Illinois Association of Defense Trial Counsel Springfield, Illinois www.iadtc.org 800-232-0169 IDC Quarterly Volume 21, Number 1 (21.1.44) Medical Malpractice By: Dina L. Torrisi and Edna McLain HeplerBroom, LLC The Scope of the Sufficiently Close Relationship Test; How Porter v. Decatur Is Changing the Landscape of Relation Back The decision of the Illinois Supreme Court in Porter v. Decatur Mem. Hosp., on January 25, 2008, expanded the circumstances under which plaintiffs could amend their pleadings to add new claims after the expiration of the statute of limitations as codified in 735 ILCS 5/2-616(b). 227 Ill. 2d 343, 882 N.E.2d 583 (Ill. 2008). The Illinois Supreme Court adopted the sufficiently close relationship test to determine whether a new claim will relate back to an original complaint. Under that test, a new claim will be considered to have arisen out of the same transaction or occurrence and will relate back if the new allegations as compared with the timely filed allegations show that the events alleged were close in time and subject matter and led to the same injury. Porter, 227 Ill. 2d at 360, citing, In re Olympia Brewing Co., 612 F. Supp. 1370, 1373 (N.D. Ill. 1985). This new test essentially provided plaintiffs with a subjective standard that simplified and expanded the circumstances under which a plaintiff could add new claims and factual allegations after the expiration of the statute of limitations. Since its publication, several Illinois courts have interpreted and applied Porter. This articles examines a few of the decisions applying Porter, and provides practical tips regarding responding to a 2-616(b) situation. History of the Sufficiently Close Relationship Test The sufficiently close relationship test was originally enunciated by the Northern District of Illinois in the case of In re Olympia Brewing Co. Securities Litigation. 612 F. Supp. 1370 (N.D. Ill. 1985). In Olympia Brewing, the Northern District addressed whether an amendment to a complaint adding a claim under the RICO Act and adding factual allegations in support of the claim would relate back to the original complaint under Federal Rule of Civil Procedure 15(c). Id. The Northern District stated it was clear that a party could amend a pleading to include a new legal theory based on previously alleged facts, but a party could not add a new theory based on a set of facts different from the original pleading. Id. at 1372. The Olympia court provided several examples of situations where new facts or claims were found not to relate back. In these cases, the Northern District noted that the newly added claims or facts were found not to relate back because of a significant lapse in time between the new and original facts, the new and original claims were of a different character, or the new and original facts led to different injuries. Olympia Brewing, 612 F. Supp. at 1372. Cases where new claims or facts were found to relate back involved new factual allegations that were close in time or subject matter as the original complaint. Id. However, the Northern District stated that temporal proximity and consideration of the general character of the sets of factual allegations and whether the facts are all part of the events leading to the originally alleged injury are factors to consider but not dispositive. Id. at 1373. In Olympia Brewing, the Northern District found the additional facts pertinent to the new RICO allegations, then, are so closely linked to the original frauds that they are part of the Page 1 of 5
general fact situation originally alleged, and permitted the amendment to plaintiffs complaint. 612 F. Supp. at 1375. In 2008, the Illinois Supreme Court adopted the sufficiently close relationship test in Porter. Applying the Northern District s reasoning in Olympia, the court found that the plaintiff s new factual allegations and new claims related back to his original complaint. The case involved events during plaintiff s admission to Decatur Memorial Hospital following an automobile accident on January 12, 2001, until he underwent surgery performed two days later. Porter, 227 Ill. 2d at 346-48. A physician evaluated the plaintiff in the emergency department upon admission and diagnosed him as having an incomplete spinal cord injury. He admitted Mr. Porter to the intensive care unit. Id. at 346. That physician ordered an MRI to be done once Mr. Porter was stable from a pulmonary standpoint, and he further ordered the discontinuation of the C collar and spine board upon admission to the ICU. Id. The original complaint filed on March 25, 2002, named the admitting physician as a defendant in Count I and alleged he was negligent for the discontinuation of the C collar and spine board prior to an MRI, for the discontinuation of spinal immobilization prior to fully appreciating the spinal injury, for failure to timely obtain an MRI on January 12, 2001, and for failure to appreciate decreasing blood pressure and leg function as a sign and symptom of further spinal injury. 227 Ill. 2d at 347. Count II of the original complaint named the hospital as a respondent in discovery. Id. The plaintiff s first amended complaint filed on January 6, 2003, added the hospital as a defendant and alleged that hospital personnel, including nurses, aides, attendants and others, failed to perform hourly neurological checks and to report the outcome of those checks to the attending neurosurgeon. 