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The First District's Roadmap to the Ever-Expanding Relation Back Doctrine

July 18, 2017Myriah ConaughtyRelated Practice Areas: Civil Rights Litigation & Correctional Healthcare and Medical Liability
Myriah F. Conaughty

Earlier this year, the First District Appellate Court provided a detailed analysis regarding the application of the relation back doctrine, which continues to expand its reaches and erode the statutory walls that have historically protected the rights of defendants. As with prior Illinois decisions, the decision in Owens v. VHS Acquisition Subsidiary Number 3, Inc. should raise the concerns of defense counsel in their representation of clients, communications with insurers, analysis of pleadings, and especially their ability to defend a case on the merits and without prejudice. 2017 IL App (1st) 161709, see also Porter v. Decatur Mem. Hospital, 227 Ill. 2d 343 (2008) (adopting the “sufficiently close relationship test” to determine whether a new claim will relate back to an original complaint).

The interlocutory appeal in Owens arose out of a medical malpractice case pending in the Circuit Court of Cook County. Plaintiff timely filed a Complaint against Defendant Hospital and Defendant Physician five days before the statute of limitations expired. After filing an appearance, Defendant Physician moved for non-involvement on the basis that Defendant Physician never provided medical care to Plaintiff; rather it was a non-party physician (“Prospective Defendant”) who had provided the allegedly negligent care. Defendant Physician claimed that due to an error at the Defendant Hospital in mislabeling Plaintiff’s medical records, Defendant Physician’s name appeared in the medical records, but that he did not provide care to Plaintiff. Approximately six months after the statute of limitations expired, Plaintiff was granted leave and filed an Amended Complaint naming Prospective Defendant as a defendant in the suit. Prospective Defendant moved to dismiss, arguing the action was time-barred.

The trial court denied Prospective Defendant’s motion and the following question was certified for appellate review: “Whether an Amended Complaint against a new defendant filed after the applicable statute of limitations has expired relates back to plaintiff’s original Complaint where (a) the new defendant’s signature was in the medical records in plaintiff possession prior to filing his original Complaint, and (b) the new defendant had no knowledge that the action would have been brought against her, but for a mistake concerning her identity.”

Generally, amending a complaint to add a defendant is governed by Section 2-616(d) of the Illinois Code of Civil Procedure, which provides that a cause of action against a new defendant is not time-barred where the following criteria are met: (1) the original action was timely filed, (2) the new defendant received notice of the commencement of the action and knew or should have known that the action would have been brought against him/her but for a mistake in identity, and (3) the cause of action asserted in the amended complaint grew out of the same transaction or occurrence in the original complaint. 735 ILCS 5/2-616(d) (West 2012). In the appeal at issue, only the second requirement was contested. In analyzing the certified question, the First District looked first at whether there was a mistake as contemplated by Section 2-616(d), and second at whether Prospective Defendant received notice of the commencement of the action.

When determining whether a mistake was made for purposes of the relation back doctrine, the Court looked to Federal Rule of Civil Procedure 15(c) for guidance.. The Court relied upon the United States Supreme Court’s ruling in Krupski v. Costa Crociere S.p.A., 560 U.S. 538, 547 (2010), which resolved a split among federal courts regarding the issue of mistake. The Supreme Court found that it is the prospective defendant’s knowledge—not the plaintiff’s knowledge—that determines whether there was a mistake. The Court explained that the proper inquiry was not whether the plaintiff knew or should have known that the prospective defendant should be named, but rather, whether the prospective defendant knew or should have known that he/she would have been named as a defendant, but for an error. Krupski, 560 U.S. at 548. The Court advised prospective defendants to examine the allegations of the original complaint in determining plaintiff’s intent in filing the suit. Id. at 554-55.

In applying this reasoning to the case on appeal, the First District noted that Plaintiff’s original Complaint mistakenly alleged that Defendant Physician was negligent in the treatment he provided in the Emergency Department on certain dates. Prospective Defendant who actually provided the care at issue either knew or should have known that, but for Plaintiff’s mistake in her identity, she would have been named in the original Complaint. Thus, the First District concluded that Prospective Defendant could be named in the Amended Complaint, even where Prospective Defendant’s signature was contained in the Plaintiff’s medical records in Plaintiff’s possession since before filing the original Complaint because Plaintiff intended on suing the physician who provided the allegedly negligent treatment in the Emergency Department.

When determining whether Prospective Defendant had notice for purposes of the relation back doctrine, the Court again turned to Federal Rule of Civil Procedure 15(c) for guidance. Federal courts have identified three types of notice that comply with Rule 15(c) requirements: actual notice to the party, actual notice to the party’s agent, and constructive notice. Constructive notice occurs where a defendant does not receive notice of an impending lawsuit, but due to its relationship with an entity that received actual notice, knowledge of the action is imputed to a defendant for proposes of adding it as a new party. Polites v. U.S. Bank National Ass’n, 361 Ill. App. 3d 76, 90 (2005). “Under federal law, there are three ways to establish constructive notice: (1) notice via sharing an attorney with the original defendant; (2) notice via an identity of interests with the original defendant; or (3) notice via someone who handles the would-be defendant’s insurance claims.” Id. at 90-91.

Under the shared attorney method of constructive notice, there must be some showing that the shared attorney knew that the additional defendants would be added to the existing suit. The record on appeal revealed that once served, Prospective Defendant was represented by the same attorney as Defendant Physician; therefore, the court reasoned that the attorney would have known during the statutory period that Defendant Physician was not involved and that Prospective Defendant’s care was actually at issue. The court reasoned that Prospective Defendant may have received notice of the suit by virtue of the attorney’s representation of Defendant Physician prior to any indication by Plaintiff that an Amended Complaint would be filed, but there was not enough information to make that determination on appeal. Therefore, the case was remanded to the trial court so that the parties could “develop the record” as to whether Prospective Defendant received constructive notice via the shared attorney method.

In sum, while the First District’s analysis was thorough and well-supported, its application will be fraught with trouble for defendants. Because the determination of whether a mistake was made hinges on the plaintiff’s intent in filing the suit, broad allegations such as “the residents, attendings, nurses, and other medical care providers, and their actual or apparent agents, were negligent in failing to . . . ” appear to give plaintiffs carte blanche to add prospective defendants at any time. To limit this exposure, defendants should carefully analyze each complaint and move to strike such nonspecific allegations, a practice that generally is underutilized, time consuming, and often futile. Additionally, in medical malpractice cases, defendants should utilize the Reviewing Physician’s Report as evidence of the plaintiff’s intent; for example, when the perspective defendant is of a different licensure or specialty.

Equally as troubling are the potential implications on protected communications in proving a prospective defendant had the required notice, which will require significant discovery. In order to impute notice to a prospective defendant via the shared attorney method, there must be a showing that the attorney knew that the additional defendants would be added. Plaintiffs will likely claim that any document relevant to notice—whether it be communications between with a common insurer or reports to a client—is discoverable without limitation in light of the First District’s opinion. Defense counsel should be prepared to object to the disclosure of such information, and take all steps necessary to properly safeguard the confidentiality of such documentation.

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