Nair v. Bloom ( 2008 )

FIRST DIVISION
June 23, 2008
No. 1-06-2448
JOSETTA NAIR and SEGRAN NAIR, ) Appeal from the
) Circuit Court of
Plaintiffs-Appellants, ) Cook County.
)
v. )
)
ALLEN BLOOM, M.D., MELVIN BOULE, M.D., )
and RUSH-COPLEY MEMORIAL HOSPITAL and )
THE RUSH SYSTEM FOR HEALTH, ) Honorable
) Donald J. Suriano,
Defendants-Appellees. ) Judge Presiding.
JUSTICE WOLFSON delivered the opinion of the court:
The outcome of this case turns on when plaintiffs knew or
should have known their injury was wrongfully caused.
Plaintiffs Josetta Nair and Segran Nair filed a complaint
for medical malpractice and loss of consortium against defendants
Allen Bloom, M.D., Melvin Boule, M.D., and Rush-Copley Memorial
Hospital (Rush-Copley) and The Rush System for Health (Rush).
The trial court entered summary judgment for defendants,
concluding the complaint was filed after the two-year statute of
limitations had run. We affirm.
FACTS
According to plaintiffs’ Second Amended Complaint, on
September 2, 1998, Josetta Nair went to the Rush-Copley emergency
room complaining of abdominal pain. Dr. Alan Bloom examined her
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and performed a surgical consultation. Dr. Melvin Boule, a
radiologist, read her CT scan and ultrasound as normal. Josetta
was discharged from the hospital. Josetta returned to the
emergency room the next day with complaints of abdominal pain.
She was given a shot for pain management and sent home. On
September 4, 1998, she arrived at Rush-Copley with complaints of
severe abdominal pain and vomiting. She was admitted to the
hospital.
On September 5, 1998, Dr. Bloom performed exploratory
surgery and removed an "adhesive band" of tissue blocking the
bowel. He diagnosed Josetta with a small bowel obstruction. She
remained in the hospital for the next ten days.
On September 15, 1998, Dr. Bloom performed a second surgery.
Following the second surgery, Josetta was transferred to Rush-
Presbyterian Hospital under the care of Dr. Alexander Doolas. On
September 16, 1998, Dr. Doolas performed a third surgery on
Josetta. Several days after surgery, Josetta attempted to walk
and discovered her legs would not support her weight. She was
told by her physicians this was a common side effect of her
abdominal surgeries.
In late September 1998, she was transferred to a
rehabilitation center where she remained a patient until December
1998. She continued to receive therapy and improved from a
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wheelchair, to a walker, to a cane. Josetta says she questioned
her doctors as to the cause of her continuing abdominal pain and
leg weakness. None of the doctors could answer her questions.
In March 1999, the plaintiffs spoke with Dr. Doolas. Segran
Nair told Dr. Doolas he was considering using "legal resources"
to find out what was wrong with his wife’s legs. Dr. Doolas said
he spoke on the telephone with Josetta, who asked him if he would
be affected if the Nairs went to a lawyer. Dr. Doolas noted
Segran believed Dr. Bloom was responsible for the condition of
Josetta’s legs. Dr. Doolas advised Josetta to get a
neurologist’s opinion. He told her he did not believe Dr. Bloom
caused the neuropathy. In a letter to Dr. Bloom, dated March 18,
1999, Dr. Doolas said Josetta had "bilateral weakness of both her
lower legs which is due to some neurologic defect that neurology
has not defined yet." He said he explained to the Nairs that
"this was not related to her previous surgery."
In the Spring of 1999, the Nairs consulted with attorney
Paul McMahon. Segran Nair testified their purpose was to find
out what was wrong with Josetta’s legs. The record contains a
letter, dated November 22, 1999, from McMahon to Rush-Copley,
indicating he represented Josetta Nair in a cause of action for
injuries and requesting a set of complete medical records. Also
in the record is an authorization for the release of medical
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records bearing Josetta Nair’s signature. Segran Nair testified
McMahon told him they didn’t have a case.
In the Spring of 2000, the Nairs consulted with another
attorney, Kathleen Zelner. They signed a retention agreement
with Zelner. Zelner sent the Nairs a letter and a reviewing
physician’s report three to six months afterward. The Nairs had
no further communication with Zelner. The letter and report are
not in the record.
