{ "id": 121981, "name": "OSCAR DeLUNA, Adm'r of the Estate of Alicia DeLuna, Deceased, Appellee, v. DR. MICHAEL TREISTER et al., Appellants", "name_abbreviation": "DeLuna v. Treister", "decision_date": "1999-02-19", "docket_number": "Nos. 83119, 83171", "first_page": "565", "last_page": "584", "citations": [ { "type": "official", "cite": "185 Ill. 2d 565" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "147 Ill. 2d 57", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3277960 ], "weight": 9, "year": 1992, "pin_cites": [ { "page": "75-76" }, { "page": "76" }, { "page": "76" }, { "page": "76" }, { "page": "76" }, { "page": "76" }, { "page": "76" }, { "page": "70-71" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/147/0057-01" ] }, { "cite": "184 Ill. App. 3d 802", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2640665 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/ill-app-3d/184/0802-01" ] }, { "cite": "286 Ill. App. 3d 25", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1544399 ], "weight": 12, "pin_cites": [ { "page": "33-35" }, { "page": "38" }, { "page": "38" }, { "page": "38" }, { "page": "33" }, { "page": "33" }, { "page": "32" }, { "page": "33" }, { "page": "32" }, { "page": "35" }, { "page": "35" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/286/0025-01" ] }, { "cite": "172 Ill. 2d 325", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 55986 ], "weight": 5, "year": 1996, "pin_cites": [ { "page": "334" }, { "page": "335" }, { "page": "335, 336" }, { "page": "335-36" }, { "page": "335-36" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/172/0325-01" ] }, { "cite": "162 Ill. 2d 70", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 477544 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "75", "parenthetical": "with certain exceptions, involuntary dismissal operates as a judgment on the merits" }, { "page": "75" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/162/0070-01" ] }, { "cite": "175 Ill. 2d 176", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 295752 ], "weight": 7, "year": 1997, "pin_cites": [ { "page": "186" }, { "page": "188" }, { "page": "186" }, { "page": "186" }, { "page": "184" }, { "page": "184-86" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/175/0176-01" ] }, { "cite": "121 Ill. 2d 188", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3201319 ], "year": 1987, "pin_cites": [ { "page": "191" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/121/0188-01" ] }, { "cite": "129 Ill. App. 3d 796", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3489665 ], "year": 1984, "pin_cites": [ { "page": "802" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/129/0796-01" ] }, { "cite": "73 Ill. 2d 113", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5440905 ], "weight": 3, "year": 1978, "pin_cites": [ { "page": "125" }, { "page": "124" }, { "page": "122-23" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/73/0113-01" ] }, { "cite": "365 U.S. 265", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6165142 ], "weight": 15, "year": 1961, "pin_cites": [ { "page": "285" }, { "page": "564" }, { "page": "544-45" }, { "page": "285-86" }, { "page": "565" }, { "page": "545" }, { "page": "287-88" }, { "page": "566" }, { "page": "546" } ], "opinion_index": 0, "case_paths": [ "/us/365/0265-01" ] }, { "cite": "242 Ill. App. 3d 96", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5119013 ], "year": 1993, "pin_cites": [ { "page": "102" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/242/0096-01" ] }, { "cite": "84 Ill. 2d 312", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3045185 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/ill-2d/84/0312-01" ] } ], "analysis": { "cardinality": 1032, "char_count": 33996, "ocr_confidence": 0.792, "pagerank": { "raw": 3.218297446926325e-07, "percentile": 0.8669406980870313 }, "sha256": "4f954eebcd3021829993ad5b3cb0b831ed31cfcdfeeee59f1c05ff4348494905", "simhash": "1:def85bb3a8c9f8d9", "word_count": 5540 }, "last_updated": "2023-07-14T18:01:39.203869+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "OSCAR DeLUNA, Adm\u2019r of the Estate of Alicia DeLuna, Deceased, Appellee, v. DR. MICHAEL TREISTER et al., Appellants." ], "opinions": [ { "text": "JUSTICE McMORROW\ndelivered the opinion of the court:\nIn this medical malpractice action, plaintiff Oscar DeLuna, as administrator of the estate of Alicia DeLuna, filed a single-count complaint in the circuit court of Cook County against defendants Michael Treister, M.D., and St. Elizabeth\u2019s Hospital. Plaintiff alleged that Dr. Treister negligently caused decedent\u2019s death and that St. Elizabeth\u2019s, as Dr. Treister\u2019s employer, shared vicarious liability for decedent\u2019s death. The circuit court ruled that the doctrine of res judicata barred plaintiff\u2019s claim against Dr. Treister, and granted Dr. Treister\u2019s motion to dismiss. The circuit court ruled further that the dismissal of Dr. Treister necessitated the dismissal of plaintiffs- respondeat superior action against St. Elizabeth\u2019s.