Hanks v. Cotler ( 2011 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
Hanks v. Cotler, 2011 IL App (1st) 101088Appellate Court PHILLIPS HANKS, Individually and as Next Friend of Cammeren Tyler
Caption Hanks, Collier Phillip Hanks, and Christian Nathaniel Hanks, Minors,
Plaintiffs-Appellants, v. SCOTT COTLER, Individually and as Agent of
Rush University Medical Center; SYED ZAIDI, Individually and as
Agent of Rush University Medical Center; RUSH UNIVERSITY
MEDICAL CENTER; HUGH M. O’NEILL, Individually and a Agent of
Family Practice Health Care; AJAY BAJAJ, Individually and as Agent
of Midwest Gastroenterology Associates, Ltd.; THOMAS J. LAYDEN;
THELMA WILEY-LUCAS, Individually and as Agent of Rush
University Medical Center; and ALLYSON HANKS, Defendants-
Appellees.
District & No. First District, Fourth Division
Docket No. 1-10-1088
Filed September 29, 2011
Rehearing denied October 11, 2011
Held Multiple counts of a refiled and amended complaint for medical
(Note: This syllabus negligence in the treatment and diagnosis of plaintiff’s condition arising
constitutes no part of from tests indicating a possible diagnosis of hepatitis C were properly
the opinion of the court dismissed as untimely under the two-year statute of limitations and the
but has been prepared four-year statute of repose applicable to medical malpractice actions, and
by the Reporter of the counts alleging plaintiff’s children’s loss of society due to his injuries
Decisions for the were properly dismissed on the ground that Illinois law does not
convenience of the recognize a cause of action for a child’s loss of a parent’s society due to
reader.)
a nonfatal injury.
Decision Under Appeal from the Circuit Court of Cook County, No. 08-L-9056; the Hon.
Review Thomas P. Quinn, Judge, presiding.
Judgment Affirmed.
Counsel on Robert A. Holstein, of Holstein Law Offices, LLC, of Chicago, for
Appeal appellants.
Scott L. Howie, Migeul A. Ruiz, and Suzanne M. Crowley, all of Pretzel
& Stouffer Chtrd., of Chicago, for appellees Family Practice Health Care
P.C. and Hugh M. O’Neill.
Sherry A. Mundorff and Laura J. Young, both of Kominiarek Bresler
Harvick & Gunmundson LLC, of Chicago, for appellees Thomas J.
Layden and Thelma Wiley-Lucas.
Jennifer L. Medenwald and Roger Littman, both of Querrey & Harrow,
Ltd., of Chicago, for appellees Ajay Bajaj and Midwest Gastroenterology
Associates, Ltd.
Panel PRESIDING JUSTICE LAVIN delivered the judgment of the court, with
opinion.
Justices Pucinski and Sterba concurred in the judgment and opinion.
OPINION
¶1 Phillip Hanks, the appellant, sought medical treatment for various physical symptoms in
2002. Early test results suggested the possible diagnosis of hepatitis C. His care providers
performed, among other procedures, an endoscopic diagnostic procedure called an ERCP
(endoscopic retrograde cholangiopancreatography), which was designed to aid doctors in
determining the cause of the patient’s complaints. That procedure was, to say the least,
complicated, resulting in various medical problems and causing Hanks to file a complaint
in 2003 against defendants Dr. Scott Cotler, Dr. Syed Zaidi, and Rush Medical Center
(Rush), alleging medical negligence. This complaint was voluntarily dismissed in 2008 and
refiled later that same year. The refiled complaint added various additional health care
providers as defendants, including Dr. Hugh M. O’Neill, Dr. Ajay Bajaj, Dr. Thomas J.
