The Necessity of Analyzing All Amendments for Lack of Timeliness Under the Relation Back Doctrine of 735 ILCS 5/2-616(b) By: Edward M. Wagner and Kingshuk Roy Heyl, Royster, Voelker & Allen Urbana The Need to Analyze Each Amended Complaint All too often plaintiffs learn more about their case during discovery, and this new information frequently leads to amendments of the original complaint. It is also very common for plaintiffs to seek leave to amend prior to trial in an attempt to file a comprehensive pleading once discovery is complete. Diligent, successful plaintiffs also occasionally attempt to amend their complaint shortly after a judgment. Regardless of whether the amendment is made prior to, during or after trial, each amendment should be compared to the original complaint to determine if there are any new allegations that do not appear in that initial pleading. Assuming the original complaint was timely and that subsequent amendments are filed after the applicable limitations period has expired, the new allegations may not relate back to the original complaint and should thus be challenged as timebarred and stricken per 735 ILCS 5/2-616(b). With the passage of time and after numerous depositions, it is very easy to lose sight of the possible limited scope of the original, timely allegations. As many of these opportunities to challenge time-barred amendments occur during lastminute trial preparations, this article hopes to provide defense attorneys with a ready-made analysis, able to be quickly adapted to any particular case and used to attack new allegations or theories that do not relate back. However, unless defense attorneys keep this potential defense in mind when analyzing each amended pleading, this valuable challenge may be lost. The Statutory Requirements for Amendments If the limitations period has run, any amendment to a complaint raises an obligation upon that plaintiff to ensure it is timely and relates back. Pursuant to 735 ILCS 5/2-616(b), an amended pleading only relates back if any new allegation grew out of the same transaction or occurrence set up in the original pleading. If the new amendment or allegation appears to be different than the initially pled occurrence, then there may be no relation back and the following analysis may result in dismissal of any new allegation or theory as time-barred. The limitations period does not begin anew each time pretrial discovery reveals... that other theories of liability may apply. McCorry v. Gooneratne, 332 Ill. App. 3d 935, 943, 775 N.E.2d 591, 266 Ill. Dec. 751 (1st Dist. 2002). Page 1 of 7
Same Occurrence Versus Same Cause of Action To any timeliness challenge filed against an amendment, plaintiffs always will first respond that their original complaint and the subsequent amendment both assert the same cause of action. Although erroneous, this argument will proceed and claim that both pleadings are, for example, allegations of a failure to timely diagnose lung cancer, or, in another case, a failure to timely diagnose and treat a pending myocardial infarction. Plaintiffs will then proceed to show similarities in the two pleadings and claim that since both deal with the same cause of action or injury, they are so related to each other that 2-616(b) must apply and save the later amendment under the relations back doctrine. However, this argument improperly focuses attention on some general conclusory label that characterizes the overall case or on the injury, as opposed to the appropriate focus on the identity of the occurrence. These two concepts are substantially different and unless properly explained to the trial court, their distinction becomes blurred and may result in allowing an untimely and unfair amendment into the case. Again, the same cause of action argument erroneously views the general nature of the entire case, which is nothing more than a label or title for the overall type of case originally pled. The proper statutory analysis focuses on the specific alleged wrongful acts or omissions and whether the challenged pleadings allege the same occurrence. Thus, while both the original and the subsequent pleadings may indeed allege a failure to timely diagnose lung cancer, there may be a new allegation in the subsequent amendment that alleges some act or omission from a different or earlier date than was initially pled and thus it is not the same occurrence. If the subsequent pleading includes a new allegation against a different employee or introduces new conduct into the case regardless that it may have resulted in the same injury these allegations are all new occurrences and should be timebarred. Thus, the focus must be directed at the specific allegations of factual negligent acts or omissions, as they represent the occurrences that limit any subsequent amendment attempted after the statute of limitations has run. In a premises liability setting, one might encounter a situation where both an original complaint and