2021 IL App (2d) 200611-U 

No. 2-20-0611 

Order filed October 25, 2021

NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent 

except in the limited circumstances allowed under Rule 23(e)(l).

______________________________________________________________________________ 

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

______________________________________________________________________________ 

JANET OLSON and SCOTT OLSON, ) Appeal from the Circuit Court

) of Kane County.

 Plaintiffs-Appellants, ) 

) 

v. ) No. 2015-L-558 

) 

THE CENTERS FOR FOOT AND ANKLE ) 

SURGERY, LTD., d/b/a Foot & Ankle ) Honorable 

Centers and PAUL BISHOP, D.P.M., ) Edward C. Schreiber,

) Susan Clancy Boles,

Defendants-Appellees. ) Judges, Presiding.

______________________________________________________________________________ 

JUSTICE BRENNAN delivered the judgment of the court.

Justices Zenoff and Birkett concurred in the judgment.

ORDER

¶ 1 Held: We affirm the trial court’s 2020 denial of plaintiffs’ motion to reconsider the 2016 

partial dismissal of their complaint based on the statute of limitations. We reject 

plaintiffs’ arguments that the court should have granted the motion to reconsider 

based on new evidence and/or an alleged misapplication of the law. Affirmed.

¶ 2 On May 14, 2015, plaintiffs, Janet and Scott Olson, filed a multicount complaint against, 

inter alia, defendants, Paul Bishop, D.P.M., and The Centers for Foot and Ankle Surgery, Ltd.

(Foot & Ankle Centers), alleging negligence pertaining to Janet’s November 30, 2011, and May 

15, 2013, surgeries. The allegations of negligence pertaining to the 2011 surgery were later 
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removed from the complaint. First, on August 31, 2016, as a concession to defendant Rush-Copley 

Medical Center, Inc. (a party not at issue in this appeal), plaintiffs removed obvious references to 

the 2011 surgery in the counts of their second amended complaint against Rush and the instant 

defendants, proffering a proposed third amended complaint that did not include those claims. 

Later, on September 22, 2016, in response to the instant defendants’ pending motion to dismiss

certain portions of the second amended complaint based on the statute of limitations, the trial court 

(Judge Edward C. Schreiber) approved a few word changes to plaintiffs’ proposed third amended 

complaint which clarified that only the 2013 surgery was at issue. The transcripts from the hearing 

on the 2016 motion to dismiss are not contained in the record on appeal, but the changes made are 

evident from the pleadings. 

¶ 3 On May 20, 2020, plaintiffs moved to reconsider the 2016 partial dismissal, arguing that 

they had new evidence, in the form of a controlled expert witness, Dr. Steven Goldman, who would 

establish that a continuing course of negligent treatment linked the two surgeries such that a claim 

based on the 2011 surgery was not time-barred. Plaintiffs also argued that the 2016 trial court 

misapplied the existing law concerning the limitations period. On July 29, 2020, the trial court 

(Judge Susan Clancy Boles) denied the motion, explaining that to allow plaintiffs to pursue claims 

related to the 2011 surgery at this point went against the rules of discovery as well as fair play. 

The court also disagreed that Judge Schreiber had misapplied the law in 2016. The court entered 

an order pursuant to Illinois Supreme Court Rule 304(a) (eff. March 8, 2016). Plaintiffs appeal 

the September 22, 2016, order and the July 29, 2020, denial of the motion to reconsider. The thrust 

of their appeal is that they should be able to pursue allegations of negligence related to the 2011 

surgery. 
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¶ 4 Plaintiffs have forfeited their right to directly appeal the September 22, 2016, order, 

because they subsequently filed amended complaints without evincing an intent to preserve the 

stricken allegations. See, e.g., Tabora v. Gottlieb Memorial Hospital, 279 Ill. App. 3d 108, 113-

14 (1996). Nevertheless, we may consider the propriety of the September 22, 2016, order as part 

of plaintiffs’ argument that the 2020 court should have reconsidered the 2016 order based on an 

alleged misapplication of the law. 

¶ 5 We determine that the trial court did not abuse its discretion in denying the motion to 

reconsider based on the opinions of plaintiffs’ new expert. The trial court reasonably determined 

that plaintiffs improperly used the motion to reconsider to introduce a new theory into the case 

after discovery was largely completed. Also, we determine that the trial court did not err in 

determining that Judge Schreiber did not misapply the law in 2016. On this point, plaintiffs 

misconstrue the history of the case. The timeliness of allegations pertaining to the 2011 surgery 

was not before the court in 2016, due to plaintiffs’ own concessions. Moreover, the transcripts 

from the 2016 hearing are not part of the record on appeal, and we do not know whether or to what 

degree plaintiffs may have agreed to the word changes which clarified that only the 2013 surgery 

was at issue. We must resolve any doubts on this point in favor of defendants as appellees. See 

Foutch v. O’Bryant, 99 Ill. 2d 389, 392 (1984). Accordingly, we affirm the trial court’s ruling. 

¶ 6 I. BACKGROUND

¶ 7 A. An Overview of Janet’s Podiatric Treatment with Bishop

¶ 8 Janet began seeing Bishop in January 2007 for treatment of a painful right 

metatarsophalangeal joint (MPJ) in her great toe. Bishop diagnosed a tear in Janet’s MPJ capsule, 

treated Janet with a steroid injection, and fitted her with an orthotic. Between 2007 and 2011, 
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Bishop treated Janet for various problems associated with her MPJ and right foot, noting in May 

2011 that Janet had degenerative joint disease. 

¶ 9 On November 30, 2011, Bishop operated on Janet in an effort to treat a right bunion and 

her MPJ issues (the 2011 surgery). Specifically, Bishop performed an MPJ arthroplasty with an 

implant insertion. During the surgery, Bishop lacerated a tendon, which he repaired. 

¶ 10 The 2011 post-operative course was uneventful. Janet saw Bishop twice before problems 

with her MPJ arose again. First, in June 2012, Janet saw Bishop for pain in the arch and ball of 

her right foot and was treated with orthotics and anti-inflammatories, and was instructed to ice, 

rest, and stretch. Second, in December 2012, Janet saw Bishop for a checkup. She reported that 

she was doing well and Bishop advised her to return in one to two years to check the implant.

¶ 11 On April 11 and April 29, 2013, Janet returned to Bishop for pain associated with her right 

MPJ. On April 11, 2013, Bishop prescribed pain medication. On April 29, 2013, Janet and Bishop 

discussed the possibility of a second surgery on the right foot. Bishop’s notes provided: “We are 

going to likely just do a bony resection around the implant, reduce the bone, and have [a 

replacement] implant ready just in case we see [problems].”

¶ 12 On May 15, 2013, Bishop performed the surgery on Janet’s right foot (the 2013 surgery). 

