No. 2--01--0862			

	IN THE

	APPELLATE COURT OF ILLINOIS

	SECOND DISTRICT

LINDSEY CLOAD a Minor, by Her		)	Appeal from the Circuit

Mother and Next Friend,			)	Court of Kane County.

Gina Cload,					)

							)

	Plaintiff-Appellee,			)

							)

v.							)	No. 99--L--443

							)

ANN WEST, f/k/a Ann Holmquist,	)	

							)

	Defendant					)

							)	Honorable

(Copley Memorial Hospital and		)	Pamela K. Jensen,

E. Reimer, Defendants-Appellants).	)	Judge, Presiding.								

	JUSTICE GROMETER delivered the opinion of the court:

	Defendants E. Reimer and Copley Memorial Hospital (Copley)

(Ann West is not involved in this appeal) appeal an order of the

circuit court of Kane County denying their motion to dismiss

brought pursuant to section 2--619 of the Civil Practice Law (735

ILCS 5/2--619 (West 2000)).  In their motion, defendants contended,

inter alia, that plaintiff's present action is barred by res judicata.  The trial court disagreed.  Defendants then requested the trial court to make the necessary findings under Supreme Court

Rule 308 (155 Ill. 2d R. 308) that would allow an interlocutory

appeal.  This request was granted and the trial court certified the

following question for review: "[U]nder the doctrine of res judicata, is there an identity of cause of action in plaintiffs' [sic] prior and present suits[?]"  We answer this question in the affirmative.

BACKGROUND

	Plaintiff, Lindsey Cload, by her mother and next friend, Gina

Cload, instituted an action against Dr. Ann West, Dr. Philip

Jacobsen, and Copley in the circuit court of Cook County on March

3, 1995.  The complaint sounded in malpractice and concerned events

related to the birth of Lindsey.  Lindsey was born on June 13,

1991.  Gina began experiencing labor pains that morning and was

admitted to Copley at approximately 10 a.m.  She was placed under

the care of West, an obstetrician.  At approximately 5:15 p.m.,

Lindsey was delivered.  Lindsey was born with significant brain

injuries and suffers from cerebral palsy.

	Lindsey contends that her injuries were a result of the

negligence of various individuals involved in her birth.  In an

earlier action to which Gina was also a party, Lindsey and Gina set

forth a four-count complaint.  Count I named Lindsey as the

plaintiff and alleged three omissions by West and Jacobsen.  First,

it stated that the doctors failed to order a caesarian section

despite evidence of fetal distress.  Second, it alleged that they

failed to perform a caesarian section despite evidence of fetal

distress.  Third, it asserted that they failed to conduct tests

necessary to diagnose Lindsey's condition.  Count II was also

brought in Lindsey's name and identified Copley as the defendant. 

In this count, it was alleged that Copley, through its servants and

agents, failed to promptly notify the doctors of evidence of fetal

distress and failed to perform appropriate tests to diagnose Lindsey's condition.  Count III and count IV repeated the

allegations contained in the first two counts; however, Gina was

named as the plaintiff.

	Copley moved for summary judgment on the first complaint. 

Copley argued that plaintiff had failed to identify an expert

witness that could testify as to how Copley deviated from the

standard of care.  The trial court granted Copley's motion on

August 28, 1997.

	On July 24, 2000, an amended complaint was filed.  Lindsey was

listed as the sole plaintiff.  As defendants, the complaint

identified West, Copley, and Reimer, who was a Copley employee. 

The complaint contained two counts.  Count I was directed against

West and was based on several omissions.  First, it again alleged

that West failed to order a caesarian section despite evidence of fetal distress.  Second, it again asserted that West failed to

perform a caesarian section despite evidence of fetal distress.  Third, it repeated the allegation that West failed to conduct tests

necessary to diagnose Lindsey's condition.  Fourth, it alleged that

West failed to take appropriate steps to clear Lindsey's airway

"following delivery."  Fifth, it maintained that West failed to

have appropriate personnel present to attend to Lindsey

"immediately following delivery."  Finally, it stated that West was

otherwise careless and negligent.

