Wells v. Travis
Annotate this Case
No. 2--95--0686
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
_________________________________________________________________
ELSIE WELLS, Indiv. and as ) Appeal from the Circuit Court
Adm'r of the Estate of ) of Kane County.
Robert Wells, Deceased, )
)
Plaintiff-Appellant, ) No. 93--L--0074
)
v. )
)
DOUGLAS TRAVIS and )
KARIM VALIKA, ) Honorable
) R. Peter Grometer,
Defendants-Appellees. ) Judge, Presiding.
_________________________________________________________________
JUSTICE DOYLE delivered the opinion of the court:
This case examines the question of when plaintiff received
sufficient information under the discovery rule to trigger the
running of the limitations period in a medical malpractice action.
On February 3, 1993, plaintiff, Elsie Wells, special
administrator of the estate of Robert G. Wells (decedent), sued
defendant, Douglas Travis, M.D. (Travis), alleging a cause of
action for medical negligence for failure to diagnose and treat
diabetes mellitus that resulted in decedent's death. On January
19, 1995, plaintiff filed a first amended complaint adding
defendant Karim Valika, M.D. (Valika). Counts IV, V, and VI of
plaintiff's amended complaint alleged causes of action under the
Wrongful Death Act (740 ILCS 180/0.01 et seq. (West 1994)), the
family expense statute (750 ILCS 65/15 (West 1994)), and the
Survival Act (755 ILCS 5/27--6 (West 1994)), respectively. Valika
filed a motion to dismiss with prejudice pursuant to section 2--
619(a)(5) of the Code of Civil Procedure (Code) (735 ILCS 5/2--
619(a)(5) (West 1994)), asserting that the allegations listed in
the amended complaint were time-barred by the two-year statute of
limitations applicable to medical negligence causes of action (see
735 ILCS 5/13--212(a) (West 1994)). The trial court granted
Valika's motion to dismiss with prejudice. This appeal followed.
Plaintiff contends the trial court erred as a matter of law in
granting Valika's section 2--619(a)(5) motion.
Plaintiff's suit arose from the death of the decedent on
February 10, 1991. On February 7, 1991, decedent was admitted to
Sherman Hospital after a referral from his family physician,
Travis. Travis requested a consultation by Valika and on February
8, 1991, Valika diagnosed decedent as suffering from newly
discovered diabetes mellitus with a hypersmolar condition and
severe hyperglycemia. Decedent died on February 10, 1991, from
multiple complications.
On February 3, 1993, plaintiff filed suit against Travis,
asserting he had been medically negligent in failing to diagnose
and treat decedent's diabetes mellitus. The complaint alleged that
decedent "was caused to die due to complications resulting from
undiagnosed and untreated diabetes mellitus." Plaintiff's attorney
filed a section 2--622 affidavit on February 3, 1993, and a written
health professional's report by Robert Lindemann, M.D., on June 28,
1993. See 735 ILCS 5/2--622(a)(1) (West 1994). The report
indicated Lindemann had reviewed decedent's treatment records "from
1983 through the time of his death, including his stay in *** [the]
[h]ospital." The record contains an August 21, 1992, report by
Lindemann to his employer, Saprano, Inc., criticizing departures
from good medical care by Travis. In this report Lindemann stated
he "did not feel there was any malpractice involved in [decedent's]
care once he was admitted to the hospital since he developed
complications that can occur despite the best of treatment." As
her only response to Rule 220 interrogatories questioning the date
plaintiff first learned of Lindemann's opinions, plaintiff attached
Lindemann's August 21, 1992, report.
In depositions, Travis' defense experts, William Hulesch,
M.D., and David Baldwin, M.D., each criticized the medical care
rendered by Valika. The depositions of Hulesch and Baldwin were
taken on December 22, 1994, and December 28, 1994, respectively.
In their depositions, both witnesses stated: (1) Valika mismanaged
the decedent's care; (2) Valika deviated from the acceptable
standard of care; and (3) decedent would have survived if Valika
had treated decedent correctly.
Following the discovery depositions of Hulesch and Baldwin,
plaintiff filed a motion for leave to file an amended complaint.
The motion was granted and the amended complaint, adding Valika as
a defendant, was filed on January 19, 1995. Plaintiff alleged in
her amended complaint that the dates of the Hulesch and Baldwin
depositions were the "first dates" plaintiff knew or reasonably
should have known that Valika "wrongfully caused" decedent's death.
We turn first to the nature of appellate review of a trial
court's dismissal of a complaint pursuant to section 2--619. The
purpose of section 2--619 is to allow for the disposition of
questions of law and easily proved fact issues at the outset of the
case. See, e.g., Zedella v. Gibson, 165 Ill. 2d 181, 185 (1995).
Unlike a motion with respect to the pleadings brought under section
2--615 (Illinois Graphics Co. v. Nickum, 159 Ill. 2d 469, 484
(1994)(section 2--615 motion attacks only the legal sufficiency of
the complaint and deals exclusively with defects appearing on the
face of the complaint)), a trial court ruling on a section 2--619
motion may consider the "pleadings, depositions, and affidavits"
(Zedella, 165 Ill. 2d at 185). We have stated:
"The motion should be granted and the complaint dismissed if,
after construing the document in the light most favorable to
the nonmoving party, the court finds that no set of facts can
be proved which would entitle the plaintiff to recover.
[Citations.] When reviewing the propriety of a section 2--619
dismissal, all well-pleaded facts alleged in the complaint are
taken as true. [Citation.] Conclusions of law or conclusions
of material fact unsupported by specific factual allegations
must be disregarded. [Citation.] As such, the reviewing
court is concerned solely with a question of law presented by
the pleadings." Nikolic v. Seidenberg, 242 Ill. App. 3d 96,
98-99 (1993).
Finally, an appellate court conducts an independent review of the
propriety of dismissing the complaint and, therefore, is not
required to defer to a trial court's reasoning. Nikolic, 242 Ill.
App. 3d at 99.
The issue here is whether the trial court erred as a matter of
law in granting Valika's section 2--619(a)(5) motion. Parties
claiming medical negligence must file their complaint within two
years of "the date on which the claimant knew, or through the use
of reasonable diligence should have known, *** of the existence of
the injury or death for which damages are sought in the action."
735 ILCS 5/13--212(a) (West 1994). Our supreme court has stated
that "[t]he statute starts 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." Witherell v. Weimer, 85 Ill. 2d 146, 156 (1981)(discussing the operation of the discovery rule in
medical negligence cases). When this occurs, the injured person is
obligated to inquire further as to the existence of a cause of
action. Witherell, 85 Ill. 2d at 156. The court may determine--as
a matter of law--when the injured party knew or reasonably should
have known both of the injury and that it was wrongfully caused,
only in those situations in which the undisputed facts lead to a
single conclusion. Witherell, 85 Ill. 2d at 156. In most cases
though, this is a disputed question for the fact finder. Knox
College v. Celotex Corp., 88 Ill. 2d 407, 416 (1981). As a matter
of law, the latest date the statute of limitations contained in
section 13--212(a) can commence is the date the plaintiff files the
initial lawsuit. McCormick v. Uppuluri, 250 Ill. App. 3d 386, 391
(1993). However, the McCormick rule may not apply when a plaintiff
fails to discover that a particular defendant wrongfully caused a
decedent's death because of the defendant's misstatement,
concealment, or fraud. See Neade v. Engel, 277 Ill. App. 3d 1004,
1005-06, 1009 (1996).
In the present case, plaintiff argues that she had no
information implicating Valika in the alleged malpractice until the
depositions of Travis' experts in December 1994. Plaintiff
contends that there was no reason for her to have known earlier of
her claim against Valika, particularly in view of the report of
plaintiff's expert, Lindemann, who expressly exonerated personnel
treating decedent in the hospital, including Valika. Applying the
discovery rule of section 13--212, plaintiff asserts that her first
amended complaint against Valika was timely filed on January 19,
1995, within two years of the December 1994, depositions of Travis'
experts.