227 Ill. 2d at 348. Approximately five months after the expiration of the statute of limitations, plaintiff filed a motion for leave to file a second amended complaint adding a new allegation of negligence against the admitting physician. The proposed amended complaint also added a third count against the hospital, alleging a radiologist was an apparent agent of the hospital and that the hospital s agents and employees failed to properly interpret a CT scan of plaintiff s cervical spine, failed to appreciate the cervical fractures revealed on the CT scan, and misread and misinterpreted the CT scan. 227 Ill. 2d at 348-49. On appeal, the Illinois Supreme Court addressed whether the new allegations in the second amended complaint related back to the timely-filed claims. The Illinois Supreme Court found the third count against the hospital related back to the allegations of the original complaint. Applying the sufficiently close relationship test, the court emphasized that the timely filed first amended complaint, alleged that hospital personnel, including nurses, aides, attendants and others, failed to report the plaintiff s diminishing neurological status to the attending neurosurgeon, and as a result, his neurological injury was undiagnosed and untreated and caused him to lose neurological function in one of his legs. Porter, 227 Ill. 2d at 361 (emphasis added). It found that the new allegations in the second amended complaint concerning the radiologist s failure to interpret and correctly read the CT scan were sufficiently close in time and subject matter and resulted in the same injury as plead in the originally timely filed complaint. Id. Furthermore, the hospital was on notice from the first amended complaint that the plaintiff believed that its agents and employees were negligent for failing to notice and treat his diminishing neurological status. Porter, 227 Ill. 2d at 362. The allegations concerning the radiologist and his misreading and misinterpretation of the CT scan were simply amplifications that grew out of the earlier allegation about failing to report diminishing neurological function, both of which arose out of the same transaction or occurrence. Id. at 364. Recent Applications of Sufficiently Close Relationship Test Announced in Porter v. Decatur Memorial Hospital The most recent case to discuss and apply Porter comes from the Illinois Appellate Court for the First District, Lewandowski v. Jelenski, 401 Ill. App. 3d 893, 929 N.E.2d 114 (1st. Dist. 2010). In Lewandowski, the original complaint set forth claims against the defendant for an accounting, a constructive trust, and breach of fiduciary duty for money paid to the defendant for a joint venture to acquire and develop a parcel of property. Page 2 of 5
929 N.E.2d at 117-18. Plaintiff subsequently amended her complaint three times prior to the expiration of the statute of limitations. Following a bench trial, the trial court allowed plaintiff to amend Count VIII of her third amended complaint for an accounting to state a cause of action for unjust enrichment to conform the pleadings to the proof. Id. The amendment was nearly one year and six months after the expiration of the statute of limitations for an unjust enrichment claim. The original claim required plaintiff to establish the existence of a fiduciary relationship, but a claim for unjust enrichment did not require the existence of a fiduciary relationship between the parties before plaintiff could recover. Lewandowski, 929 N.E.2d at 123. In fact, the trial court had found that plaintiff did not establish the existence of a fiduciary relationship between the parties. Id. However, it also found that the defendant was unjustly enriched. Id. Therefore, the only way for plaintiff to recover against the defendant was if the unjust enrichment claim was found to relate back. Following the amendment, the trial court entered judgment in plaintiff s favor as to Count VIII and ruled against the plaintiff on all remaining counts. Lewandowski, 929 N.E.2d at 118. The defendant appealed the trial court s order and argued that the claim was time-barred and did not relate back to the original complaint. On appeal, the First District applied the sufficiently close relationship test enunciated in Porter and found that the unjust enrichment claim related back to the timely third amended complaint. The Court reasoned that the plaintiff s claims from the third amended complaint were based on factual allegations that money was paid to the defendant, the money was not used for its intended purpose, and the money was never returned to the plaintiff. Lewandowski, 929 N.E.2d. at 123. The unjust enrichment claim was based on the same predicate facts, and as such, the First District found that the claim grew out of the same transaction or occurrence. Id. In the case of In Re Safeco Insurance Companies of America, the Seventh Circuit examined whether the state court certification defining the class of plaintiffs related back to the original complaint filed prior to the enactment of the Class Action Fairness Act (CAFA). 585 F.3d 326 (7th Cir. 2009). If so, the state court certification would not constitute a new action for purposes of removal to federal court. The court looked to both Illinois and federal case law concerning relation back. The Seventh Circuit noted that Illinois relation-back doctrine was identical to the federal rule. In Re Safeco, 585 F.3d at 331. Citing Porter, the court stated An amendment will relate back to the original complaint if the amendment alleges events close in time and subject matter to those previously alleged, and if they led to the same injury. Id. at 331, citing, Porter v. Decatur Mem. Hosp., 227 Ill. App. 3d 343, 360, 882 N.E.2d 583, 593 (Ill. 2008). The Court further stated that the essential inquiry in determining whether a new claim will relate back is whether the original pleadings provided defendant with notice of the events that comprise the new claim or allegations. In Re Safeco, 585 F.3d at 331 (emphasis added). Safeco argued that it had no notice prior to the state court class certification that the plaintiffs sought to hold it liable for adjusting the claims of its affiliated companies. But, examining various pleadings filed in state court by the parties, the court concluded that the original complaint contained allegations against Safeco and its affiliated companies sufficient to put Safeco on notice that the petitioners sought to hold it liable for the use of its computer program to adjust accounts of its affiliates policyholders. Id. at 334. Therefore, the court concluded that the class definition related back to the original pre-cafa complaint. Consequently, the court affirmed the district court s decision to remand the case to state court. The In Re Safeco case suggests that the sufficiently close relationship test is only one part of the equation in determining whether an amendment will relate back. The Seventh Circuit s statement that the essential inquiry is really whether the original pleadings provided a defendant with sufficient notice of the events comprising the new claim is even more expansive than the current test enunciated in Porter. Even though In re Safeco is a federal court decision, the Illinois Supreme Court relied heavily on federal law for guidance in Porter, and it would not be surprising if Illinois courts likewise turned to federal cases such as In Re Safeco to find support for a plaintiff s amended pleading. Page 3 of 5