	The second count of the amended complaint was directed against

Copley and Reimer.  This count was based on several acts or

omissions occurring "upon the delivery" of plaintiff.  First, it

asserted that defendants failed to properly resuscitate Lindsey.  Second, it alleged that defendants failed to promptly and

adequately suction meconium from Lindsey's airways.  Third, it

maintained that defendants failed to promptly intubate Lindsey. 

Fourth, it alleged defendants failed to properly monitor and

support Lindsey's respiration.  Fifth, it stated that defendants

were otherwise careless and negligent.

	Defendants moved to dismiss plaintiff's amended complaint,

arguing that the current action was barred by res judicata.  The trial court denied defendants' motion.  The court observed that the

first two elements necessary to invoke the doctrine--a final

judgment on the merits and identity of parties--were indisputably

met.  However, the court concluded that the final element, identity

of cause of action, was lacking.  The court first acknowledged our

supreme court's decision in River Park, Inc. v. City of Highland Park, 184 Ill. 2d 290 (1998), which adopted the transactional test and rejected the same-evidence test for determining whether an

identity of cause of action exists for the purpose of res judicata.  The court then observed that the River Park, Inc. court found the parallels between factual allegations contained in the complaints

in the two actions at issue were "a most telling indication of

identity of cause of action."  In the present case, the court

reasoned, the allegations contained in the first complaint

pertained exclusively to prenatal care and delivery of Lindsey. 

The second complaint, as it pertained to defendants, concerned care

rendered after delivery.  Thus, the trial court concluded that an

identity of cause of action did not exist and denied defendants'

motion.

ANALYSIS

	This case comes to us following the trial court's denial of a

motion to dismiss made pursuant to section 2--619 of the Civil

Practice Law (735 ILCS 5/2--619 (West 2000)); therefore, review is de novo.  McGee v. State Farm Fire & Casualty Co., 315 Ill. App. 3d 673, 680 (2000).  In passing on a section 2--619 motion, a court

may consider all pleadings, affidavits, and depositions appearing

in the record.  Thompson v. Frank, 313 Ill. App. 3d 661, 663 (2000).  All pleadings and supporting documents are to be

interpreted in the light most favorable to the party opposing the

motion (Henrich v. Libertyville High School, 186 Ill. 2d 381, 386 (1998)), and all well-pleaded facts in the complaint are deemed

admitted (Powers v. Arachnid, Inc., 248 Ill. App. 3d 134, 138 (1993)).

	The sole issue before us is whether the trial court correctly

determined that res judicata is inapplicable because no identity of cause of action exists between plaintiff's prior and present

claims.  Res judicata precludes subsequent litigation between the same parties on a claim after a court renders final judgment on a

matter.  Torcasso v. Standard Outdoor Sales, Inc., 157 Ill. 2d 484, 490 (1993).  In order to invoke this defense, the following

elements must be shown: (1) that a court of competent jurisdiction

rendered a final judgment on the merits; (2) that there is an

identity of the parties or their privies; and (3) that there is an

identity of cause of action.  Downing v. Chicago Transit Authority, 162 Ill. 2d 70, 73-74 (1994).  The party seeking to invoke the

doctrine bears the burden of demonstrating that it applies.  Board of Education of Sunset Ridge School District No. 29 v. Village of

Northbrook, 295 Ill. App. 3d 909, 915 (1998).  Res judicata bars not only those issues that were actually litigated in a prior suit;

it bars those that could have been raised as well.  Rein v. David A. Noyes & Co., 172 Ill. 2d 325, 334-35 (1996).

