Hochbaum v. Casiano

FIRST DIVISION
September 29, 1997

No. 1-96-0493

PATRICIA HOCHBAUM, ) Appeal from the
) Circuit Court
Plaintiff-Appellant, ) of Cook County.
)
v. )
)
MARLENE E. CASIANO, JOSEPH M. )
MERCOLA, indiv., JOSEPH M. )
MERCOLA, D.O.S.C., ELI LILLY & )
COMPANY, and DISTA PRODUCTS )
COMPANY, a division of Eli )
Lilly & Company, ) Honorable
) PHILLIP L. BRONSTEIN,
Defendants-Appellees. ) Judge Presiding.


JUSTICE BUCKLEY delivered the opinion of the court:

Plaintiff, Patricia Hochbaum, brought this medical
malpractice and product liability action against Dr. Marlene
Casiano and Dr. Joseph Mercola, her treating physicians, and Eli
Lilly and Company and its division Dista Products (Lilly),
manufacturers of the drug Prozac. Plaintiff sought to recover
damages for personal injuries she sustained when she attempted to
commit suicide while being treated with Prozac by Dr. Casiano and
Dr. Mercola. The circuit court granted summary judgment in favor
of defendants, finding that the action was barred by the two-year
statute of limitations. Plaintiff now appeals, claiming that (1)
the discovery rule tolled the limitations period, and (2)
plaintiff was a person under a legal disability so as to toll the
statute.
In September 1986, plaintiff began seeing Dr. Mercola, a
family practitioner, for headaches. In December 1986, Dr.
Mercola diagnosed plaintiff as suffering from depression caused
by marital discord. Over the next 2« years, Dr. Mercola
prescribed numerous antidepressant drugs as well as Hydrocet, a
narcotic pain killer, for her headaches. By December 1987,
plaintiff's condition had not improved and she had developed a
dependency on Hydrocet. Plaintiff visited Dr. Casiano, a
psychiatrist, who also prescribed antidepressant and pain-killing
medications.
On July 8, 1988, Dr. Mercola started plaintiff on Prozac, an
antidepressant medication manufactured by Lilly. At
approximately the same time, Dr. Mercola also prescribed Prozac
to plaintiff's son, David, to treat attention deficit disorder.
Shortly thereafter, David became violent and started falling
asleep in class. Plaintiff attributed this behavior to the
Prozac and on her own discontinued David's use of the drug.
Plaintiff also experienced symptoms she believed were
related to Prozac. She testified in her deposition that she
became withdrawn and began to feel "weird" after starting on
Prozac. She also had a panic attack which she attributed to the
drug.
On April 2, 1989, plaintiff went to Dr. Mercola and asked
him to take her off her medications. She was hysterical and
crying. Dr. Mercola instructed plaintiff to continue taking her
medications. Later that day, plaintiff slashed her left wrist in
an apparent attempt to commit suicide. After the attempt, she
put a towel to her wrist to try to stop the bleeding.
Plaintiff was discovered by her former husband, John
Hochbaum, who took her to Humana Hospital, where she was
involuntarily admitted. Later that night, plaintiff voluntarily
admitted herself to the psychiatric ward of Central DuPage
Hospital and came under the care of Dr. Kenneth Phillips. Dr.
Phillips met with plaintiff the same day and concluded that
plaintiff's suicide attempt was the result of her depression, her
addiction to pain medication, and her having had about three
alcoholic drinks that day.
Dr. Phillips met with plaintiff again on April 5, 1989. He
stated that he found plaintiff to be fully cognizant of who and
where she was and of the events transpiring around her. She
understood the consequences of her actions, and she showed at
least average judgment. Dr. Phillips determined that plaintiff
should be discharged the following day, April 6, 1989.
Ellen Dove was plaintiff's social worker while she was in
the hospital. Dove found plaintiff to be alert and aware during
her hospitalization. Plaintiff was cooperative and planned to
attend an addiction recovery group after her discharge. Dove
further noted that plaintiff's insurance was limited, but she
believed plaintiff was quite capable of such things as applying
for public aid.
Plaintiff's mother, Carol Locascio, visited plaintiff during
her hospitalization. Locascio stated in her deposition that
during this visit, plaintiff told her she believed Prozac
contributed to her suicide attempt and that she would not have
done it if she had not been taking the drug.
Approximately 1« years later, plaintiff learned through the
news media of a possible connection between Prozac and suicidal
behavior. On April 8, 1991, plaintiff filed her complaint in
this case seeking damages for her suicide attempt of April 3,
1989. Following discovery in which the evidence summarized above
was gathered, defendants filed a motion for summary judgment for
failure to comply with the two-year statute of limitations. On
September 9, 1994, the circuit court granted defendants' motion
and entered summary judgment in favor of defendants.
On October 7, 1994, plaintiff filed a motion for
reconsideration and attached the affidavit of Dr. Henry Lahmeyer.
In his affidavit, Dr. Lahmeyer stated that he had reviewed
plaintiff's medical records and concluded that she was
incompetent during the period of her hospitalization. The trial
court found that the affidavit provided some evidence to support
plaintiff's position that she was legally disabled during her
hospitalization, thus tolling the commencement of the limitations
period until April 8, 1989. However, the court noted that Dr.
Lahmeyer may not have applied the appropriate standard -- legal
disability. Therefore, the court invited defendants to depose