Suggested Practice Tips to Avoid Porter Pitfalls The above cases demonstrate a liberal trend in which courts applying the sufficiently close relationship test have found that new claims or allegations related back to timely filed complaints. These cases also demonstrate it is relatively easy for a plaintiff to argue a new claim or allegation grew out of the same transaction or occurrence as the timely filed complaint because the test allows for subjectivity and no one factor, i.e., temporal proximity, is dispositive. It is too easy to characterize these cases as examples of the plaintiff-friendly nature of the judiciary. Instead, what these cases should signal is caution on the part of the defense bar to not only scrutinize carefully every motion for leave to amend a complaint, but also how plaintiff s cause of action is pled from the outset. Consider that the Illinois Supreme Court in Porter stated that Decatur Memorial Hospital was on notice that the conduct of the radiologist could form the basis of a new claim of negligence based on the fact that the first amended complaint concerned the conduct of hospital personnel, including nurses, aides, attendants and others. It was the and others language that was said to put the hospital on notice that the conduct of any agent or employee, including the radiologist, could be at issue. How many complaints have defense attorneys seen where similar language is used, and how many times has such language been allowed to stand? After Porter and its progeny, practitioners may want to challenge a plaintiff s complaint with such broad language. For example, consider filing a motion to dismiss or to strike generic allegations pertaining to others or for otherwise negligent actions. Another option is to seek a bill of particulars so that a defendant can be put on notice of specific allegations. In addition to pleadings, defense attorneys may alter their strategy during the discovery phase. For example, for those defending a hospital, thorough analysis is essential before pointing the finger at an individual physician who treated a plaintiff during a hospital admission, but who was not named as a party prior to the expiration of the statute of limitations. Porter suggests that, depending on how the original claim was pleaded, a hospital could potentially be held liable for the conduct of any individual who came in contact with the plaintiff during his or her admission even if that individual was not an actual agent or employee of the hospital. According to Porter, even after a statute of limitations has expired, a plaintiff may be able to successfully amend a complaint under 2-616(b) to state a claim against an individual physician by imputing the conduct of the alleged apparent agent to the hospital. While not adding a new defendant to the complaint, the plaintiff avoids this legal hurdle by characterizing the individual s conduct as a new claim against the hospital. Finally, defense counsel must be diligent in forcing a plaintiff to disclose all potential opinions and theories prior to any expert depositions. In Porter, the basis for the allegation that the CT scan had been misread and misinterpreted came from the deposition testimony of a plaintiff s expert taken a year after the expiration of the statute of limitations. The best way to avoid a 2-616(b) situation is to fully understand Porter and its progeny. Recent 2-616(b) cases have demonstrated a general trend favoring plaintiffs arguments that amended claims relate back to the original complaint. However, with careful forethought and practice, some of these unjust outcomes may be prevented. About the Authors Dina L. Torrisi is a partner at HeplerBroom, LLC. Ms. Torrisi focuses her practice in the area of professional liability defense and general negligence. She has extensive litigation experience in defending hospitals, physicians and nurses. Ms. Torrisi received her B.S. from University of Illinois, Champaign-Urbana, and her J.D. from The John Marshall Law School. She is admitted to the bars of Illinois, the Northern District of Illinois, and the U.S. Supreme Court. Ms. Torrisi is a member of the Illinois Association of Defense Trial Counsel and Illinois Association of Healthcare Attorneys. She is also an Arbitrator for the Cook County Mandatory Arbitration Program. Page 4 of 5
Edna McLain is an associate attorney of HeplerBroom, LLC. Ms. McLain graduated from the University of Illinois, Champaign-Urbana, in 1991, with a Bachelor of Arts degree in English, and she received her Juris Doctorate from the Saint Louis University School of Law in 2002. She is admitted to the bars of Illinois, Missouri and Wisconsin and the U.S. District Court of the Northern District of Illinois. Ms. McLain focuses her practice in the areas of medical malpractice, insurance defense and toxic torts. She is a member of the Illinois Association of Defense Trial Counsel. About the IDC The Illinois Association Defense Trial Counsel (IDC) is the premier association of attorneys in Illinois who devote a substantial portion their practice to the representation of business, corporate, insurance, professional and other individual defendants in civil litigation. For more information on the IDC, visit us on the web at www.iadtc.org. Statements or expression of opinions in this publication are those of the authors and not necessarily those of the association. IDC Quarterly, Volume 21, Number 1. 2011. Illinois Association of Defense Trial Counsel. All Rights Reserved. Reproduction in whole or in part without permission is prohibited. Illinois Association of Defense Trial Counsel, PO Box 3144, Springfield, IL 62708-3144, 217-585-0991, idc@iadtc.org Page 5 of 5