Defendant contends that the trial court correctly determined
that the two-year discovery rule was triggered as a matter of law
on August 21, 1992, when plaintiff became aware of Lindemann's
report implicating Travis as deviating from the acceptable standard
of care in his diagnosis and treatment of decedent. Defendant
argues that because the first amended complaint, first naming
defendant, was filed more than two years after August 21, 1992,
plaintiff's action against defendant was time-barred pursuant to
section 13--212. We agree.
The essence of plaintiff's position is that a person is not
charged with knowledge sufficient to trigger the running of the
limitations period as to any particular defendant until the person
knows or reasonably should know that the injury was wrongfully
caused by the negligence of that defendant. The supreme court has
expressly disavowed any such interpretation of the discovery rule,
holding, instead, that the statute of limitations begins to run
when "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." Knox College, 88 Ill. 2d at 416. At that point the
burden is upon the person to inquire further as to the existence of
a cause of action. Witherell, 85 Ill. 2d at 156. The supreme
court has explained the reason for this rule as follows:
"We wish to emphasize that the rule we announce is not
the same as a rule which states that a cause of action
accrues when a person knows or should know of both the
injury and the defendants' negligent conduct. Not only is
such a standard beyond the comprehension of the ordinary lay
person to recognize, but it assumes a conclusion which must
properly await legal determination. [Citation.] Moreover,
if knowledge of negligent conduct were the standard, a party
could wait to bring an action far beyond a reasonable time
when sufficient notice has been received of a possible
invasion of one's legally protected interest." (Emphasis
added.) Nolan v. Johns-Manville Asbestos, 85 Ill. 2d 161,
170-71 (1981).
Knowledge that an injury has been "wrongfully caused" does not
mean knowledge of a specific defendant's negligent conduct.
Saunders v. Klungboonkrong, 150 Ill. App. 3d 56, 59 (1986); Bates
v. Little Co. of Mary Hospital, 108 Ill. App. 3d 137, 140 (1982).
We believe that the rejection of this fundamental principle, as
urged by plaintiff and advocated by the dissenting justice, would
represent an unwarranted departure from existing precedent.
The injury complained of in this case is the death of
decedent. It is evident that plaintiff had reason to know of the
death and that actionable conduct might be involved when plaintiff
received the August 21, 1992, report of Lindemann implicating
Travis and, after reviewing records of decedent's hospital
treatment, exculpating Valika as a negligent party. As a matter of
law, therefore, the limitations period commenced on that date.
Because plaintiff's knowledge of the contents of Lindemann's August
21, 1992, report was undisputed, no relevant issue of fact was
presented.
This reasoning is directly followed in McCormick v. Uppuluri,
250 Ill. App. 3d 386. In that case, the plaintiff alleged that the
defendant-physician negligently treated him for a kidney ailment
during the plaintiff's stay in a hospital. The defendant asserted
the section 13--212 statute of limitations as an affirmative
defense and moved for summary judgment on that issue. The
defendant predicated his motion on the fact that the plaintiff had
filed a previous action against several other physicians for the
same injury, which action was voluntarily dismissed. The defendant
argued in his motion for summary judgment that the plaintiff, at
the latest, must have known of his injury and that it was
wrongfully caused when he filed the earlier lawsuit against other
physicians. Because the plaintiff did not file suit against the
defendant within two years of that date, the defendant argued that
the action was time-barred as a matter of law.
The plaintiff in McCormick asserted that a genuine issue of
material fact existed on the issue of when he first learned, for
limitations purposes, that he had a cause of action against the
defendant. The plaintiff explained that, following his voluntary
dismissal of the previous suit, he received a written expert
opinion stating that the defendant deviated from the acceptable
standard of care. The plaintiff submitted an affidavit asserting
that " '[t]his was the first time that he came into possession of
the knowledge that his injuries had been wrongfully caused by the
aforesaid defendant.' " 250 Ill. App. 3d at 389. The plaintiff
argued, therefore, that he had two years from this date to file his
action against the defendant.
In affirming the entry of summary judgment for the defendant,
the appellate court rejected the plaintiff's contention. Citing
Knox College and Nolan, the court held that "the running of the
limitations clock is not postponed until the plaintiff first
obtains knowledge of defendant's negligent conduct. Rather, and as
noted, the limitations clock commences when 'the injured person
becomes possessed of sufficient information concerning his injury
to determine whether actionable conduct is involved.' " McCormick,
250 Ill. App. 3d at 391, quoting Knox College, 88 Ill. 2d at 416.
The court held that the plaintiff's filing of the previous lawsuit
against other physicians established as a matter of law that the
plaintiff had sufficient information concerning his injury and its
cause to trigger the limitations period. Even if the plaintiff did
not have such actual knowledge, the court held that it must be
imputed to him. McCormick, 250 Ill. App. 3d at 391.
Similarly, in the present case, plaintiff cannot be heard to
argue that she did not possess sufficient knowledge on August 21,
1992, concerning the death and its cause to put a reasonable person
on inquiry to determine whether actionable conduct was involved,
when it is undisputed that she was in possession of the report of
her own expert concluding that the conduct of Travis departed from
acceptable medical standards. If the requisite knowledge of facts
triggering a duty to investigate must be presumed from the filing
of a malpractice claim against other defendants, it follows that
such knowledge must also be presumed from plaintiff's awareness of
her consultant expert's report criticizing departures from the
proper standard of medical care, regardless of whom the expert
identified as a responsible party. The plaintiff had two years
from the date of her expert's report to conduct her inquiry to
determine whether, and against whom, a lawsuit could be filed. If
plaintiff was unsatisfied that Lindemann had correctly identified
all persons responsible for the alleged malpractice, she had two
years to conduct further inquiry or to consult any other expert.
Even before the supreme court addressed this issue in Nolan,
the same issue had been considered and resolved by this court in
Guebard v. Jabaay, 65 Ill. App. 3d 255 (1978). There, the
plaintiff timely filed a medical malpractice action against other
defendants but claimed to have not discovered that Dr. Angell had
performed one of the surgeries on her knee until this information
emerged during the plaintiff's deposition of one of the original
defendants. The plaintiff argued that, because she filed an
amended complaint adding a claim against Angell within two years of
this discovery of his involvement, the trial court erred in
dismissing her complaint against Angell as time-barred by the
statute of limitations. This court rejected the plaintiff's
interpretation of the discovery rule, commenting as follows:
"Plaintiff's contention in the present case would
extend the discovery rule as applied to medical malpractice
cases to mean that the cause of action accrues when the
person injured learns, or reasonably should have learned, of
the identity of the person responsible for his injury, even
though he earlier knew of the injury itself. We are not
aware of any case in which the discovery rule has been so
extended or applied and we are not convinced that the logic
of the rule warrants such an extension by us. [Citation.]
In applying the discovery rule the court will balance the
hardship on the plaintiff caused by the bar of his suit
against the increased burden of a defendant to obtain proof
of his defense after the passage of time. [Citations.] The
hardship imposed upon a party who is unaware he has an
actionable injury until after the limitations period has run
is much more severe than that imposed upon a party who
knows, or reasonably should know, he has suffered an
actionable injury but does not learn the identity of the
person who injured him until after the limitations period
has passed. The former is in no position to take advantage
of the limitations period in which to determine the identity
of the party injuring him. The latter, however, knows he
has a cause of action, has the time given by the limitations
period to attempt to learn the identity of the person who
injured him and is not in the position of being barred
before ever knowing of his right to sue. (Emphasis in
original.) 65 Ill. App. 3d at 258-59.
Plaintiff argues that the nature of decedent's death was such
that it failed to signal any actionable wrongdoing. However, this
argument is wholly irrelevant to the basis of our decision, i.e.,
that, subsequent to the death, plaintiff was placed on inquiry of
actionable conduct based upon the August 21, 1992, report of
Lindemann, thereby triggering the running of the limitations
period.