Bishop’s preoperative diagnosis was “symptomatic [first MP] post joint replacement right foot,” 

i.e., joint pain, and “[e]xostosis [first MPJ] right foot,” i.e., a bone spur. His post-operative 

diagnosis was the same, but he added “implant failure Primus size 30 implant [first MPJ] right 

foot” and “possible detritic or silicone synovitis [first MPJ] right foot.” Bishop stated in an 

operative procedure note that he observed thin plastic- or silicone-looking pieces of tissue along 

the joint, exposing the implant. He sent these pieces to pathology to determine if Janet had 

“shortening of the implant” or had started “detritic or silicone synovitis” within the first MPJ. 
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Bishop then removed the original implant and replaced it with a new implant of identical type and 

design. 

¶ 13 On June 5, 2014, Janet saw a new provider, Dr. John Grady of Advocate Christ Medical 

Center. Janet informed Grady that the pain in her right first MPJ was worsening. On August 29, 

2014, Grady performed a third surgery. Grady’s pre- and post-operative diagnoses stated that 

Janet had significant degeneration from the previous implant. Grady removed the implant and 

performed a fusion of the first MPJ with plates and screws.

¶ 14 B. Plaintiffs’ Complaint for Negligence (Medical Malpractice) 

¶ 15 On May 14, 2015, plaintiffs filed a complaint for negligence in the circuit court of Cook 

County against defendants Bishop and Foot & Ankle Centers alleging negligence pertaining to 

Janet’s 2011 and 2013 surgeries and loss of consortium as to Scott. Plaintiffs also named RushCopley and Tornier, Inc., the manufacturer of a device used in the surgeries, as defendants, but 

those parties have since been dismissed and/or settled with plaintiffs. The case was subsequently 

transferred to Kane County.

¶ 16 Attached to the May 14, 2015, complaint was an affidavit by plaintiffs’ counsel pursuant 

to section 2-622 of the Code of Civil Procedure (Code) (735 ILCS 5/2-622 (West 2014)). In it, he 

explained that he had not been able to procure a health professional to certify that there were 

legitimate grounds for a malpractice suit before the expiration of the statute of limitations. The 

trial court granted an extension to procure the report, which plaintiffs obtained and attached to 

subsequent complaints. 

¶ 17 The section 2-622 report, completed by a podiatrist whose name has been redacted from 

the record, set forth Janet’s treatment by Bishop from 2007 to 2013, as well as her 2014 treatment 
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by Grady all as described above. Supra, ¶¶ 8-13. Based on his review of Janet’s treatment, the 

podiatrist wrote: 

“RELEVANT MALPRACTICE[:]

During the surgery of 5-15-13 for the previous failed implant arthroplasty, after Dr. 

Bishop removed the old implant, he should not have placed a new implant of the same 

type/design as the old implant into the first MPJ [metatarsophalangeal joint].

CONCLUSION[:]

Based on the above facts, my record review, knowledge of podiatric medicine and 

my 20+ years in practice, Dr. Bishop’s decision to put a new implant into Ms. Olson’s first 

MPJ (on 5-15-13) that was identical to the implant that had previously failed, falls below 

the standard of care of the pediatric medical community, and led to Ms. Olson’s pain (and 

related problems) in the first MPJ and necessitated the third surgery (implant removal and 

fusion of the MPJ) and is medical malpractice.” (Emphases added.) 

¶ 18 Although plaintiffs’ section 2-622 certifying expert determined that the relevant 

malpractice occurred during the 2013 surgery, not the 2011 surgery, plaintiffs retained allegations 

of negligence pertaining to the 2011 surgery in subsequent complaintsthrough the second amended 

complaint. 

¶ 19 In the second amended complaint, in count II (medical negligence against Rush-Copley 

under a theory of agency), count III (medical negligence against Foot & Ankle Centers under a 

theory of agency) and count IV (medical negligence against Bishop), plaintiffs alleged the same 

12 negligent acts and omissions. These acts and omissions, set forth in subparagraphs a through 

k of each respective count, were as follows:
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 “a. Recommended and performed the Second Surgical Procedure using an implant 

of the same type/design as the implant used in the First Surgical Procedure,

 b. Caused JANET to sustain severe and permanent injury to her right foot during 

the First Surgical Procedure by failing to perform the surgical procedure with the proper 

technique, 

 c. Caused JANET to sustain severe and permanent injury to her right foot during 

the Second Surgical Procedure by failing to perform the surgical procedure with the proper 

technique, 

 d. Caused JANET to sustain severe and permanent injury to her right foot during 

the Second Surgical Procedure by utilizing an implant of the same type/design as the 

previous failed implant arthroplasty,

 e. Failed to recognize pre-operatively in a patient, like JANET, with a history of 

previous implant arthroplasty, prior to the performance of the Second Surgical Procedure, 

that she was not a proper candidate for artificial great toe joint replacement surgery using 

an implant of the same type/design as utilized in the previous failed implant arthroplasty,

 f. Improperly and unskillfully performed the First Surgical Procedure,

 g. Improperly and unskillfully performed the Second Surgical Procedure,

 h. Improperly and unskillfully provided JANET pre-operative care prior to the 

Second Surgical Procedure,

i. Improperly and unskillfully provided JANET pre-operative care prior to the 

Second Surgical Procedure,

 j. Improperly and unskillfully provided JANET post-operative care subsequent to 

the First Surgical Procedure,
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 k. Improperly and unskillfully provided JANET post-operative care subsequent to 

the Second Surgical Procedure, and/or

l. Failed to properly evaluate whether JANET was a proper candidate for the 

implantation of the Second Product prior to the performance of the Second Surgical 

Procedure.” 

¶ 20 C. 2016: Motions to Dismiss

¶ 21 On June 29, 2015, Rush-Copley filed two motions to dismiss subparagraphs (b), (f), (h), 

(i), (j), and (k) pursuant to section 2-619 of the Code (735 ILCS 5/2-619 (West 2014)), as those 

subparagraphs pertained to the 2011 surgery, not the 2013 surgery.1

 In the first motion, RushCopley argued that the section 2-622 report failed to support allegations that defendants provided 

negligent care and treatment in connection with the 2011 surgery and, thus, those allegations 

should be dismissed and stricken from the complaint. They cited to section 2-622(g), which 

provides that a “failure to file a certificate required by this Section shall be grounds for dismissal 

under Section 2-619.” 735 ILCS 5/2-622(g) (West 2014). Second, Rush-Copley argued that 

allegations of negligence related to the 2011 surgery should be dismissed as barred by the statute 

of limitations. 735 ILCS 5/2-619(a)(5) (West 2014) (providing for the dismissal of actions not 

commenced within the time limited by law); 735 ILCS 5/13-212 (West 2014) (setting forth a twoyear statute of limitations in medical malpractice actions). 