-2-
Layden, Dr. Thelma Wiley-Lucas, Midwest Gastroenterology Associates, Ltd., and Family
Practice Health Care. Remarkably enough, appellant at that time also added his ex-wife as
a defendant, claiming, inter alia, that she had previously failed to cooperate in the
malpractice litigation and had, therefore, abandoned any “interest” in the litigation. The
twice-amended complaint contained 24 counts.1 Defendant moved to dismiss various counts
of the second amended complaint, with the circuit court eventually dismissing counts III
through VII, IX, and XII through XXI, for various reasons, chief among them being that the
malpractice lawsuit was time-barred by the relevant statute of limitations and not saved by
the relevant statute of repose. On appeal, Hanks contends that the trial court’s rulings
dismissing those counts for being time-barred were in error and that the trial court improperly
refused to recognize a cause of action for his children’s loss of society, which presumably
would not be time-barred because of their minority. We affirm the trial court in all respects.
¶2 I. BACKGROUND
¶3 A. Factual Background
¶4 The following facts were derived from Hanks’ second amended complaint. In February
2002, Hanks was advised by his primary care physician, Hugh M. O’Neill M.D., that Hanks’
blood test results indicated the possible diagnosis of hepatitis C. Hanks was referred to Dr.
Ajay Bajaj for further examination, but that doctor was “booked” for the following two
months. Because of this, Hanks instead visited a hepatologist, Dr. Talal Sunbulli at Little
Company of Mary Hospital, who ordered a “hepatic profile,” which examines liver enzymes
in an individual’s blood. Based on the hepatic profile, Dr. Sunbulli ordered a liver biopsy,
which was performed on March 29, 2002. The biopsy indicated that Hanks’ hepatitis C
infection was so slight as to be classified at the “minimal gradation of grade I, stage 0.”
¶5 Shortly after this biopsy, Hanks again consulted with Dr. Sunbulli because he began to
experience jaundice and itching. Dr. Sunbulli ordered a liver ultrasound to be conducted, but
its results did not indicate any duct blockage or other obstructive process that would normally
cause Hanks’ complaints. Hanks was subsequently advised that his jaundice would resolve
over time. Hanks then returned to Dr. O’Neill on April 16, 2002, and reported the medical
events between their two visits. For some reason, Dr. O’Neill allegedly contacted Dr. Bajaj
instead of Dr. Sunbulli and scheduled an April 19, 2002, appointment on Hanks’ behalf for
the purpose of further exploring his symptoms. During that appointment, Dr. Bajaj referred
Hanks to Rush, assuming he was specifically referring Hanks to Dr. Donald Jensen, a
nationally renowned liver specialist, but it developed that Jensen had left Rush for a position
at the University of Chicago. Hanks was instead seen at Rush by Dr. Scott Cotler, whom he
1
Counts I through VII and IX alleged medical negligence amongst the various defendants,
VIII alleged institutional negligence against Rush, X through XV advanced various theories of
vicarious liability, XVI advanced a conspiracy amongst various defendants, XVII through XIV
contained allegations of fraud, XX and XXI alleged loss of consortium and society on behalf of
Hanks’ children, XXII challenged Hanks’ marital settlement agreement as to Allyson Hanks, and
XXIII and XXIV raised certain discovery issues.
-3-
claimed was “much less experienced.”
¶6 Hanks met with and was examined by Dr. Cotler. It was alleged that Cotler did not
consult with Sunbulli and advised Hanks to undergo the aforementioned ERCP to help
evaluate the potential role of his biliary system in causing his complaints. The ERCP was
scheduled to be performed on that day. Dr. Syed Zaidi performed the ERCP, which had to
be aborted because Hanks unexpectedly awoke during the procedure while a scope was still
in his abdomen. Hanks was hospitalized at Rush following the aborted ERCP, where he
experienced nausea, fever, pain in his lower abdominal area, and significant weight loss. He
was diagnosed as having ERCP-induced pancreatitis, a medical condition in which the
pancreas is acutely inflamed as a result of the trauma caused by the instrumentation involved
in the procedure.
