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SECOND DIVISION

February 20, 2001

No. 1-99-3530

JUSTICE McBRIDE delivered the opinion of the court:

Plaintiff-appellant Shirley Marek (Marek) appeals the trialcourt's dismissal of her second amended complaint againstdefendant-appellee O.B. Gyne Specialists II, S.C. (O.B. Gyne), onstatute of limitations grounds. Marek filed her original complaintagainst O.B. Gyne and several other defendants, Gerald T. Johnson,M.D., individually and as agent/employee of Glenwood Radiologists,an Illinois corporation (Glenwood Radiologists), Leon McGill, M.D.,and Susan M. Lupo, M.D. The original complaint, filed December 17,1996, alleged that these medical care providers failed to properlydiagnose, advise and treat Marek for breast cancer that developedin her right breast. Specifically, Marek alleged that Johnson,Glenwood and McGill failed to properly conduct a bi-lateralmammography and to properly diagnose and disclose to Marek"irregularities" that indicated cancer. As a result of defendants'alleged negligence in providing timely and definitive treatment forthe emerging cancer, Marek claimed that she was forced to undergoa right radical mastectomy causing her pain, suffering anddisfigurement.

In count I of the original complaint, Marek alleged thatJohnson and Glenwood Radiologists performed a bilateral mammographyon December 17, 1994, and failed to inform plaintiff of anasymmetry requiring immediate medical attention. The trial courtentered summary judgment in favor of Johnson and GlenwoodRadiologists and that decision is not before us on appeal.

In count II of the original complaint, Marek alleged thatMcGill, her gynecologist, failed to advise her of certainabnormalities noted on the December 17, 1994, mammography reportgenerated by Johnson and Glenwood Radiologists. Further, Marekalleged that McGill was negligent in failing to arrange for animmediate clinical evaluation of the abnormality and in failing torefer her to qualified medical personnel for further diagnosis andtreatment. The trial court entered summary judgment in favor ofMcGill and Marek has not appealed that decision.

In count III of the original complaint, Marek sued Lupo, agynecologist, and vicariously sued O.B. Gyne, Lupo's employer, asa principal. Marek's claim in count III concerned the negligenceof Lupo and O.B. Gyne, which involved Marek's gynecologicalexamination at Lupo's office on April 15, 1995. Specifically,Marek alleged that Lupo performed an inadequate examination of herright breast and failed to immediately refer her for diagnostictesting to determine any further evidence of emerging cancer.

On September 10, 1998, Marek filed a first amended complaintwhich only amended count II of her original complaint and namedO.B. Gyne as a principal of McGill. Count II of the first amendedcomplaint, among other things, alleged that McGill was an agent ofO.B. Gyne and that O.B. Gyne, through its agents and employees notlimited to McGill, carelessly and negligently failed to adviseplaintiff of the abnormalities in the December 17, 1994,mammography report, failed to summon Marek for an evaluation of theabnormality and failed to refer Marek to qualified personnel forexamination of the December 17, 1994, report.

O.B. Gyne moved to dismiss count II of Marek's first amendedcomplaint on statute of limitations grounds pursuant to section 13-212(a) and section 2-619(a)(5) of the Illinois Code of CivilProcedure. 735 ILCS 5/13-212(a) (West 1998); 2-619(a)(5) (West1998). Section 13-212(a) provides, in relevant part:

"Except as provided in Section 13-215 ofthis Act, no action for damages for injury ordeath against any physician, dentist,registered nurse or hospital duly licensedunder the laws of this State, whether basedupon tort, or breach of contract, orotherwise, arising out of patient care shallbe brought more than 2 years after the date onwhich the claimant knew, or through the use ofreasonable diligence should have known, orreceived notice in writing of the existence ofthe injury or death for which damages aresought in the action, whichever of such dateoccurs first, but in no event shall suchaction be brought more than 4 years after thedate on which occurred the act or omission oroccurrence alleged in such action to have beenthe cause of such injury or death." 735 ILCS5/13-212(a) (West 1998).

The trial court initially denied this motion but reversed itselfand granted the dismissal of count II without prejudice on March29, 1999, allowing Marek to file a second amended complaint.