Dr. Lahmeyer and, if warranted, refile their motion for summary
judgment.
On April 25, 1995, defendants deposed Dr. Lahmeyer. Dr.
Lahmeyer stated that he was not applying a "legal disability"
standard in drawing the conclusion stated in his affidavit. He
did not specifically find that plaintiff was without
understanding or capacity to make or communicate decisions and
unable to manage her estate or financial affairs. His finding
that plaintiff was incompetent during her hospitalization was
based on his conclusion that she was "unable to make a judgment
or a decision about legal matters."
Based on Dr. Lahmeyer's deposition testimony, defendants
refiled their motion for summary judgment. On January 9, 1996,
the circuit court granted defendant's motion. The court found
that there was no issue of material fact as to whether plaintiff
was legally disabled during her hospitalization because it was
clear that she was nowhere near being "entirely without capacity
to communicate decision[s]." The court further stated that Dr.
Lahmeyer's deposition testimony shows that he applied an
incorrect standard in his affidavit. Therefore, the circuit
court entered summary judgment in favor of defendants. On
February 7, 1996, plaintiff filed her timely notice of appeal.
Summary judgment is appropriate where there is no genuine
issue of material fact and the movant's right to judgment is
clear and free from doubt. Espinoza v. Elgin, Joliet & Eastern
Ry. Co., 165 Ill. 2d 107, 113 (1995). On appeal from an order
granting summary judgment, the court must conduct a de novo
review of the evidence. Espinoza, 165 Ill. 2d at 113.
The circuit court granted summary judgment in favor of
defendants because plaintiff's complaint was not filed within the
two-year limitations period applicable to medical malpractice and
products liability actions. See 735 ILCS 5/13-212 (West
1996)(medical malpractice); 735 ILCS 5/13-213(b),(d) (West
1996)(products liability). Plaintiff's attempted suicide
occurred on April 3, 1989. Her complaint in this action was
filed on April 8, 1991, more than two years after the date of the
injury.
Nonetheless, plaintiff asserts two theories to support her
contention that the action is not barred by the statute of
limitations. First, plaintiff claims that, under the discovery
rule, the statute did not begin to run until about 18 months
after the injury because it was only then that she first learned
of the possibility that Prozac may have contributed to her
attempted suicide. Second, plaintiff claims she was legally
disabled during her hospitalization, thus tolling the
commencement of the limitations period until April 8, 1989.
Under the discovery rule, the statute of limitations "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. At that point the burden is on the injured
person to inquire further into the existence of a cause of
action." Witherell v. Weimer, 85 Ill. 2d 146, 156 (1981).
Summary judgment on statute of limitations grounds is appropriate
in the face of a plaintiff's assertion that the discovery rule
applies only where it is apparent from the undisputed facts that
the plaintiff knew or reasonably should have known of the injury
and its wrongful causation more than two years prior to bringing
the action. Witherell, 85 Ill. 2d at 156.
Here, plaintiff contends that she has raised a genuine issue
of material fact as to when she knew or reasonably should have
known that Prozac may have contributed to her suicide attempt,
and, therefore, the question should have been left to the jury
and was inappropriate for summary judgment. Defendants claim
that plaintiff's injury was sudden and traumatic, and that
Illinois case law is clear that the discovery rule does not toll
the running of the statute of limitations in cases involving such
an injury. Plaintiff counters that under Illinois case law, the
discovery rule may apply, even in the case of a traumatic injury,
where the injury is one that can occur without negligence and
does not involve external forces.
Plaintiff relies chiefly on the cases of Dockery v. Ortiz,
185 Ill. App. 3d 296 (1989), Watkins v. Health & Hospitals
Governing Comm'n, 78 Ill. App. 3d 468 (1979), and Pszenny v.
General Electric Co., 132 Ill. App. 3d 964 (1985). In Dockery,
the plaintiff filed a medical malpractice action more than two
years after having both his legs amputated, but allegedly within
two years of learning that negligence may have necessitated the
amputations. The court held that because the plaintiff had a
history of vascular disease which, in the past, had negatively
affected his legs, it could not be said that he reasonably should
have known that the amputations may have been wrongfully caused
at the time of the injury. Dockery, 185 Ill. App. 3d at 306.
In Watkins, the plaintiff was a diabetic who brought an
action seeking damages for the amputation of his leg, alleging it
was necessitated by a blood clot caused by a negligent injection
of dye. The complaint was filed more than two years after the
amputation, but less than two years after the plaintiff
discovered that the amputation may not have been necessary
without the blood clot and negligent injection. The court held
that "the classification of an injury as traumatic or
nontraumatic, alone, is of no significance." Watkins, 78 Ill.
App. 3d at 471. The court found that because the plaintiff
reasonably believed the amputation was the result of her diabetic
condition, a triable issue of fact existed under the discovery
rule to determine whether she should have known about the clot