Plaintiff relies on Arndt v. Resurrection Hospital, 163 Ill.
App. 3d 209 (1987), for the proposition that, under the discovery
rule, the limitations period is not triggered as to any particular
defendant until the plaintiff has reason to know that the injury
was wrongfully caused by the negligence of that defendant. A
careful reading of Arndt, however, reveals that it does not stand
for plaintiff's proposition.
In Arndt, the plaintiff's decedent died in a hospital on
January 18, 1983. On December 21, 1984, the plaintiff sued the
hospital for malpractice and designated the defendant-physician as
a respondent in discovery. On September 18, 1985, the plaintiff
filed suit against the defendant. In a subsequent amended
complaint, the plaintiff alleged that she did not learn of the
defendant's negligence until his discovery deposition was taken on
May 14, 1985. In view of the fact that the plaintiff was at her
husband's bedside and knew when he died, the trial court determined
that the plaintiff failed to file suit against the defendant until
more than two years after the death. The trial court, therefore,
dismissed the action as time-barred, refusing to recognize that the
discovery rule could postpone the beginning of the limitations
period beyond the date of death.
The appellate court reversed, concluding, consistent with case
law cited herein, that the limitations clock did not begin to tick
until the plaintiff had reason to know both of the death and that
the death was wrongfully caused. The appellate court
understandably focused upon the May 14, 1985, deposition, in which
the defendant's negligence was discovered, as being the date the
plaintiff first had reason to know of wrongful causation. The
defendant did not argue, as was argued in McCormick, that the
plaintiff was aware of wrongful causation no later than the date of
her December 21, 1984, lawsuit against the hospital. Indeed, any
such argument would have been futile considering that the plaintiff
had filed suit against the defendant well within two years of her
suit against the hospital. Therefore, the only relevant date
proposed for extending the commencement of the limitations period
beyond the date of death was the date of plaintiff's discovering
the defendant's negligence, which was accepted by the appellate
court as tantamount to discovery of wrongful causation.
Unlike McCormick (previous filing of suit against other
defendants triggered statute) and the present case (statute
triggered by report of plaintiff's expert), no event earlier than
the date of the plaintiff's learning facts of the defendant's
negligence was argued to the Arndt court as imparting knowledge of
wrongful causation. Consequently, the discovery of wrongful
causation was regarded by the court as coinciding with the
discovery of the defendant's negligence. In view of the parties'
positions, it was unnecessary for the court to look further as
there was no issue of whether under different circumstances, as
here, these events could occur separately, thereby producing a
different outcome. Accordingly, despite excerpts quoted by
plaintiff from the decision, we do not read Arndt as supporting
plaintiff's proposition that knowledge of wrongful causation cannot
be acquired in advance of plaintiff's having reason to know of the
negligence of a particular defendant. We note that the same
appellate district, in McCormick, later expressly rejected any such
proposition. McCormick, 250 Ill. App. 3d at 391.
Plaintiff further argues that an exception to the well-
established principles enunciated in Nolan, McCormick, and Guebard
is warranted here because plaintiff's compliance with the health
professional certification requirements of section 2--622 resulted
in her development of information negating the existence of a cause
of action against Valika. In essence, plaintiff contends that she
was lulled into foregoing any potential investigation of Valika's
conduct by the misleading report of her consultant, Lindemann, who
exonerated any person treating decedent after his admission to the
hospital.
The appellate court considered a similar argument in Beasley
v. Abusief, 146 Ill. App. 3d 54 (1986). In that case, the
plaintiff's first section 2--622 consultant filed a report
exonerating the defendant-surgeon of malpractice. Approximately 10
months later, a second consultant rendered an opinion concluding
that the defendant had been negligent in the surgery. After
hearing evidence, the trial court found in favor of the defendant
on his limitations defense. On appeal, the plaintiff argued that
the trial court erred in not directing a verdict in the plaintiff's
favor on this issue. The plaintiff contended that her first
consultant's opinion, which negated a cause of action, should have
been considered as tolling the two-year limitations period until
the plaintiff received the second consultant's section 2--622
certification of negligence. Plaintiff asserted that, in the face
of the initial opinion, she could not have filed an action against
the defendant in good faith until she received a contrary opinion.
The appellate court recognized the dilemma confronting a
person in plaintiff's position but rejected the notion that a
consultant's opinion negating negligence could be used to toll the
plaintiff's allotted two-year period for identifying responsible
parties. The court reasoned:
"Holding that the limitation period is not triggered until
a prospective malpractice plaintiff secures an expert
witness qualified to testify to the described necessary
elements for a prima facie case would clearly extend the
limitation period unduly and leave the four-year period of
section 13--212, after which a defendant has absolute
repose, as the only substantial protection that such a
defendant would have against stale claims.
*** Moreover, recognizing that professionals are
reluctant to be critical of their brethren, we would be
apprehensive that a medical opinion detrimental to a cause
of action for malpractice is likely to exist in a large
number of cases. The [tolling] rule requested by plaintiffs
would be likely to create almost as serious a problem as
would a rule that the limitation period does not begin to
run until a favorable medical opinion is available." 146
Ill. App. 3d at 60.
In view of established precedent, we will not create an
exception to the statute of limitations because plaintiff elected
to rely on the opinion of her chosen expert rather than continuing
her investigation. This court has recognized an exception to the
statute when there is evidence that a defendant has acted to
conceal evidence of his liability. Neade, 277 Ill. App. 3d 1004.
The record of the present case discloses no facts which could
invoke this exception. If evidence of fraud or concealment
existed, it was plaintiff's burden to present it in opposition to
defendant's section 2--619 motion.
For the foregoing reasons, the judgment of the circuit court
of Kane County is affirmed.
Affirmed.
THOMAS, J., concurs.
JUSTICE HUTCHINSON, dissenting:
The majority concludes plaintiff would not be able to prove
any set of facts demonstrating that her amended complaint against
Valika was timely under section 13--212 of the Code (735 ILCS 5/13-
-212 (West 1994)). I freely admit that upon remand plaintiff
probably would not be able to demonstrate her amended complaint was
timely. In terms of the ultimate result in the present case, there
is scant difference between my position and that of the majority.
However, the gulf of our disagreement and its ramifications for
injured persons in future medical negligence cases are immense. In
its affirmance of the trial court's grant of summary judgment--
despite the fact the trial court itself apparently failed to
determine the date on which the statute of limitations ran--the
majority creates the potential that plaintiffs will inequitably be
denied the possibility of redress despite the reasonableness of the
manner in which they inquire into the wrongful cause of injury or
death. Therefore, I respectfully dissent.
My disagreement with the majority turns on our differing views
of the interaction between section 2--622 of the Code (735 ILCS
5/2--622 (West 1994)) and the discovery rule announced by the
Illinois Supreme Court in Witherell v. Weimer, 85 Ill. 2d 146
(1981). In Witherell our supreme court stated the statute of
limitations in medical negligence actions "starts 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."
(Emphasis added.) Witherell, 85 Ill. 2d at 156. Assuming that an
injured person knows or reasonably should know of his injury, the
emphasized portion of this quotation sets forth two triggers that
commence the statute of limitations: (1) actual knowledge that the
injury was wrongfully caused; or (2) information and/or
circumstances that would put a reasonable person on notice, i.e.,
constructive notice, that the injury was wrongfully caused.
I believe that the majority's application of section 2--622
precludes any examination of reasonableness. This is contrary to
the above-quoted language from Witherell and section 13--212 of the
Code (see 735 ILCS 5/13--212 (West 1994)(medical negligence action
must be brought within two years "after the date on which the
claimant knew, or through the use of reasonable diligence should
have known *** of the injury or death")). The majority states
"[b]ecause plaintiff's knowledge of the contents of Lindemann's
August 21, 1992, report was undisputed, no relevant issue of fact
was presented." Slip op. at 8. Therefore, the majority apparently
believes the mere fact that a section 2--622 investigation has been
conducted is sufficient to put any and all injured persons on
constructive notice under almost all possible circumstances. Such
a per se rule forecloses--once a section 2--622 report and
affidavit are filed--any examination of the reasonableness or
unreasonableness of an injured party's assertion that they did not
know their injury was wrongfully caused.