On April 23, 1999, Marek filed a second amended complaint. Incount I, the second amended complaint alleged that Marek wasMcGill's patient from 1989 through 1994 and that McGill was anagent of O.B. Gyne. Marek further alleged that, after McGillretired from practicing medicine on December 1, 1994, all ofMcGill's records, including Marek's, were the property of O.B.Gyne. As a result, Marek alleged that O.B. Gyne was directlynegligent for failing to advise Marek of the abnormalitiesdiscovered in the December 17, 1994, mammography report, failing to to call Marek in to evaluate the abnormality and for failing tosummon adequate medical personnel to examine the asymmetry noted inthe December 17, 1994, mammography report.

In count II of the second amended complaint, Marek allegedthat she was unaware of her direct cause of action against O.B.Gyne until it answered discovery, at which time she determined thatO.B. Gyne possessed McGill's records. It was only after this"discovery," as alleged by Marek, that she realized a direct causeof action existed against O.B. Gyne. In count III, the secondamended complaint alleged that Lupo was negligent on April 15,1995, by failing to refer Marek for further diagnostic testing toidentify the developing cancer in Marek's right breast.

On May 27, 1999, O.B. Gyne moved to dismiss Marek's secondamended complaint on the ground that it was virtually identical inall respects to the first amended complaint dismissed by the trialcourt on March 29, 1999. On September 1, 1999, the trial courtdismissed the entire case with prejudice. The trial court'sapparent rationale for the dismissal of count I was that the actionwas time-barred and the amendment could not relate back undersection 2-616(b) of the Illinois Code of Civil Procedure. 735 ILCS5/2-616(b) (West 1998). We say "apparent" because the transcriptof this particular hearing is not part of the record on appeal andthe September 1, 1999, order does not state a basis for thedismissal with prejudice. However, these were the grounds fordismissal alleged in O.B. Gyne's motion to dismiss the firstamended complaint which was granted by the trial court. The trialcourt's apparent basis for dismissing count II of the secondamended complaint was that Marek failed to file the second amendedcomplaint against O.B. Gyne within four years of its initialnegligence under section 13-212(a) of the Illinois Code of CivilProcedure. 735 ILCS 5/13-212(a) (West 1998). Marek appeals fromthe trial court's order of September 1, 1999.

The two questions raised on appeal are whether the trial courterred in granting O.B. Gyne's motion to dismiss count I on groundsthat the statute of limitations had expired, and whether the trialcourt erred in granting O.B. Gyne's motion to dismiss count II ongrounds that Marek failed to file her second amended complaintwithin four years of the initial negligence pursuant to section 13-212(a). 735 ILCS 5/13-212(a) (West 1998).

"In reviewing an order of the circuit court finding that theplaintiff's actions were time-barred as a matter of law, our[standard of] review is de novo. [Citation.]" Retzler v. Pratt &Whitney Co., 309 Ill. App. 3d 906, 919-20, 723 N.E.2d 345 (1999).

Concerning the first question, Marek claims that it is section2-616(d) of the Illinois Code of Civil Procedure which governswhether the claims in her second amended complaint can relate backto the original action and thus, circumvent the applicablelimitations period. 735 ILCS 5/2-616(d) (West 1998). Although weagree with Marek that her amended claim relates back to theoriginal complaint, we do not agree that section 2-616(d) applieshere. Section 2-616(d) expressly states that it is applicable to:"(d) A cause of action against a person not originally named adefendant *** ." 735 ILCS 5/2-616(d) (West 1998). As evidenced bythe original complaint in this case, it is clear that O.B. Gyne wasoriginally named a defendant in the original complaint and Marekadmits this fact in her brief. We agree with O.B. Gyne on thispoint and conclude that section 2-616(b) is the proper provision tobe applied in resolving the first issue on appeal. Section 2-616(b) states the following, in pertinent part:

"The cause of action *** set up in anyamended pleading shall not be barred by lapseof time under any statute ***, if the timeprescribed or limited had not expired when theoriginal pleading was filed, and if it shallappear from the original and amended pleadingsthat the cause of action asserted *** grew outof the same transaction or occurrence set upin the original pleading, even though theoriginal pleading was defective in that itfailed to allege the performance of some actor the existence of some fact or some othermatter which is a necessary conditionprecedent to the right of recovery ***, if thecondition precedent has in fact beenperformed, and for the purpose of preservingthe cause of action *** set up in the amendedpleading, and for that purpose only, anamendment to any pleading shall be held torelate back to the date of the filing of theoriginal pleading so amended." 735 ILCS 5/2-616(b) (West 1998).