¶ 22 On July 1, 2016, defendants Bishop and Foot & Ankle Centers also moved to dismiss 

portions of the second amended complaint. They adopted the arguments set forth in Rush1 Subparagraphs (h) and (i) are identical. Also, it is unclear why Rush-Copley sought to 

dismiss subparagraph (k). Nevertheless, this is the history of the case.
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Copley’s motions and further stated that defendants should be precluded from “seek[ing] relief 

from any time period prior to May 15, 2013.” They took fault with the same subparagraphs as had 

Rush-Copley, excepting subparagraph (k). Again, those subparagraphs were (b), (f), (h), (i), and

(j). They also took fault with four additional subparagraphs: (a), (d), (e), and (l).

¶ 23 On August 31, 2016, plaintiffs responded to the motions to dismiss. First, “as a concession 

to Rush[-Copley’s] arguments that these subparagraphs are not properly supported by the [section 

2-622] report,” plaintiffs agreed to delete subparagraphs (b), (f), (h), (i), (j), and (k). They also 

moved for leave to file a third amended complaint, instanter, reflecting that those subparagraphs 

had been deleted. The proposed third amended complaint alleged the same six acts of negligence 

against Rush-Copley, Foot & Ankle Centers, and Bishop: 

 “a. Recommended and performed the Second Surgical Procedure using an implant 

of the same type/design as the implant used m the First Surgical Procedure [also labeled 

(a) in the second amended complaint], 

 b. Caused JANET to sustain severe and permanent injury to her right foot during 

the Second Surgical Procedure by failing to perform the surgical procedure with the proper 

technique [formerly labeled (c)], 

 c. Caused JANET to sustain severe and permanent injury to her right foot during 

the Second Surgical Procedure by using an implant of the same type/design as the previous 

failed implant arthroplasty [formerly labeled (d)], 

 d. Failed to recognize pre-operatively in a patient, like JANET, with a history of 

previous implant arthroplasty, prior to the performance of the Second Surgical Procedure, 

that she was not a proper candidate for artificial great toe joint replacement surgery using 
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an implant of the same type/design as utilized in the previous failed implant arthroplasty, 

[formerly labeled (e)], 

 e. Improperly and unskillfully performed the Second Surgical Procedure [formerly 

labeled (g)]; and/or

 f. Failed to properly evaluate whether JANET was a proper candidate for the 

implantation of the Second Product prior to the performance of the Second Surgical 

Procedure [formerly labeled (l)].” 

¶ 24 Thus, in their proposed third amended complaint, plaintiffs reduced the number of alleged 

negligent acts and/or omissions from 12 to 6. The timeliness of four of the allegations remained 

in dispute, i.e., the subparagraphs now labeled (a), (c), (d), and (f). The timeliness of two of the 

allegations had never been in dispute, i.e., the subparagraphs now labeled (b) and (e). 

¶ 25 Critically, plaintiffs confirmed: “Assuming that this [c]ourt grants [p]laintiffs leave to file 

their Third Amended Complaint, the only unresolved issues are whether subparagraphs [(a), (c), 

(d), and (f)] *** are barred by the two-year limitations period contained in [section 13-212 of the 

Code] as contended by [d]efendants Bishop and [Foot & Ankle Centers].” (Emphasis added.) As 

to subparagraphs (a) and (c), plaintiffs argued: “There can be no doubt [these subparagraphs] 

concerning actions and/or omissions which occurred during the performance of the Second 

Surgical Procedure, a procedure performed on May 15, 2013, are timely.” As to subparagraphs 

(d) and (f), plaintiffs argued that the continuing-course-of-negligent-treatment rule as set forth in 

Cunningham v. Huffman, 154 Ill. 2d 398 (1993), served to render the allegations timely. 

¶ 26 On September 14, 2016, defendants Bishop and Foot & Ankle Centers replied. They

referenced only subparagraphs (d) and (f). They took issue with plaintiffs’ iteration of the 

continuing-course-of-negligent-treatment rule, arguing that its application would not serve to 
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render timely the allegations set forth in subparagraphs (d) and (f). They also re-addressed the

timeliness of claims related to the 2011 surgery (without referencing specific subparagraphs).

¶ 27 On September 22, 2016, the trial court heard argument on the motions to dismiss. The 

transcript of the hearing is not contained in the record on appeal nor is there a bystanders’ report. 

That same day, the court entered a written order providing: 

“Defendants motions to dismiss are granted and plaintiffs are barred from making 

any allegations of negligence/injuries prior to the May 15, 2013, surgery. Plaintiffs are 

given leave to file their third amended complaint *** which may not allege 

negligence/injuries prior to May 15, 2013.” 

¶ 28 On September 30, 2016, plaintiffs filed their third amended complaint. The third amended 

complaint contained the same six acts and/or omissions of negligence that plaintiffs had proposed 

in their responsive pleading, with changes noted here in bold and strikeout: 

“a. Recommended and performed the Second Surgical Procedure using an implant 

of the same type/design as the implant used in the First Surgical Procedure,

 b. Caused JANET to sustain severe and permanent injury to her right foot during 

the Second Surgical Procedure by failing to perform the surgical procedure with the proper 

technique, 

 c. Caused JANET to sustain severe and permanent injury to her right foot during 

the Second Surgical Procedure by using utilizing an implant of the same type/design as the 

previous failed implant arthroplasty used in the First Surgical Procedure, 

 d. Failed to recognize pre-operatively intraoperatively in a patient, like JANET, 

with a history of previous implant arthroplasty, prior to during the performance of the 

Second Surgical Procedure, that she JANET was not a proper candidate for artificial great 
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toe joint replacement surgery using an implant of the same type/design as utilized in the 

previous failed implant arthroplasty First Surgical Procedure, []

 e. Improperly and unskillfully performed the Second Surgical Procedure, and/or 

 f. Failed to properly evaluate intraoperatively whether JANET was a proper 

candidate for the implantation of the Second Product prior to the performance of the 

Second Surgical Procedure.” 

¶ 29 Thus, in two of the contested subparagraphs, (d) and (f), plaintiffs changed the word “preoperatively” to “intraoperatively” and the words “prior to” to “during.” Also, in subparagraphs 

(d) and (c), plaintiffs avoided the implication that the 2011 surgery had been performed negligently 

by striking the phrase “the previous failed implant arthroplasty.” (Emphasis added.) The trial

court apparently agreed with plaintiffs that, as to subparagraph (a), there was no question that the 

allegation was timely. 

