Gloria Tirado as Agent of Gina Gutierrez v. State of Illinois

ORDER

BIRNBAUM, CJ.

This matter coming before the Court on the Respondents' Motion for Leave to Withdraw Answer and file an attached Motion to Dismiss. The Claimants filed a response and a Motion for Leave to File, Instanter, Amended Response. Respondents filed a response, and the Claimants filed a reply. The Court being fully advised, finds as follows:

Procedural Background

This case is based on alleged institutional negligence and vicarious liability between Claimant Gina Gutierrez and the University of Illinois Medical Center at Chicago ("UIC"), stemming from Ms. Gutierrez's treatment at the University of Illinois at Chicago and under the care of Dr. Konstantin Slavin ("Slavin"), and agent of UIC.

The relevant facts surrounding the alleged negligence of both Slavin and UIC are detailed in the Court's Order of December 17, 2021, where the Court denied Respondents' Motion for Summary Judgment. In that Order, the Court held that the Respondents' motion failed to meet one of the three requirements for the doctrine of res judicata to apply. Specifically, Respondents failed to show there was a final judgment on the merits rendered against UIC by a court of competent jurisdiction. Respondents argued the finding in favor of Slavin by the circuit court barred Claimants from any further claims against UIC. Despite the circuit court's finding in favor of Slavin, the Court ruled Claimants still held the right to seek a claim against UIC based on the remaining allegations of institutional negligence.

On February 15, 2022, Respondents filed a Motion for Leave to Withdraw Answer, and file an attached Motion to Dismiss. The Motion to Dismiss, once again, argues that res judicata bars Claimants' institutional negligence claims. In support of their motion, Respondents include the following two new affirmative defenses: Claimants failed to timely filed notice of their institutional negligence claims within the strict one-year filing requirement under the Court of Claims Rule 735 ILCS 505/22-1; and Claimants failed to submit a legally sufficient section 2- 622 report supporting their institutional negligence allegations.

Claimants filed their Response to Respondents' Motion for Leave to Withdraw Answer on April 6, 2022. In this response, Claimants attack the Motion to Dismiss that Respondents aim to file after withdrawing their Answer. In support of their argument for denying Respondents' motion, Claimants argue that Respondents' Motion to Dismiss, although defined as a 2-615 [*250] argument, simply reiterates Respondents' Motion for Summary Judgment that was denied in the Court's Oder of December 17, 2021.

Seeking to invalidate the filing argument from Respondents, Claimants state that UIC released Claimant Gutierrez from its medical care on August 19, 2011, and the notice of their claim was filed on August 16, 2012. Therefore, Claimants' Complaint was filed within the oneyear requirement. Second, since Claimant Gutierrez has been adjudicated a legally disabled person by the Circuit Court of Cook County, Claimants cite to the rule that states the period of limitations does not begin to run until the disability is removed. 735 ILCS 5/13-212(c).

Lastly, Claimants argue their 2-622 report was legally sufficient, and if the Court deems the report insufficient, Claimants seek leave to file an amended 2-622 report.

On May 2, 2022, Claimants filed the instant Motion for Leave to File, Instanter, Amended Response and attached their Amended Response. In the response, Claimants argued Respondents' res judicata defense had been disposed of when the Court denied their Motion for Summary Judgment, that the two new affirmative defenses had been waived, and finally that Claimants are prejudiced with delay in discovery by the filing of the Motion to Dismiss.

Respondents filed their Response to Claimants' Motion for Leave to File, Instanter, Amended Response on May 24, 2022. The response argued 1) that Claimants' motion be denied; 2) that if the motion is granted, the Court should still grant Respondent's Motion to Withdraw Answer and permit them to file their Motion to Dismiss; and 3) that Respondents' Motion to Dismiss should be granted.

In arguing for denial of Claimants' Motion for Leave, Respondents cite to this Court's rules that prohibit giving Claimants additional time to object to Respondents' Motion for Leave in writing, unless "compelling circumstances" exist. 705 ILCS 505/790.200(c). Furthermore, Respondents argue Claimants incorrectly rely on Section 2-616(a) of the Code of Civil Procedure in believing the rule applies to amendments of motions. 735 ILCS 5/2-616(a).