Though Marek claims in her brief that section 2-616(d) is theapplicable relation-back provision, she relies exclusively on McArthur v. St. Mary's Hospital, 307 Ill. App. 3d 329, 717 N.E.2d501 (1999), appeal denied, 186 Ill. 2d 570, 723 N.E.2d 1163 (1999),and Cammon v. West Suburban Hospital Medical Center, 301 Ill. App.3d 939, 704 N.E.2d 731 (1998), which both involve the applicabilityof section 2-616(b) to medical malpractice causes of action. O.B.Gyne considers the reasoning in these decisions "faulty" and, forthat reason, the cases should not be followed. We disagree.

In McArthur, the plaintiff sued the defendant hospital andseveral other defendant doctors for the death of a baby due tocomplications during the birth process. In the original complaint, the only allegation made against the hospital was that "'it failedto implement and/or enforce a policy requiring a permanentradiographic image of all ultrasound sonogram examinations bemaintained.'" McArthur, 307 Ill. App. 3d at 331. The allegationsagainst the doctors specifically charged them with failure tocorrectly read and interpret the sonograms and X rays, which led toa "failed diagnosis" and the ultimate death of the child. Plaintiff subsequently filed first and second amended complaintswhere the sole allegation remained the same against the defendanthospital. In the third amended complaint, however, plaintiff addedseven new allegations against the hospital when she discovered thathospital agents and employees may also have been involved in thereading and interpretation of the sonograms and X rays at issue.

The trial court granted summary judgment in favor of the defendant hospital, finding that the new allegations in the thirdamended complaint alleged different conduct by differentindividuals than the allegations made in the original complaint. As such, the trial court concluded that these allegations creatednew grounds for the hospital's liability and did not relate back tothe original complaint within the limitations period.

The appellate court determined that section 2-616(b) governedthe concept of the relation-back doctrine under the facts of thecase. Pursuant to section 2-616(b), the court pointed out that"the relation-back doctrine only applies if (1) the originalcomplaint was timely filed and (2) the cause of action in theamended complaint grew out of the same transaction or occurrence asthat alleged in the original complaint." McArthur, 307 Ill. App.3d at 334, citing, Wolf v. Meister-Neiberg, Inc., 143 Ill. 2d 44,46, 570 N.E.2d 327 (1991). The court further determined:

"Not until after plaintiffs discoveredhospital personnel apparently were involved inreading and/or interpreting the images atissue were these allegations made against thehospital. Because these allegations were madeagainst the hospital's codefendants and wereat the heart of plaintiffs' case, the hospitalwas aware of them and knew the extent of theinvolvement of its own personnel.

When the relation-back doctrine isapplied, the entire record may be examined todetermine (1) if a defendant is on notice of aclaim prior to the expiration of the statuteof limitations and (2) the true facts uponwhich the amended claim against defendant isbased. McArthur, 307 Ill. App. 3d at 335,citing, Wolf, 143 Ill. 2d at 46-48.

Based on the fact that the same acts of negligence were assertedagainst the codefendant doctors in the original complaint, thecourt concluded that the allegations against the defendant hospitalin the third amended complaint related back to the filing of theoriginal complaint. McArthur, 307 Ill. App. 3d at 336.

Marek also relies on Cammon, decided by this court, in supportof her position that the allegations against O.B. Gyne in thesecond amended complaint should relate back to the filing of theoriginal complaint in this case. In Cammon, the defendant hospitalwas sued vicariously in the original complaint for the negligenceof three doctors in misinterpreting decedent's CT scans. In separate counts, the defendant surgeon was accused of failing toachieve an adequate hemostasis (arrest of bleeding) afterexploratory laparatomy (abdominal wall) surgery on the decedent. After summary judgment motions by certain defendants, plaintiffvoluntarily dismissed all of the defendants but the hospital andthe surgeon. The original complaint specifically attributednegligence in the performance of the abdominal wall surgery to thesurgeon, not the hospital. In the amended complaint, however,plaintiff asserted several claims against the hospital for the actsand omissions of unnamed nurses, residents, medical techniciansanesthesiologists and other health care professionals in failingto, among other things, achieve an adequate hemostasis followingthe abdominal wall surgery.

As in McArthur, this court relied on the supreme court'sdecision in Wolf and determined that the relation-back doctrineapplied because the amended complaint alleged that the defendanthospital, through its agents, failed to achieve an adequatehemostasis following decedent's surgery. Cammon, 301 Ill. App. 3dat 947-48. Because that allegation was made against the surgeon inthe original complaint, the court held that the claims relating todecedent's surgery in the amended complaint related back to theoriginal complaint. Further, it was determined that, based on therecord, the defendant hospital was put on notice from the outset ofthe litigation, prior to the expiration of the limitations period,that plaintiff was claiming that a failure to achieve an adequatehemostasis following the abdominal wall surgery was a proximatecause of decedent's injury and subsequent death. Cammon, 301 Ill.App. 3d at 947.