I respectfully submit that a section 2--622 investigation
should not serve as a substitute for making a factual determination
whether an injured party reasonably should have known his injury
was wrongfully caused. There is nothing magical about a section 2-
-622 investigation. Its validity, accuracy, and comprehensiveness
may be affected by numerous factors completely beyond the control
of the injured party. Among these factors are (1) the misconduct
by defendants delaying the discovery of the wrongful cause of
injury or death (see Neade v. Engel, 277 Ill. App. 3d 1004, 1005-
06, 1009 (1996) (holding that the statute of limitations did not
commence--despite the filing of a prior complaint against another
physician--until the defendant's deposition made the plaintiff
aware of the defendant's involvement in the decedent's death, where
the plaintiff failed to discover the defendant's involvement
because of the defendant's misstatement, concealment, or fraud));
(2) the negligent maintenance or preparation of the medical record
by defendants or their employees or agents (see Steinberg v.
Dunseth, 276 Ill. App. 3d 1038, 1049 (1995)(stating that a "worst
case situation, medical records personnel might be involved in a
cover-up" (emphasis added) thereby implying such personnel might
also innocently fail to provide the section 2--622 expert with all
incriminating records); (3) the causal connection between the
potential defendant's conduct and the injury or death is so complex
it might be reasonable for a section 2--622 expert to fail to
identify a potential defendant; and (4) the negligence of the
section 2--622 reviewing health professional. In terms of the
fourth factor, I highlight the legislature's decision to make
section 2--622 health professionals immune from civil liability,
provided they prepare their reports in good faith. 735 ILCS 5/2--
622(f) (West 1994). Therefore, it is all the more inequitable and
unjust to make an injured person bear the consequences of such an
expert's failure. I would be more circumspect than the majority in
applying section 2--622.
All the above factors present valid potential factual problems
with a section 2--622 investigation that might render reasonable an
injured person's failure to continue to inquire and learn a
defendant's conduct was a wrongful cause of injury or death. I
would not close off consideration of these factors by way of a per
se rule.
The majority makes the commencement of the statute of
limitations a question of law. The only question of fact would be
the date on which the investigation was completed. Our supreme
court has stated that the commencement of the statute of
limitations in medical negligence cases is "[i]n many, if not most,
cases *** a disputed question to be resolved by the finder of
fact." Witherell, 85 Ill. 2d at 156; see also, e.g., Jackson
Jordan, Inc. v. Leydig, Voit & Mayer, 158 Ill. 2d 240, 250
(1994)(rule applied in legal negligence cause). This longstanding
and often announced rule should not be abandoned on the basis of an
unintended interaction among section 13--212(a), section 2--622,
and the discovery rule. This is buttressed by the fact section 2--
622 is a pleading requirement designed to limit frivolous lawsuits;
it is not a substantive defense designed to preempt an injured
person's day in court. See McCastle v. Sheinkop, 121 Ill. 2d 188,
193 (1987); Steinberg, 276 Ill. App. 3d at 1042; Miller v. Gupta,
275 Ill. App. 3d 539, 543 (1995); Moscardini v. Neurosurg, S.C.,
269 Ill. App. 3d 329, 334-35 (1994). I agree with the majority
that the discovery of a wrongful cause requires plaintiffs to
inquire further into any possible causes of action. Witherell, 85 Ill. 2d at 156. However, I part company with my colleagues on
whether a plaintiff who has ceased her inquiry into the cause of
injury or death--in reliance on the report of a section 2--622
expert whose participation is both mandated and immunized by the
State--as a matter of law is obligated to continue her inquiry or
risk the limitations period running against an undiscovered
defendant. According to our supreme court, the statute of
limitations commences when "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." (Emphasis added.) Knox College, 88 Ill. 2d
at 416. The majority interprets this passage as creating a one-way
rachet: once an injured person's duty to inquire arises, it can not
abate. I disagree.
The majority states Beasley v. Abusief, 146 Ill. App. 3d 54
(1986) rejected the argument that the opinion of a plaintiff's
first consultant, "which negated a cause of action, should have
been considered as tolling the two-year limitations period until
the plaintiff received the second consultant's section 2--622
certification of negligence." (Emphasis added.) Slip op. at 15.
Beasley should not be relied on. First, Beasley did not involve a
report by a section 2--622 expert. Indeed, it could not. The
Beasley complaint was filed on November 28, 1983. Section 2--622
was added to the Code of Civil Procedure (735 ILCS 5/1--101 et seq.
(West 1994)) by Public Act 84--7, section 1, on August 15, 1985.
Pub. Act 84--7 1, eff. August 15, 1985. Therefore, section 2--622
applies only to cases filed on or after August 15, 1985. See Ill.
Rev. Stat. 1985, ch. 110, par. 2--622, citing Ill. Rev. Stat. 1985,
ch. 110, par. 2--114 (stating that P.A. 84--7 " 'takes effect
August 15, 1985, and applies to all cases filed on or after that
date' "). Understandably, therefore, Beasley does not discuss
section 2--622 or its affect on the Witherell discovery rule and
whether it is reasonable for a plaintiff to suspend inquiries in
reliance on a section 2--622 report and consequently fail to
discover a particular defendant's conduct was a wrongful cause of
injury or death. Second, unlike the present case, the plaintiff in
Beasley had an opportunity to present evidence on whether the
limitations period had run. Beasley, 146 Ill. App. 3d at 55-56, 59
(a jury determined when the plaintiff " 'knew or through the use of
reasonable diligence, should have known' " her injury was caused by
defendant's treatment). Had plaintiff in the present case been
afforded the same opportunity to present evidence as the Beasley
plaintiff, I would have no trouble affirming the trial court. My
objection is to the per se rule fashioned by the majority that
forecloses any examination of the nature, quality, and validity of
the State-mandated section 2--622 examination and report.
I respectfully suggest that the majority's per se rule imposes
hardships on injured persons far outweighing its benefits. The
purpose of a statute of limitations is to balance the hardship to
injured persons barred from presenting their issues, against the
hardship to defendants based on the increasing difficulty of proof
with the passage of time. Nolan v. Johns-Manville Asbestos, 85 Ill. 2d 161, 167-68 (1981). Medical negligence defendants will not
be burdened by increasing difficulties of proof. Medical
negligence cases typically turn on opinion witnesses to establish
the standard of care and breach of that standard. See DeLuna v.
Saint Elizabeth's Hospital, 147 Ill. 2d 57, 70 (1992). This
testimony, like the section 2--622 reports, is premised on medical
records. The utility of these records, unlike the memory of
occurrence witnesses in traditional negligence cases, is unaffected
by the passage of time. Therefore, there is little, if any,
hardship to defendants based on increasing difficulty of proof.
Conversely, the majority's per se rule drastically limits the
applicability of the discovery rule. This, in conjunction with the
good faith immunity provided to section 2--622 health
professionals, increases the likelihood injured persons will be
left without recourse. Additionally, refusing to adopt a per se
constructive notice rule would not, indeed by law it could not,
extend an injured person's time to bring suit beyond section 13--
212(a)'s absolute four-year date. See 735 ILCS 5/13--212(a) (West
1994)(stating that "in no event shall *** [a medical negligence]
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").
Therefore, I would reverse the trial court's order entering
summary judgment and remand the cause for either a full evidentiary
hearing or a bifurcated trial. The issue to be determined would be
whether Lindemann's investigation or the resulting section 2--622
report suffered from any defect sufficient to render reasonable
plaintiff's failure to discover Valika's conduct was a wrongful
cause of decedent's death.
