motions to dismiss where there
was a question of fact as to whether Ford was under a mental
disability at the time the 2010 complaint was filed,
rendering that action a nullity and tolling the limitations
periods. Plaintiff also contends that she was not appointed
as Ford's guardian until 2015, and thus lacked the
authority to bring the 2014 complaint on Ford's behalf.
Plaintiff therefore asserts that the 2016 action was not
barred by section 13-217 because it was the first new action
brought against these defendants by Ford or on her behalf.
Plaintiff also asserts that the doctrines of collateral
estoppel and res judicata do not bar her claims.
Ingalls contends that the circuit court erred in denying its
motion for sanctions. For the reasons discussed below, we
affirm the judgment of the circuit court.
5 I. BACKGROUND
6 A. The 2010 Complaint
7 On August 20, 2010, Ford filed a complaint in the circuit
court "individually, and as mother and next best friend
of Jaiyana Ford, a minor." Ford named as defendants all
of the defendants in the case at bar and other medical
professionals. In her complaint, Ford alleged that, on August
20, 2008, the physician defendants rendered medical care to
her while she was pregnant. On September 10, 2008, Ford
checked into the emergency room at Ingalls. During the course
of Ford's treatment at Ingalls, she underwent an
emergency caesarean section. Ford was later transferred to
another hospital and diagnosed with Wernicke's
Encephalopathy, Dry Beriberi, and Pseudobulbar palsy. Ford
asserted that the physicians at Ingalls failed to properly
diagnose and treat her, which directly caused her serious
medical conditions, rendering her disabled. Ford contended
that since her treatment at Ingalls, she had been
"lethargic, bedridden, and incapable of fully caring for
herself, and require[d] constant care and attention."
8 Ford's attorney attached an affidavit to the complaint,
stating that he had recently obtained Ford's complete
medical records and required time to have the records
reviewed by proper medical professionals. Ford's attorney
maintained that he was therefore unable to comply with
section 2-622 of the Code (735 ILCS 5/2-622 (West 2008)) as
required for medical malpractice actions. On September 14,
2010, Ford voluntarily dismissed the action without
prejudice, and the circuit court permitted her "leave to
re-file within one year."
9 B. 2014 Complaint
10 Nearly four years later, on July 15, 2014, plaintiff filed
a complaint in the circuit court "as Guardian of the
Estate of Johnnice Ford, a disabled person." In this
action, plaintiff named only Ingalls and Dr. Bari
Parks-Ballard as defendants. In the complaint, plaintiff
contended that on September 10, 2008, Ford received treatment
at Ingalls by Dr. Parks-Ballard. Plaintiff contended that Dr.
Parks-Ballard negligently failed to properly care for and
treat Ford, resulting in her current medical conditions. One
of plaintiff's attorneys attached an affidavit to the
complaint, averring that counsel was unable to obtain a
consultation as required by section 2-622 of the Code (735
ILCS 5/2-622 (West 2014)) because "the statute of
limitations would impair the action and the consultation
required could not be obtained before the expiration of the
statute of limitations." Ingalls filed a motion to
dismiss the complaint, but before the trial court could rule
on the motion, the United States removed the case to federal
court, substituting itself as defendant in place of Dr.
Parks-Ballard, a federal employee. The United States District
Court for the Northern District of Illinois subsequently
dismissed the action because plaintiff failed to exhaust her
administrative remedies before filing suit. Watkins v.
Ingalls Memorial Hospital, No. 14-CV-08417 (N.D. Ill.
Jan. 27, 2015). Plaintiff never sought to transfer the
remaining state law claims against Ingalls to the circuit
11 C. 2015 Complaint
12 On September 16, 2015, plaintiff filed a complaint
"as Guardian of the Estate of Johnnice Ford, a disabled
person" in the United States District Court for the
Northern District of Illinois against the United States, as
the principal of Dr. Parks-Ballard. As in the 2014 complaint,
plaintiff claimed Dr. Parks-Ballard committed malpractice in
failing to treat and diagnose Ford at Ingalls on September
18, 2008. The district court granted the United States'
motion to dismiss the complaint, finding that the claim was
time barred under the Federal Tort Claims Act (FTCA) (28
U.S.C. § 2675 (2012)) statute of limitations.