\nThe appellate court reversed, with one justice dissenting.\nWe granted defendants\u2019 petitions for leave to appeal (166 Ill. 2d R. 315) and now must decide whether: (1) an involuntary dismissal for failure to comply with section 2 \u2014 622 of the Illinois Code of Civil Procedure (735 ILCS 5/2 \u2014 622 (West 1994)) constitutes an \u201cadjudication upon the merits,\u201d as defined in Illinois Supreme Court Rule 273 (134 Ill. 2d R. 273); (2) an allegedly vicariously liable principal must be dismissed from a lawsuit when the principal\u2019s agent is dismissed for reasons unrelated to the merits of plaintiffs claim(s); and (3) plaintiffs claim against the hospital is barred by the statute of limitations. .\nBACKGROUND\nThis is the second time this matter is before this court. The present appeal, which we may refer to as DeLuna II, cannot be understood absent a recitation of pertinent events occurring in the first appeal, which we identify as DeLuna I. DeLuna v. St. Elizabeth\u2019s Hospital, 147 Ill. 2d 57 (1992).\nDeLunaI\nOn April 16, 1986, plaintiff Guadalupe DeLuna, as administrator of the estate of decedent Alicia DeLuna, filed a six-count complaint, alleging that during an operation to perform a lumbar laminectomy, defendant Michael Treister, M.D., negligently cut decedent\u2019s left common iliac artery, and failed to timely discover and correct his negligent error. Plaintiff further alleged that Dr. Treister\u2019s negligence caused decedent to exsanguinate and eventually die. Plaintiff also asserted that St. Elizabeth\u2019s Hospital, as Dr. Treister\u2019s employer, was vicariously liable for decedent\u2019s injuries and death.\nCiting section 2 \u2014 619 of the Code of Civil Procedure (735 ILCS 5/2 \u2014 619 (West 1994)), St. Elizabeth\u2019s moved to dismiss plaintiffs claims against the hospital. Plaintiff failed to file an affidavit, required by section 2 \u2014 622 of the Code (735 ILCS 5/2 \u2014 622 (West 1994)), attesting to a review of plaintiffs claims by a health professional, and failed to file a report from the health professional stating that plaintiff alleged a reasonable and meritorious cause of action. The circuit court granted the motion and dismissed St. Elizabeth\u2019s without prejudice on October 23, 1986.\nOn February 25, 1987, the circuit court dismissed all counts against Dr. Treister on identical grounds. The order dismissing Dr. Treister was entered with prejudice.\nPlaintiff chose not to file the section 2 \u2014 622 affidavit and report, but instead appealed the orders dismissing the defendants, in order to challenge the constitutionality of section 2 \u2014 622. The appellate court reversed, and held section 2 \u2014 622 unconstitutional. DeLuna v. St. Elizabeth\u2019s Hospital, 184 Ill. App. 3d 802 (1989).\nOn appeal, this court found the affidavit and report requirements of section 2 \u2014 622 constitutional, and affirmed the circuit court\u2019s decision to dismiss with prejudice the negligence counts asserted against Dr. Treister. DeLuna I, 147 Ill. 2d at 75-76. To this end, the court expressly rejected plaintiffs request that the \u201caction *** be remanded so that the necessary affidavit and report [could] be filed.\u201d DeLuna I, 147 Ill. 2d at 76. We were precluded from granting plaintiff\u2019s request because plaintiff elected, at the time of dismissal, to challenge the constitutionality of section 2 \u2014 622 (DeLuna I, 147 Ill. 2d at 76), instead of exercising his option to seek leave to refile the action with the required documentation (134 Ill. 2d R. 273). Accordingly, we \u201cdecline[d] to order further proceedings.\u201d DeLuna I, 147 Ill. 2d at 76.\nAlso, this court dismissed plaintiffs appeal from the circuit court\u2019s order dismissing St. Elizabeth\u2019s without prejudice. Plaintiff had appealed the order pursuant to Supreme Court Rule 304(a), which permits appeals from certain orders, so long as the orders ar\u00e9 \u201cfinal and appealable,\u201d and the circuit court finds that there is no just reason to delay enforcement or appeal of the orders. 155 Ill. 2d R. 304(a). Because the circuit court dismissed St. Elizabeth\u2019s without prejudice, we held that the order of dismissal lacked the finality necessary to appeal the order under Rule 304(a). DeLuna I, 147 Ill. 2d at 76. Therefore, it was not a \u201cfinal and appealable order\u201d subject to review by either this or the appellate court. DeLuna I, 147 Ill. 2d at 76.\nDeLuna II\nOn November 10, 1993, plaintiff refiled his medical malpractice action against St. Elizabeth\u2019s and Dr. Treister. Plaintiff\u2019s single-count complaint also named a third defendant, Dr. T. Kolather, who was subsequently voluntarily dismissed from the lawsuit.