Motion for Leave to Add An Additional Negligence Count to a Medical Malpractice Suit
In Porter v. Decatur Memorial Hospital, 227 Ill. 2d 343, 882 N.E.2d 583, 317 Ill. Dec. 703 (2008), the plaintiff filed a lawsuit against the defendant hospital, and his treating physician, for alleged negligence during his care and treatment for a spinal cord injury suffered in a motor vehicle collision. Porter, 227 Ill. 2d at 346.
The plaintiff in Porter filed his original complaint against his treating neurologist.
He then filed an amended complaint to add the defendant hospital, alleging that he lost the function of his legs as a direct and proximate result of their negligence.
Specifically, the plaintiff's amended complaint alleged that member of the hospital staff failed to report his deteriorating neurological condition to his treating neurologist, leaving his declining neurological condition undiagnosed and untreated. Porter, 227 Ill. 2d at 346.
Following the addition of the defendant hospital, the plaintiff sought leave to file a second amended complaint, which included an additional count sounding in negligence against the hospital for the alleged negligence of a radiologist as an agent of the hospital in failing to recognize a fracture of plaintiff's cervical spine. Porter, 227 Ill. 2d at 347.
The defendant hospital objected to plaintiff's motion for leave to amend and add the additional count, arguing that it was a new and different claim and therefore barred by the applicable two-year statute of limitations. Porter, 227 Ill. 2d at 349-50.
The plaintiff argued that the newly added count arose out of the same treatment as alleged in the original and first amended complaints and met the requirements of section 2-616(b) of the Code (735 ILCS 5/2-616(b) (West 2006)).
The trial court in Porter first allowed plaintiff's motion to amend, but upon defendant hospital's motion to reconsider, found that the additional count was barred by the statute of limitations and did not relate back under section 2-616(b). Porter, 227 Ill. 2d at 350.
The fourth district of the Illinois appellate court affirmed with one justice dissenting. Porter v. Decatur Memorial Hospital, 372 Ill. App. 3d 310, 867 N.E.2d 1049, 311 Ill. Dec. 63 (2007).
On review, our Illinois Supreme Court reversed finding that the additional count related back to plaintiff's timely filed complaints. Porter, 227 Ill. 2d at 364.
In so holding, our Illinois Supreme Court adopted the "sufficiently-close-relationship" test as articulated in In re Olympia Brewing Co. Securities Litigation, 612 F. Supp. 1370 (N.D. Ill. 1985).
Porter summarized the Olympia Brewing sufficiently-close-relationship test as follows:
"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 Olympia Brewing, 612 F. Supp. at 1373.
The Porter court held that "an amendment is considered distinct from the original pleading and will not relate back where:
(1) the original and amended set of facts are separated by a significant lapse of time, or;
(2) the two set of facts are different in character, or;
(3) the two sets of facts lead to arguably different injuries." Porter, 227 Ill. 2d at 359, citing Olympia Brewing, 612 F. Supp. at 1372.