In support of their argument for their motions, Respondents, once again, rely on Section 2-616(a) as the basis to amend their defense to Claimants' Complaint. Respondents state that courts have broad discretion to allow the addition of new defenses if the amendment avoids undue prejudice or surprise. Hobart v. Shin, 185 Ill. 2d 283, 292 (1998) (citing Loyola Academy v. S&S Roof Maintenance, Inc., 146 Ill. 2d 263 (1992)); Lukowski v. Bergman, 299 Ill. App. 3d 157, 162 (1st Dist. 1998). From Respondents' perspective, Claimants are only citing anticipated prejudice that they will incur if Respondents' motions are granted. They argue that it is insufficient to prevent the Court from using its broad discretion in granting Respondents' Leave to Withdraw their Answer and amend their responsive pleading. Lastly, Respondents argue Claimants erroneously claim that Respondents waived their ability to raise certain affirmative defenses contained in the proposed Motion to Dismiss. Respondents cite to the case of Horwitz ex rel. Gilbert v. Bankers Life and Cas. Co., 319 Ill. App. 3d 390, 399 (1st Dist. 2001). In Horwitz, the court held that even where the defendant did not raise certain defenses to the complaint in its initial answer, those defenses were still not waived. Id.

Respondents cite a variety of reasons as to why they believe this Court should grant their Motion to Dismiss. First, Respondents argue the Claimants' pleadings should be dismissed under Section 2-615 for failure to state a claim because the factual allegations of the Complaint only allege Slavin, and not UIC, allegedly acted negligently in causing Claimant Gutierrez's injuries.

Second, Claimants are not entitled to leave to amend their deficient Section 2-622 report, and UIC is only mentioned in the report as the alleged principal who is vicariously liable for the alleged conduct of its agent, Slavin. With Slavin's alleged negligence already litigated and no [*251] notice of an institutional negligence claim in the report, Respondents call for dismissal. Third, Claimants do not offer any valid reasons to support their belief that Respondents' Motion to Dismiss is an untimely petition for rehearing on their Motion for Summary Judgment. Lastly, Respondents cite to the rules of this Court that do not consider the legal disability of a claimant in determining the one-year deadline of filing a notice of intent. 705 ILCS 505/22-1.

Respondents further argue Claimants' notice of intent was untimely filed because Claimants failed to file by July 7, 2012, exactly one year after Slavin last treated the Claimant.

On June 14, 2022, Claimants filed their reply to Respondents' response. In the reply, Claimants argue, under 2-616(a), their Motion for Leave to File, Instanter, Amended Response should be granted. Claimants note that Respondents do not offer any case law to show that 2- 616(a) does not apply to motions. Second, once again, Claimants argue for Respondents' Motion for Leave to Withdraw Answer and File Motion to Dismiss to be denied by the Court. Claimants argue granting Respondents' motion would be prejudicial because this would be Respondents' second attempt to assert affirmative defenses, and this second attempt comes after a one-year delay. Third, Claimants reiterate that Respondents' res judicata defense has already been denied.

Claimants also defend the legal sufficiency of their 2-622 report or in the alternative seek leave to amend the 2-622 report. Lastly, Claimants rebut Respondents' argument that they failed to timely file their institutional negligence claims within the one-year requirement by citing to the Discovery Rule followed by this Court. The Discovery Rule holds it "unfair to bar a negligently injured party's cause of action before he [has] had an opportunity to discover that it exists."

Lipsey v. Michael Reese Hospital, 46 Ill. 2d 32, 41 (1970). Claimants restate how Claimant Gutierrez was not released from UIC until August 19, 2011, and argue it would be unreasonable for her to have known she was injured while still recovering in the hospital.

Analysis

In ruling on a motion to withdraw, it must be determined whether the nonmoving party will be prejudiced or surprised by the granting of the motion. Lykowski, 299 Ill. App. 3d at 162.

Under Illinois law, the court may allow amendments, including the raising of affirmative defenses, at any time before the final judgment. 735 ILCS 5/2-616(a).

In Lykowski, the appellate court held that the trial court did not abuse its discretion in allowing the defendant to withdraw his answer and file a motion to dismiss in its place.

Lykowski, 299 Ill. App. 3d at 162. The defendant raised the motion to withdraw in order to raise an affirmative defense, and the plaintiff also failed to allege any prejudice or surprise incurred by the court's granting of the defendant's motion to withdraw. Id.

In the instant case, Respondents seek to withdraw their answer in order to attach a Motion to Dismiss, that will include two new affirmative defenses. While Claimants argue they will be harmed by the granting of the Respondents' motion, Claimants only cite anticipated prejudice by way of delayed discovery in their response.

We hold, therefore, that the Respondents' Motion to Withdraw their Answer and file a Motion to Dismiss is Granted. The Claimants have failed to show any actual prejudice or surprise caused by Respondents' motion. Anticipated prejudice is insufficient to preclude this Court from granting the Motion to Withdraw and the filing of the Motion to Dismiss.