In August 2001, Dr. Patricia Boatwright performed surgery on
Josetta to remove ovarian cysts. Dr. Boatwright’s discharge
summary indicated "the patient has a past medical history
significant for multiple abdominal surgeries, secondary to a
questionable mesenteric vein thrombosis following a surgery for
lysis of adhesions," and "the patient had also sustained some
nerve damage from her previous surgeries, which resulted in
bilateral lower extremity paresthesias and neuropathies."
Josetta says it was not until August 17, 2001, when she read Dr.
Boatwright’s discharge summary, that she first knew the injuries
to her legs and abdominal area were wrongfully caused by the
defendants.
On August 29, 2002, plaintiffs filed their complaint against
the defendants. On November 13, 2002, plaintiffs submitted two
physician’s reports concluding Dr. Bloom and Dr. Boule breached
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the prevailing standard of care. On September 29, 2003,
plaintiffs filed their second amended complaint. Defendants
filed motions for summary judgment contending the complaint was
untimely filed. The trial court entered summary judgment in
favor of the defendants.
DECISION
Section 13-212 of the Code of Civil Procedure provides:
"(a) 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
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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 2004).
The statute of limitations begins to run "when a person
knows or reasonably should know of his injury and also knows or
reasonably should know that it was wrongfully caused." Knox
College v. Celotex Corp., 88 Ill. 2d 407, 415, 430 N.E.2d 976
(1981). "At that point the burden is upon the injured person to
inquire further as to the existence of a cause of action."
Witherell v. Weimer, 85 Ill. 2d 146, 156, 421 N.E.2d 869 (1981).
The term "wrongfully caused" is to be regarded as a general or
generic term rather than a term of art. Knox College, 88 Ill. 2d
at 416. The plaintiff need not have knowledge of a specific
defendant’s negligent conduct or of the existence of a cause of
action before triggering the statute. Knox College, 88 Ill. 2d
at 415, citing Nolan v. Johns-Manville Asbestos, 85 Ill. 2d 161,
170-71, 421 N.E.2d 864 (1981).
"At some point the injured person becomes
possessed of sufficient information
concerning his injury and its cause to put a
reasonable person on inquiry to determine
whether actionable conduct is involved. At
that point, under the discovery rule, the
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running of the limitations period commences."
Knox College, 88 Ill. 2d at 416.
In many, if not most, cases the time when an injured party
knows or reasonably should know of his injury and that it was
wrongfully caused is an issue of fact. Witherell, 85 Ill. 2d at
156. But where it is apparent from the undisputed facts that
only one conclusion can be drawn, the question becomes one for
the court. Witherell, 85 Ill. 2d at 156.
Summary judgment is proper where, "when viewed in the light
most favorable to the nonmoving party, the pleadings,
depositions, admissions, and affidavits on file reveal that there
is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law." General
Casualty Insurance Co. v. Lacey, 199 Ill. 2d 281, 284, 769 N.E.2d
18 (2002), citing 735 ILCS 5/2-1005(c) (West 2004). We review a
grant of summary judgment de novo. General Casualty Insurance,
199 Ill. 2d at 284.
Defendants contend the limitations period began to run on
the date of Josetta’s second surgery, September 15, 1998, after
which she experienced new symptoms of leg pain, weakness, and
numbness in her legs. Plaintiffs contend they did not know of
the defendants’ alleged malpractice until August 2001, within two
years of the filing of their complaint in August 2002. We do not
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agree with either contention.
In her deposition, Josetta Nair was asked the following
questions and gave the following answers:
"Q. By the time you went to rehab back in ‘98, you knew that your
leg problem was associated with your surgeries, didn’t you?
A. Um-hum.
Q. Yes?
A. Yes.
Q. You knew you didn’t have the surgery on your legs, right?
A. Right.
Q. You knew that you hadn’t had prior problems with your legs.
A. Right.
Q. You knew that the thing that brought you into the hospital
first on September 2nd was your abdomen and not your legs.
A. Right.
Q. You had never had any problems whatsoever with your legs
before September 16th, true?
A. True.
Q. So there was no question in your mind that this new problem
with your legs was because of the surgeries you had undergone,
surgery or surgeries you had undergone?
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A. That all of my physical problems were a result of that, yes.
Q. But specifically your legs were a result of the surgery,
right?