subsequent amendment may be fairly characterized as slip and fall allegations, and thus both are the same cause of action. However, if the original complaint alleges a fall due to a foreign substance on the pavement and the amendment filed after the statute of limitations has expired alleges a fall due to a trip on a crack in the pavement, these are two different occurrences and the amendment does not relate back. An example in the products liability area would be where both an original complaint and subsequent amendment undisputedly allege allegations of an unreasonably dangerous lawn mower, again both are the same cause of action. However, in comparing the two pleadings, the original complaint alleges only that a center bolt is defective and fractures after minimal use, while the later amendment added a defective design theory by alleging the absence of a guard at the rear of the undercarriage. The latter is different conduct and a different theory, and under the relation back analysis is a new occurrence and time-barred per 2-616(b). Case Law Support for the Proper Analysis of What Constitutes an Allegation That Grows Out of the Same Occurrence In McCorry, supra, the original complaint referred to an alleged misinterpretation of the MRI films, but from a close examination of that initial pleading, it was clear that the reference was to MRI films obtained preoperatively. After the limitations period expired, the plaintiff amended his complaint to add an allegation of negligent interpretation of postoperative MRI films. Affirming the Page 2 of 7
trial court s refusal to allow the amendment to relate back to the original complaint, the appellate court noted, [b]ecause the preparation of a defense to the allegations of delay and misinterpretation of postoperative MRIs would involve an investigation into facts completely irrelevant to the defense against the original complaint, the new allegations do not relate back to the original complaint. 332 Ill. App. 3d at 945. Thus, while both complaints could generally be classified as a failure to properly interpret radiological studies or the same cause of action, different conduct at different times led the court to conclude that they were not the same occurrence. McCorry also held that other amended allegations did not relate back under this proper analysis. As there was nothing in the original complaint that indicated any problem or negligence in the manner a radiologist s findings were transmitted to surgeons, the appellate court affirmed dismissal of the new allegation from the amended complaint that the defendant-hospital negligently failed to have a sufficient written policy requiring prompt transmittal of such reports to surgeons. These allegations involve conduct by different persons at times different from the occasions of the negligent acts alleged in the original complaint. Id. at 944. Similarly, in Cammon v. West Suburban Hosp. Med. Ctr., 301 Ill. App. 3d 939, 704 N.E.2d 731, 235 Ill. Dec. 158 (1st Dist. 1998), although the basic cause of action was identified as a failure to monitor postoperatively, resulting in the patient s death, the occurrence initially pled was properly identified by the court as only involving an alleged failure to achieve hemostasis following surgery. Thus, new amendments after the limitations period had expired were held not to relate back when they alleged inappropriate postoperative administration of medication and a failure to monitor respiratory status postoperatively. Although the original complaint and the subsequent amendments all alleged postoperative activity during the same few hours after the surgery, and all were alleged to have resulted in the patient s rapid degeneration and death, these subsequent allegations were held to allege new conduct or occurrences and were stricken. 301 Ill. App. 3d at 943. In a case involving a cause of action for automobile negligence, the court in Kennedy v. King, 252 Ill. App. 3d 52, 56, 623 N.E.2d 955, 191 Ill. Dec. 365 (4th Dist. 1993) found no relation back where the original complaint alleged misconduct that involved the defendant s own actions and the subsequent amendment alleged that the defendant was liable for the actions of another. This analysis, in a reverse setting, was properly applied in an earlier malpractice case, Weidner v. Carle Foundation Hosp., 159 Ill. App. 3d 710, 713, 512 N.E.2d 824, 111 Ill. Dec. 435 (4th Dist. 1987), where no relation back was found. In Weidner, the original complaint alleged a hospital was vicariously liable for injuries arising from an alleged misdiagnosis by one of its physicians. The untimely amendments alleged the hospital was liable as a result of claimed negligence in the failure to ascertain adequately the credentials of, supervise and review the performance of its staff physicians. While both causes of action were the same and both allegedly resulted in the same injury, the court properly separated the alleged conduct into