Figueroa v. Illinois Masonic Medical Center

                                             Sixth Division
                                             May 30, 1997








No. 1-96-1071


CECILIA FIGUEROA and EDGAR FIGUEROA, )  Appeal from the Circuit
                                     )  Court of Cook County
     Plaintiffs-Appellants,          )  
                                     )  
          v.                         )  
                                     )  
ILLINOIS MASONIC MEDICAL CENTER,     )  Honorable
                                     )  Philip L. Bronstein,
     Defendant-Appellee.             )  Judge Presiding.

     JUSTICE ZWICK delivered the opinion of the court:

     Plaintiffs instituted this action seeking recovery for
personal injuries allegedly caused by the negligent medical
treatment rendered by defendant to Cecilia Figueroa.  The trial
court dismissed plaintiffs' complaint against defendant, Illinois
Masonic Medical Center, finding that the claim asserted in that
pleading was barred because it was not presented until after
expiration of the applicable statute of limitations.   Plaintiffs
have appealed the dismissal, contending that the trial court
erred in finding that the refiled complaint did not relate back
to the timely filing of the initial complaint.
     The record reveals that plaintiff Cecilia Figueroa was
admitted to defendant's hospital on June 3, 1990, where she
underwent labor and the subsequent delivery of her first child by
caesarean section.  Following the caesarean section procedure,
plaintiff was returned to surgery for treatment of internal
bleeding.  After a period of hospitalization, she was discharged.
Three days after her discharge, plaintiff was required to undergo
a complete abdominal hysterectomy necessitated by a hemorrhage of
her uterus.
     On September 10, 1991, plaintiffs brought suit against
defendant and two individual physicians, alleging that they acted
negligently in treating Cecilia Figueroa after the delivery of
her baby during her hospitalization.   Specifically, plaintiffs
alleged that on June 3, 1990, Cecilia Figueroa was accepted as a
patient by defendant which undertook to diagnose and treat her
condition.  Plaintiffs alleged further that defendants were
negligent in failing to use proper skill and care in treatment of
Cecilia following her cesarean section.
     On May 12, 1992, plaintiffs filed an amended complaint which 
named an additional doctor as a respondent in discovery and which
alleged injuries resulting from medical malpractice during the
June 3, 1990, hospital stay.
     Approximately three years later, on March 16, 1995,
plaintiffs filed their interrogatory answers which disclosed the
opinion of their testifying expert.  In plaintiffs' expert's 
opinion, defendant acted negligently during Cecilia's June 3,
1990, admission to the hospital, and specifically, during the
labor and delivery of her baby.  Plaintiffs' expert also
concluded that during Cecilia's labor and delivery, defendant
deviated from acceptable standards of care, resulting in massive
bleeding and the necessity of a hysterectomy.
     On July 10, 1995, defendant filed a motion to bar the
testimony of plaintiffs' expert and a motion for summary
judgment, asserting that the opinion of plaintiffs' expert
reflected a theory not stated in the amended complaint, i.e.,
that the defendant's negligence occurred during Cecilia's labor
prior to the delivery of her baby.
     Plaintiffs voluntarily dismissed their claims on July 18,
1995, and filed a new action on July 24, 1995.  In their refiled
action, plaintiffs alleged that defendant acted negligently
during Cecilia's hospital stay which commenced on June 3, 1990,
and continued at least until June 4, 1990, when she delivered by
cesarean section.  The physician's report which was attached to
this complaint specifically asserted that defendant was negligent
in treating Cecilia during the period of her labor and prior to
the delivery of her baby by cesarean section.
     On December 6, 1995, defendant brought a motion to dismiss
pursuant to section 2-619 of the Illinois Code of Civil
Procedure, contending that the medical malpractice claims
asserted in plaintiffs' refiled complaint were barred because
they were not presented within the applicable two-year
limitations period (735 ILCS 13-212 (West 1996)) and because
those claims did not relate back to the filing of the original
complaint in September 1991.
     The trial court agreed, dismissing plaintiffs' action with
prejudice on March 6, 1996, and plaintiffs have appealed.
     It is undisputed that the original complaint was timely
filed.  Consequently, the sole question raised on appeal is
whether the refiled complaint related back to the timely filing
of plaintiff's original complaint.