¶ 30 D. 2016 to 2020: Subsequent Amendments, Motions, and Discovery

¶ 31 On November 2, 2016, plaintiffs filed a fourth amended complaint. Plaintiffs do not 

identify the changes from the third to the fourth amended complaint. Relevant here, however, the 

fourth amended complaint contained verbatim the same six acts and/or omissions of negligence 

that plaintiffs had alleged in the third amended complaint. 

¶ 32 The fourth amended complaint was the operative complaint heading into discovery. On 

November 2, 2017, the court entered an order concerning the scope of Bishop’s deposition: 

“[Bishop’s] deposition will be limited primarily [to the] May 15, 2013, surgery with the 

understanding that some additional limited questioning might be needed with respect to care prior 

to May 15, 2013.”
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¶ 33 By March 2020, the parties had deposed 13 lay witnesses and independent expert witnesses

pursuant to Illinois Supreme Court Rule 213(f)(1) and Rule 213(f)(2) (eff. Jan. 1, 2018), 

respectively. On March 10, 2020, plaintiffs disclosed a new controlled expert witness, Goldman, 

pursuant to Rule 213(f)(3). Plaintiffs would later explain that they sought Goldman’s expertise 

when, in late 2019, their section 2-622 certifying expert informed them that he would not be 

available for trial. 

¶ 34 Goldman offered an expanded theory of negligence. That is, instead of focusing 

exclusively on negligence pertaining to the 2013 surgery, Goldman opined that defendants also 

committed negligent acts in relation to the 2011 surgery. In his view, Bishop breached the standard 

of care when he performed both surgeries without first correcting an underlying structural 

deformity: a condition known as Metatarsus primus elevatus. Had Bishop first corrected the 

underlying structural deformity, Janet likely would not have had to undergo the third surgery in 

2014 with Grady. 

¶ 35 On March 17, 2020, defendants Bishop and Foot & Ankle Centers moved to strike and bar 

Goldman’s opinions concerning defendants’ care prior to May 15, 2013. They argued that those 

opinions were barred by the trial court’s September 22, 2016, order, which prohibited plaintiffs 

from making “any allegations of negligence/injuries prior to May 15, 2013,” due to the expiration 

of the statute of limitations. 

¶ 36 On April 21, 2020, plaintiffs responded that the trial court’s November 2, 2017, order, 

which concerned the scope of Bishop’s deposition, modified the September 22, 2016, order. 

Plaintiffs were later granted leave to supplement their motion with additional authority, Jacobson 

v. Natonson, 164 Ill. App. 3d 126, 130 (1987) (statute of limitations bars the bringing of a suit, not 

the admission of evidence). 
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¶ 37 On May 12, 2020, defendants replied that the November 2, 2017, order had not modified 

the September 22, 2016, order. Also, defendants clarified that they were not seeking to preclude 

plaintiffs’ expert Goldman from testifying to the “sheer facts” from 2011. Instead, defendants 

sought to strike and bar any opinions concerning alleged negligence from 2011. 

¶ 38 E. 2020: Motion to Reconsider 

¶ 39 On May 20, 2020, as an apparent alternative to their position that the November 2, 2017, 

order modified the September 22, 2016, order, plaintiffs moved to reconsider the September 22, 

2016, order. Plaintiffs argued that they should be able to allege negligence pertaining to the 2011 

surgery: 

“Dr. Goldman’s review of all the materials, including the deposition of Defendant 

Bishop, which was not available to Plaintiffs’ original certifying physician, sheds new light 

on the strength of Plaintiffs’ previous arguments that there was in fact a continuous course 

of negligent treatment of Janet Olson by Defendant Bishop that necessarily includes the 

negligence related to Plaintiffs 2011 Surgery.” 

¶ 40 Plaintiffs asserted that defendants would not be prejudiced should the trial court grant their 

motion to reconsider:

“Should the Court grant this Motion and allow Plaintiffs to include allegations of 

negligence for the 2011 Surgery as stated in the Second Amended Complaint, Plaintiffs 

request no additional discovery as the facts and circumstances surrounding the 2011 

Surgery were sufficiently addressed by both parties in the depositions of Plaintiff Janet 

Olson and Defendant Paul Bishop. ***. Consequently, there is no prejudice to Defendants 

should this Motion be granted as no additional discovery will be necessary.” (Emphasis in 

original.) 
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Plaintiffs also argued that Judge Schreiber had misapplied the existing law in 2016 by concluding 

that the allegations of negligent acts pertaining to the 2011 surgery were time barred. 

¶ 41 On June 22, 2020, defendants responded to the motion to reconsider. Defendants argued 

that they would be prejudiced should the trial court grant plaintiffs’ motion. Defendants recounted 

that plaintiffs waited nearly four years to file a motion to reconsider and did so after 13 depositions 

had proceeded. Had defendants known that allegations of negligence relating to the 2011 surgery 

were in play, it would have “conducted discover entirely differently.”

¶ 42 On July 6, 2020, plaintiffs replied to defendants’ response to the motion to reconsider. 

Addressing the issue of prejudice, they reasoned: “[g]iven Dr. Gold[man]’s conclusions, this Court 

can allow [p]laintiffs to assert negligence for the 2011 [s]urgery under the Relation Back Doctrine 

[735 ILCS 5/2-616(b) (West 2014)] as defendants can claim neither surprise nor lack of knowledge 

of [p]laintiffs’ allegations on this point.” 

¶ 43 On December 8, 2020, the trial court heard argument on defendants’ motion to strike and 

plaintiffs’ motion to reconsider. It first heard the motion to reconsider, as its ruling on that motion 

would control its ruling on the motion to strike.

¶ 44 Plaintiffs stood largely on their pleadings. Defendants, in turn, reminded the court that, in 

2016, after plaintiffs made certain concessions concerning the section 2-622 report, there were 

“basically only four allegations that we were essentially fighting about.” Defendants also 

contested the timing of the new allegation, noting that plaintiffs could have found a Rule 213(f)(3) 

expert to “just support the May 15, 2013, negligence claim, but they didn’t do that. They’ve 

created the circumstance [of bringing in the 2011 claim] four years later, and now are trying to 

prejudice defendants ***.”
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¶ 45 The trial court asked: “[Counsel for plaintiff], you will agree, will you not, that obviously 

the law of the case for the last four years has been that the *** alleged negligence related to the 

2011 surgery has not been at issue ***?” Counsel for plaintiffs answered: “I think that justice in 

this case dictates that we can establish a continuous course of [negligent] treatment for these two 

negligent acts.” 

¶ 46 The trial court denied the motion to reconsider. First, it was not certain that Goldman’s 

opinions constituted “new evidence” for the purposes of a motion to reconsider: “Nothing new has 

been discovered, just a change in an expert and an opinion.” Even if Goldman’s opinion did 

constitute new evidence, the court agreed that granting the motion would prejudice defendants: 

“[Goldman’s opinions] relate to an issue which has previously *** been removed 

from this case[.] [To allow Goldman’s opinion that defendants acted negligently during 

the 2011 surgery] would put this case back to the beginning stages possibly of discovery 

almost four years following that issue. 

