Appellate Court Affirms Dismissal of Medical Malpractice Action

The Appellate Court of Illinois has affirmed the dismissal of several defendants, including a doctor and a professional corporation represented by Pretzel & Stouffer, finding that the trial court properly dismissed the plaintiff’s medical malpractice action as an impermissible second refiling of a previous action.

Scott L. Howie of Pretzel & Stouffer, retained specifically to handle an unusually complex appeal after another firm obtained the dismissal, prepared the appellate brief on behalf of two defendants and took the lead at oral argument.

The plaintiff’s lawsuit, filed in 2016, alleged that the defendants had been negligent in treating her adult daughter, during the daughter’s pregnancy, allegedly causing her to suffer injuries that made her a legally disabled person. The daughter herself had filed a lawsuit making the same claims against the same defendants in 2010, only to voluntarily dismiss it shortly thereafter. Purporting to be acting as her daughter’s legal guardian, the plaintiff filed a second lawsuit on those claims but against other defendants in 2014; that suit was removed to federal court, where it was dismissed for the plaintiff’s failure to exhaust her administrative remedies. The plaintiff then filed this lawsuit in 2016.

The defendants challenged the 2016 lawsuit, observing that it was filed well after the statute of limitations and statute of repose had expired and that the Code of Civil Procedure permits only one refiling of an action. After the trial court dismissed the case, the plaintiff appealed, arguing that her daughter was legally disabled and that the limitations and repose periods were therefore tolled. She also argued that because of the legal disability, the 2010 action could not be attributed to her daughter and should not count against her as an initial filing. Moreover, she claimed, the 2014 action also should not count against her because she had not really been appointed her daughter’s legal guardian at the time she filed it, despite her claim that she had, ostensibly making that action a legal nullity. In the alternative, she argued that the 2014 action should not count against those defendants to the 2016 action who she had left out of the 2014 action.

The appellate court rejected each of these arguments, agreeing with the defendants that the plaintiff had waived her contention that the 2010 action could not be attributed to her daughter by conceding in the trial court that it could be—an even apart from the waiver, it held, the plaintiff had no evidence to rebut the legal presumption that the attorney who filed that action had done so on the daughter’s behalf. The appellate court also found that the plaintiff could not use her own alleged misrepresentation that she was her daughter’s guardian to evade the bar on multiple refilings. In addition, it agreed with the defendants that the 2014 complaint counted as the single permitted refiling even as to the 2016 defendants who were not named in it; since they had been named in the 2010 complaint, the appellate court held, the plaintiff was aware of them and of their alleged negligence, proving that she could have named them in 2014. The court wrote that the plaintiff could not avoid the one-refiling limit “merely by failing to include all of the defendants in each action where the record shows that she knew about all of the defendants and knew they could have been potentially liable for her injuries.