As to Claimants Motion for Leave to File and Amended Response, Illinois law states "amendments may be allowed on just and reasonable terms... and in any matter, either of form [*252] or substance, in any process, pleading, bill of particulars or proceedings, which may enable the plaintiff to sustain the claim for which it was intended to be brought[.]” 735 ILCS 5/2-616(a).

In the current case, Respondents argue 2-616(a) does not apply to motions and thus, is not available to the Claimants. However, Respondents fail to show any case law supporting this argument. In showing how courts have applied 2-616(a) to motions, Claimants cite to the case of In re Petition of the Village of Kildeer to Annex Certain Territory, 191 Ill. App. 3d 713 (2nd Dist. 1989). In Kildeer, the appellate court held the decision on a motion for leave to amend under 2-616 rests within the discretion of the trial court. Id. at 720. The factors used in determining whether the trial court exercised its discretion properly are “whether the proposed amendment would cure the defective pleading, whether it could cause prejudice or surprise to other parties, the timeliness of the proposed amendment, and whether previous opportunities to amend could be identified.” Id. Since the reasoning behind Claimants’ Amended Response is to confront Respondents’ current attempt to file their Motion to Dismiss, the factors weigh in Claimants’ favor.

Therefore, we hold that Claimants’ Motion for Leave to File, Instanter, Amended Response is Granted.

In order to prevail on a claim of negligent credentialing against a hospital, the plaintiff must satisfy the following elements: “First, to prevail, the plaintiff must prove the hospital failed to meet the standard of reasonable care in the selection of the physician it granted medical staff privileges to whose treatment provided the basis for the underlying medical malpractice claim.… Second, the plaintiff must prove that, while practicing pursuant to negligently granted medical staff privileges, the physician breached the applicable standard of care. Finally, the plaintiff must prove that the negligent granting of medical staff privileges was a proximate cause of the plaintiff’s injuries.”

Frigo v. Silver Cross Hosp. & Med. Ctr., 377 Ill. App. 3d 43 (1st Dist. 2007).

In the present case, Claimants cannot relitigate the alleged medical negligence claims after the ruling in Slavin’s favor by the circuit court. The issue arising here is whether the Claimants can plead facts sufficient to survive dismissal that are solely based upon the remaining institutional negligence allegations against the hospital and not on Slavin’s prior actions. The Claimants claim they have already done so in their current 2-622 report and request to leave amend their report if the Court deems it insufficient. However, Claimants only mention UIC in the 2-622 report as the location where the alleged negligence occurred, and the report focuses primarily on the now adjudicated acts of Slavin.

The decision is left to the discretion of the court when the plaintiff fails to comply with the requirements of Section 2-622. Cammon v. W. Suburban Hosp. Med. Ctr., 301 Ill. App. 3d 939 (1st Dist. 1998). When the plaintiff fails to attach the health care professional’s report to the complaint based on medical malpractice, the consideration of the court calls for the plaintiff to be given an opportunity to amend the complaint in compliance with Section 2-622 before the action is dismissed with prejudice. Id.

[*253] We hold, therefore, that the Claimants are granted a thirty day leave to file a new Section 2-622 report. However, in the absence of the new 2-622 report showing institutional negligence allegations against the hospital, the claim will be dismissed.

When ruling on a motion to dismiss under Section 2-615, it must be determined whether the allegations of the complaint, when construed in a light most favorable to the plaintiff, are sufficient to state a cause of action upon which relief can be granted. Hadley v. Doe, 2015 IL 118000. A Section 2-615 motion to dismiss tests the legal sufficiency of a complaint. Id.

In the instant case, there is no dispute that the claims against Slavin have already been litigated in his favor, and Claimants are barred from any further negligence claims against him.

The issue remains whether the Claimants here can plead facts sufficient to establish a cause of action upon which relief can be granted against UIC alone, without relying on Slavin.

As stated above, the survival of the claim depends upon the new 2-622 report showing sufficient allegations of institutional negligence against UIC. Even though the circuit court found in favor of Slavin, this Court still holds that Claimants have a right to seek a claim against the Respondents based on the remaining allegations of institutional negligence. Therefore, Respondents' Motion to Dismiss fails for the same reasons set forth in our Order denying the Motion for Summary Judgment. However, we caution that Slavin's negligence cannot be relitigated and as such the future prospects of this claim rest upon institutional negligence beyond Slavin's conduct.