	Our supreme court has adopted the transactional test for

determining whether causes of action are the same.  River Park, Inc., 184 Ill. 2d at 309-11.  Under this test, claims are part of the same cause of action if they arise from the same transaction or

series of connected transactions.  Altair Corp. v. Grand Premier Trust & Investment, Inc., 318 Ill. App. 3d 57, 61 (2000).  Subsequent claims may be barred if they originate from a single

group of operative facts.  River Park, Inc., 184 Ill. 2d at 311.  This proposition applies regardless of whether the claims assert

different theories of relief or are based on evidence that does not

substantially overlap, as long as they arise from the same

transaction.  River Park, Inc., 184 Ill. 2d at 311.

	Prior to River Park, Inc., Illinois employed both the same- evidence test and the transactional test.  Under the same-evidence

approach, claims were deemed part of the same cause of action if

"the evidence needed to sustain the second suit would have

sustained the first, or if the same facts were essential to

maintain both actions."  Rodgers v. St. Mary's Hospital, 149 Ill. 2d 302, 312 (1992).  Noting that the continued adherence to the

more stringent same-evidence test would render its adoption of the

transactional test meaningless, our supreme court held that the

same-evidence test no longer represented the law of Illinois.  River Park, Inc., 184 Ill. 2d at 310-11.  The supreme court also observed that adherence to both tests caused confusion in the

courts.  River Park, Inc., 184 Ill. 2d at 310.  Indeed, some case law predating River Park, Inc. is confusing, and, at times, the two tests were conflated.  See Agriserve, Inc. v. Belden, 268 Ill. App. 3d 828, 837-38 (1990) (Cook, J., specially concurring).

	Despite the supreme court's rejection of the same-evidence

test, the evidence necessary to prove a claim remains relevant in

a limited sense.  In situations where the same-evidence test would

preclude an action, the transactional test likely bars the claim as

well.  The transactional test is a broader test for determining

whether claims are part of the same cause of action.  River Park, Inc., 184 Ill. 2d at 310-11.  Thus, the nature of the evidence necessary to prove a claim remains relevant to the extent that a

claim barred by the same-evidence test would also be barred by the

transactional test.  River Park, Inc., 184 Ill. 2d at 311.  The converse, however, is not true.  Even where evidence does not

overlap, a claim may be considered part of the same cause of action

under the transactional test.  River Park, Inc., 184 Ill. 2d at 311.

	In determining whether claims are part of the same cause of

action, River Park, Inc. directs that we consider the claims in factual rather than evidentiary terms.  River Park, Inc., 184 Ill. 2d at 309.  We must examine the facts that give rise to the

plaintiff's right to relief (River Park, Inc., 184 Ill. 2d at 315) and assess whether they are linked in a manner such that they are part of a single transaction.  The factors relevant to ascertaining whether they are so linked include their relation in time, space,

origin, and motivation, whether they form a convenient trial unit,

and whether their treatment as a single unit conforms to the

parties' expectations and business usage or understanding. River Park, Inc., 184 Ill. 2d at 312, citing Restatement (Second) of Judgments §24, at 196 (1982).  The test is to be applied

pragmatically.  River Park, Inc., 184 Ill. 2d at 309; Restatement (Second) of Judgments §24, at 196 (1982).  

	Turning to the present appeal, it is clear that the claims

asserted in the instant case and the claims asserted in the

previous case arise from a single group of operative facts.  First,

they share a close temporal relationship.  In the earlier action,

plaintiff's allegations were based upon events connected with

Lindsey's labor and delivery, while in the present case plaintiff

alleges omissions that occurred "upon the delivery" of plaintiff. 

Moreover, in her allegations against West, plaintiff points to the

failure to clear her airway "following delivery" and the failure to

have appropriate personnel present "immediately following

delivery."  Labor, delivery, and immediate postpartum care are a

continuous series of events.  Cf. Figueroa v. Illinois Masonic Medical Center, 288 Ill. App. 3d 921, 925 (1997) (considering the question in the context of the relation-back doctrine).  Thus, we

conclude that the events alleged in both cases are sufficiently

related in time to constitute a single transaction.