\nThe allegations set forth in the DeLuna II complaint were virtually identical to those asserted in the DeLuna I complaint. The parties in both suits were identical, except for the replacement of Guadalupe DeLuna with Oscar DeLuna as administrator of the estate.\nDr. Treister filed a motion to dismiss the 1993 complaint. Dr. Treister argued that his prior dismissal with prejudice in DeLuna I was a dismissal \u201con the merits\u201d under Supreme Court Rule 273. 134 Ill. 2d R. 273. Continuing, Dr. Treister maintained that when, as here, a court has addressed the merits of a prior, identical claim involving identical parties, the doctrine of res judicata bars further litigation of the claim. Dr. Treister therefore insisted that plaintiff\u2019s claims in DeLuna II were res judicata as to him. The circuit court granted Dr. Treister\u2019s motion to dismiss with prejudice.\nSt. Elizabeth\u2019s filed a separate motion to dismiss the complaint, arguing that the res judicata doctrine also barred plaintiffs renewed action against the hospital. In denying this motion, the circuit court held that the dismissal entered in favor of St. Elizabeth\u2019s in DeLuna I had been without prejudice and thus did not reach the merits of the plaintiffs claim.\nHowever, the circuit court granted St. Elizabeth\u2019s subsequent motion to dismiss, which challenged the hospital\u2019s purported derivative liability to plaintiff. Where respondeat superior is the sole theory of liability asserted against a principal, the hospital insisted, the dismissal with prejudice of the principal\u2019s agent from the lawsuit compels dismissal of the principal, as well. Stated differently, the hospital argued that the derivative liability of the principal depends on a finding of liability against the principal\u2019s agent; if the agent will never be found liable, then, logically, the principal may not be found liable, either.\nPlaintiff appealed the orders dismissing St. Elizabeth\u2019s and Dr. Treister. A ,divided appellate court reversed the circuit court. 286 Ill. App. 3d 25. Regarding plaintiffs lawsuit against Dr. Treister, the appellate majority ruled that plaintiffs failure to comply with section 2 \u2014 622 in DeLuna I was a purely procedural fault that did not require the circuit court to reach the merits of the case. 286 Ill. App. 3d at 33-35. The appellate court likened dismissals for failure to comply with section 2 \u2014 622 with dismissals for \u201clack of jurisdiction,\u201d which are explicitly excepted from the operation of Rule 273. 286 Ill. App. 3d at 38. Thus, the court reasoned, the dismissal was not on the merits and the doctrine of res judicata did not apply. 286 Ill. App. 3d at 38. The appellate court found that the dismissal of St. Elizabeth\u2019s was also in error, since the hospital\u2019s agent, Dr. Treister, had been improperly dismissed from DeLuna II. 286 Ill. App. 3d at 38.\nWe granted petitions for leave to appeal filed by Dr. Treister and by St. Elizabeth\u2019s. 166 Ill. 2d R. 315(a). The Illinois Trial Lawyers Association was granted leave to file an amicus curiae brief in support of plaintiffs position. 155 Ill. 2d R. 345(a). For the reasons stated below, we reverse the decision of the appellate court as to Dr. Treister, and affirm the appellate court\u2019s conclusion that plaintiffs case against St. Elizabeth\u2019s may proceed.\nANALYSIS\nI. Whether the Circuit Court Erred in Dismissing Plaintiffs Cause of Action Against Dr. Treister\nDr. Treister argues that the appellate majority erred in finding that the dismissal of Dr. Treister in DeLuna I was not \u201con the merits,\u201d as that phrase is employed in Rule 273. 134 Ill. 2d R. 273. We agree. Rule 273 and prior decisions of this court applying the rule lead us to conclude that the circuit court\u2019s dismissal of Dr. Treister in DeLuna I was a dismissal on the merits. Therefore, plaintiff was precluded by res judicata principles from renewing his claim against Dr. Treister in DeLuna II.\nThe doctrine of res judicata bars the refiling of an action previously adjudicated on the merits when the action is directed against the same parties and involves the same claims. Rein v. David A. Noyes & Co., 172 Ill. 2d 325, 334 (1996). The doctrine applies if three conditions are satisfied: (1) a final judgment on the merits has been entered in the first lawsuit by a court of competent jurisdiction; (2) an identity of causes of action exists; (3) the parties or their privies are identical in both lawsuits. Rein, 172 Ill. 2d at 335.\nAt bar, the parties concur that the second and third conditions have been satisfied. The instant dispute centers only on the first condition, namely, whether the dismissal of plaintiffs claims against Dr. Treister in DeLuna I constituted a disposition on the merits.