¶7 Hanks returned to Dr. Bajaj around September 4, 2002, to complete the previously
aborted ERCP. The procedure was apparently performed appropriately and no biliary duct
obstruction was discovered. Another liver biopsy, however, was recommended and
completed on November 5, 2002. It is after completion of the liver biopsy that Hanks alleges
his medical providers began actively steering him in the wrong medical direction.
Specifically, he alleged that Drs. Bajaj, O’Neill, and Cotler conferred with each other and
agreed that Hanks’ hepatitis C infection had advanced at a rapid rate and could have by then
invaded his liver cells. Hanks later met with Dr. Bajaj, who told Hanks that his hepatitis C
had not advanced significantly since March 2002, and continued to treat and prescribe
medication for Hanks in relation to his jaundice, itching, diarrhea, pancreatitis and stage I
hepatitis.
¶8 Dr. O’Neill later spoke with Cotler regarding Hanks’ recent liver biopsy. Cotler stated
that he was acquainted with Dr. Thelma Wiley-Lucas, a doctor at the University of Illinois
at Chicago Medical Center (UIMC) that worked with Dr. Thomas J. Layden almost
exclusively on hepatitis C patients. Cotler related that he would ask Dr. Wiley-Lucas to
create a workup of Hanks for possible liver cancer. Cotler was alleged to have told O’Neill
that Wiley-Lucas was aware of the aborted ERCP and “was confident that she would not tell
[Hanks] anything about his current condition as being related if she were to order a workup.”
O’Neill subsequently called Wiley-Lucas and arranged for her to see Hanks on December
9, 2002. Wiley-Lucas informed O’Neill at that time that she was winding down her
employment with UIMC and would be moving to Rush and would not be able to treat Hanks
after performing a workup on him. In a meeting with Hanks around November 20, 2002,
O’Neill allegedly said that the referral to Wiley-Lucas was prompted by the failure to find
any causes to Hanks’ persistent jaundice, diarrhea, and other related ailments.
¶9 On December 9, 2002, Hanks was seen by Wiley-Lucas. A letter by Wiley-Lucas
indicated she was aware of the March 2002 liver biopsy indicating Hanks’ hepatitis C
infection to be at an extremely low level, as well as the subsequent CT and ultrasound scans
that were conducted to determine whether any blockages existed that might have been
causing Hanks’ jaundice. Hanks’ complaint was openly critical of the fact that the letter
apparently did not mention the aborted ERCP or any consequences related to it. Another liver
biopsy was performed on Hanks’ liver on December 11, 2002. The biopsy, dated December
17, 2002, indicated that Hanks’ hepatitis C was at stage III, with fibrosis (a precancerous
-4-
condition) being present. Wiley-Lucas performed an abdominal CT scan, which showed a
mass formation in Hanks’ liver.
¶ 10 When Wiley-Lucas departed from UIMC, Hanks’ treatment was continued by Dr. Layden
at UIMC. However, Hanks alleges none of the medical professionals at UIMC was made
aware of the December 2002 scans and test results until nearly a year later. In spring of 2004,
Hanks returned to Wiley-Lucas for treatment at Rush and she was said to have no
recollection of previously meeting or treating Hanks. Hanks also alleges that while Wiley-
Lucas acquired portions of his medical history, she failed to acquire records of her treatment
of him while at UIMC and thus failed to advise him that he had stage III hepatitis C, fibrosis,
and a growth on his liver. On August 10, 2005, Hanks and Wiley-Lucas met at Rush, where
Hanks asked whether she believed his hepatitis C had become worse. He also explained that
none of his medications seemed to have any effect on his tiredness. Wiley-Lucas allegedly
said the fatigue was due to subsiding pancreatitis and that Hanks had cirrhosis of the liver.
¶ 11 Hanks was diagnosed on August 29, 2006 with liver cancer, ultimately receiving a liver
transplant about 14 months later. Hanks’ second amended complaint also recounts his
numerous hospitalizations for his various maladies throughout the years, including diabetes,
acute and chronic pancreatitis, and liver cancer. He attributes all of his aggravated medical
problems to the aborted ERCP in April 2002.