identifiable, different omissions or occurrences. This correct defense challenge is rooted in two Illinois Supreme Court cases, Bryson v. News America Publications, Inc., 174 Ill. 2d 77, 672 N.E.2d 1207, 220 Ill. Dec. 195 (1996), and Zeh v. Wheeler, 111 Ill. 2d 266, 489 N.E.2d 1342, 95 Ill. Dec. 478 (1986). In Zeh, the court analyzed two slip and fall cases on apartment common stairway pleadings. The original complaint alleged the location of the premises on one street and the amendment alleged the location of the accident to be at a building on a different street. The court then noted that the location of the alleged accident was a required element under Illinois rules of fact pleading and that the allegation of an occurrence at a different premise was a new occurrence that did not relate back. To allow the amended complaint to relate back under the circumstances would be to disregard the purpose of a statute of limitations which is to afford a defendant a fair opportunity to investigate the circumstances upon which liability against him is predicated while the facts are accessible. Zeh, 111 Ill. 2d at 282-83. Subsequently, in Bryson, the Illinois Supreme Court found a relation back after a detailed analysis that was consistent Page 3 of 7
with the earlier Zeh decision. The focus of the analysis is to be on the identity of the transaction or occurrence. (citation omitted)... Under the same transaction or occurrence standard, the focus is on the facts and occurrence alleged in the original complaint, not the name of the cause of action or legal theory used to support the claim for damages. Thus, those decisions which impose a same cause of action or substantially similar cause of action requirement on amended complaints are inconsistent with Zeh. Bryson, 174 Ill. 2d at 108. This test proved much more conservative and narrow than in prior decisions, which all too often erroneously allowed an untimely amendment if the same general theory or cause of action was asserted. Although courts sometimes seem to stray from the proper, strict analysis established in Zeh and Bryson based on certain elements that do not appear in the statute, namely 2-616(b), more often than not, the correct analysis is utilized. In Onsite Engineering & Management, Inc. v. Illinois Tool Works, Inc., 319 Ill. App. 3d 362, 744 N.E.2d 928, 253 Ill. Dec. 195 (1st Dist. 2001), the court was asked to examine two pleadings based on a mechanic s lien. In the original, timely complaint, the plaintiff based its lien claims on having furnished labor to the defendant pursuant to a written contract. In the challenged amendment, the plaintiff based its lien claims on having furnished labor pursuant to a subsequent oral contract. 319 Ill. App. 3d at 369. The court found no relation back for the oral contract claim and noted that although in both claims the plaintiff allegedly furnished employees who performed services at the same, specific project site, the contract under which those services were provided was not the same. Id. The first, written agreement was a general sole-provider contract whereby the plaintiff was to be the defendant s sole source provider of temporary contract employees for any project over a certain extended period of time. However, in the untimely amendment, the plaintiff alleged that there was a subsequent, specific oral contract that involved the one, specific project for which the plaintiff provided labor and remained unpaid. Id. The two contracts were different transactions under the 2-616(b) analysis, even though the payment or value for the same services were being sought. In Yette v. Casey s General Stores, Inc., 263 Ill. App. 3d 422, 635 N.E.2d 1091, 200 Ill. Dec. 752 (4th Dist. 1994), the plaintiff sustained injuries from a fall on an icy sidewalk. The initial complaint merely alleged that the defendant failed to salt or remove the ice from the sidewalk in front of its main entrance. In an attempted amendment after the limitations period had run, the plaintiff added a new count alleging he fell on ice accumulation caused by a runoff of snow and ice because of the building s siding. 263 Ill. App. 3d at 424. The court held that the amendment did not relate back as the initial pleading was insufficient to notify defendant that the condition of its building is a material fact upon which plaintiff s theory of liability or cause of action is predicated. Id. at 425. The amended pleadings were based on conduct or conditions different from those alleged in the original complaint. Id. at 426. In a products liability case, certain new allegations as to one of the defendants were held not to relate back in Heyen v. Sanborn Mfg. Co., 223 Ill. App. 3d 307, 312-14, 584 N.E.2d 841, 165 Ill. Dec. 407 (4th Dist. 1991). The original complaint alleged that an air compressor was unreasonably dangerous when sold by a defendant-retailer. The attempted amendment against the retailer alleged a failure to inform the plaintiff of the dangerous condition after being given notice by the manufacturer of a recall relating to the alleged danger. The appellate court correctly reasoned that the original allegations of the defective nature of the air compressor did not sufficiently alert the retailer of a possible later contention that it failed to inform the plaintiff of a subsequent recall by the manufacturer and make a timely investigation in that respect. 223 Ill. App. 3d at 313. The court admitted that one might consider this judgment a close call, unless one considers the purpose behind both the statute of limitations and the relation back doctrine, which would lead to a clear distinction and dismissal. Page 4 of 7