It would cause prejudice to the defendants as they have a right to rely upon not only 

the Court rulings, but also the basis set forth in the 2-622 report and the allegations in the 

pending Complaint in forming and proceeding with the defense strategy in this case.” 

The court further explained that, without the new expert opinion, plaintiffs could not establish a 

continuous course of negligent treatment: 

“[I]n order to extend the statute of limitations in this case, plaintiffs would have to 

establish an issue of fact related to a continuous course of negligent treatment by Dr. Bishop 

to the plaintiff.

*** 
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Dr. Bishop continued to monitor and follow up with the plaintiff, but there is no 

evidence of and no opinion by plaintiffs’ original expert of continued negligence during 

these visits.” (Emphasis added.)

Finally, the trial court disagreed that Judge Schreiber had misapplied the law in the first instance 

when entering the September 22, 2016, order: “[E]specially as the facts were presented at the time 

with Judge Schreiber, I don’t see that either.”

¶ 47 The trial court next determined that, having denied plaintiffs’ motion to reconsider, it 

would necessarily grant defendants’ motion to strike and bar Goldman’s opinions concerning 

defendants’ care prior to May 15, 2013. 

¶ 48 Plaintiffs then sought clarification. Citing to Jacobson, they noted the distinction between 

allegations of negligence prior to the 2013 surgery and the admissibility of evidence pertaining to 

facts occurring prior to the 2013 surgery. 

¶ 49 The trial court clarified: “I think everybody understands that the care that this plaintiff 

received, and some of that treatment that she received prior to the actual surgery in 2013 is relevant. 

Those facts are relevant, but the negligence related to [the 2011] surgery is out.” The court 

concluded that continued discussion on the matter, including various hypotheticals posed by 

plaintiffs, were best reserved for motions in limine. The trial court entered a Rule 304(a) order, 

and this timely appeal followed. 

¶ 50 II. ANALYSIS

¶ 51 Plaintiffs appeal the September 22, 2016, order and the July 29, 2020, denial of the motion 

to reconsider that order. However, as defendants note, a plaintiff may forfeit his right to directly 

appeal a trial court’s dismissal of certain claims when he files an amended complaint that does not 

reallege, refer to, incorporate, or otherwise evince a clear intent to preserve stricken portions of 
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the dismissed complaint. Tabora, 279 Ill. App. 3d at 113-14. This is true even when a plaintiff 

subsequently obtains a Rule 304(a) finding. Id. Thus, when plaintiffs filed their third and fourth 

amended complaints without realleging, referring to, incorporating, or otherwise evincing a clear 

intent to preserve the stricken portions of the second amended complaint, they forfeited their right 

to directly appeal the trial court’s related rulings. 

¶ 52 We decline to discuss the forfeiture in depth, because plaintiffs’ arguments may 

nevertheless be properly considered solely through a review of the trial court’s 2020 denial of the 

motion to reconsider. Defendants do not dispute that the September 22, 2016, order was 

interlocutory in nature and, as such, could be modified or vacated by the trial court at any time 

prior to a final judgment. Braglia v. Cephus, 146 Ill. App. 3d 241, 246 (1986). The trial court had 

authority to reconsider the September 22, 2016, order. After denying plaintiffs’ motion to 

reconsider and declining to vacate or modify the September 22, 2016, order, the court entered a 

Rule 304(a) finding. Thus, we may first consider whether the trial court abused its discretion by 

determining that the “new evidence” put forth in the motion to reconsider, i.e., Goldman’s opinion, 

did not justify modification of the September 22, 2016, order. We may next consider whether the 

trial court erred in determining that Judge Schreiber did not misapply the law in the first instance 

when entering the September 22, 2016, order. This second question, which is subject to de novo

review, requires us to engage in the same analysis that we would have engaged in had we 

entertained a direct appeal of the September 22, 2016, order. 

¶ 53 A trial court may grant a motion to reconsider based on newly discovered evidence that 

was not available at the time of the original hearing, changes in existing law, or errors in the court’s 

application of the existing law. Evanston Ins. Co. v. Riseborough, 2014 IL 114271, ¶ 36. The 

standard of review of a trial court’s denial of a motion to reconsider depends on the basis for the 
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motion. Liceaga v. Baez, 2019 IL App (1st) 181170, ¶ 26. When the basis for the motion concerns 

new matters, such as additional facts or new arguments or legal theories, we review the trial court’s 

determination for an abuse of discretion. Id. In contrast, when the basis for the motion is an 

alleged misapplication of the existing law, our review is de novo. Id. Thus, we review the trial 

court’s determination that the new evidence did not justify a modification of the September 22, 

2016, order for an abuse of discretion. An abuse of discretion occurs only when the trial court’s 

ruling is arbitrary, fanciful, unreasonable or where no reasonable person would take the view 

adopted by the trial court. Id. ¶ 27. We review the trial court’s determination that Judge Schreiber 

did not misapply the existing law de novo. 

¶ 54 Assessing the trial court’s determinations requires consideration of several separate but 

related concepts, including the statute of limitations, the discovery rule, the statute of repose, and 

the continuous-course-of-negligent-treatment rule. As to medical malpractice actions, these

concepts find their start in section 13-212(a) of the Code, which provides:

“Except as provided in Section 13-215 of this Act, no action for damages for injury 

or death against any physician, dentist, registered nurse or hospital duly licensed under the 

laws of this State, whether based upon tort, or breach of contract, or otherwise, arising out 

of patient care shall be brought more than 2 years after the date on which the claimant 

knew, or through the use of reasonable diligence should have known, or received notice in 

writing of the existence of the injury or death for which damages are sought in the action, 

whichever of such date occurs first, but in no event shall such action be brought more than 

4 years after the date on which occurred the act or omission or occurrence alleged in such 

action to have been the cause of such injury or death.” (Emphases added.) 735 ILCS 5/13-

212(a) (West 2014).
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¶ 55 The first italicized portion of section 13-212(a) instructs as to the statute of limitations. 

(“[No action] shall be brought more than 2 years after the date on which the claimant knew, or 

through the use of reasonable diligence should have known, or received notice in writing of the 

existence of the injury or death for which damages are sought in the action, whichever occurs 

first.”) The statute of limitations is triggered by the patient’s discovery of the injury. See Follis v 

Watkins, 367 Ill. App. 3d 548, 557 (2006). The discovery rule provides that the statute of 

limitations “ ‘starts to run when a person knows or reasonably should know of his injury and also 

knows or reasonably knows that it was wrongfully caused. At that point the burden is upon the 

injured person to inquire further as to the existence of a cause of action.’ ” Hertel v. Sullivan, 261 

Ill. App. 3d 156, 162 (1994) (quoting Witherell v. Weimer, 85 Ill. 2d 146, 156 (1981)). 