\nRelying on Rule 273, Dr. Treister maintains that it was. The Rule states:\n\u201cUnless the order of dismissal or a statute of this State otherwise specifies, an involuntary dismissal of an action, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join an indispensable party, operates as an adjudication upon the merits.\u201d 134 Ill. 2d R. 273.\nThe straightforward application of Rule 273 to the present matter indicates that the dismissal of Dr. Treister in DeLuna I was \u201can adjudication upon the merits.\u201d The circuit court involuntarily dismissed, with prejudice, all counts pleaded by plaintiff against Dr. Treister. The basis of the dismissal neither was lack of jurisdiction or venue, nor did plaintiff fail to join an indispensable party. On the day the order was entered, plaintiff did not seek, and the circuit court did not include in the order, a statement allowing plaintiff to amend his action, or to file the documents required by section 2 \u2014 622. In addition, no statute automatically guaranteed plaintiff these opportunities. Under the plain language of Rule 273, therefore, the dismissal of the claims against Dr. Treister was an adjudication on the merits.\nThe result urged by Dr. Treister is also compatible with precedents established by this court. In Rein v. David A. Noyes & Co., 172 Ill. 2d 325, 335, 336 (1996), the plaintiffs filed suit against the defendant securities dealers, alleging that the defendants fraudulently misled plaintiffs as to the nature of securities sold by the defendants to the plaintiffs. The circuit court dismissed with prejudice the rescission counts filed by the plaintiffs, finding those counts barred by the statute of limitations set forth in the Illinois Securities Law. Ill. Rev. Stat. 1989, ch. 1211/2, par. 137.13(D). Three years later, the plaintiffs sued the same parties, again seeking rescission of the purchase of securities. The trial court dismissed the second action as res judicata and we affirmed the circuit court order.\nLike the present appeal, the identity of claims and parties was not at issue before this court in Rein. The sole question was whether the dismissal of the rescission counts in the first lawsuit constituted a judgment on the merits. We held that it did, because \u201cRule 273 applies only to an involuntary dismissal of an action, such as that which occurs when a motion to dismiss under section 2 \u2014 615 or 2 \u2014 619 of the Code is granted.\u201d (Emphasis added.) Rein, 172 Ill. 2d at 335-36. Thus, in Rein, \u201cthe trial judge\u2019s decision to grant defendants\u2019 motion to dismiss the rescission counts in Rein I based on the applicable statute of limitations is a final adjudication on the merits and operates as a final judgment on the merits for purposes of res judicata.\u201d Rein, 172 Ill. 2d at 335-36. See also Downing v. Chicago Transit Authority, 162 Ill. 2d 70, 75 (1994) (with certain exceptions, involuntary dismissal operates as a judgment on the merits).\nIn the instant matter, Dr. Treister relied on section 2 \u2014 619 of the Code to obtain dismissal of plaintiff\u2019s claims against him. 735 ILCS 5/2 \u2014 619 (West 1994). The dismissal was by definition involuntary, and absent the conditions and exceptions set forth in Rule 273, a dismissal on the merits. Indeed, we reached this conclusion once before in this very same case. See DeLuna I, 147 Ill. 2d at 76.\nDespite this precedent and the clear language of Rule 273, a majority of the appellate court ruled in DeLuna II that no adjudication on the merits occurred. 286 Ill. App. 3d at 33. The majority declared that a dismissal could be deemed a final judgment on the merits only if the circuit court actually reached the merits of the case. 286 Ill. App. 3d at 33. The appellate court reasoned further that a dismissal \u201cwith prejudice\u201d did not necessarily mean that the dismissal was on the merits. 286 Ill. App. 3d at 32. The appellate majority\u2019s rationale is incorrect.\nFirst, by insisting that the circuit court must give the plaintiff his \u201cday in court\u201d to air the merits of plaintiffs claims (286 Ill. App. 3d at 33), the appellate court misstated the plaintiffs rights and misconstrued the intent animating Rule 273. The courts and the legislature have never hesitated to truncate a litigant\u2019s \u201cday in court\u201d where facts indicate that the merits need not, or as a matter of fairness should not, be reached. Consequently, some of the provisions in the Code of Civil Procedure restrict access to our courts, such as statutes of limitation and repose, minimal jurisdictional requirements and discovery requirements. A failure to satisfy these and like provisions can justifiably arrest a plaintiffs progress in the court system, long before plaintiff has ever enjoyed his so-called day in court.