¶ 12 B. Procedural Background
¶ 13 Hanks initially filed a lawsuit pertaining to the underlying facts on March 20, 2003,
naming Dr. Zaidi, Dr. Cotler, and Rush as defendants. Hanks’ 2003 complaint contained
several counts, including various allegations of medical negligence resulting in personal
injury and loss of consortium. The medical negligence counts against Cotler alleged that he
failed to properly examine Hanks or advise him as to the risks associated with an ERCP. It
was also alleged that Cotler deviated from the applicable standard of care by failing to
monitor Hanks’ condition after the aborted ERCP. The allegations against Zaidi were fairly
similar, with the additional allegation that he attempted the ERCP without properly
ascertaining whether Hanks was properly sedated, all of which “induced pancreatitis to set
in aggravating [Hanks’] existing medical condition.”
¶ 14 Discovery commenced and progressed up to the taking of depositions of Hanks’ treating
physicians, but on April 22, 2008, Hanks voluntarily dismissed his complaint. Several
months later, Hanks refiled his complaint, which revolved around the same treatment but
which contained new defendants and new theories of liability. Defendants moved to dismiss
the complaint but Hanks, in response, requested and was granted leave to amend the
complaint. Hanks’ first amended complaint was eventually dismissed but he was granted
leave to file a second amended complaint, which Hanks did on October 23, 2009. The second
amended complaint, which is at issue on appeal, contained 24 counts alleging various
theories of liability amongst the numerous defendants. Defendants again moved to dismiss
the second amended complaint under sections 2-615 and 2-619 of the Code of Civil
Procedure (735 ILCS 5/2-615, 2-619 (West 2008)). Ultimately, the circuit court denied
motions to dismiss certain counts relating to the 2003 defendants (Dr. Cotler, Dr. Zaidi, and
-5-
Rush) but dismissed counts III through VII, IX, and XII through XXI. Hanks now appeals.
¶ 15 II. ANALYSIS
¶ 16 A. Time-Barred Counts
¶ 17 Hanks first contends that the circuit court erred in dismissing various counts in his second
amended complaint as being time-barred. A motion to dismiss pursuant to section 2-615 or
section 2-619 of the Code (735 ILCS 5/2-615, 2-619 (West 2008)) admits as true all well-
pleaded facts, as well as reasonable inferences to be drawn therefrom. Purmal v. Robert N.
Wadington & Associates, 354 Ill. App. 3d 715, 720 (2004). However, “conclusions of law
and conclusory factual allegations not supported by allegations of specific facts are not
deemed admitted.” Id. Furthermore, Illinois is a fact-pleading jurisdiction that requires a
plaintiff to present a legally and factually sufficient complaint and a plaintiff must allege
sufficient facts to state all the elements of the asserted cause of action. Id. A motion to
dismiss under section 2-615 of the Code attacks the legal sufficiency of a complaint, and only
attacks the face of the complaint. Board of Directors of Bloomfield Club Recreation Ass’n
v. The Hoffman Group, Inc., 186 Ill. 2d 419, 423 (1999). A motion to dismiss under 2-619
of the Code, on the other hand, admits the legal sufficiency of well-pleaded factual
allegations but raises defects or defenses that act to defeat the claims. Solaia Technology,
LLC v. Specialty Publishing Co., 221 Ill. 2d 558, 579 (2006). This court reviews de novo
orders dismissing causes of actions as time-barred under section 2-619(a)(5) of the Code
(735 ILCS 5/2-619(a)(5) (West 2008)). Peregrine Financial Group, Inc. v. Futronix Trading,
Ltd., 401 Ill. App. 3d 659, 660 (2010).
¶ 18 In the case sub judice, two legal impediments were raised to defeat the relevant counts
in Hanks’ second amended complaint: the statute of limitations and the statute of repose.
Each is outlined 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.” 735 ILCS 5/13-212(a) (West 2008).