¶ 56 The second italicized portion of section 13-212(a) instructs as to the statute of repose. 

(“[I]n no event shall such action be brought more than 4 years after the date on which occurred the 

act or omission or occurrence alleged in such action to have been the cause of such injury or 

death.”) The statute of repose is triggered by the defendant’s wrongful act, omission, or occurrence 

that caused the injury. Cunningham, 154 Ill. 2d at 406. The statute of repose period begins to run 

when the negligent treatment ends, regardless of whether the plaintiff is aware of the injury. Id. 

This may lead to harsh results, such as when the repose period ends before a patient even discovers 

that he is injured. Id. The reason for this harsh result is that the statute of repose gives effect to a 

different policy concern than the statute of limitations; the statute of repose is intended to terminate 

the possibility of liability for a defendant after a defined period of time. Id. The statute of repose

also serves to check the potential for “long tail” exposure to medical malpractice claims brought 

about by the discovery rule. Id. 
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¶ 57 While primarily a device to protect a defendant against indefinite exposure to liability, the 

statute of repose does afford an argument for the plaintiff’s position in at least one respect. That 

is, the statute’s use of the word “occurrence” recognizes the possibility of continued negligence

against the plaintiff. Id. at 405. “When the cumulative results of the continued negligence is the 

cause of the [plaintiff’s] injury, the statute of repose cannot start to run until the last date of the 

negligent treatment.” Id. This is known as the continuous-course-of-negligent-treatment rule. Id. 

at 406. The question of whether there has been a continuous course of negligent treatment is one 

of fact, which may be established by expert testimony. Jones v. Dettro, 308 Ill. App. 3d 494, 500 

(1999). To prevail under a continuous-course-of-negligent-treatment theory, the plaintiff must 

demonstrate that (1) there was a continuing and unbroken course of negligent treatment and (2) 

the treatment was so related as to constitute one continuing wrong. Cunningham, 154 Ill. 2d at 

406. One reason for the application of the continuous-course-of-negligent-treatment rule is that 

patients are often forced to rely upon what they are told by the treating physician or surgeon. 

Hertel, 261 Ill. App. 3d 156, 161 (1994). 

¶ 58 Follis provides an illustration of how the continuous-course-of-negligent-treatment rule

operates in conjunction with the statute of limitations, the discovery rule, and the statute of repose. 

In Follis, the defendant dentist treated the plaintiff twice per year from March 1994 through April

2002. Id. at 549. Plaintiff then moved out of state and, in October 2002, upon receiving care from 

another dentist, discovered that her mouth was in a “total state of disrepair.” Id. at 549, 558. 

Plaintiff filed her complaint against the first dentist in January 2004. Id. at 549. The appellate 

court would later determine that there was at least a question of fact as to whether the defendant 

dentist engaged in a continuing course of negligent treatment. Id. at 558-59. 
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¶ 59 Applying the discovery rule and the statute of limitations to the facts in Follis, the plaintiff 

had until October 2004, two years after her discovery of the injury, to file a complaint against the 

first dentist. Id. at 549-50. She easily met this deadline by filing the complaint in January 2004. 

Next, applying the statute of repose, the plaintiff had until April 2006, four years after the last 

negligent act, to file the complaint. She easily met this deadline by filing the complaint in January 

2004. Accepting, at the pleading stage, that the defendant engaged in a continuous course of 

negligent treatment so as to constitute one continuing wrong from 1994 to 2002, the claims 

pertaining to the earlier treatments likewise satisfied the statute of repose. Id. at 558-59. 

¶ 60 Plaintiffs’ theory of the case seeks to employ these concepts as follows. First, plaintiffs 

concede that, had they sued for negligence relating to the 2011 surgery in isolation, the claim 

would have run afoul of the two-year statute of limitations. Plaintiffs contend, however, that the 

2011 and 2013 surgeries were linked through a continuous course of negligent treatment. Plaintiffs 

rely on Goldman’s opinion to establish the link:

“Dr. Goldman opined that *** Bishop’s failure to recognize, ‘identify and correct’ 

the underlying structural deformity prior to either the 2011 or the 2013 surgery[] most 

likely resulted in the joint implant failure in both instances [citation to record]. Simply put, 

the structural deformity should have been corrected prior to the 2011 surgery and was not, 

leading to the failure of the implant, and the same structural deformity should have been 

corrected prior to the 2013 surgery and it was not, leading to the failure of the second 

implant.

There can be no clearer example of [continuing] negligent treatment than 

[Bishop’s] failure to correct the structural deformity prior to performing the 2011 surgery, 
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and then failing to correct the same structural deformity prior to the 2013 surgery. It is the 

same negligence relating to the same condition.”

¶ 61 Thus, according to plaintiffs’ theory, Bishop’s treatment from 2011 to 2013 constituted 

one continuous wrong. Plaintiffs did not know of the injury until, at the earliest, the 2013 surgery, 

at which time the statute of limitations for claims of negligence pertaining to both surgeries began 

to run. Thus, plaintiffs had until May 15, 2015, two years after the 2013 surgery, to file a complaint 

against defendants. Plaintiffs met this deadline. Also, under plaintiffs’ theory, the statute of repose 

is easily satisfied. Even in isolation, and without relying upon the continuous-course-of-negligenttreatment doctrine, plaintiffs would have had until November 2015 to satisfy the four-year statute 

of repose for claims relating to the November 2011 surgery. 

¶ 62 A. Motion to Reconsider: New Evidence 

¶ 63 Plaintiffs’ primary basis for their motion to reconsider was the discovery of new evidence 

in the form of Goldman’s opinion. As explained above, supra ¶¶ 60-61, Goldman’s opinion, if 

accepted, arguably established a continuing course of negligent treatment between the 2011 and 

2013 surgeries. 

¶ 64 However, a trial court is not required to grant a motion to reconsider based on new evidence

that was not available at the time of the original hearing; to the contrary, courts “should not permit 

litigants to stand mute, lose a motion, and then frantically gather evidentiary material to show that 

the court erred in its ruling.” Caywood v. Gossett, 382 Ill. App. 3d 124, 133-34 (2008) (plaintiff 

introduced evidence of mental incapacitation for the first time in a motion to reconsider). Courts 

should weigh the circumstances of the new evidence against the interests of finality and efficiency. 