\nSimilarly, Rule 273 is intended to curb the number of times a plaintiff can resurrect a dismissed action. Leow v. A&B Freight Line, Inc., 175 Ill. 2d 176, 186 (1997). If a plaintiffs action is involuntarily dismissed for a reason not expressly excepted by the rule, and if plaintiff does not procure leave of court to refile the complaint, or if a statute does not guaranty that opportunity to the plaintiff, then the rule deems the dismissal a dismissal on the merits. That is the purpose of the rule.\nIn this case, Rule 273 fulfilled its intended purpose. Plaintiff knowingly defied a statutory pleading requirement, in order to challenge the constitutionality of the requirement. Plaintiff could have requested leave to satisfy section 2 \u2014 622, and/or refile his complaint. McCastle v. Sheinkop, 121 Ill. 2d 188, 191 (1987). He chose not to do so. Had Rule 273 not operated in precisely the manner intended, plaintiff could have refiled the action yet again. The rule therefore preempted potentially needless litigation.\nAdditionally, we heed not address the appellate majority\u2019s assertion that a dismissal with prejudice is not synonymous with a dismissal on the merits. 286 Ill. App. 3d at 32. The appellate majority\u2019s assertion unnecessarily embellishes the plain terms of Rule 273. The inclusion of \u201cwith prejudice\u201d in the order dismissing Dr. Treister is not dispositive of whether the dismissal was an adjudication upon the merits. Rule 273 is triggered by an involuntary dismissal for a reason other than those specifically excepted. 134 Ill. 2d R. 273; Downing, 162 Ill. 2d at 75. While the inclusion of \u201cwithout prejudice\u201d in an order signals the circuit court\u2019s intent to allow a plaintiff to refile an action (see Bond v. Dunmire, 129 Ill. App. 3d 796, 802 (1984)), the inclusion of \u201cwith prejudice\u201d in an order does not, alone, trigger Rule 273.\nThe appellate majority next concluded that the United States Supreme Court\u2019s interpretation of Federal Rule of Civil Procedure 41(b) (Fed. R. Civ. E 41(b)), from which we derived Rule 273 (Towns v. Yellow Cab Co., 73 Ill. 2d 113, 125 (1978)), should control interpretation of our Rule 273. 286 Ill. App. 3d at 35. Specifically, the appellate court cited Costello v. United States, 365 U.S. 265, 5 L. Ed. 2d 551, 81 S. Ct. 534 (1961), for the proposition that a dismissal for failure to file a section 2 \u2014 622 affidavit and report constituted a dismissal for \u201clack of jurisdiction\u201d and thus was not an adjudication on the merits. Consequently, the doctrine of res judicata would not bar plaintiff\u2019s second action against Dr. Treister and the hospital. 286 Ill. App. 3d at 35.\nIn Costello, 365 U.S. 265, 5 L. Ed. 2d 551, 81 S. Ct. 534, the federal government initiated a denaturalization proceeding against the defendant. The federal district court dismissed the action, because the government failed to file a statutorily mandated affidavit of good cause with the complaint. The government filed a new action, with the proper affidavit, and succeeded in winning revocation of defendant\u2019s citizenship.\nOn appeal, the defendant argued, inter alia, that the second denaturalization proceeding was barred by operation of Rule 41(b) of the Federal Rules of Civil Procedure. Fed. R. Civ. P. 41(b). That rule deems all but a few, excepted dismissals to be dismissals on the merits:\n\u201cFor failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against the defendant. Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, operates as an adjudication upon the merits.\u201d Fed. R. Civ. P. 41(b).\nThe United States Supreme Court ruled in favor of the government, however. The Court equated the failure to file the necessary affidavit with a failure of jurisdiction. Costello, 365 U.S. at 285, 5 L. Ed. 2d at 564, 81 S. Ct. at 544-45. According to the Costello Court, \u201cdismissals for lack of jurisdiction\u201d encompass more than dismissals for lack of authority over the subject matter or the parties: they include any failure of the plaintiff to satisfy a \u201cprecondition of suit,\u201d such as neglecting to file a statutorily mandated affidavit. Costello, 365 U.S. at 285-86, 5 L. Ed. 2d at 565, 81 S. Ct. at 545.\nThe Court also compared Rule 41(b) dismissals with traditional common law practice, where only dismissals that reached the merits of a case could later form the basis of a motion to bar relitigation of that action. Whether a dismissal reached the merits of a claim, moreover, was judged by whether the defendant was compelled to mount a defense to the dispositive allegations of the plaintiffs lawsuit.\nIn Costello, the United States Supreme Court found that the defendant never presented a defense in response to the substantive allegations of the government\u2019s claim. Further, the failure to file the affidavit of good cause was no more than a failure to satisfy a precondition of suit. The Court thus held that Rule 41(b) did not preclude pursuit of the second denaturalization proceeding. Costello, 365 U.S. at 287-88, 5 L. Ed. 2d at 566, 81 S. Ct. at 546.