Accordingly, section 13-212(a) contains a two-year statute of limitations and a four-year
statute of repose that impose time limits on when a plaintiff can timely file a cause of action
for professional medical negligence. Follis v. Watkins, 367 Ill. App. 3d 548, 557 (2006).
¶ 19 As to the statute of limitations, the common-law discovery rule tolls the commencement
of the limitations period until the potential plaintiff possesses sufficient information
concerning his or her injury and its cause to put a reasonable person on notice to make
further inquiries. Lama v. Preskill, 353 Ill. App. 3d 300, 304 (2004). The characteristics of
-6-
the alleged negligence and its effect upon the plaintiff in the form of recognizable injury is
of particular relevance in this sort of inquiry. A good source of jurisprudence in this area is
found in our supreme court’s decision in Golla v. General Motors Corp., 167 Ill. 2d 353(1995).
¶ 20 In Golla, our supreme court stated that “where a plaintiff’s injury is caused by a ‘sudden
traumatic event,’ such as the automobile accident that occurred in this case, the cause of
action accrues, and the statute of limitations begins to run, on the date the injury occurs.” Id.
at 362-63. Although Golla explained that “latent” physical injuries may arise in medical
malpractice cases where a cause of action does not immediately accrue, such cases involve
circumstances where plaintiffs “did not discover they had suffered any injury until long after
the tortious conduct occurred,” which is unlike a case where some sort of injury is
immediately apparent. (Emphasis in original.) Id. at 367. Our supreme court has further
stated that plaintiffs need not know the full extent of their injuries before the statute of
limitations triggers, and in fact, “the general rule [is] that the limitations period commences
when the plaintiff is injured, rather than when the plaintiff realiz[ed] the consequences of the
injury or the full extent of her injuries.” Id. at 364.
¶ 21 The statute of repose, however, is distinct in that it runs regardless of whether a patient
is aware of any negligence at the termination of treatment. Id. Our supreme court has
acknowledged the “harsh consequences” from such a statutory scheme as it could bar causes
of actions even before their discovery; however, the “ ‘period of repose gives effect to a
policy different from that advanced by a period of limitations’ ” and is “ ‘intended to
terminate the possibility of liability after a defined period of time, regardless of a potential
plaintiff’s lack of knowledge.’ ” Cunningham v. Huffman, 154 Ill. 2d 398, 406 (1993)
(quoting Mega v. Holy Cross Hospital, 111 Ill. 2d 416, 422 (1986)). The supreme court
further explained that a four-year outer limit on malpractice liability was enacted specifically
to curtail “long tail” exposure to medical malpractice claims. Id.¶ 22 The statute of repose, however, could begin to toll at a later date if there was an ongoing
course of negligent medical treatment. Willis v. Khatkhate, 373 Ill. App. 3d 495, 500 (2007).
This requires a plaintiff to demonstrate: (1) that there was a continuous and unbroken course
of negligent treatment; and (2) that treatment was so related and continuous as to constitute
one continuous wrong. Id.¶ 23 In an attempt at achieving some measure of clarity in this somewhat muddled factual
scenario, we will address Hanks’ appeal defendant by defendant. First, Dr. O’Neill of Family
Practice Health Care was Hanks’ family practitioner and he last saw Hank on November 20,
2002. Counts III, XII, XIII, XVI, and XVII relate to Dr. O’Neill, and they allege medical
negligence and fraud against Dr. O’Neill and vicarious liability as to Family Practice Health
Care under theories of respondeat superior and apparent agency.
¶ 24 We first observe that the statute of limitations would bar most claims as to Dr. O’Neill.
In March 2003, Hanks had already filed a complaint against other medical treaters relating
to the aborted ERCP of April 2002 and the various injuries he allegedly subsequently
suffered. Although Hanks argues that certain subsequent injuries to his liver were distinct
and separate from those alleged in his 2003 complaint, his 2008 second amended complaint
-7-
nevertheless continues to attribute the root cause of his injuries to the aborted ERCP.
