State Supreme Court Reverses on Allowing Amendment to Complaint After Statute of Limitations Had Run

Plaintiff Donald Brier brought a cause of action against a practice group and an orthopedic surgeon, Greater Hartford Orthopedic Group P.C., and David Kruger, MD, an orthopedic surgeon (collectively, Defendants), alleging medical malpractice arising out of a spinal surgery that went bad.

After the running of the applicable statute of limitations, Brier sought to amend his complaint. Both the original complaint and the amended version alleged that Dr. Kruger and his medical group chose not to plan and use an instrument that could have been utilized. The original complaint alleged the misuse of a skull clamp during the surgery.

Brier’s amended complaint included allegations of the improper use of a retractor blade. The trial court narrowly construed the original complaint as limited to a claim of the negligent usage of the skull clamp and denied Brier’s request to amend his complaint.

Because Brier had abandoned the theory that negligent use of the skull clamp had caused his injury, the court granted summary judgment in favor of Defendants.

The Appellate Court reversed the trial court’s denial of Plaintiff’s request to amend, broadly construing the original complaint as a claim of negligence in performing the surgery, which could be supported by either set of factual allegations. The state Supreme Court affirmed, thus denying Defendants’ request that the Court adopt the narrower approach used by the trial court.

Under Illinois law, a similar finding would be had as was in the Brier case. “At any time before final judgment amendments may be allowed on just and reasonable terms, introducing any party who ought to have been joined…” 735 ILCS 5/2-616 (d), which is often referred to as the relation back section of the Illinois Code of Civil Procedure.

The key element in Illinois, even if the statute of limitations had expired, is that an amendment to the timely filed lawsuit asserts a cause of action that “grew out of the same transaction or occurrence set up in the original pleading, even though the original pleading was defective in that it failed to allege the performance of some act or the existence of some fact or some other matter which is a necessary condition precedent to the right of recovery…” The courts in Illinois will also allow the addition of a new party in some circumstances after the running of the statute of limitations in an existing lawsuit. Each case would be examined independently on its facts and circumstances when applying the “relation back” law.

Brier v. Greater Hartford Orthopedic Group, P.C., et al. (SC 19576; April 11, 2017)

Kreisman Law Offices has been handling medical malpractice cases, hospital negligence cases, surgical negligence cases and birth injury cases for individuals and families who have been injured or killed by the negligence of a medical provider for more than 40 years, in and around Chicago, Cook County and surrounding areas including, Alsip, Worth, River Forest, Barrington, Berwyn, Winnetka, Highland Park, Evanston, Skokie, Morton Grove, Chicago (Wicker Park, Bucktown, West Town, Greek Town, Little Italy), Long Grove, Hinsdale, Aurora and Lincolnwood, Ill.