\nSubsequent to the appellate court\u2019s issuance of its DeLuna II opinion in 1996, we have had an opportunity to consider whether, and to what extent, the federal courts\u2019 interpretation of Rule 41(b) should influence application of our own Rule 273. In 1997, this court issued its opinion in Leow v. A&B Freight Lines, Inc., 175 Ill. 2d 176 (1997). There, the plaintiff filed a personal injury action against A&B Freight, under a theory of respondeat superior, for injuries allegedly caused by an employee of A&B. In an amended pleading, the plaintiff sued the A&B employee, as well as A&B. The employee successfully moved to dismiss the claim against him, charging that it violated the applicable statute of limitations.\nInvoking the doctrine of res judicata, A&B moved to dismiss the claim against it. A&B asserted that the involuntary dismissal of its employee constituted an adjudication on the merits and, because A&B\u2019s employee was no longer liable to plaintiff, A&B\u2019s derivative liability was erased, as well. The circuit court granted A&B\u2019s motion.\nA majority of this court reversed the circuit court\u2019s ruling. Leow, 175 Ill. 2d at 188. In relevant part, the majority adopted the Costello interpretation of Rule 41(b) as a proper interpretation of Rule 273. Leow, 175 Ill. 2d at 186. However, the court specifically limited the applicability of the Costello test \u2014whether the basis for dismissal forced the defendant to prepare to meet the merits of plaintiffs claim \u2014 to instances where \u201cseparate defendants are involved.\u201d Leow, 175 Ill. 2d at 186. Where the party that procures an involuntary dismissal in a case is the same party that later asserts that the dismissal was a \u201cfinal adjudication on the merits,\u201d then whether an adjudication on the merits actually occurred is determined by applying Rule 273 according to its plain terms. Leow, 175 Ill. 2d at 184. But where the party seeking to invoke the doctrine of res judicata is relying on the prior dismissal of a claim against a different party, then, Leow concluded, the prior dismissal must have caused the defendant to prepare to address the actual merits of plaintiffs claim before the dismissal will be deemed \u201con the merits.\u201d Leow, 175 Ill. 2d at 184-86.\nTherefore, as to Dr. Treister, Leow merely reaffirmed the holdings of Rein, Downing and DeLuna I, that Rule 273 should be applied according to its unambiguous terms. The involuntary dismissal of plaintiffs claims against Dr. Treister in DeLuna I falls squarely within the operation of Rule 273 and constitutes an adjudication on the merits. The circuit court correctly dismissed plaintiffs complaint against Dr. Treister in DeLuna II as res judicata.\nAdditionally, the section 2 \u2014 622 affidavit and report requirement cannot be analogized to a dismissal for lack of jurisdiction. As we stated in DeLuna I, the affidavit and report demanded by section 2 \u2014 622 are intended to discourage frivolous claims. DeLuna I, 147 Ill. 2d at 70-71. This pleading requirement has no bearing on the authority or jurisdiction of a circuit court to decide a personal injury action or to grant the relief sought by a plaintiff. The failure to comply with section 2 \u2014 622 will not make plaintiffs complaint vulnerable to collateral attack on the basis that the court lacks jurisdiction at any point in the litigation. Further, a defendant may waive the affidavit requirement. Nikolic v. Seidenberg, 242 Ill. App. 3d 96, 102 (1993).\nIn In re Custody of Sexton, 84 Ill. 2d 312 (1981), this court squarely addressed the question of whether technical pleading requirements, like those of section 2 \u2014 622, are \u201cjurisdictional,\u201d and held that they were not. In Sexton, the plaintiff neglected to file an affidavit, as required by statute, with his petition to modify a child custody order. The defendant did not object to plaintiffs failure to file the required affidavit, and raised the fact of plaintiff\u2019s oversight only on appeal. The defendant argued that, in the absence of adherence to the statute\u2019s pleading requirements based on plaintiffs failure to file the affidavit, the trial court lacked jurisdiction to rule on the plaintiffs petition. This court disagreed. A statutory pleading requirement that is mandatory is not necessarily jurisdictional. Under the then-governing Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, par. 610), which contained the affidavit requirement, it was held that the requirement was not jurisdictional in nature: the failure to file the affidavit could be waived and was not intended as a limitation on the court\u2019s jurisdiction to decide matters of child custody. Clearly, a dismissal for failure to comply with the mandatory affidavit and report filing requirements of section 2 \u2014 622 is a dismissal for deficiencies in a pleading. The failure to comply with filing requirements does not deprive the court of jurisdiction over the lawsuit because of the omission.