Furthermore, as stated above, plaintiffs need not know the full extent of their injuries before
the statute of limitations triggers. Under the principles outlined above in Golla, Hanks was
clearly aware of some type of injury at the time of the relevant sudden traumatic event, or the
failed ERCP, because he filed a lawsuit as a result. At best, Hanks must have been aware of
an injury by the filing of his original March 2003 complaint, and thus the two-year statute
of limitations would have run out at the latest by March 2005, several years before the
complaint that included O’Neill as a defendant was filed.
¶ 25 Even if we were to agree with Hanks that the applicable statute of limitations somehow
did not serve to bar claims against O’Neill, the statute of repose undeniably would. It is
undisputed that O’Neill’s last meeting with Hanks was on November 20, 2002, and it is also
alleged that O’Neill later met with Dr. Wiley-Lucas regarding Hanks’ care on January 8,
2003. As stated above, the four-year statute of repose period commences at the termination
of treatment regardless of a patient’s “awareness.” Therefore, any cause of action as to
O’Neill would have been potentially time-barred as early as November 20, 2006, but in any
event, no later than January 8, 2007, over 20 months before the 2008 complaint was filed.
¶ 26 In an attempt to avoid the application of the statutes of limitation and repose, Hanks
argues that O’Neill engaged in various forms of fraudulent concealment. Fraudulent
concealment is provided in section 13-215 of the Code (735 ILCS 5/13-215 (West 2008)) as
the only exception to the limitations and repose periods in section 13-212(a) of the Code
(735 ILCS 5/13-212(a) (West 2008)). It provides:
“If a person liable to an action fraudulently conceals the cause of such action from
the knowledge of the person entitled thereto, the action may be commenced at any
time within 5 years after the person entitled to bring the same discovers that he or she
has such cause of action, and not afterwards.” 735 ILCS 5/13-215 (West 2008).
Our supreme court has clarified this to a degree and held that concealment, as contemplated
by section 13-215, must consist of “affirmative acts or representations calculated to lull or
induce a claimant into delaying filing of his or her claim, or to prevent a claimant from
discovering a claim.” Orlak v. Loyola University Health System, 228 Ill. 2d 1, 18 (2007).
These acts and representations by a defendant must be knowingly false and made with the
intent to deceive a plaintiff. Id.¶ 27 As to O’Neill, we first note that the allegation of fraudulent concealment is entirely
inconsistent with his referral of the patient to different specialists for further diagnosis. More
importantly, however, our review of Hanks’ second amended complaint reveals that he
alleges that O’Neill withheld information regarding certain unfavorable results from his liver
biopsies and the aborted ERCP, and Hanks concludes that this failure to act constitutes
fraudulent concealment. These allegations are clearly insufficient to constitute an affirmative
act or representation calculated to conceal a cause of action. There is a recognized distinction
between a defendant allegedly concealing an injury as opposed to obfuscating a cause of
action. Bloom v. Braun, 317 Ill. App. 3d 720, 728-29 (2000). The former is insufficient to
establish fraudulent concealment. Id. Here, there is no allegation that the acts, or perhaps
more accurately, the inactions, were calculated or intended to prevent Hanks from
-8-
discovering a cause of action. Instead, these were at best allegations of silence, and our
supreme court has held that mere silence on the part of a defendant is insufficient to establish
fraudulent concealment. Orlak, 228 Ill. 2d at 18.
¶ 28 Equally fatal to Hanks’ allegations of fraudulent concealment is the fact that he had
already filed a complaint in 2003 alleging that the aborted ERCP induced pancreatitis and
aggravated his liver condition. Hanks’ second amended complaint alleges various acts of
negligence on the part of O’Neill in direct relation to the aborted ERCP, which has served
as the basis to all of Hanks’ claimed damages since 2003. To now argue that he was
somehow lulled or induced into not filing a claim based on the aborted ERCP until 2008 due
to withheld information is the apogee of disingenuousness. It is well settled that where a
reasonable amount of time remains in the applicable limitations or repose period when a
plaintiff discovers, or should have discovered through ordinary diligence, a cause of action,
section 13-215 will not extend that period. Kheirkhahvash v. Baniassadi, 407 Ill. App. 3d
171, 181 (2011); see Turner v. Nama, 294 Ill. App. 3d 19, 27 (1997).