Watkins v. United States, No. 15-CV-8350, 2016 WL
1435704 (N.D. Ill. Apr. 12, 2016). The court stated that the
issue was determining when plaintiff's claim accrued and
that "the 2010 lawsuit against Dr. Parks-Ballard
resolves any doubt about whether Ford (and by extension
Plaintiff) knew of the doctor-related cause of her injuries.
Her claims thus accrued, at the latest, by August
20, 2010." (Emphasis in original.) Id. at *2.
The court found that despite plaintiff's claims that
Ford's disability tolled the limitations period,
Ford's filing of the 2010 complaint "indisputably
establishes that Plaintiff was sufficiently aware of her
injuries and their cause to trigger the limitations
period." Id. at *3. On April 27, 2017, after
the circuit court in this case granted defendants'
motions to dismiss, the United States Court of Appeals for
the Seventh Circuit affirmed the district court's ruling.
Watkins v. United States, 854 F.3d 947 (7th Cir.
13 D. 2016 Complaint
14 Plaintiff filed the instant action on January 21, 2016,
again "as Guardian of the Estate of Johnnice Ford, a
disabled person." Plaintiff's contentions again
concerned Ford's treatment by the physician defendants at
Ingalls in September 2008. This represented the fourth such
complaint filed by Ford or on Ford's behalf relating to
same cause of action. Ingalls filed a motion to dismiss
plaintiff's complaint contending that plaintiff's
complaint was based on the same facts and same cause of
action as Ford's 2010 complaint and plaintiff's 2014
action and should, therefore, be dismissed under section
13-217 of the Code (735 ILCS 5/13-217 (West 2014)). Ingalls
contended that section 13-217 barred this action because the
complaint represented a second refiling of Ford's 2010
action and section 13-217 permits only one refiling after a
complaint is voluntarily dismissed. In the alternative,
Ingalls contended that plaintiff's complaint should be
dismissed under section 13-217 because it was filed more than
one year after Ford's 2010 action was voluntarily
dismissed. Before the court could rule on Ingalls's
motion, plaintiff filed an amended complaint.
15 In the amended complaint, plaintiff contended that at the
time Ford's cause of action accrued, or before the
applicable statute of limitations period had expired, she was
under a legal disability, which stayed the limitations period
until the disability was removed. Plaintiff asserted that
Ford's disability was evidenced by her medical records,
the fact that she was adjudicated disabled in January 2015,
and plaintiff's appointment as guardian of Ford's
estate. Plaintiff asserted that, therefore, her time to
refile the action under section 13-217 had not yet expired.
Plaintiff further contended that the 2014 action did not
qualify as a refiling because the case was dismissed for
plaintiff's failure to exhaust administrative remedies,
rather than for one of the reasons enumerated in section
16 1. Defendants' Motions to Dismiss
17 All defendants filed motions to dismiss plaintiff's
amended complaint pursuant to section 2-619(a)(5) of the Code
(735 ILCS 5/2-619(a)(5) (West 2014)). Ingalls contended in a
motion to dismiss that plaintiff's complaint should be
dismissed because under section 13-217, this action
represented a second, impermissible refiling of Ford's
2010 action, and section 13-217 permits only one refiling.
Ingalls contended that Ford's care at Ingalls in 2008 has
been the basis of all of her filings since her first
complaint in 2010 and that the statute prevented this
refiling of her claims. Ingalls argued that, in the
alternative, plaintiff's complaint should be dismissed
because it was filed more than one year after the original
action was dismissed, or because it was filed after the
expiration of the applicable statute of repose. Ingalls also
noted that in the amended complaint, plaintiff cited the
amended version of section 13-217 in her brief, which was
found unconstitutional. Ingalls maintained that sanctions
were warranted under Illinois Supreme Court Rule 137 (eff.
July 1, 2013) where plaintiff impermissibly filed the lawsuit
three times and relied on an unconstitutional version of
section 13-217 to support her arguments.
18 The motions to dismiss filed by defendants Dr. Saif Nazir
and Larry Foster and defendants Dr. Marvin Zelkowitz and
South Suburban Neurology, Ltd., largely echoed the arguments
made by Ingalls in their motion concerning section 13-217.
Dr. Saif Nazir and Larry Foster also contended that both the
statute of limitations and the statute of repose had elapsed
and that Ford's disability had not tolled the limitations
period. Dr. Marvin Zelkowitz and South Suburban Neurology,
Ltd., contended that because they were not named as
defendants in the 2014 complaint, plaintiff could not use the
relation-back doctrine to relate her claims against Dr.
