EMAIL TO A FRIEND COMMENT

 

Amended Complaint Allowed After Limitation Lapse; Hip Fracture


A man riding his motorized dirt bike collided with a parked vehicle. He immediately felt pain on the right side of his body and was unable to rise on his own. His wife drove him to the emergency room, where he reported knee and pelvic pain to hospital personnel. He was admitted to the hospital and underwent knee surgery.

 

Following the surgery, the man complained to hospital personnel of persistent pelvic pain. The man was not treated at the hospital for any pelvic condition. His pelvic pain continued after his discharge. Several weeks later, he was diagnosed with a fractured hip socket. He eventually underwent a hip replacement.

 

The man sued the hospital, two orthopedists, and their practice group. The first amended complaint alleged that the hospital, through the two orthopedists, who were agents or apparent agents of the hospital, and the hospital’s employees, agents, and servants were negligent in diagnosing and treating the man’s fractured hip socket.

 

After 18 months of discovery, during the ER doctor’s deposition, it was revealed that the ER doctor had read the man’s pelvic x-ray. It was also revealed that the man, the ER doctor, and the orthopedic surgeons all failed to receive the radiologist’s x-ray findings.

 

The man filed a request for leave to file a second amended complaint and submitted his second amended complaint 18 days following the ER doctor’s deposition. The second amended complaint added a count of negligence against the ER doctor with respect to reading his pelvic x-ray and a claim of institutional negligence which alleged the hospital failed to insure that the radiologist’s x-ray findings were conveyed to the man, the ER doctor, and the orthopedic surgeons. The man did not dispute that the limitations period had passed before he sought leave to file his second amended complaint. The Circuit Court of Lake County denied the man’s leave to file his second amended complaint.

 

The Appellate Court of Illinois, Second District, reversed. The court held that the claims in the man’s proposed second amended complaint were not time-barred because they grew out of the same transaction or occurrence set up in the original pleading; the man’s proposed amendment satisfied the four factors governing amendments of pleadings; regarding the second factor, the court held that it favored the man because the amendment could not have caused surprise or prejudice to the hospital; regarding the third factor, the court held that it favored the man because, relative to the proceeding, the proposed amendment was timely; and, regarding the fourth factor, the court held that the man did not have a previous opportunity to amend his complaint.

 

The claims in the man’s proposed second amended complaint were not time-barred because they grew out of the same transaction or occurrence set up in the original pleading. The statutory exception permits an amendment after the statute of limitations has run if the claims it asserts grew out of the same transaction or occurrence set up in the original pleading. The new claims must be closely related in subject matter and time with the existing allegations. The court found that a close connection in subject matter and time existed between the allegations of the first amended complaint and the allegations that the man sought to add in the second amended complaint. The second amended complaint gave specificity to the first amended complaint’s broader allegation of negligence regarding the man’s treatment by identifying two more negligent individuals and two more specific counts. The additional counts had a close temporal link with the allegations in the first amended complaint as the negligent failure to diagnose the broken hip was alleged to have occurred on the same morning that the x-ray was misread. The new counts did not present novel theories that could not have been anticipated even though one count alleged administrative rather than diagnostic negligence, specifically that the hospital was at fault for failing to insure that the entire care team was informed of the radiological report. The court reasoned that the allegation in the first amended complaint broadly asserted a negligent failure by the hospital to diagnose and treat the man’s broken hip and was not limited to diagnostic failures. The “transaction or occurrence” set up by the first amended complaint was the man’s hospital stay, during which his fractured hip could have been but was not treated. Out of this same transaction or occurrence grew the two new counts of the second amended complaint.

 

The man’s proposed amendment satisfied the four factors governing amendments of pleadings. To determine whether to permit amendment to a pleading a court considers whether (1) the proposed amendment would cure a defect in the pleadings, (2) the proposed amendment would prejudice or surprise other parties, (3) the proposed amendment is timely, and (4) there were previous opportunities to amend the pleading. The court found the first factor inapplicable.

 

Regarding the second factor, the court held that it favored the man because the amendment could not have caused surprise or prejudice to the hospital. The court reasoned that the first amended complaint put the hospital on notice that the man was claiming that the hospital, acting through its employees and agents, was negligent for failing to treat the man’s broken hip. The general terms left open the possibility of negligence by other employees or agents of the hospital who were not named in the first amended complaint. The general terms also did not limit the negligence to diagnostic mistakes. The additional experts and work the hospital might have to undertake due to the second amended complaint was the consequence of the natural evolution of a case through the course of discovery, which was not yet completed when the man sought his second amended complaint.

 

Regarding the third factor, the court held that it favored the man because, relative to the proceeding, the proposed amendment was timely. The court noted that discovery, with its potential to change the shape of litigation, was still underway when the man sought to amend. The ER doctor’s deposition did not take place until 18 months after the litigation began, but it conveyed important information not previously disclosed. The court determined that the proper date from which to calculate the timeliness of the amendment was the date of the ER doctor’s deposition. The court held that the interval of 18 days between the ER doctor’s deposition and the submission of the second amended complaint was reasonable.

 

Regarding the fourth factor, the court held that the man did not have a previous opportunity to amend his complaint. The court found that the man could not have known from the emergency chart that the ER doctor also read the man’s pelvic x-ray and could not have known until deposing the ER doctor that no one received the radiologist’s x-ray findings. The man was justified in letting discovery unfold further before deciding whether to allege the ER doctor was negligent in connection with the pelvic x-ray and the hospital was negligent in failing to insure that the radiologist’s x-ray findings were conveyed to the man, the ER doctor, and the orthopedist. The man only discovered that the ER doctor had read his pelvic x-ray and that none of the doctors received the radiologist’s x-ray findings during the ER doctor’s deposition. The man submitted his second amended complaint 18 days following the ER doctor’s deposition, which the court found was a reasonable period.

 

The Appellate Court of Illinois, Second District, reversed the trial court’s denial of the man’s motion for leave to file a second amended complaint.

 

See: Schroff v. Advocate Condell Medical Center, 2015 WL 6395673 (Oct. 21, Ill.App. 2 Dist., 2015) (not designated for publication).

 

See also Medical Law Perspectives, July 2013 Report: New Hips, New Knees, New Problems: Hip and Knee Replacements 

 

 

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