The allegations of the defective nature of the compressor come closer to alerting R & H that it could be charged with knowledge of the dangerous condition of the compressor and failing to warn plaintiff of this. However, the focus of the defective product charge was on the actual condition of the product. The focus of the amended charge includes the issue of whether R & H knew or should have known of the defect. To investigate this question, R & H would have had to timely check with its employees to see what they knew and what circumstances existed which might have required them to know of the defect. Id. This type of analysis must be presented to the trial court in order to differentiate between allegations which, at first glance, appear similar. A different occurrence requires a different investigation, and although there may be some factual similarities or general elements that may even be identical, whether the correct investigations would have been triggered or required by an earlier or original allegation is a key focus. An interesting decision resulting in no relation back is Pierce v. Joe Keim Builders Inc., 274 Ill. App. 3d 371, 653 N.E.2d 928, 210 Ill. Dec. 733 (1st Dist. 1995), where the issue was correct identification of an accident site where the plaintiff s decedent was injured. In the initial complaint, the plaintiff alleged her deceased husband was injured while working at a specific new home site. After the limitations period expired, discovery revealed that the injury was sustained at a different new home site approximately one-half mile away in a different subdivision. Plaintiff then amended her complaint but deleted any reference to any lot number or subdivision. Relying on Zeh, the appellate court affirmed dismissal of this amended complaint and specifically ruled that the location of the accident is critical to a defendant s ability to defend against a claim. Even with that plaintiff acknowledging in her briefs that the specific location of the accident had not been ascertained, there was no valid argument that the defendant had any notice of the correct location prior to the expiration of the statute of limitations. 274 Ill. App. 3d at 375. Proper Defense Arguments to Counter Common Attempts by Plaintiffs to Relate Back Untimely Amendments The greater the difference in the alleged facts supporting the two occurrences, the greater the chance of persuading a court that there should be no relation back. It has been held that if the two claims do not require the same proof, there is no relation back. Weber v. Cueto, 253 Ill. App. 3d 509, 624 N.E.2d 442, 191 Ill. Dec. 593 (5th Dist. 1993). Thus, in a medical setting, the defense can always note that physicians, nurses, hospital staff and administrative staff have different duties, different standards of care, different professional licenses and thus different experts and proof will be required as to each. See, Sullivan v. Edward Hosp., 209 Ill. 2d 100, 806 N.E.2d 645, 282 Ill. Dec. 348 (2004), and Kolakowski v. Voris, 76 Ill. App. 3d 453, 395 N.E.2d 6, 32 Ill. Dec. 59 (1st Dist. 1979), aff d, 83 Ill. 2d 388, 415 N.E.2d 397, 47 Ill. Dec. 392 (1980). When the differences in the alleged facts supporting the two occurrences are argued by the plaintiff as not being substantially different and some similarities do exist, the defense can rely on rulings where relation back was only allowed when the original complaint supplied the defendant with all the information necessary to prepare a defense to the subsequently filed amendment. See, Bryson, supra; Zeh, supra; McCorry, supra; Weber, supra; Pierce, supra and Digby v. Chicago Park Dist., 240 Ill. App. 3d 88, 608 N.E.2d 116, 181 Ill. Dec. 43 (1st Dist. 1992). When the alleged facts in the two occurrences result in the same injury, but the subsequently filed amendment shifts the focus from individual liability to institutional liability that is clearly not simply vicarious liability, then the occurrences can be shown to be different. In Weidner v. Carle Foundation Hosp., 159 Ill. App. 3d 710, 512 N.E.2d 824, 111 Ill. Dec. 435 (4th Dist. 1987), the original complaint Page 5 of 7