\nII. Whether the Circuit Court Erred by Dismissing Plaintiffs Cause of Action Against St. Elizabeth\u2019s Hospital\nHaving concluded that the circuit court properly dismissed the claim against Dr. Treister under the doctrine of res judicata, we now turn to the disposition of plaintiffs claim against the hospital in DeLuna II. This issue must be decided separately, since the circuit court dismissed the counts asserted against St. Elizabeth\u2019s in DeLuna I without prejudice. According to plaintiff, the dismissal without prejudice precludes a Rule 273 finding that the dismissal was on the merits, and thereby further precludes an application of the res judicata doctrine.\nHowever, the circuit court accepted St. Elizabeth\u2019s argument that, because the hospital\u2019s purported liability derived solely from its employment of Dr. Treister, a dismissal of Dr. Treister with prejudice required that the hospital be dismissed, as well. For this result, the circuit court presumably relied on cases such as Towns v. Yellow Cab Co., 73 Ill. 2d 113, 124 (1978), where this court noted that an employer\u2019s derivative liability depends entirely on the liability of its employee, so that for litigation purposes, they are considered one and the same tortfeasor. If the employee is adjudged not liable, the employer must necessarily be found not liable, as well. See Towns, 73 Ill. 2d at 122-23.\nA. The Dismissal Was Final Only As to Dr. Treister\nThe proper disposition of the plaintiffs claim against the hospital lies in the Restatement (Second) of Judgments. The Restatement observes that, while the dismissal of an agent generally compels dismissal of any vicarious liability claim against the principal, a judgment against a plaintiff based on a defense \u201cpersonal\u201d to one defendant does not have a res judicata effect in subsequent litigation against a different defendant who might be vicariously hable. Restatement (Second) of Judgments \u00a7 51 (1982).\nIn this case, both Dr. Treister and the hospital relied on plaintiffs refusal to comply with section 2 \u2014 622 to move for dismissal of DeLuna I. Yet only one defendant, Dr. Treister, was dismissed in a manner that precluded plaintiff from amending his complaint or resubmitting it with a section 2 \u2014 622 affidavit and report. Therefore, the defenses articulated by Dr. Treister and St. Elizabeth\u2019s in DeLuna II were substantively different. By virtue of Rule 273, only Dr. Treister could assert a prior adjudication upon the merits that prevented plaintiff from further pursuing his medical malpractice action against the physician. That defense, unavailable to the hospital, was \u201cpersonal\u201d to Dr. Treister. Consequently, the hospital was not entitled to dismissal of plaintiff\u2019s respondeat superior action on the basis that Dr. Treister had been dismissed.\nThis court finds as well that allowing the case to proceed against St. Elizabeth\u2019s best comports with our obligation to do justice. Had plaintiff chosen to do so, plaintiff could have sued St. Elizabeth\u2019s alone for decedent\u2019s injuries and death. Dr. Treister was not a necessary party. We believe it would be particularly unfair to permit St. Elizabeth\u2019s to avoid liability merely because of its employee\u2019s fortuity in obtaining an involuntary dismissal from plaintiffs lawsuit, where that dismissal did not otherwise absolve the employee of fault.\nB. The Statute of Limitations for Medical Malpractice Actions Does Not Bar Plaintiffs Cause of Action Against the Hospital\nNevertheless, St. Elizabeth\u2019s argues that even if plaintiffs claim against the hospital is not barred by the doctrine of res judicata, the allegations asserted against the hospital in DeLuna II are precluded by the controlling statute of limitations, citing 735 ILCS 5/13 \u2014 212(a) (West 1994). St. Elizabeth\u2019s maintains that the dismissal of the hospital in DeLuna I was as \u201cfinal\u201d as the dismissal of Dr. Treister, even though the dismissal of the hospital in DeLuna I was made \u201cwithout prejudice.\u201d St. Elizabeth\u2019s reasons as follows: when the circuit court dismissed plaintiff\u2019s complaint against the hospital in DeLuna I without prejudice, the proper action for plaintiff to take would have been to refile the action against the hospital immediately, with the documentation required by section 2 \u2014 622. Instead, plaintiff chose to appeal the nonfinal order dismissing the hospital. By the time this court dismissed plaintiffs appeal in 1992, the four-year limitations period governing medical malpractice claims (735 ILCS 13 \u2014 212(a) (West 1994)) had expired, and thus, the DeLuna II complaint, with respect to the hospital, was barred by the statute of limitations at the time plaintiff refiled the complaint in 1993.