The court in Cammon also stated:

"The rationale behind the same transaction oroccurrence rule set forth in section 2-616(b)'is that a defendant will not be prejudiced byan amendment as long as "his attention wasdirected, within the time prescribed orlimited, to the facts that form the basis ofthe claim asserted against him." [Citation.]'" Cammon, 301 Ill. App. 3d at 946,quoting Boatmen's National Bank v. DirectLines, Inc., 167 Ill. 2d 88, 103 (1995)..

In addition, our supreme court has determined that, "if thedefendant has been made aware of the occurrence or transactionwhich is the basis for the claim, he can prepare to meet theplaintiff's claim, whatever theory it may be based on." Zeh v.Wheeler, 111 Ill. 2d 266, 279, 489 N.E.2d 1342 (1986); Cammon, 301Ill. App. 3d at 946.

We conclude that the facts of this case are similar to thosein McArthur and Cammon. In count II, paragraph 6, the originalcomplaint in this case alleges the following:

"6. That DR. MCGILL, carelessly and negligently performed oneor more of the following acts and/or omissions:

(a) Failed to advise the plaintiff of theabnormalities noted on the December 17, 1994 mammographyreport;

(b) Failed to call in the patient, SHIRLEY MAREK,for an immediate clinical evaluation of the abnormality;

(c) Failed to refer SHIRLEY MAREK to appropriatelyqualified medical personnel to examine the asymmetrynoted on the December 17, 1994 mammography report."

The record reveals, as alleged in the first amended complaint, that McGill was an employee, agent and shareholder of O.B. Gyne as ofJune 1, 1990. Moreover, he was an employee, agent and shareholderof O. B. Gyne when he ordered Marek to undergo mammography studiesunder Johnson's care on December 17, 1994. Also, it is undisputedthat McGill's records pertaining to Marek became the property ofO.B. Gyne pursuant to the employment contract between O.B. Gyne andMcGill. The parties do not dispute that O.B. Gyne retained Marek'srecords after McGill's retirement.

As noted above, Marek alleged three counts of negligence inher original complaint. Count I was directed at Johnson andGlenwood. Count II was directed at McGill for the occurrencereferred to in paragraph 6. Count III charged O.B. Gyne withnegligence concerning Marek's gynecological visit to Lupo on April15, 1995, based on vicarious liability.

The allegations of negligence directed at McGill in count II,paragraph 6, of the original complaint resulting in Marek'sinjuries are identical in all respects to those alleged in thefirst and second amended complaints. The only difference among thecomplaints is that, in the original complaint, only McGill ischarged in count II with the negligence set forth above. In thefirst amended complaint, McGill, individually and as agent of O.B.Gyne, and O.B. Gyne are charged with the identical conduct notedabove and, in the second amended complaint, counts I and II chargeO.B. Gyne and McGill with causing Marek's injuries based on thesame transaction or occurrence.

That O.B. Gyne's attention was directed to the allegations ofnegligence made against its agent, shareholder and employee at thetime the original complaint was filed is apparent from a review ofthe counts of the original complaint. From the inception of thelawsuit until McGill's retirement, O.B. Gyne was the principal ofits agent and employee McGill. Although the allegations directedagainst O.B. Gyne in the original complaint involved Lupo, anotheragent, employee and shareholder of O.B. Gyne, the identicalallegations against McGill, which specify the transaction oroccurrence giving rise to Marek's alleged injuries, are containedin another count of the very same complaint. O.B. Gyne cannotclaim surprise or prejudice as a result of the amended pleadingswhen those identical allegations were made against its agent,employee and shareholder in the original complaint.

As in McArthur, the allegations against McGill, an agent ofO.B. Gyne and a codefendant in the original action, were at theheart of Marek's case and O.B. Gyne was made aware of them at thetime the original complaint was filed. As cited above, the expresslanguage of section 2-616(b) requires the satisfaction of twoelements: "(1) the original pleading was timely filed and (2) theoriginal and amended pleadings indicate that the cause of actionasserted in the amended pleading grew out of the same transactionor occurrence set up in the original pleading. [Citation.]" Wolf,143 Ill. 2d at 46.