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
_________________________________________________________________
ELSIE WELLS, Indiv. and as ) Appeal from the Circuit Court
Adm'r of the Estate of ) of Kane County.
Robert Wells, Deceased, )
)
Plaintiff-Appellant, ) No. 93--L--0074
)
v. )
)
DOUGLAS TRAVIS and )
KARIM VALIKA, ) Honorable
) R. Peter Grometer,
Defendants-Appellees. ) Judge, Presiding.
_________________________________________________________________
JUSTICE DOYLE delivered the opinion of the court:
This case examines the question of when plaintiff received
sufficient information under the discovery rule to trigger the
running of the limitations period in a medical malpractice action.
On February 3, 1993, plaintiff, Elsie Wells, special
administrator of the estate of Robert G. Wells (decedent), sued
defendant, Douglas Travis, M.D. (Travis), alleging a cause of
action for medical negligence for failure to diagnose and treat
diabetes mellitus that resulted in decedent's death. On January
19, 1995, plaintiff filed a first amended complaint adding
defendant Karim Valika, M.D. (Valika). Counts IV, V, and VI of
plaintiff's amended complaint alleged causes of action under the
Wrongful Death Act (740 ILCS 180/0.01 et seq. (West 1994)), the
family expense statute (750 ILCS 65/15 (West 1994)), and the
Survival Act (755 ILCS 5/27--6 (West 1994)), respectively. Valika
filed a motion to dismiss with prejudice pursuant to section 2--
619(a)(5) of the Code of Civil Procedure (Code) (735 ILCS 5/2--
619(a)(5) (West 1994)), asserting that the allegations listed in
the amended complaint were time-barred by the two-year statute of
limitations applicable to medical negligence causes of action (see
735 ILCS 5/13--212(a) (West 1994)). The trial court granted
Valika's motion to dismiss with prejudice. This appeal followed.
Plaintiff contends the trial court erred as a matter of law in
granting Valika's section 2--619(a)(5) motion.
Plaintiff's suit arose from the death of the decedent on
February 10, 1991. On February 7, 1991, decedent was admitted to
Sherman Hospital after a referral from his family physician,
Travis. Travis requested a consultation by Valika and on February
8, 1991, Valika diagnosed decedent as suffering from newly
discovered diabetes mellitus with a hypersmolar condition and
severe hyperglycemia. Decedent died on February 10, 1991, from
multiple complications.
On February 3, 1993, plaintiff filed suit against Travis,
asserting he had been medically negligent in failing to diagnose
and treat decedent's diabetes mellitus. The complaint alleged that
decedent "was caused to die due to complications resulting from
undiagnosed and untreated diabetes mellitus." Plaintiff's attorney
filed a section 2--622 affidavit on February 3, 1993, and a written
health professional's report by Robert Lindemann, M.D., on June 28,
1993. See 735 ILCS 5/2--622(a)(1) (West 1994). The report
indicated Lindemann had reviewed decedent's treatment records "from
1983 through the time of his death, including his stay in *** [the]
[h]ospital." The record contains an August 21, 1992, report by
Lindemann to his employer, Saprano, Inc., criticizing departures
from good medical care by Travis. In this report Lindemann stated
he "did not feel there was any malpractice involved in [decedent's]
care once he was admitted to the hospital since he developed
complications that can occur despite the best of treatment." As
her only response to Rule 220 interrogatories questioning the date
plaintiff first learned of Lindemann's opinions, plaintiff attached
Lindemann's August 21, 1992, report.
In depositions, Travis' defense experts, William Hulesch,
M.D., and David Baldwin, M.D., each criticized the medical care
rendered by Valika. The depositions of Hulesch and Baldwin were
taken on December 22, 1994, and December 28, 1994, respectively.
In their depositions, both witnesses stated: (1) Valika mismanaged
the decedent's care; (2) Valika deviated from the acceptable
standard of care; and (3) decedent would have survived if Valika
had treated decedent correctly.
Following the discovery depositions of Hulesch and Baldwin,
plaintiff filed a motion for leave to file an amended complaint.
The motion was granted and the amended complaint, adding Valika as
a defendant, was filed on January 19, 1995. Plaintiff alleged in
her amended complaint that the dates of the Hulesch and Baldwin
depositions were the "first dates" plaintiff knew or reasonably
should have known that Valika "wrongfully caused" decedent's death.
We turn first to the nature of appellate review of a trial
court's dismissal of a complaint pursuant to section 2--619. The
purpose of section 2--619 is to allow for the disposition of
questions of law and easily proved fact issues at the outset of the
case. See, e.g., Zedella v. Gibson, 165 Ill. 2d 181, 185 (1995).
Unlike a motion with respect to the pleadings brought under section
2--615 (Illinois Graphics Co. v. Nickum, 159 Ill. 2d 469, 484
(1994)(section 2--615 motion attacks only the legal sufficiency of
the complaint and deals exclusively with defects appearing on the
face of the complaint)), a trial court ruling on a section 2--619
motion may consider the "pleadings, depositions, and affidavits"
(Zedella, 165 Ill. 2d at 185). We have stated:
"The motion should be granted and the complaint dismissed if,
after construing the document in the light most favorable to
the nonmoving party, the court finds that no set of facts can
be proved which would entitle the plaintiff to recover.
[Citations.] When reviewing the propriety of a section 2--619
dismissal, all well-pleaded facts alleged in the complaint are
taken as true. [Citation.] Conclusions of law or conclusions
of material fact unsupported by specific factual allegations
must be disregarded. [Citation.] As such, the reviewing
court is concerned solely with a question of law presented by
the pleadings." Nikolic v. Seidenberg, 242 Ill. App. 3d 96,
98-99 (1993).
Finally, an appellate court conducts an independent review of the
propriety of dismissing the complaint and, therefore, is not
required to defer to a trial court's reasoning. Nikolic, 242 Ill.
App. 3d at 99.
The issue here is whether the trial court erred as a matter of
law in granting Valika's section 2--619(a)(5) motion. Parties
claiming medical negligence must file their complaint within two
years of "the date on which the claimant knew, or through the use
of reasonable diligence should have known, *** of the existence of
the injury or death for which damages are sought in the action."
735 ILCS 5/13--212(a) (West 1994). Our supreme court has stated
that "[t]he statute starts 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." Witherell v. Weimer, 85 Ill. 2d 146, 156 (1981)(discussing the operation of the discovery rule in
medical negligence cases). When this occurs, the injured person is
obligated to inquire further as to the existence of a cause of
action. Witherell, 85 Ill. 2d at 156. The court may determine--as
a matter of law--when the injured party knew or reasonably should
have known both of the injury and that it was wrongfully caused,
only in those situations in which the undisputed facts lead to a
single conclusion. Witherell, 85 Ill. 2d at 156. In most cases
though, this is a disputed question for the fact finder. Knox
College v. Celotex Corp., 88 Ill. 2d 407, 416 (1981). As a matter
of law, the latest date the statute of limitations contained in
section 13--212(a) can commence is the date the plaintiff files the
initial lawsuit. McCormick v. Uppuluri, 250 Ill. App. 3d 386, 391
(1993). However, the McCormick rule may not apply when a plaintiff
fails to discover that a particular defendant wrongfully caused a
decedent's death because of the defendant's misstatement,
concealment, or fraud. See Neade v. Engel, 277 Ill. App. 3d 1004,
1005-06, 1009 (1996).
In the present case, plaintiff argues that she had no
information implicating Valika in the alleged malpractice until the
depositions of Travis' experts in December 1994. Plaintiff
contends that there was no reason for her to have known earlier of
her claim against Valika, particularly in view of the report of
plaintiff's expert, Lindemann, who expressly exonerated personnel
treating decedent in the hospital, including Valika. Applying the
discovery rule of section 13--212, plaintiff asserts that her first
amended complaint against Valika was timely filed on January 19,
1995, within two years of the December 1994, depositions of Travis'
experts.
