## Facts

- Alicia DeLuna underwent a lumbar laminectomy at St. Elizabeth’s Hospital performed by Dr. Michael Treister.
- The estate alleged Treister negligently cut the decedent’s left common iliac artery and failed to timely discover and correct the injury.
- The estate alleged the decedent exsanguinated and died as a result of the surgical error.
- The estate asserted St. Elizabeth’s Hospital was vicariously liable as Treister’s employer under respondeat superior.
- An earlier malpractice action was dismissed based on noncompliance with Illinois’s medical-malpractice affidavit and report requirement (735 ILCS 5/2-622), including a dismissal of Treister “with prejudice” and the hospital “without prejudice.”
- The estate later refiled a new complaint asserting essentially the same malpractice and vicarious-liability allegations.

## Issues

1. Whether an involuntary dismissal for failure to comply with 735 ILCS 5/2-622 constitutes an “adjudication upon the merits” under Illinois Supreme Court Rule 273 such that res judicata bars a later action based on the same occurrence.
2. Whether a respondeat superior claim against a principal must be dismissed when the agent is dismissed for reasons unrelated to the merits of the negligence claim.
3. Whether the refiled claim against the hospital was barred by the statute of limitations.

## Decision

- The Illinois Supreme Court affirmed the appellate court’s reversal of the circuit court’s dismissal and remanded.
- The court held a dismissal for failure to comply with § 2-622 did not operate as an adjudication on the merits for res judicata purposes where the dismissal was non-merits and the order indicated it was without prejudice.
- The court held the hospital was not required to be dismissed merely because the physician had been dismissed on procedural, non-merits grounds.
- The court rejected the hospital’s statute-of-limitations defense on the record presented, permitting the refiled claim to proceed.

## Legal Principles

- A dismissal based on noncompliance with § 2-622 is a procedural disposition and does not, by itself, resolve the substantive elements of medical negligence.
- Illinois Supreme Court Rule 273’s default “adjudication upon the merits” effect does not apply when the dismissal order specifies otherwise and the defect is curable and unrelated to the merits.
- Respondeat superior liability is barred when the agent is exonerated on the merits, but not when the agent is dismissed for a procedural reason that does not determine negligence.
- A refiled medical-malpractice action may proceed if brought within applicable limitation and tolling or savings provisions, as applied to the case’s filing history.

## Conclusion

The court permitted the estate to pursue refiled malpractice claims because a § 2-622 dismissal for defective affidavit/report compliance was not a merits adjudication for res judicata, did not require dismissal of a purely vicarious-liability claim against the hospital, and did not render the hospital claim untimely under the applicable limitations rules.


DeLuna v. Treister, 708 N.E.2d 340 (Ill. 1999)