In our view, the court in Cammon recognized that a defendantis entitled to notice of an amended claim because the rationalebehind the same transaction or occurrence rule established insection 2-616(b) is that a defendant will not be prejudiced by anamendment as long as its attention was directed, within thelimitations period, to the facts that form the basis of the claimasserted against it. Cammon, 301 Ill. App. 3d at 947.

In this case, we conclude that there is no reason to extendour analysis beyond the two requirements set forth in section 2-616(b). The original action was timely filed on December 17, 1996,the day on which the statute of limitations expired for themammography conducted on December 17, 1994. Further, anexamination of the allegations in all three complaints reveals thatthe claims asserted in the second amended complaint grew out of thesame transaction or occurrence as that alleged in the originalpleading. Marek in her original, first and second amendedcomplaints alleged that the failure to advise her of theabnormalities noted on the December 17, 1994, report, the failureto call her in for an immediate clinical evaluation, and thefailure to refer her to qualified medical personnel to examine theasymmetry noted in that December 17, 1994, report caused herinjuries. The single distinguishing factor between the originalcomplaint and the second amended complaint is that, in the originalaction, only McGill is named for the occurrence or transactiongiving rise to Marek's injuries referred to above. In the secondamended complaint, those identical allegations are made directlyagainst O.B. Gyne. Therefore, it is evident that the allegationsin the amended pleading grew out of the same transaction oroccurrence as those in the original pleading. We also note thatMcArthur, Cammon and the language of section 2-616(b) do notrequire that the allegations in a particular count of an originalcomplaint correspond to the same defendant in an amended complaintfor the relation-back doctrine to apply. Rather, the focus is onthe identity of the transaction or occurrence on which the causesof action are based. Cammon, 301 Ill. App. 3d at 946, citing, Zeh,111 Ill. 2d at 272-73. Thus, we conclude that the allegationsagainst O.B. Gyne relating to the December 17, 1994, mammographyreport are not time-barred because they relate back to the originalcomplaint.

In addition, our supreme court has held that, "[i]nstead ofsplitting hairs over types of faults, the inquiry is whether thereis enough in the original description to indicate that plaintiff isnot attempting to slip in an entirely distinct claim in violationof the spirit of the limitations act." Simmons v. Hendricks, 32Ill. 2d 489, 497, 207 N.E.2d 440 (1965). This language has beencited by the appellate court in at least three cases involving asection 2-616(b) analysis. See McArthur, 307 Ill. App. 3d at 336(Cook J., specially concurring); Steinberg v. Dunseth, 276 Ill.App. 3d 1038, 1044, 658 N.E.2d 1239 (1995); Sompolski v. Miller,239 Ill. App. 3d 1087, 1091, 608 N.E.2d 54 (1992).

Under the above inquiry, we find that Marek has not attempted to slip in a distinct claim in violation of the spirit of thelimitations statute. Rather, the same claim was asserted in allthree complaints. We recognize that the specific count directed atO.B. Gyne in the original complaint did not allege that O.B. Gynefailed to advise Marek of the abnormalities of the December 17,1994, report, failed to call her in for a clinical evaluation orfailed to refer her to qualified medical personnel. However, theoriginal complaint alleged these very same allegations againstMcGill, O.B. Gyne's agent, employee and shareholder. Thus, thecause of action arose out of the same transaction and occurrenceand the claim is not a distinct allegation that would violate thespirit of the statute of limitations.

O.B. Gyne also asserts that because the trial court enteredsummary judgment in favor of McGill, his care is no longer at issuein the case and, as a result, O.B. Gyne cannot be held vicariouslyliable for any actions or omissions attributed to him. While O.B.Gyne may argue that it cannot be held vicariously liable foractions attributable to McGill, the applicability of the relation-back doctrine is not barred in this case for several reasons.

First, O.B. Gyne cites Towns v. Yellow Cab Co., 73 Ill. 2d113, 122, 382 N.E.2d 1217 (1978), in support of its position. InTowns, our supreme court held that, "[w]hen an action is broughtagainst a master based on the alleged negligent acts of hisservant, and no independent wrong is charged on behalf of themaster, his liability is entirely derivative, being founded uponthe doctrine of respondeat superior. (Emphasis added.)" Towns, 73Ill. 2d at 123-24. The above proposition in Towns does not applyhere where an independent wrong has been asserted against O.B.Gyne, the master, in the first and second amended complaints. Thus, O.B. Gyne cannot claim that its liability was only derivativefor the occurrence which was, among other things, a failure toadvise Marek of abnormalities indicated on the December 17, 1994,mammography report. Although the first and second amendedcomplaints set out the identical allegations concerning theoccurrence of December 17, 1994, they are aimed directly at O.B.Gyne. Therefore, Towns does not apply because an independent wronghas been directly charged against the master.