Defendant contends that the trial court correctly determined
that the two-year discovery rule was triggered as a matter of law
on August 21, 1992, when plaintiff became aware of Lindemann's
report implicating Travis as deviating from the acceptable standard
of care in his diagnosis and treatment of decedent. Defendant
argues that because the first amended complaint, first naming
defendant, was filed more than two years after August 21, 1992,
plaintiff's action against defendant was time-barred pursuant to
section 13--212. We agree.
The essence of plaintiff's position is that a person is not
charged with knowledge sufficient to trigger the running of the
limitations period as to any particular defendant until the person
knows or reasonably should know that the injury was wrongfully
caused by the negligence of that defendant. The supreme court has
expressly disavowed any such interpretation of the discovery rule,
holding, instead, that the statute of limitations begins to run
when "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." Knox College, 88 Ill. 2d at 416. At that point the
burden is upon the person to inquire further as to the existence of
a cause of action. Witherell, 85 Ill. 2d at 156. The supreme
court has explained the reason for this rule as follows:
"We wish to emphasize that the rule we announce is not
the same as a rule which states that a cause of action
accrues when a person knows or should know of both the
injury and the defendants' negligent conduct. Not only is
such a standard beyond the comprehension of the ordinary lay
person to recognize, but it assumes a conclusion which must
properly await legal determination. [Citation.] Moreover,
if knowledge of negligent conduct were the standard, a party
could wait to bring an action far beyond a reasonable time
when sufficient notice has been received of a possible
invasion of one's legally protected interest." (Emphasis
added.) Nolan v. Johns-Manville Asbestos, 85 Ill. 2d 161,
170-71 (1981).
Knowledge that an injury has been "wrongfully caused" does not
mean knowledge of a specific defendant's negligent conduct.
Saunders v. Klungboonkrong, 150 Ill. App. 3d 56, 59 (1986); Bates
v. Little Co. of Mary Hospital, 108 Ill. App. 3d 137, 140 (1982).
We believe that the rejection of this fundamental principle, as
urged by plaintiff and advocated by the dissenting justice, would
represent an unwarranted departure from existing precedent.
The injury complained of in this case is the death of
decedent. It is evident that plaintiff had reason to know of the
death and that actionable conduct might be involved when plaintiff
received the August 21, 1992, report of Lindemann implicating
Travis and, after reviewing records of decedent's hospital
treatment, exculpating Valika as a negligent party. As a matter of
law, therefore, the limitations period commenced on that date.
Because plaintiff's knowledge of the contents of Lindemann's August
21, 1992, report was undisputed, no relevant issue of fact was
presented.
This reasoning is directly followed in McCormick v. Uppuluri,
250 Ill. App. 3d 386. In that case, the plaintiff alleged that the
defendant-physician negligently treated him for a kidney ailment
during the plaintiff's stay in a hospital. The defendant asserted
the section 13--212 statute of limitations as an affirmative
defense and moved for summary judgment on that issue. The
defendant predicated his motion on the fact that the plaintiff had
filed a previous action against several other physicians for the
same injury, which action was voluntarily dismissed. The defendant
argued in his motion for summary judgment that the plaintiff, at
the latest, must have known of his injury and that it was
wrongfully caused when he filed the earlier lawsuit against other
physicians. Because the plaintiff did not file suit against the
defendant within two years of that date, the defendant argued that
the action was time-barred as a matter of law.
The plaintiff in McCormick asserted that a genuine issue of
material fact existed on the issue of when he first learned, for
limitations purposes, that he had a cause of action against the
defendant. The plaintiff explained that, following his voluntary
dismissal of the previous suit, he received a written expert
opinion stating that the defendant deviated from the acceptable
standard of care. The plaintiff submitted an affidavit asserting
that " '[t]his was the first time that he came into possession of
the knowledge that his injuries had been wrongfully caused by the
aforesaid defendant.' " 250 Ill. App. 3d at 389. The plaintiff
argued, therefore, that he had two years from this date to file his
action against the defendant.
In affirming the entry of summary judgment for the defendant,
the appellate court rejected the plaintiff's contention. Citing
Knox College and Nolan, the court held that "the running of the
limitations clock is not postponed until the plaintiff first
obtains knowledge of defendant's negligent conduct. Rather, and as
noted, the limitations clock commences when 'the injured person
becomes possessed of sufficient information concerning his injury
to determine whether actionable conduct is involved.' " McCormick,
250 Ill. App. 3d at 391, quoting Knox College, 88 Ill. 2d at 416.
The court held that the plaintiff's filing of the previous lawsuit
against other physicians established as a matter of law that the
plaintiff had sufficient information concerning his injury and its
cause to trigger the limitations period. Even if the plaintiff did
not have such actual knowledge, the court held that it must be
imputed to him. McCormick, 250 Ill. App. 3d at 391.
Similarly, in the present case, plaintiff cannot be heard to
argue that she did not possess sufficient knowledge on August 21,
1992, concerning the death and its cause to put a reasonable person
on inquiry to determine whether actionable conduct was involved,
when it is undisputed that she was in possession of the report of
her own expert concluding that the conduct of Travis departed from
acceptable medical standards. If the requisite knowledge of facts
triggering a duty to investigate must be presumed from the filing
of a malpractice claim against other defendants, it follows that
such knowledge must also be presumed from plaintiff's awareness of
her consultant expert's report criticizing departures from the
proper standard of medical care, regardless of whom the expert
identified as a responsible party. The plaintiff had two years
from the date of her expert's report to conduct her inquiry to
determine whether, and against whom, a lawsuit could be filed. If
plaintiff was unsatisfied that Lindemann had correctly identified
all persons responsible for the alleged malpractice, she had two
years to conduct further inquiry or to consult any other expert.
Even before the supreme court addressed this issue in Nolan,
the same issue had been considered and resolved by this court in
Guebard v. Jabaay, 65 Ill. App. 3d 255 (1978). There, the
plaintiff timely filed a medical malpractice action against other
defendants but claimed to have not discovered that Dr. Angell had
performed one of the surgeries on her knee until this information
emerged during the plaintiff's deposition of one of the original
defendants. The plaintiff argued that, because she filed an
amended complaint adding a claim against Angell within two years of
this discovery of his involvement, the trial court erred in
dismissing her complaint against Angell as time-barred by the
statute of limitations. This court rejected the plaintiff's
interpretation of the discovery rule, commenting as follows:
"Plaintiff's contention in the present case would
extend the discovery rule as applied to medical malpractice
cases to mean that the cause of action accrues when the
person injured learns, or reasonably should have learned, of
the identity of the person responsible for his injury, even
though he earlier knew of the injury itself. We are not
aware of any case in which the discovery rule has been so
extended or applied and we are not convinced that the logic
of the rule warrants such an extension by us. [Citation.]
In applying the discovery rule the court will balance the
hardship on the plaintiff caused by the bar of his suit
against the increased burden of a defendant to obtain proof
of his defense after the passage of time. [Citations.] The
hardship imposed upon a party who is unaware he has an
actionable injury until after the limitations period has run
is much more severe than that imposed upon a party who
knows, or reasonably should know, he has suffered an
actionable injury but does not learn the identity of the
person who injured him until after the limitations period
has passed. The former is in no position to take advantage
of the limitations period in which to determine the identity
of the party injuring him. The latter, however, knows he
has a cause of action, has the time given by the limitations
period to attempt to learn the identity of the person who
injured him and is not in the position of being barred
before ever knowing of his right to sue. (Emphasis in
original.) 65 Ill. App. 3d at 258-59.
Plaintiff argues that the nature of decedent's death was such
that it failed to signal any actionable wrongdoing. However, this
argument is wholly irrelevant to the basis of our decision, i.e.,
that, subsequent to the death, plaintiff was placed on inquiry of
actionable conduct based upon the August 21, 1992, report of
Lindemann, thereby triggering the running of the limitations
period.