A. Right."
In his deposition, Segran Nair was asked the following
questions and gave the following answers:
"Q. And isn’t it the truth that certainly by March of 1999 you
believed that something that Dr. Bloom had done during the
surgery in September of 1998 had caused this problem with her
legs, isn’t that true?
***
A. Any normal person would think that a wife was walking and went
to surgery of the stomach and come out not walking. So, of
course, anybody would think there’s got to be something,
something went wrong.
Q. And that’s what you thought--
A. That’s what I’m thinking.
Q. --as early as March of 1999, right?
A. Of course, yes.
***
Q. Did you ask Dr. Doolas what would happen if you hired a lawyer
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or is that something your wife said?
A. No. I said that--he was upset at me that I asked him what
happened, like nobody knows what happened to my wife’s leg, why
she’s not walking. And that’s when we said well, nobody is
answering our questions, so we have to use, you know, legal
resources to find out will my wife ever walk again or what’s
wrong with her. How come she went for the surgery of the stomach
now she’s coming out and she can’t walk; that’s what we want.
Q. Now I know you’re not a doctor--
A. Right.
Q. --but as of this time in March of 1999 it was your personal
belief that something happened during the surgery that Dr. Bloom
had performed to cause your wife’s problems with her legs, is
that true?
A. I don’t know who causes it, but I knew something went wrong.
***
Q. So, you had an understanding in the spring of 2000 that Miss
Zelner expected to be paid based upon a recovery she would make
on your behalf in a lawsuit?
A. Right. Well, she told me that she has to send it to a doctor
and the doctor needs to be compensated, and I said I don’t have
any money right now. And that’s when we signed an agreement.
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Q. So, did you have an understanding that by the spring of 2000
Miss Zelner was going to begin an investigation into the filing
of a potential lawsuit on your behalf and on behalf of your wife?
A. Yes.
Q. And that was in April or May of 2000?
A. Yes, somewhere."
The plaintiffs rely on Young v. McKiegue, 303 Ill. App. 3d
380, 708 N.E.2d 493 (1999). In Young, the plaintiff’s husband
was treated for pneumonia and died on the day he was to be
discharged from the hospital. The plaintiff requested an autopsy
because she suspected inappropriate medical care contributed to
her husband’s death. Young, 303 Ill. App. 3d at 383. The
autopsy report indicated the death was from complications of
pneumonia. Plaintiff retained an attorney to investigate the
nature of decedent’s death. Plaintiff’s attorney received two
physician’s reports, on August 17, 1994, and on February 16,
1995, both concluding the treating physicians deviated from the
standard of care by failing to recognize decedent’s cardiac
distress. Young, 303 Ill. App. 3d at 384. In her complaint for
wrongful death, plaintiff contended it was not until receipt of
the second report in February 1995 that she knew decedent’s death
was possibly caused by a misdiagnosed cardiac event. The trial
court dismissed plaintiff’s claims against several later-added
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defendants, finding the limitations period began in December 1993
when plaintiff received the medical records and retained a
lawyer. Young, 303 Ill. App. 3d at 385.
The appellate court held the plaintiff knew or reasonably
should have known no later than August 17, 1994, when her
attorney received the first physician’s report, that her
husband’s death was wrongfully caused. Plaintiff’s claims not
filed within two years of that date were time-barred. Young, 303
Ill. App. 3d at 389. The court further held an issue of fact
existed as to whether the plaintiff possessed the requisite
knowledge before August 1994. Young, 303 Ill. App. 3d at 389.
The court said:
"[S]uspecting wrongdoing is not the same as
knowing that a wrong was probably committed.
Furthermore, whether a party possessed the
requisite constructive knowledge contemplates
an objective analysis of the factual
circumstances involved in the case. Thus,
the relevant determination rests on what a
reasonable person should have known under the
circumstances, and not on what the particular
party specifically suspected." Young, 303
Ill. App. 3d at 390, citing LaManna v. G.D.
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Searle & Co., 204 Ill. App. 3d 211, 218-19,
561 N.E.2d 1170 (1990).
In Young, the plaintiff was told her husband died from
complications of pneumonia, and she merely suspected he may have
received inappropriate medical care. In this case, the
plaintiffs testified they knew the injuries to Josetta’s legs
were caused by the surgery on September 15, 1998, and they knew
the leg symptoms were not a normal outcome from abdominal
surgery. Segran Nair testified plaintiffs retained a lawyer in
the Spring of 2000 for the purposes of filing a lawsuit against
the responsible physicians. We find that by Spring 1999, or, at
the latest, by Spring 2000, when plaintiffs retained two
attorneys to investigate a claim on their behalf, plaintiffs
knew or reasonably should have known of their injuries and that
the injuries were wrongfully caused.