	Similarly, the spatial relationship between the events

indicates that they are part of a single transaction.  Count I of

the amended complaint alleges that West failed to have "appropriate personnel present to attend to the plaintiff *** immediately

following delivery."  An affidavit of a doctor, submitted in support of the amended complaint, also states that a neonatologist

should have been present at the time of delivery.  These two

references to having specialists present indicate that the events

following delivery occurred in the same place as those preceding

delivery.  Hence, the events alleged in both complaints were

intimately linked in a spatial sense.

	The origin of the events alleged in the two complaints

provides a further link.  All allegations stemmed from events

occurring in the course of the birth of Lindsey and the medical

treatment appurtenant to it.  Motivation, to the extent applicable,

also suggests a single transaction.  Gina's motivation in going to

Copley was to complete the birthing process.  Presumably, she

sought a full range of medical care, both before and after

delivery.

	The events that constitute the basis of this suit form a

convenient trial unit. Implicitly conceding that such a

relationship exists, in her amended complaint plaintiff has

persisted in her allegations against West regarding West's failure

to order or perform a caesarian section,.  As to the parties'

expectations, we find little evidence.  However, given the close

spatial and temporal relationship between the events alleged, the

link in their origin and motivation, and the fact that plaintiff

alleged events occurring both before and after delivery in her

amended complaint, it is difficult to conceive of how their

treatment as a unit could be contrary to the parties' expectations.

	The final factor we must consider is whether the treatment of

the events as a unit conforms to business understanding or usage. 

The amended complaint posits a duty on West's part concerning

events occurring both before and after delivery.  These allegations

suggest that the same medical professional was in charge of events

occurring both before and after delivery.  This in turn implies

that, from the standpoint of the medical community, the events

occurring before delivery are a part of the same occurrence as

events occurring after delivery.  Moreover, the affidavit of the

doctor that plaintiff submitted in support of her amended complaint

states that Lindsey exhibited stress in utero, which made it foreseeable that she would need supportive care at birth, including

clearing meconium from her airways and providing respiratory

assistance.  Thus, a single medical professional provided an

analysis of events occurring prior to delivery and their

implications for the type of postdelivery care that should have

been provided.  Since one medical professional was able to make

such an evaluation, it is apparent that both predelivery and

postdelivery care fall within the same field of medical expertise. 

Again, from the standpoint of the medical community, these events

are linked.

	All of the factors set forth in River Park, Inc. (see River Park, Inc., 184 Ill. 2d at 312, quotciting Restatement (Second) of Judgments §24, at 196 (1982)) support the application of res judicata in the instant case to some degree.  None of them indicate otherwise.  Accordingly, we conclude that an identity of cause of

action exists between plaintiff's current and previous actions.

	In denying defendants' motion, the trial court observed that

"[i]n River Park, the court noted that the parallels between the factual allegations of the complaints in the state and federal

claims were a most telling indication of identity of cause of

action."  While such parallels did exist in River Park, Inc., we do not believe that the supreme court intended to set forth a test

whereby one simply compares the particular allegations in various

complaints to see if they coincide.  Such a test would not differ

significantly from the same-evidence test.  Rather, River Park contemplates an analysis of the relationship between the factual

allegations in the complaints at issue, where, as noted above,

considerations such as their temporal and spatial proximity are

relevant.  See River Park, Inc., 184 Ill. 2d at 312, quocitting Restatement (Second) of Judgments §24, at 196 (1982).

	In arguing that her current and former complaints assert

different causes of action, plaintiff relies primarily on the fact

that some events alleged occurred prior to delivery and others

occurred after delivery.  For the reasons explained above, these

two sets of events are so closely related that they form a single

transaction.  Relying on Rodgers, 149 Ill. 2d at 312, plaintiff states that, if the facts of the two complaints are different, res judicata does not apply.  This standard is not a correct statement of the law.  Again, we emphasize that the inquiry focuses on the

relationship between the facts and not merely on whether they are

identical.  See River Park, Inc., 184 Ill. 2d at 312, quotciting Restatement (Second) of Judgments §24, at 196 (1982).