See id. (denying the motion to reconsider where the movant had no explanation for the latetendered evidence). Moreover, a motion to reconsider is not a place to raise a new legal theory or 
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factual argument. Liceaga, 2019 IL App (1st) 181170, ¶ 25. Again, when the trial court has been 

asked to grant a motion to reconsider based on new matters, such as new evidence and new 

theories, we review its decision for an abuse of discretion. Id. ¶ 26. 

¶ 65 Here, the trial court did not abuse its discretion in weighing the circumstances of the new 

evidence (or of the new opinion on existing evidence) against the interests of finality and 

efficiency. Goldman reviewed the same documentary evidence as the original certifying expert, 

with the exception of Bishop’s recent deposition testimony. Goldman’s focus extended beyond 

the claims of negligence pertaining to the 2013 surgery, which was inconsistent with prior orders 

of the court. In asking the trial court to then reconsider its prior rulings in light of Goldman’s 

continuous-course-of-negligent-treatment theory, plaintiffs improperly sought to use a motion to 

reconsider to introduce a new theory vis-à-vis their pending fourth amended complaint. See, e.g., 

Liceaga, 2019 IL App. (1st) 181170, ¶ 25. 

¶ 66 Plaintiffs claimed that they could not have obtained Goldman’s opinion earlier, because it 

was not until their original section 2-622 certifying expert became unavailable for trial that they 

sought out Goldman as a replacement expert. By that time, four years had passed and Rule 

213(f)(1) and (f)(2) discovery had closed. Although plaintiffs assert that they would not need to 

conduct additional discovery, plaintiffs’ position does not account for defendants’ need to conduct 

additional discovery. Defendants had conducted 13 depositions with an aim to defend against 

allegations of negligence pertaining to the 2013 surgery, not the 2011 surgery. Indeed, the pending 

fourth amended complaint did not allege negligence pertaining to the 2011 surgery and defendants 

informed the court at the hearing on the motion to reconsider that, if they had known that claims 

relating to the 2011 surgery were in play, they would have conducted discovery “entirely 

differently.” Were the court to have granted the motion, defendants would have had to question 
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and potentially requestion witnesses in depth in 2020 concerning events that happened in 2011. 

Under these circumstances, the trial court did not abuse its discretion when it determined that, “for 

plaintiff to come in at this point and claim the law of the case should be changed because of a new 

opinion from a new expert goes against the fundamentals of the rules of discovery as well as fair 

play.” 

¶ 67 Plaintiffs also argue that an application of the relation back doctrine negates any claim of 

undue prejudice to defendants. Specifically, they argue: “Given Dr. Goldberg’s conclusions, this 

Court can allow plaintiffs to assert negligence for the 2011 Surgery under the Relation Back 

Doctrine as Defendants can neither claim surprise nor lack of knowledge on this point.” In support, 

plaintiffs cite Porter v. Decatur Memorial Hospital, 227 Ill. 2d 343, 359 (2008). Plaintiffs 

acknowledged at oral argument that they forfeited this argument by raising it for the first time in 

2020 in their reply to defendants’ response to their motion to reconsider. Forfeiture aside, the 

argument is unpersuasive. 

¶ 68 Under the relation back doctrine, a party may amend a complaint to add a new cause of 

action that would otherwise be barred by the statute of limitations if the new claim grew out of the 

same transaction or occurrence set up in the original pleading. 735 ILCS 5/2-616(b) (West 2014); 

Porter, 227 Ill. 2d at 353. The relation back doctrine enables a plaintiff to preserve a cause of 

action against loss by reason of technical default unrelated to the merits. Id. at 355. At the same 

time, the relation back doctrine affords the defendant a fair opportunity to investigate the 

circumstances upon which liability is based while the evidence is accessible. Id. The sametransaction-or-occurrence rule prevents a defendant from being prejudiced by directing his 

attention, within the limitations period, to the facts that form the basis of the claim against him. 

Id. The supreme court has adopted the sufficiently-close-relationship test to determine if a new 
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allegation grew out of the same transaction or occurrence set up in the earlier pleadings. Id. at 

360. Under that test, a new claim will relate back to the original and timely filed claim if it is 

based on events close in time and subject matter and led to the same injury. Id. 

¶ 69 In Porter, the court determined that the new claim was sufficiently close to the allegations 

set up in the earlier pleading so as to relate back to that pleading for purposes of satisfying the 

statute of limitations. Id. at 361-63. There, the new claim that a doctor misread a CT scan grew 

out of an earlier claim that agents of the hospital failed to report diminishing neurological 

functioning within the same critical 36-hour period. Id. 

¶ 70 A direct application of the relation back doctrine is not appropriate in this case. Plaintiffs 

never sought leave to amend their fourth amended complaint for the purpose of adding allegations 

of negligence pertaining to the 2011 surgery. We are not being asked to review the trial court’s 

denial of a motion for leave to so amend the complaint. Instead, we are being asked to review the 

trial court’s denial of a motion to reconsider its partial dismissal of the second amended complaint, 

or, more accurately, to reconsider the tweaks it made to plaintiffs’ proposed third amended 

complaint. 

¶ 71 Even by analogy, however, plaintiffs’ use of the relation back doctrine is unpersuasive. 

Unlike the events at issue in Porter, which occurred during a 36-hour window, the 2011 and 2013 

surgeries were not close in time. The pending fourth amended complaint heading into discovery

in this case did not direct defendant’s attention to the facts that formed the basis of a claim of 

negligence pertaining to the 2011 surgery. Indeed, plaintiffs’ concession to Rush-Copley to 

remove allegations of negligence pertaining to the 2011 surgery from the second amended 

complaint did just the opposite, serving as an assurance to all defendants that negligence pertaining 

to the 2011 surgery was not an issue in the case. 
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¶ 72 By asking this court to apply the relation back doctrine to the circumstances of the instant 

case, plaintiffs effectively admit that they are using a motion to reconsider to introduce a new 

theory—a practice that is discouraged. See, e.g., Liceaga, 2019 IL App (1st) 181170, ¶ 25. Again, 

the very aim of the relation back doctrine is to allow a party to amend a complaint to add a new 

cause of action, i.e., to introduce a new theory. 735 ILCS 5/2-616(b) (West 2014); Porter, 227 Ill. 

2d at 353. Plaintiffs’ reliance on the relation back doctrine as a means to argue that defendants 

would not have been unduly prejudiced if the trial court were to have granted the motion to 

reconsider is unavailing. 

¶ 73 For the reasons discussed, the trial court did not abuse its discretion in determining that 

defendants would be unfairly disadvantaged if it were to grant plaintiffs’ motion to reconsider on

the basis of new evidence. 