\nAlthough the basis for the hospital\u2019s argument is not entirely clear, the hospital then urges that, by operation of the statute of limitations, the dismissal of the hospital in DeLuna I eventually acquired the same degree of finality as the dismissal of Dr. Treister. Following this reasoning to its conclusion, the hospital would have us find that the dismissals of the hospital and Dr. Treister in DeLuna I were both \u201cwith prejudice\u201d and that the res judicata doctrine applies equally to both defendants. As best we can discern, the linchpin of St. Elizabeth\u2019s argument is the four-year statute of limitations governing medical malpractice actions. 735 ILCS 5/13 \u2014 212(a) (West 1994). If we determine that the statute expired in 1990, four years after decedent\u2019s death, then we must decide whether the expiration of that limitations period barred plaintiffs cause of action against the hospital in DeLuna II. If, however, we find that plaintiffs cause of action is not barred by the statute of limitations, then, as to St. Elizabeth\u2019s, DeLuna II may proceed.\nPlaintiff\u2019s complaint in DeLuna II alleges that defendants\u2019 medical negligence, occurring on April 7, 1986, caused the death of decedent Alicia DeLuna on April 8, 1986. The complaint seeks damages pursuant to Illinois\u2019 Wrongful Death Act (740 ILCS 180/0.01 et seq. (West 1992)). All of the named beneficiaries to the instant lawsuit, including administrator Oscar DeLuna, were under 18 years of age on April 8, 1986. The minority limitations set forth in the wrongful death statute provide that a wrongful death beneficiary under age 18 at the time the cause of action accrues \u201cmay [file a wrongful death action] within 2 years after attainment of the age of 18.\u201d 740 ILCS 180/2 (West 1992). The limitations statute governing medical malpractice actions states, in pertinent part, that where the person entitled to bring the action was under 18 at the time the cause of action accrued, the claim shall be filed no later than eight years after the act or omission causing injury or death, and in no event may a claim be filed after the claimant\u2019s 22nd birthday. 735 ILCS 5/13 \u2014 212(b) (West 1992). The time for filing a cause of action had not yet expired for these beneficiaries as of November 10, 1993, the date plaintiff filed DeLuna II. Therefore, we hold that plaintiff\u2019s lawsuit against St. Elizabeth\u2019s is not time-barred and, on remand, may proceed.\nCONCLUSION\nFor the reasons stated above, we reverse in part and affirm in part the decision of the appellate court. Accordingly, we also reverse the decision of the circuit court as to the dismissal of St. Elizabeth\u2019s Hospital. As to Dr. Treister, we affirm the dismissal entered by the circuit court. The cause is remanded to the circuit court for further proceedings.\nAppellate court judgment affirmed in part and reversed in part; circuit court judgment affirmed in part and reversed in part; cause remanded.\nJUSTICE RATHJE took no part in the consideration or decision of this case.\nOscar DeLuna is the eldest child of Alicia and Guadalupe DeLuna. Guadalupe filed the DeLuna I action individually and as special administrator of Alicia\u2019s estate. During the pendency of the DeLuna I appeal, Guadalupe died. Oscar succeeded as special administrator of his late- mother\u2019s estate. For ease of understanding, we refer to both Guadalupe and Oscar as \u201cplaintiff.\u201d\nSection 13 \u2014 212(a) actually prescribes a two-year limitation period and a four-year period of repose. However, for the sake of clarity, we will use the terminology adopted by the hospital, and refer to section 13 \u2014 212(a) solely as a statute of limitation.", "type": "majority", "author": "JUSTICE McMORROW" } ], "attorneys": [ "Ruth E. VanDemark and Ralph N. Glader, of Chicago, for appellant Michael R. Treister.", "Robert Marc Chemers and Scott L. Howie, of Pretzel & Stouffer, Chrtd., of Chicago, for appellant St. Elizabeth\u2019s Hospital.", "Michael W. Rathsack, of Chicago (Eloy Burciaga, of counsel), for appellee.", "Stanley L. Tucker, of Hartzell, Glidden, Tucker & Hartzell, of Carthage, for amicus curiae Illinois Trial Lawyers Association." ], "corrections": "", "head_matter": "(Nos. 83119, 83171 cons.\nOSCAR DeLUNA, Adm\u2019r of the Estate of Alicia DeLuna, Deceased, Appellee, v. DR. MICHAEL TREISTER et al., Appellants.\nOpinion filed February 19, 1999.\nRATHJE, J., took no part.\nRuth E. VanDemark and Ralph N. Glader, of Chicago, for appellant Michael R. Treister.\nRobert Marc Chemers and Scott L. Howie, of Pretzel & Stouffer, Chrtd., of Chicago, for appellant St. Elizabeth\u2019s Hospital.\nMichael W. Rathsack, of Chicago (Eloy Burciaga, of counsel), for appellee.\nStanley L. Tucker, of Hartzell, Glidden, Tucker & Hartzell, of Carthage, for amicus curiae Illinois Trial Lawyers Association." }, "file_name": "0565-01", "first_page_order": 575, "last_page_order": 594 }