¶ 29 Here, it is undisputed that Hanks was aware that he had a cause of action based on the
ERCP by March 20, 2003, when he filed his first complaint relating to the matter. His
complaint was filed more than four years later. Accordingly, we find that the circuit court
properly dismissed all counts against Dr. O’Neill.
¶ 30 Next, we will address Dr. Bajaj of Midwest Gastroenterology Associates. Counts IV,
XIV, XV, XVI, XVIII, and XXI of the second amended complaint relate to Dr. Bajaj. The
allegations within those counts mirror those that related to Dr. O’Neill.
¶ 31 Bajaj and Midwest Gastroenterology Associates stand in essentially the same position
as O’Neill. First, our above analysis regarding the statute of limitations is no different and
is adopted here. Second, to the extent Hanks might argue that there are factual questions to
be determined as to when the statute of limitations triggered, there can be no question as to
when the statute of repose was triggered. Dr. Bajaj’s last contact, and thus last treatment,
with Hanks was on November 5, 2002, when a second liver biopsy was performed.
Therefore, the statute of repose would have run by November 5, 2006, well before the 2008
complaint was filed.
¶ 32 Hanks also advances allegations of fraudulent concealment against Bajaj, but he has
again framed these allegations of fraudulent concealment as failures to inform him regarding
his injuries, such as allegedly concealing information as to the results of the aborted ERCP
and liver biopsies. We reiterate that allegations regarding a defendant’s diagnosis of, or
failure to diagnose, the nature and gravity of an illness is insufficient to establish fraudulent
concealment. Zagar v. Health & Hospitals Governing Comm’n of Cook County, 83 Ill. App.
3d 894, 898 (1980). Our above discussion regarding the 2003 complaint in relation to the
2008 allegations of fraudulent concealment as to O’Neill is equally applicable here to Bajaj.
Accordingly, we find that the circuit court properly dismissed all counts against Dr. Bajaj.
¶ 33 Count VII of the second amended complaint relates to Dr. Layden and advances an
allegation of medical negligence. Hanks asserts that Dr. Layden’s treatment was negligent
in his failure to properly review certain test results or accurately diagnose Hanks’ ailments.
This count, however, is also untimely. Again, even if we were to accept Hanks’ assertion that
-9-
the statute of limitations was not triggered until a much later time, he does not dispute that
Layden’s last treatment with Hanks was November 26, 2003. The statute of repose would
have run by November 26, 2007, nearly a year before Hanks finally filed his 2008 complaint.
Accordingly, count VII was properly dismissed as time-barred.
¶ 34 Finally, we consider the counts against Dr. Wiley-Lucas. Counts V, VI, XVI, and XIX
relate to Wiley-Lucas. Count V specifically concerns alleged negligence in treatment that
occurred during Wiley-Lucas’ time at UIMC, which ended in December 2002. Accordingly,
the statute of repose had run by December 2006, and thus count V was properly dismissed
as time-barred regardless of when the statute of limitations may have been triggered for these
allegations. Count XIX contains allegations of fraudulent concealment and suffers similar
infirmities as the fraudulent concealment allegations against Dr. O’Neill and Dr. Bajaj.
Although Hanks alleges information regarding his alleged injuries caused by the ERCP were
improperly withheld from him, it is nevertheless couched in terms of a failure to diagnose,
silence, or at worst, a concealment of an injury as opposed to a deliberate concealment of a
cause of action. Accordingly, the analysis and discussion above regarding Dr. O’Neill and
Dr. Bajaj are applicable to count XIX.