more than two years before the action was filed. Watkins, 78
Ill. App. 3d at 472; see also Pszenny, 132 Ill. App. 3d 964 (the
symptoms suffered by the plaintiff were not so markedly different
from those that caused her to seek treatment in the first place
as to trigger a duty to investigate whether the injury was
wrongfully caused).
Illinois case law has not addressed this issue specifically
in the context of attempted suicides; however, we believe that
the logic employed in Dockery, Watkins, and Pszenny applies
equally in this case. As in those cases, plaintiff's medical
history included an illness that she reasonably may have believed
was the cause of her injury. It is a question of fact whether
plaintiff reasonably believed that her depression, rather than
her Prozac treatment, caused her to attempt suicide.
Defendant relies principally on the case of Berry v. G.D.
Searle & Co., 56 Ill. 2d 548 (1974), in which the court adhered
to a strict rule that where an injurious event can be
characterized as traumatic, the statute of limitations begins to
run immediately. Berry, 56 Ill. 2d at 558-59. In Berry, the
plaintiff suffered a paralyzing stroke that she claimed she did
not realize was caused, at least in part, by her birth control
medication until more than two years after the stroke. The court
held that because a stroke is a sudden and traumatic event, the
discovery rule was inapplicable and the limitations period began
to run when she suffered the injury. Berry, 56 Ill. 2d at 558-
59.
However, Berry predates Dockery, Watkins, and Pszenny.
These later cases build on the Berry rule so as to require that
if the alleged negligent cause of an injury is unknown to the
plaintiff at the time the injury is sustained, and another non-
negligent cause is apparent, then the limitations period does not
begin to run until the alleged negligent cause is discovered.
Where a traumatic injury is sustained in the absence of an
apparent non-negligent cause, it is fair to place a burden on the
injured party to inquire as to the actual cause. On the other
hand, in the case of an injury that appears to have been caused
by some non-negligent event, such as an illness, and the actual
cause is unknown, the injured party has no reason to conduct such
an inquiry and to require him or her to do so would be patently
unfair. Justice is far better served by the rule we have applied
here.
We believe that plaintiff raised a genuine issue of fact in
this case as to whether she believed her suicide attempt was
caused by her depression and did not become aware of the possible
effects of Prozac until 18 months later. Therefore, the trial
court erred in granting summary judgment to defendant.
Plaintiff next contends that she was legally disabled during
her hospitalization, and, therefore, the limitations period
tolled until April 8, 1989, thus bringing this action within the
statute. A person suffers from a "legal disability" where he or
she is "entirely without understanding or capacity to make or
communicate decisions regarding his person and totally unable to
manage his [or her] estate or financial affairs." Estate of Riha
v. Christ Hospital, 187 Ill. App. 3d 752, 756 (1989). In a
personal injury case, a person is not legally disabled if he or
she can comprehend the nature of the injury and its implications.
Sille v. McCann Construction Specialties, 265 Ill. App. 3d 1051,
1055 (1994).
In this case, both Dr. Phillips and Ellen Dove met with
plaintiff during her hospitalization and testified in their
depositions that she was perfectly able to comprehend her injury
and its implications. The record also contains further evidence
that plaintiff understood her injury and was able to manage her
personal affairs and to make and communicate decisions.
Immediately after the attempt, plaintiff applied a towel to her
wrist in an effort to stop the bleeding. Furthermore, upon her
admission to Humana Hospital, plaintiff made the decision to
voluntarily check herself into the Central DuPage Hospital.
These facts are undisputed and consistent with the opinions of
Dr. Phillips and Dove.
Plaintiff claims that she has raised a genuine issue of
material fact in presenting the affidavit of Dr. Lahmeyer. In
that affidavit, Dr. Lahmeyer stated that he reviewed plaintiff's
records from five years before, and determined that she was
incompetent at the time of her hospitalization. However, in a
subsequent deposition, Dr. Lahmeyer stated unequivocally that he
was not applying a legal standard. He could not say that
plaintiff was incapable of comprehending the nature of her
injuries or managing her personal and financial affairs. Rather,
Dr. Lahmeyer's conclusion that plaintiff was incompetent was
based on his belief that she was unable to make any decisions
concerning legal matters.
Clearly, therefore, the conclusion stated in Dr. Lahmeyer's
affidavit is insufficient as a matter of law. The only relevant
evidence supports the circuit court's conclusion that plaintiff
was not legally disabled during her hospitalization. There is no
evidence to the contrary.
In conclusion, the circuit court erred in finding that
plaintiff failed to raise a genuine issue of material fact as to
the applicability of the discovery rule. However, the court
correctly found that plaintiff was not legally disabled as a
matter of law. For these reasons, the circuit court's entry of
summary judgment is reversed, and the case is remanded for
proceedings consistent with this opinion.
Affirmed in part; reversed in part, and remanded.
CAMPBELL, P.J. and O'BRIEN, J., concur.