¶ 74 B. Motion to Reconsider: Misapplication of Existing Law

¶ 75 We next consider whether Judge Clancy Boles erred in denying the motion to reconsider 

based on an alleged misapplication of law by Judge Schreiber in entering the September 22, 2016, 

order. Judge Schreiber approved a few word changes to plaintiffs’ proposed third amended 

complaint which clarified that only the 2013 surgery was at issue and the 2011 surgery was barred 

by the statute of limitations. Pursuant to section 2-619(a)(5) of the Code, a defendant may move 

to dismiss an action that was not commenced within the time limited by law. 735 ILCS 5/2-

619(a)(5) (West 2014). In considering a motion to dismiss pursuant to section 2-619, the court 

takes as true all well-pleaded facts, along with all reasonable inferences that can be gleaned from 

those facts. Porter, 227 Ill. 2d at 352. Just as we review the trial court’s denial of a motion to 

reconsider based on an alleged misapplication of law de novo, we also review the initial section 2-
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619 dismissal de novo. Liceaga, 2019 IL App (1st) 181170, ¶ 26 (motion to reconsider); Porter, 

227 Ill. 2d at 352 (motion to dismiss). 

¶ 76 In arguing that Judge Schreiber misapplied the law in entering the September 22, 2016, 

order, plaintiffs again focus on Goldman’s opinion that the 2011 and 2013 surgeries were linked 

through a continuing course of negligent treatment. Plaintiffs also touch upon their earlier 

argument that Judge Schreiber misapplied the interrelated concepts of the statute of limitations, 

the discovery rule, the statute of repose, and the continuous-course-of-negligent-treatment rule. 

¶ 77 We briefly dispose of this latter point. The parties’ debate as to how the concepts of the 

statute of limitations, the discovery rule, the statute of repose, and the continuous-course-ofnegligent-treatment rule work together is not dispositive here. In this section, we are not concerned 

with whether plaintiffs’ claims of negligence pertaining to the 2011 surgery would satisfy section 

13-212’s statutes of limitations and repose if Goldman’s opinion that defendants engaged in a 

continuous course of negligent treatment from 2011 to 2013 were allowed. We have already 

determined that the trial court (Judge Clancy Boles) did not abuse its discretion in declining to 

allow plaintiffs to pursue a new theory of the case so late into discovery. Rather, we must decide 

whether Judge Schreiber misapplied the law to the facts accepted by him in entering the September 

22, 2016, order. 

¶ 78 Simply put, the central problem with plaintiffs’ argument is that, while they now rely 

heavily on Goldman’s testimony to establish a continuing course of negligent treatment between 

the 2011 and 2013 surgeries, Goldman’s testimony was not before the court in 2016. Plaintiffs 

make no real argument that, without Goldman’s opinion, they can establish a continuing course of 

negligent treatment between 2011 and 2013. As the trial court stated in 2020: “[E]specially as the 
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facts were presented at the time with Judge Schreiber, I don’t see that [Judge Schreiber misapplied 

the law].”

¶ 79 Indeed, plaintiffs’ argument misconstrues the procedural history of the case. Again, prior 

to the trial court’s 2016 ruling on defendants’ motion to dismiss portions of the second amended 

complaint, plaintiffs agreed that the 2011 surgery and defendants’ decisions leading up to the 2011 

surgery were not at issue in the case. Plaintiffs submitted a proposed third amended complaint, 

which left just four points of contention for the trial court to resolve. Of those four, plaintiffs 

argued that the continuous-course-of-negligent-treatment rule operated to preserve the limitations 

period as to subparagraphs (d) and (f) only. The trial court made the following changes to 

subparagraphs (d) and (f):

“d. Failed to recognize pre-operatively intraoperatively in a patient, like JANET, 

with a history of previous implant arthroplasty, prior to during the performance of the 

Second Surgical Procedure, that she JANET was not a proper candidate for artificial great 

toe joint replacement surgery using an implant of the same type/design as utilized in the 

previous failed implant arthroplasty First Surgical Procedure, []

 * * *

f. Failed to properly evaluate intraoperatively whether JANET was a proper 

candidate for the implantation of the Second Product prior to the performance of the 

Second Surgical Procedure.” 

Plaintiffs do not expressly challenge the word changes made between the pre-September 22, 2016, 

proposed third amended complaint and the post-September 22, 2016, filed third amended 

complaint. Plaintiffs do not discuss whether these tweaks were improper based any alleged 

negligent treatment by Bishop prior but connected to the 2013 surgery, i.e., at the April 11 and 
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April 29, 2013, appointments. We do not know whether or to what extent these matters were 

discussed at the 2016 hearing on the motion to dismiss, because the transcripts from that hearing 

are not in the record on appeal. More importantly, we do not know whether or to what degree 

plaintiffs may have agreed with these tweaks at the hearing as part of their concession to RushCopley that negligence pertaining to the 2011 surgery would not be an issue in the case. We must 

resolve these doubts in favor of defendants as appellees. Foutch, 99 Ill. 2d at 392. 

¶ 80 To the extent that plaintiffs do challenge the word changes made between the proposed and 

the actual third amended complaints, they do so in the context of seeking assurance that the trial 

court will admit evidence of treatment prior to May 15, 2013, even if it does not allow claims of 

negligence prior to May 15, 2013. To this end, they cite Jacobson, 164 Ill. 2d at 130-31, which 

held that the statute of limitations bars the bringing of a suit, not the admission of evidence. The 

application of Jacobson was discussed at the 2020 hearing on the motion to reconsider. There, the 

trial court recognized the distinction between allegations of negligence prior to the 2013 surgery 

and the admissibility of evidence pertaining to facts occurring prior to the 2013 surgery. However, 

it noted that specific hypotheticals were best reserved for motions in limine. We, too, decline to 

further discuss this aspect of the case. 

¶ 81 In sum, due to plaintiffs’ concession to Rush-Copley, the timeliness of the allegations 

pertaining to the 2011 surgery was not before the trial court in 2016. Instead, when plaintiffs 

attempted, in 2020, to reinsert the allegations of negligence pertaining to the 2011 surgery, through 

the Rule 213(f)(3) discovery disclosures of their new controlled expert witness, Goldman, 

defendants Bishop and Foot & Ankle Centers moved to bar and strike. Plaintiffs then moved to 

reconsider the 2016 order, recasting the trial court’s 2016 decision as centering on the 2011 surgery 

when, in fact, the court at that time was asked only to approve a few word changes to clarify that 
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only the May 15, 2013, surgery was at issue in the case. The transcripts from the 2016 hearing are 

not contained in the record on appeal and, again, to the extent that the subject matter of the hearing 

went beyond the changes approved by the court, we must resolve any doubts in favor of defendants 

as appellees. See Foutch, 99 Ill. 2d at 392. The record does not support plaintiffs’ claim that the 

trial court misapplied the law in 2016. 

¶ 82 III. CONCLUSION

¶ 83 For the reasons stated, we affirm the trial court’s judgments.

¶ 84 Affirmed.