	We also find it of no moment that plaintiff's current

complaint names Reimer as a defendant while her former complaint

did not.  The allegations against Reimer concern conduct that we

have already concluded is part of the same transaction as that

alleged in the previous complaint.  We note that plaintiff does not

contest that Reimer was either a party or in privity with a party 

to plaintiff's first complaint.  Plaintiff cannot avoid the effect

of res judicata simply by explicitly naming one of Copley's employees.

	Plaintiff also points out that in some circumstances res judicata may be relaxed where justice requires.  The doctrine will not be applied where it would be fundamentally unfair to do so. 

Weisman v. Schiller, Ducanto & Fleck, 314 Ill. App. 3d 577, 581 (2000).  Thus, certain exceptions to the application of the

doctrine exist.  Altair Corp., 318 Ill. App. 3d 57, 62-63.  The only such exception potentially relevant here is that res judicata does not apply if "it is clearly and convincingly shown that the

policies favoring preclusion of a second action are overcome for an

extraordinary reason."  Rein, 172 Ill. 2d at 341, quoting Restatement (Second) of Judgments §26(1) (1980).

	Plaintiff contends that it is the policy of this state to

protect the rights of disabled persons and children and that we

should consequently apply a relaxed standard in determining if her

present action is barred.  It is true that Illinois law protects

the rights of disabled persons and children in various situations. 

See, e.g., In re Estate of Mank, 298 Ill. App. 3d 821, 826 (1998) (enforceability of will's in terrorem clause against disabled adult); Clark v. Han, 272 Ill. App. 3d 981, 986-90 (1995) (tolling of statute of limitations in medical malpractice action brought by

mentally incompetent minor); Passmore v. Walther Memorial Hospital, 152 Ill. App. 3d 554, 556-58 (1987) (same); Zimmerman v. Village of Skokie, 174 Ill. App. 3d 1001, 1007-08 (1988) (reversing dismissal of disabled plaintiff's action as discovery sanction); Brandon v. DeBusk, 85 Ill. App. 3d 645, 648 (1980) (same).  However, defendant cites no case relying on such a rationale in refusing to apply res judicata, and our research has not located one.  In Valdovinos v. Luna-Manalac Medical Center, Ltd., No. 1--00--1742 (February 21, 2002), the First District recently affirmed an award of expenses

under Supreme Court Rule 219(e) (166 Ill. 2d R. 219(e)) against the

estate of a disabled minor.  The First District acknowledged the

policy regarding protecting the rights of such litigants but noted

that Rule 219(e) "provides no exception for cases where the

plaintiff is the estate of a minor or disabled person." 

Valdovinos, slip op. at 17.  Similarly, plaintiff points us to no relevant exception to the application of the doctrine of res judicata.

	Furthermore, litigation, even when it involves a plaintiff who

is a member of a favored class, must end at some point.  A disabled

person or minor, like anyone else, may lose a suit.  If we were to

accept plaintiff's policy argument, such plaintiffs, merely by

virtue of their status, would be free to relitigate causes of

action, at least so long as they were able to alter their legal

theory of the particular facts upon which they rely.  We cannot

conclude that disabled persons and minors are immune from the rule against claim splitting.  They, like anyone else, must assert all

claims arising out of a single transaction in one suit.

CONCLUSION

	In light of the foregoing, we conclude that an identity of

cause of action exists between plaintiff's prior and present

actions.  This cause is remanded to the trial court so that it may

enter an appropriate order and take any further actions as

necessary.

	Certified question answered; cause remanded.

	BOWMAN and KAPALA, JJ., concur.