     In accordance with the provisions of section 2-616(b) of the
Code of Civil Procedure (735 ILCS 5/2-616(b) (West 1996)), a
cause of action alleged in an amended or refiled complaint, after
the expiration of the limitations period, will relate back to the
filing of the original complaint if (1) the original pleading was
timely filed, and (2) the original and subsequent pleadings
indicate that the cause of action asserted in the later pleading
grew out of the same transaction or occurrence set up in the
original pleading.  See Wolf v. Meister-Neiberg, Inc., 143 Ill. 2d 44, 46, 570 N.E.2d 327 (1991); Zeh v. Wheeler, 111 Ill. 2d 266, 270-71, 489 N.E.2d 1342 (1986).
     The purpose of section 2-616(b) is to insure fairness to the
litigants rather than unduly enhance the technical considerations
of common-law pleadings.  Sompolski v. Miller, 239 Ill. App. 3d
1087, 1090, 608 N.E.2d 54 (1992), citing Albany Park Service,
Inc. v. Kenny-Pashen Joint Venture, 209 Ill. App. 3d 432, 436,
568 N.E.2d 230 (1991); United Parcel Service v. Church's Fried
Chicken, Inc., 174 Ill. App. 3d 378, 380, 528 N.E.2d 367 (1988). 
To further this purpose, the court should liberally construe the
requirements of section 2-616(b) in favor of hearing plaintiff's
claim.  Sompolski, 239 Ill. App. 3d at 1090, citing Williams v.
Board of Education, 222 Ill. App. 3d 559, 565, 584 N.E.2d 257
(1991).
     In ascertaining whether the subsequent pleading relates back
to the filing of the initial pleading, the focus is not on the
nature of the causes of action, but on the identity of the
transaction or occurrence.  Zeh, 111 Ill. 2d at 272-73; Weber v.
Cueto, 253 Ill. App. 3d 509, 516, 624 N.E.2d 442 (1993).  Thus,
the cause of action asserted in the later complaint need not be
identical to or substantially the same as the claim raised in the
original pleading.  Weber, 253 Ill. App. 3d at 515.  Relation
back will be allowed where the defendant has been made aware of
the occurrence or transaction which is the basis for the
plaintiff's claim.  Zeh, 111 Ill. 2d  at 279; Weber, 253 Ill. App.
3d at 516.
     A subsequent pleading relates back when the original
complaint supplies defendant with the essential information
necessary to prepare a defense to the claim asserted in the
subsequent pleading.  Cannon v. Bryant, 196 Ill. App. 3d 891,
895, 554 N.E.2d 489 (1990); Digby v. Chicago Park District, 240
Ill. App. 3d 88, 91-92, 608 N.E.2d 116 (1992).  Under these
circumstances, the defendant will be able to defend against the
plaintiff's claim, whatever theory it may be predicated upon. 
Zeh, 111 Ill. 2d  at 279; Weber, 253 Ill. App. 3d at 516.  The
rationale for this rule is that a defendant will not be
prejudiced so long as his attention has been directed within the
limitations period to the facts that form the basis of the claim
asserted against him.  Zeh, 111 Ill. 2d  at 273, citing Simmons v.
Hendricks, 32 Ill. 2d 489, 495, 207 N.E.2d 440 (1965); Doherty v.
Cummins-Allison Corp., 256 Ill. App. 3d 624, 629, 628 N.E.2d 731
(1993).
     With these standards in mind, we examine the allegations
contained in the original pleading and conclude that the claims
asserted in the refiled complaint did arise out of the same
transaction or occurrence.  The original complaint alleged that
on June 3, 1990, Cecilia Figueroa was accepted as a patient and
hospitalized by defendant which undertook to diagnose and treat
her condition. That pleading sought recovery for injuries
resulting from treatment rendered during that hospitalization. 
Although the original complaint focused upon defendant's conduct
after delivery, we hold that the "transaction or occurrence" here
must be defined as the period of labor immediately preceding
delivery as well as the post-partum care received in the
hospital.  Despite the fact that labor, delivery, and post-partum
care are described as if they are distinct events, they are, in
reality, a progression of the various stages of the birthing
process.  These events frequently occur in a very compressed time
frame and, accordingly, must be treated as a single event for
purposes of section 2-616(b).
     Therefore, in the case at bar, defendants were made aware
that plaintiffs' claims were predicated upon the treatment which
took place during her hospitalization, including both her labor
prior to delivery and her post-partum care.  We conclude that the
original complaint supplied defendant with the essential
information necessary to prepare a defense to the claim asserted
in the refiled action.
     For the foregoing reasons, the judgment of the circuit court
of Cook County is reversed, and the cause is remanded for further
proceedings consistent with the views expressed herein.
     Reversed and remanded.
     GREIMAN, P.J., and THEIS, J., concur.