Marvin Zelkowitz and South Suburban Neurology, Ltd., back to
when she filed the 2014 action.
19 In response, plaintiff contended that her complaint should
not be dismissed because there was a question of fact as to
whether Ford was under a legal disability at the time her
cause of action accrued, thus tolling the limitations period.
Plaintiff recognized that although Ford was not adjudicated
disabled until 2015, the allegations in the complaint and the
attached letters from physicians raised a genuine issue as to
whether Ford was under a legal disability at the time her
cause of action accrued. Plaintiff further asserted that the
2014 action was filed before Watkins was judicially appointed
as Ford's guardian, and thus plaintiff had no authority
to file that action on Ford's behalf. Plaintiff
maintained that the 2014 action, therefore, could not be
considered a valid refiling on the 2010 action for purposes
of section 13-217. Plaintiff contended that this action thus
represented the first refiling against defendants by a person
authorized to file an action under section 13-217, and within
the limitations period, which was tolled due to Ford's
20 2. Circuit Court's Ruling
21 In ruling on defendants' motions, the circuit court
determined that "the record contains sufficient evidence
to raise a question of fact as to whether Ms. Ford was under
a legal disability at the time this cause of action accrued
in September of 2008." The court found that the letters
of Ford's treating physicians and the allegations in the
2010, 2014, and 2016 complaints established enough evidence
to raise a question of fact as to Ford's legal
disability. The court concluded that, therefore, the action
could not be dismissed on the basis of the expiration of the
statutes of limitations and repose.
22 The court further noted that the 2010 action was filed
against all of the defendants named in this case, but the
2014 action named only Ingalls and Dr. Parks-Ballard as
defendants. The court found that it was "crucial"
to note that the 2014 action was filed by the same law firm
that was currently representing plaintiff in the 2016 action.
The court, therefore, found plaintiff's argument that the
2014 action was a nullity or not relevant was unpersuasive.
The court found that the fact that plaintiff had not yet been
appointed Ford's guardian at the time the 2014 complaint
was filed was merely a "technical defect, " which
could have been "cured by actual issuance of letters of
office as guardian, and a motion for leave to substitute
could have been presented and granted, and the 2014 pleading
would have related back to the date of the original filing of
the 2014 action."
23 The court observed that after the 2014 action was removed
to federal court and dismissed for plaintiff's failure to
exhaust her administrative remedies, plaintiff made no
attempt to pursue the action against Ingalls. The court noted
that although there was no adjudication of the claim with
regard to Ingalls, the 2014 action constituted
plaintiff's one refiling against Ingalls permitted under
24 The court further found that the doctrine of res
judicata applied to bar plaintiff's claims against
all of the physicians originally named as defendants in the
2010 action. The court observed that, although these
physicians were not named as defendants in the 2014 action,
they could have been. The court therefore granted
defendants' motions to dismiss the complaint pursuant to
section 2-619(a)(5) of the Code. Plaintiff appealed the
circuit court's ruling.
25 3. Ingalls Motion for Sanctions
26 After the trial court entered its order dismissing
plaintiff's complaint, Ingalls filed a motion for a
ruling on its motion for sanctions. In ruling on
Ingalls's motion, the court found that although
plaintiff's attorneys should have realized the version of
section 13-217 cited in the amended complaint had been
previously invalidated, such an error did not support the
imposition of sanctions. The court further found that the
plaintiff's refiling of an action more than once on a
basis that was found to be incorrect did not warrant
sanctions. Accordingly, the court found that Ingalls failed
to meet its burden to demonstrate that sanctions were
warranted. Ingalls appealed the circuit court's ruling
and the case was consolidated with plaintiff's appeal.
27 II. ANALYSIS
28 On appeal, plaintiff contends that the court erred in
granting defendants' motions to dismiss where there was a
question of fact as to whether Ford was legally disabled at
the time her cause of action accrued. Plaintiff asserts that
Ford's status as legally disabled adult precluded the
presumption that the 2010 action was brought by an attorney
with the authority to do so. Plaintiff further contends that
the circuit court erred in "applying the relation-back
rule, offensively, to find that the 2014 action was the one
permitted refiling of the 2010 action, " and dismissing
the complaint on that basis. Plaintiff maintains that at the
time the 2014 action was filed, she had not been appointed
Ford's guardian, and her appointment as guardian was not
a mere "technical defect" that could be cured by