¶ 35 Count VI and portions of count XVI require a slightly more detailed discussion as they
address interactions between Dr. Wiley-Lucas and Hanks while she was at Rush in 2004 and
2005. Hanks had visited Dr. Wiley-Lucas previously in 2002 at UIMC for treatment and a
liver workup. There was a significant break in their relationship as she transferred
employment to Rush, where it is alleged that Wiley-Lucas would not provide further
treatment to Hanks and where she had no recollection of previously treating him. Hanks,
however, alleges that when he met with Wiley-Lucas during the “spring of 2004” for
treatment as well as on August 10, 2005, she was negligent by failing to inform him of
previous test results from 2002.
¶ 36 Our decision in Ferrara v. Wall, 323 Ill. App. 3d 751 (2001), is instructive here. There,
we held that a defendant’s failure to notify a patient of abnormal test results did not
constitute a continuing course of negligent medical treatment and, thus, the four-year period
of repose was triggered at the time the defendant received, and failed to communicate to the
patient, the abnormal test results. Ferrara, 323 Ill. App. 3d at 756-57. This conclusion
reaffirmed our previous decision in Turner, which similarly held that a failure to notify a
patient of unfavorable medical results did not constitute medical treatment and thus was not
a continuing course of negligent medical treatment that might toll a statute of repose. Turner,
294 Ill. App. 3d at 31-32. In Ferrara, a defendant received certain unfavorable test results
in 1993 but did not advise the patient of the test results until 1995. Ferrara, 323 Ill. App. 3d
at 757. Consistent with the principles stated above, this court rejected the plaintiff’s
argument that the repose period did not trigger until 1995, but instead began to run in 1993
upon defendant’s receipt of the test results. Id. Likewise, we must reject Hanks’ argument
here that any counts in his 2008 complaint regarding Dr. Wiley-Lucas during her time at
Rush and her alleged failure to relate or retrieve her previous test results were not time-
barred. Dr. Wiley-Lucas’ test results were dated December 17, 2002, and thus under Turner
and Ferrara, the statute of repose had run by December 17, 2006, just as it had for count V.
Again, because Dr. Wiley-Lucas was not named as a defendant until August 2008, regardless
-10-
of whether counts VI and XVI are time-barred by a statute of limitations, they are certainly
time-barred by the statute of repose. Accordingly, all counts against Dr. Wiley-Lucas that
were dismissed as time-barred were properly dismissed.
¶ 37 B. Loss of Society and Consortium
¶ 38 Hanks next contends that this court should recognize the availability of a cause of action
for his children’s loss of society due to his injuries, which were counts XX and XXI in his
second amended complaint.
¶ 39 This contention finds no support in Illinois case law, which Hanks admits does not
recognize a cause of action for a child’s loss of his or her parent’s society due to a nonfatal
injury. Our own research reveals we have explicitly and consistently held that no minor has
a “cause of action for loss of parental consortium when the parent survives, no matter how
seriously the parent is injured.” Karagiannakos v. Gruber, 274 Ill. App. 3d 155, 157 (1995);
see Van de Veire v. Sears, Roebuck & Co., 178 Ill. App. 3d 794 (1989); Hearn v. Beelman
Truck Co., 154 Ill. App. 3d 1022, 1023-24 (1987); Huter v. Ekman, 137 Ill. App. 3d 733, 735
(1985). In a related vein, our supreme court has held that a parent cannot recover damages
for loss of companionship and society resulting from nonfatal injuries to a child. Vitro v.
Mihelcic, 209 Ill. 2d 76, 88 (2004); Dralle v. Ruder, 124 Ill. 2d 61, 66 (1988). We find the
supreme court’s holding in Vitro to be instructive and decline to depart from this court’s long
line of firmly established precedent on this precise issue. These counts were properly
dismissed as having a nonexistent legal basis, and accordingly, the circuit court did not err
here.
¶ 40 III. CONCLUSION
¶ 41 For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.
¶ 42 Affirmed.
-11-