alleged liability to the hospital based only on vicarious liability for the specific alleged misconduct of individual physicians. The amendment, which was held not to relate back, alleged the hospital was negligent for not ascertaining the qualifications of its physicians adequately and for not reviewing and adequately supervising care and treatment rendered to that plaintiff. In short, it s one thing to allege an individual physician did something wrong, and it s another to allege that the employer of that physician was negligent in not supervising that physician. These occurrences are different and independent, regardless if they result in the same alleged injury and regardless if they both can be included under the same cause of action label of a failure to timely diagnose a patient s condition. Weidner, supra. When the alleged facts in the two pleadings result in the same injury and are alleged to have been the responsibility or action of the same defendant, yet are different conduct, or even the same conduct performed at different times, there should be no relation back. In Bailey v. Petroff, 170 Ill. App. 3d 791, 525 N.E.2d 278, 121 Ill. Dec. 472 (5th Dist. 1988), it was held that a subsequent amendment alleging that a physician negligently failed to diagnose an unborn child s genetic disorder and to notify the parents of the complication so they could terminate the pregnancy did not relate back to the original allegations of a physician s negligent prescription of a certain drug that caused the infant s birth defects during pregnancy. Similarly, the Cammon case discussed earlier is another example where the alleged conduct in both pleadings occurred during the same brief postoperative period, merely hours apart, but the focus and the evidence necessary to prove each occurrence was different, even though each was alleged to have caused the death and each was directed at the same defendants. Cammon, supra, 301 Ill. App. 3d at 943; see also, Chestnut v. Adeli, 131 Ill. App. 3d 24, 475 N.E.2d 260, 86 Ill. Dec. 263 (4th Dist. 1985). When a plaintiff argues that fairness dictates a finding of relation back, the defense should counter by arguing the numerous fairness principles that underlie the statute of limitations. The limitations period begins to run when a plaintiff has sufficient information to put a reasonable person on inquiry to determine whether actionable conduct caused the injury, even if the plaintiff lacks knowledge of a specific person s negligent conduct. (citation omitted). Thus, the limitations period does not begin anew each time pretrial discovery reveals that unsued persons may be liable or that other theories of liability may apply. McCorry, supra, 332 Ill. App. 3d at 943. The purpose and rationale of a statute of limitations must be taken into consideration in every relation back analysis, and to allow a new occurrence to relate back would be to disregard the purpose of a statute of limitations, which is to afford a defendant a fair opportunity to investigate the circumstances upon which liability against him or her is predicated while the facts are accessible. Zeh, supra, 111 Ill. 2d at 282-83. All of these positions emphasize the basic rule that has been repeated as a common requirement when relation back has been allowed: An amendment will be allowed only when the allegations timely filed supply a defendant with all of the information necessary to have triggered a focused investigation to timely collect information in order to prepare a defense to the new claim asserted in any subsequent amendment. Thus, the defense must show that the new claim consists of different conduct and now requires a new and different investigation after the limitations period has expired. Conclusion While most trial courts are reluctant to dismiss amendments when the original complaint was timely filed, if a logical argument can be presented with multiple examples of dismissal from other cases, it should be expected that a motion to dismiss based on a failure to relate back will receive a more favorable analysis and ruling. In any event, the record is preserved, and if the motion is denied, the defendant should include this challenge or defense as an affirmative defense. However, the more effort made to show the differences between the conduct alleged and the necessary investigations Page 6 of 7
triggered by different conduct, the more this timeliness challenge will be accepted at the trial court level. ABOUT THE AUTHORS: Edward M. Wagner is a partner in the Urbana office of Heyl, Royster, Voelker & Allen where he concentrates his practice in physician medical malpractice, hospital and nursing home defense cases. He received his J.D. from Creighton University School of Law (cum laude) in 1980 and he is also currently a member of the Illinois Supreme Court Rules Committee. Kingshuk K. Roy is an associate in the Urbana office of Heyl, Royster, Voelker & Allen where he practices in the defense of general civil litigation as well as insurance coverage matters. Mr. Roy received his J.D. from the University of Illinois in 2003. Page 7 of 7