Plaintiff relies on Arndt v. Resurrection Hospital, 163 Ill.
App. 3d 209 (1987), for the proposition that, under the discovery
rule, the limitations period is not triggered as to any particular
defendant until the plaintiff has reason to know that the injury
was wrongfully caused by the negligence of that defendant. A
careful reading of Arndt, however, reveals that it does not stand
for plaintiff's proposition.
In Arndt, the plaintiff's decedent died in a hospital on
January 18, 1983. On December 21, 1984, the plaintiff sued the
hospital for malpractice and designated the defendant-physician as
a respondent in discovery. On September 18, 1985, the plaintiff
filed suit against the defendant. In a subsequent amended
complaint, the plaintiff alleged that she did not learn of the
defendant's negligence until his discovery deposition was taken on
May 14, 1985. In view of the fact that the plaintiff was at her
husband's bedside and knew when he died, the trial court determined
that the plaintiff failed to file suit against the defendant until
more than two years after the death. The trial court, therefore,
dismissed the action as time-barred, refusing to recognize that the
discovery rule could postpone the beginning of the limitations
period beyond the date of death.
The appellate court reversed, concluding, consistent with case
law cited herein, that the limitations clock did not begin to tick
until the plaintiff had reason to know both of the death and that
the death was wrongfully caused. The appellate court
understandably focused upon the May 14, 1985, deposition, in which
the defendant's negligence was discovered, as being the date the
plaintiff first had reason to know of wrongful causation. The
defendant did not argue, as was argued in McCormick, that the
plaintiff was aware of wrongful causation no later than the date of
her December 21, 1984, lawsuit against the hospital. Indeed, any
such argument would have been futile considering that the plaintiff
had filed suit against the defendant well within two years of her
suit against the hospital. Therefore, the only relevant date
proposed for extending the commencement of the limitations period
beyond the date of death was the date of plaintiff's discovering
the defendant's negligence, which was accepted by the appellate
court as tantamount to discovery of wrongful causation.
Unlike McCormick (previous filing of suit against other
defendants triggered statute) and the present case (statute
triggered by report of plaintiff's expert), no event earlier than
the date of the plaintiff's learning facts of the defendant's
negligence was argued to the Arndt court as imparting knowledge of
wrongful causation. Consequently, the discovery of wrongful
causation was regarded by the court as coinciding with the
discovery of the defendant's negligence. In view of the parties'
positions, it was unnecessary for the court to look further as
there was no issue of whether under different circumstances, as
here, these events could occur separately, thereby producing a
different outcome. Accordingly, despite excerpts quoted by
plaintiff from the decision, we do not read Arndt as supporting
plaintiff's proposition that knowledge of wrongful causation cannot
be acquired in advance of plaintiff's having reason to know of the
negligence of a particular defendant. We note that the same
appellate district, in McCormick, later expressly rejected any such
proposition. McCormick, 250 Ill. App. 3d at 391.
Plaintiff further argues that an exception to the well-
established principles enunciated in Nolan, McCormick, and Guebard
is warranted here because plaintiff's compliance with the health
professional certification requirements of section 2--622 resulted
in her development of information negating the existence of a cause
of action against Valika. In essence, plaintiff contends that she
was lulled into foregoing any potential investigation of Valika's
conduct by the misleading report of her consultant, Lindemann, who
exonerated any person treating decedent after his admission to the
hospital.
The appellate court considered a similar argument in Beasley
v. Abusief, 146 Ill. App. 3d 54 (1986). In that case, the
plaintiff's first section 2--622 consultant filed a report
exonerating the defendant-surgeon of malpractice. Approximately 10
months later, a second consultant rendered an opinion concluding
that the defendant had been negligent in the surgery. After
hearing evidence, the trial court found in favor of the defendant
on his limitations defense. On appeal, the plaintiff argued that
the trial court erred in not directing a verdict in the plaintiff's
favor on this issue. The plaintiff contended that her first
consultant's opinion, which negated a cause of action, should have
been considered as tolling the two-year limitations period until
the plaintiff received the second consultant's section 2--622
certification of negligence. Plaintiff asserted that, in the face
of the initial opinion, she could not have filed an action against
the defendant in good faith until she received a contrary opinion.
The appellate court recognized the dilemma confronting a
person in plaintiff's position but rejected the notion that a
consultant's opinion negating negligence could be used to toll the
plaintiff's allotted two-year period for identifying responsible
parties. The court reasoned:
"Holding that the limitation period is not triggered until
a prospective malpractice plaintiff secures an expert
witness qualified to testify to the described necessary
elements for a prima facie case would clearly extend the
limitation period unduly and leave the four-year period of
section 13--212, after which a defendant has absolute
repose, as the only substantial protection that such a
defendant would have against stale claims.
*** Moreover, recognizing that professionals are
reluctant to be critical of their brethren, we would be
apprehensive that a medical opinion detrimental to a cause
of action for malpractice is likely to exist in a large
number of cases. The [tolling] rule requested by plaintiffs
would be likely to create almost as serious a problem as
would a rule that the limitation period does not begin to
run until a favorable medical opinion is available." 146
Ill. App. 3d at 60.
In view of established precedent, we will not create an
exception to the statute of limitations because plaintiff elected
to rely on the opinion of her chosen expert rather than continuing
her investigation. This court has recognized an exception to the
statute when there is evidence that a defendant has acted to
conceal evidence of his liability. Neade, 277 Ill. App. 3d 1004.
The record of the present case discloses no facts which could
invoke this exception. If evidence of fraud or concealment
existed, it was plaintiff's burden to present it in opposition to
defendant's section 2--619 motion.
For the foregoing reasons, the judgment of the circuit court
of Kane County is affirmed.
Affirmed.
THOMAS, J., concurs.
JUSTICE HUTCHINSON, dissenting:
The majority concludes plaintiff would not be able to prove
any set of facts demonstrating that her amended complaint against
Valika was timely under section 13--212 of the Code (735 ILCS 5/13-
-212 (West 1994)). I freely admit that upon remand plaintiff
probably would not be able to demonstrate her amended complaint was
timely. In terms of the ultimate result in the present case, there
is scant difference between my position and that of the majority.
However, the gulf of our disagreement and its ramifications for
injured persons in future medical negligence cases are immense. In
its affirmance of the trial court's grant of summary judgment--
despite the fact the trial court itself apparently failed to
determine the date on which the statute of limitations ran--the
majority creates the potential that plaintiffs will inequitably be
denied the possibility of redress despite the reasonableness of the
manner in which they inquire into the wrongful cause of injury or
death. Therefore, I respectfully dissent.
My disagreement with the majority turns on our differing views
of the interaction between section 2--622 of the Code (735 ILCS
5/2--622 (West 1994)) and the discovery rule announced by the
Illinois Supreme Court in Witherell v. Weimer, 85 Ill. 2d 146
(1981). In Witherell our supreme court stated the statute of
limitations in medical negligence actions "starts 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."
(Emphasis added.) Witherell, 85 Ill. 2d at 156. Assuming that an
injured person knows or reasonably should know of his injury, the
emphasized portion of this quotation sets forth two triggers that
commence the statute of limitations: (1) actual knowledge that the
injury was wrongfully caused; or (2) information and/or
circumstances that would put a reasonable person on notice, i.e.,
constructive notice, that the injury was wrongfully caused.
I believe that the majority's application of section 2--622
precludes any examination of reasonableness. This is contrary to
the above-quoted language from Witherell and section 13--212 of the
Code (see 735 ILCS 5/13--212 (West 1994)(medical negligence action
must be brought within two years "after the date on which the
claimant knew, or through the use of reasonable diligence should
have known *** of the injury or death")). The majority states
"[b]ecause plaintiff's knowledge of the contents of Lindemann's
August 21, 1992, report was undisputed, no relevant issue of fact
was presented." Slip op. at 8. Therefore, the majority apparently
believes the mere fact that a section 2--622 investigation has been
conducted is sufficient to put any and all injured persons on
constructive notice under almost all possible circumstances. Such
a per se rule forecloses--once a section 2--622 report and
affidavit are filed--any examination of the reasonableness or
unreasonableness of an injured party's assertion that they did not
know their injury was wrongfully caused.