There is no requirement that the plaintiff must discover the
full extent of her injuries before the statute begins to run.
Hoffman v. Orthopedic Systems, Inc., 327 Ill. App. 3d 1004, 1010,
765 N.E.2d 116 (2002). In Hoffman, 327 Ill. App. 3d at 1010, the
court found it significant that plaintiff retained an attorney
within six months of her operation, "demonstrating that she then
was on inquiry as to whether the injury was wrongfully caused,
thereby commencing the two-year limitations period within which
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to take appropriate legal action." A person knows or reasonably
should know an injury is "wrongfully caused" where he or she
possesses "sufficient information concerning [an] injury and its
cause to put a reasonable person on inquiry to determine whether
actionable conduct is involved." Knox College, 88 Ill. 2d at
416. At that point, it is plaintiff’s burden to inquire further
about the existence of a cause of action. Witherell, 85 Ill. 2d
at 156.
In so holding, we make no finding that plaintiff’s injury
was caused by a sudden, traumatic event. "The classification of
an injury as ‘traumatic’ or ‘nontraumatic’ merely aids in the
determination of when the plaintiff discovered, or should have
discovered, that the injury was caused by the wrongful conduct of
a defendant." Pszenny v. General Electric Co., 132 Ill. App. 3d
964, 966, 478 N.E.2d 485 (1985). Regardless of how Josetta’s
injuries are classified, by the time plaintiffs consulted with
two attorneys, plaintiffs knew or reasonably should have known
their injuries were wrongfully caused. Accordingly, plaintiffs’
complaint was filed more than two years after the limitations
period began and should have been dismissed. See 735 ILCS 5/13-
212(a) (West 2004). We affirm the trial court’s order granting
summary judgment to the defendants.
Affirmed.
GARCIA and R. GORDON, JJ., concur.
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REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
(Front Sheet to be Attached to Each Case)
Please use JOSETTA NAIR and SEGRAN NAIR,
following form:
Plaintiffs-Appellants,
Complete v.
TITLE
of Case ALLEN BLOOM, M.D., MELVIN BOULE, M.D., and RUSH-
COPLEY MEMORIAL HOSPITAL and THE RUSH SYSTEM FOR
HEALTH,
Defendants-Appellees.
Docket Nos. No. 1-06-2448
COURT Appellate Court of Illinois
First District, 1st Division
Opinion
Filed June 23, 2008
(Give month, day and year)
JUSTICES JUSTICE WOLFSON delivered the opinion of the court:
GARCIA, and R. GORDON, JJ., concur.
APPEAL from the Lower Court and Trial Judge(s) in form indicated in margin:
Circuit Court of
Cook County; the Appeal from the Circuit Court of Cook County.
Hon.___________,
Judge Presiding. The Hon. Donald J. Suriano, Judge Presiding.
For APPELLANTS, Indicate if attorney represents APPELLANTS or APPELLEES and
John Doe, of include attorneys of counsel. Indicate the word NONE if
Chicago. not represented.
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For APPELLEES, For Appellants, Lionel Jean-Baptiste, JEAN-BAPTISTE &
Smith and Smith, ASSOCIATES, of Evanston.
of Chicago
For Appellees - Rush-Copley Memorial Hospital and The Rush
Joseph Brown, System for Health: HINSHAW & CULBERTSON LLP, of Chicago.
of counsel). (Joshua G. Vincent, Peter A. Walsh, and David A.
Sorensen, of Counsel.)
Also add attor- For Appellee Melvin Boule, M.D.: Carmel M. Cosgrave,
neys for third- Michael Resis and Linda F. Newman, SMITH AMUNDSEN LLC,
party appellants of Chicago.
and/or appellees.
For Appellee Allen Bloom, M.D.: Lawrence Helms, Kevin
Boyle and Elizabeth Bruer, SWANSON, MARTIN & BELL, LLP,
of Chicago.
(USE REVERSE SIDE IF NEEDED)
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