Second, the question of whether McGill's favorable summaryjudgment ruling impacts the dismissal of Marek's second amendedcomplaint is not properly before us. We recognize O.B. Gyne'sposition that "[i]t is illogical for a court to grant summaryjudgment on a count and then allow plaintiffs to replead that samecount." Steinberg, 276 Ill. App. 3d at 1047. We also acknowledge,however, that "[a]mendment may be appropriate *** where summaryjudgment is entered on the theory pleaded, but [the record]indicate[s] *** that another theory is viable." Steinberg, 276Ill. App. 3d at 1047.

In this case, the fact that McGill was granted summaryjudgment does not impact our determination as to whether Marek'ssecond amended complaint should be dismissed. We conclude thatamendment was appropriate because another theory is viable forMarek to recover as a result of the transaction or occurrence atissue. Specifically, Marek alleged that O.B. Gyne was directlynegligent because of the failed disclosure of information in theDecember 17, 1994, mammography report in the first and secondamended complaints. Thus, we hold that the trial court's grant ofsummary judgment to McGill is not properly before us and that ithas no impact on the determination concerning the dismissal ofMarek's second amended complaint.

Third, O.B. Gyne cites Foxcroft Townhome Owners Ass'n v.Hoffman Rosner Corp., 96 Ill. 2d 150, 153, 449 N.E. 2d 125 (1983),in further support of its contention that Marek's second amendedcomplaint should be dismissed. O.B. Gyne's reliance on FoxcroftTownhome Owners Ass'n is also misplaced. In that case, our supremecourt determined that a party who files an amended pleading waivesany objection to the trial court's ruling on the former complaints. Foxcroft Townhome Owners Ass'n, 96 Ill. 2d at 153. In this case,although Marek has not appealed the trial court's order grantingsummary judgment to McGill under section 2-616(b), we do not findthat precludes her from seeking invocation of the relation-backdoctrine concerning the occurrence alleged in her originalcomplaint, which was the failure to inform her of the abnormalities that existed in the December 17, 1994, mammography report. Additionally, we do not conclude that the supreme court intendedthe above waiver rule to interfere with the relation-back doctrinewhere, as here, the cause of action in the amended pleading grewout of the same transaction or occurrence that was alleged in theoriginal complaint.

We are also not persuaded by the authority cited by O.B. Gynein support of its position that the Marek's cause of action in thesecond amended complaint relating to the December 17, 1994,mammography report did not grow out of the same transaction oroccurrence alleged in the original pleading. In its brief, O.B.Gyne cites Weidner v. Carle Foundation Hospital, 159 Ill. App. 3d710, 711-712, 512 N.E.2d 824 (1987), Flynn v. Szwed, 224 Ill. App.3d 107, 111, 586 N.E.2d 539 (1991), Bailey v. Petroff, 170 Ill.App. 3d 791, 798, 525 N.E.2d 278 (1988), and Weber v. Cueto, 253Ill. App. 3d 509, 517, 624 N.E.2d 442 (1993), appeal denied, 155Ill. 2d 577, 633 N.E.2d 16 (1994). As noted by the court inMcArthur, the above-referenced cases "involved either soledefendants where the new claims asserted against them were of acompletely new nature that they could not have anticipated[citations] or multiple defendants where completely new theorieswere added that had not been asserted against any defendantspreviously." (Emphasis omitted.) McArthur, 307 Ill. App. 3d at335. As we previously noted, the allegations giving rise to thenegligence claim asserted against McGill, an agent of O.B. Gyne, inthe original complaint were identical to the allegations that formthe basis of the negligence claim against O.B. Gyne in the firstand second amended complaints. We conclude that the allegations ofthe second amended complaint concerning the December 17, 1994,mammography report arose out of the same transaction or occurrenceas was alleged in the original compliant. Therefore, the claimrelates back under section 2-616(b).

We need not reach the second question on appeal concerning theapplication of the discovery rule under section 13-212(a) becausewe reverse the trial court's dismissal of Marek's second amendedcomplaint under section 2-616(b).

The trial court's dismissal of the second amended complaint isreversed and remanded.

Reversed and remanded.

CAHILL, P.J., and COUSINS, J., concur.