I respectfully submit that a section 2--622 investigation
should not serve as a substitute for making a factual determination
whether an injured party reasonably should have known his injury
was wrongfully caused. There is nothing magical about a section 2-
-622 investigation. Its validity, accuracy, and comprehensiveness
may be affected by numerous factors completely beyond the control
of the injured party. Among these factors are (1) the misconduct
by defendants delaying the discovery of the wrongful cause of
injury or death (see Neade v. Engel, 277 Ill. App. 3d 1004, 1005-
06, 1009 (1996) (holding that the statute of limitations did not
commence--despite the filing of a prior complaint against another
physician--until the defendant's deposition made the plaintiff
aware of the defendant's involvement in the decedent's death, where
the plaintiff failed to discover the defendant's involvement
because of the defendant's misstatement, concealment, or fraud));
(2) the negligent maintenance or preparation of the medical record
by defendants or their employees or agents (see Steinberg v.
Dunseth, 276 Ill. App. 3d 1038, 1049 (1995)(stating that a "worst
case situation, medical records personnel might be involved in a
cover-up" (emphasis added) thereby implying such personnel might
also innocently fail to provide the section 2--622 expert with all
incriminating records); (3) the causal connection between the
potential defendant's conduct and the injury or death is so complex
it might be reasonable for a section 2--622 expert to fail to
identify a potential defendant; and (4) the negligence of the
section 2--622 reviewing health professional. In terms of the
fourth factor, I highlight the legislature's decision to make
section 2--622 health professionals immune from civil liability,
provided they prepare their reports in good faith. 735 ILCS 5/2--
622(f) (West 1994). Therefore, it is all the more inequitable and
unjust to make an injured person bear the consequences of such an
expert's failure. I would be more circumspect than the majority in
applying section 2--622.
All the above factors present valid potential factual problems
with a section 2--622 investigation that might render reasonable an
injured person's failure to continue to inquire and learn a
defendant's conduct was a wrongful cause of injury or death. I
would not close off consideration of these factors by way of a per
se rule.
The majority makes the commencement of the statute of
limitations a question of law. The only question of fact would be
the date on which the investigation was completed. Our supreme
court has stated that the commencement of the statute of
limitations in medical negligence cases is "[i]n many, if not most,
cases *** a disputed question to be resolved by the finder of
fact." Witherell, 85 Ill. 2d at 156; see also, e.g., Jackson
Jordan, Inc. v. Leydig, Voit & Mayer, 158 Ill. 2d 240, 250
(1994)(rule applied in legal negligence cause). This longstanding
and often announced rule should not be abandoned on the basis of an
unintended interaction among section 13--212(a), section 2--622,
and the discovery rule. This is buttressed by the fact section 2--
622 is a pleading requirement designed to limit frivolous lawsuits;
it is not a substantive defense designed to preempt an injured
person's day in court. See McCastle v. Sheinkop, 121 Ill. 2d 188,
193 (1987); Steinberg, 276 Ill. App. 3d at 1042; Miller v. Gupta,
275 Ill. App. 3d 539, 543 (1995); Moscardini v. Neurosurg, S.C.,
269 Ill. App. 3d 329, 334-35 (1994). I agree with the majority
that the discovery of a wrongful cause requires plaintiffs to
inquire further into any possible causes of action. Witherell, 85 Ill. 2d at 156. However, I part company with my colleagues on
whether a plaintiff who has ceased her inquiry into the cause of
injury or death--in reliance on the report of a section 2--622
expert whose participation is both mandated and immunized by the
State--as a matter of law is obligated to continue her inquiry or
risk the limitations period running against an undiscovered
defendant. According to our supreme court, the statute of
limitations commences when "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." (Emphasis added.) Knox College, 88 Ill. 2d
at 416. The majority interprets this passage as creating a one-way
rachet: once an injured person's duty to inquire arises, it can not
abate. I disagree.
The majority states Beasley v. Abusief, 146 Ill. App. 3d 54
(1986) rejected the argument that the opinion of a plaintiff's
first consultant, "which negated a cause of action, should have
been considered as tolling the two-year limitations period until
the plaintiff received the second consultant's section 2--622
certification of negligence." (Emphasis added.) Slip op. at 15.
Beasley should not be relied on. First, Beasley did not involve a
report by a section 2--622 expert. Indeed, it could not. The
Beasley complaint was filed on November 28, 1983. Section 2--622
was added to the Code of Civil Procedure (735 ILCS 5/1--101 et seq.
(West 1994)) by Public Act 84--7, section 1, on August 15, 1985.
Pub. Act 84--7 1, eff. August 15, 1985. Therefore, section 2--622
applies only to cases filed on or after August 15, 1985. See Ill.
Rev. Stat. 1985, ch. 110, par. 2--622, citing Ill. Rev. Stat. 1985,
ch. 110, par. 2--114 (stating that P.A. 84--7 " 'takes effect
August 15, 1985, and applies to all cases filed on or after that
date' "). Understandably, therefore, Beasley does not discuss
section 2--622 or its affect on the Witherell discovery rule and
whether it is reasonable for a plaintiff to suspend inquiries in
reliance on a section 2--622 report and consequently fail to
discover a particular defendant's conduct was a wrongful cause of
injury or death. Second, unlike the present case, the plaintiff in
Beasley had an opportunity to present evidence on whether the
limitations period had run. Beasley, 146 Ill. App. 3d at 55-56, 59
(a jury determined when the plaintiff " 'knew or through the use of
reasonable diligence, should have known' " her injury was caused by
defendant's treatment). Had plaintiff in the present case been
afforded the same opportunity to present evidence as the Beasley
plaintiff, I would have no trouble affirming the trial court. My
objection is to the per se rule fashioned by the majority that
forecloses any examination of the nature, quality, and validity of
the State-mandated section 2--622 examination and report.
I respectfully suggest that the majority's per se rule imposes
hardships on injured persons far outweighing its benefits. The
purpose of a statute of limitations is to balance the hardship to
injured persons barred from presenting their issues, against the
hardship to defendants based on the increasing difficulty of proof
with the passage of time. Nolan v. Johns-Manville Asbestos, 85 Ill. 2d 161, 167-68 (1981). Medical negligence defendants will not
be burdened by increasing difficulties of proof. Medical
negligence cases typically turn on opinion witnesses to establish
the standard of care and breach of that standard. See DeLuna v.
Saint Elizabeth's Hospital, 147 Ill. 2d 57, 70 (1992). This
testimony, like the section 2--622 reports, is premised on medical
records. The utility of these records, unlike the memory of
occurrence witnesses in traditional negligence cases, is unaffected
by the passage of time. Therefore, there is little, if any,
hardship to defendants based on increasing difficulty of proof.
Conversely, the majority's per se rule drastically limits the
applicability of the discovery rule. This, in conjunction with the
good faith immunity provided to section 2--622 health
professionals, increases the likelihood injured persons will be
left without recourse. Additionally, refusing to adopt a per se
constructive notice rule would not, indeed by law it could not,
extend an injured person's time to bring suit beyond section 13--
212(a)'s absolute four-year date. See 735 ILCS 5/13--212(a) (West
1994)(stating that "in no event shall *** [a medical negligence]
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").
Therefore, I would reverse the trial court's order entering
summary judgment and remand the cause for either a full evidentiary
hearing or a bifurcated trial. The issue to be determined would be
whether Lindemann's investigation or the resulting section 2--622
report suffered from any defect sufficient to render reasonable
plaintiff's failure to discover Valika's conduct was a wrongful
cause of decedent's death.
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