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                                                                                               THIRD DIVISION
                                                                                               November 1, 2000
                                                                                                (NUNC PRO TUNC September 20, 2000)

No. 1--99--3992

Plaintiff Rhonda Bloom appeals from an order of the circuitcourt dismissing her second amended complaint, alleging medicalmalpractice in administering psychiatric treatment she received in1991 by defendants Dr. Bennett Braun, Dr. Thomas Schevers, and Dr.Raymond Koziol⁽¹⁾ at defendants Rush North Shore Hospital (Rush) and Associated Mental Health Services. On appeal, Bloom contends thatthe trial court erred in dismissing her second amended complaintbecause she satisfied the requirements for alleging claims offraudulent concealment and legal disability, both exceptions to thestatute of limitations, which tolled the limitations period and,thus, she timely filed her complaint.⁽²⁾ For the reasons set forthbelow, we affirm.

Bloom filed her original complaint on August 25, 1998, seekingdamages for psychiatric malpractice that occurred between April andAugust 1991. The trial court dismissed the complaint, finding thatBloom failed to allege sufficient allegations to support thefraudulent concealment exception to the statute of limitations andstatute of repose. Bloom filed an amended complaint, allegingfraudulent concealment again for purposes of preserving the issuefor review, and adding allegations that she was legally disabledand, therefore, the statute of limitations was tolled. The amendedcomplaint also was dismissed as insufficient. Bloom then filed hersecond amended complaint (complaint).

In her complaint, Bloom alleged that Dr. Braun was involvedwith a unique psychotherapy program specializing in diagnosing a multiple personality disorder. She also alleged that Dr. Braun wasan expert in uncovering repressed memories of satanic ritual abuse. Drs. Schevers and Koziol were fellows in Dr. Braun's program.

Bloom further alleged that in April 1991, she began treatmentwith defendants on the recommendation of her mother, who was alsoreceiving treatment from defendants. As part of the treatmentprocess, Bloom came to believe she was involved in horrendoussatanic cult ritual abuse, of which she had no recollection beforetreatment. Bloom alleged that defendants misrepresented as factthat satanic ritual abuse was proven to exist and that since hermother had recovered memories of participating in such rituals, shewas also a victim/participant in the activity. She further allegedthat defendants created and enforced the belief that these memorieswere historically correct when they knew they were "outlandish,"the product of "confabulation and fantasy," and there was noobjective evidence of such cults. She also alleged that defendantswere aware that the imagery she experienced was confabulated and aproduct of their therapy, yet they did not inform her that thememories and the resultant multiple personality disorder wereactually caused by their therapy.

Bloom further alleged that defendants misrepresented to herthat her underlying psychiatric condition was a multiplepersonality disorder based on her history of satanic ritual abuseand they continuously misrepresented to her that she was a victimof satanic ritual abuse from which she developed a multiplepersonality disorder. She further alleged that defendantsmisrepresented to her that she must uncover all of her memories ofsatanic ritual abuse to obtain mental health because each memorycould house a separate personality; defendants misrepresented toher that they could diagnose her based on satanic ritual abusewithout any standardized psychological surveys or objective tests;and defendants misrepresented that their multiple personalitydisorder treatment was safe and effective when they knew there wasno support for it by recognized scientific foundations and, infact, it was experimental. She specifically alleged:

"Thus, the defendants [sic] concertedmisrepresentation regarding the assertedvalidity of therapeutically recovered memoriesas historical fact, and their diagnosis ofmultiple personality disorder as a result ofthe satanic ritual abuse, concealed from theplaintiff that she was injured as a result ofdefendants' psychotherapy which induced theconfabulated satanic ritual abuse imagery, andinduced the multiple personality disorderdiagnosis, but at all times asserted bydefendants as preexisting maladies,independent of their therapy."

She also alleged that she was lulled into not discovering herpsychiatric injuries inflicted upon her by defendants'misrepresentations. With respect to the tolling of the statute oflimitations, she alleged:

"That the defendants' affirmativemisrepresentations regarding the SRA [satanicritual abuse] history and MPD [multiplepersonality disorder] condition concealed theiatrogenic injuries of SRA and MPD asunderlying conditions and deprived theplaintiff of knowledge of the iatrogenic,therapeutically inflicted injuries that shesustained under the care of the defendants andare sufficient to toll the statute oflimitations as delineated under IllinoisStatute 5/13--215."

Bloom's complaint identified her injuries as: aggravation ofpreexisting depression; great humiliation and embarrassment; abelief she was a product of incest between her mother andgrandfather; self-hatred and a pattern of self-mutilation andcutting; abortion of a fetus because she believed it would bepromised to the cult; irrational paranoid fear for her safety;sleep dysfunction, including sleeping with weapons under herpillow; severance of her relationship with her mother; and livingin emotionally abusive and violent relationships. She also allegedthat, as a result, she suffered from amnesia, lost time, delusions,and a mentally confused state. She further alleged that because ofthis diminished capacity, she was not able to function in her ownbest interests or manage her person or estate and, therefore, waslegally incompetent.

Attached to the complaint were various letters from doctorswho treated Bloom subsequent to her treatment by defendants. Thedoctors stated they believed Bloom was suffering from psychiatricdisabilities. Also attached to the complaint was the report of Dr.Edward Frischholz, a clinical psychologist, whom Bloom begantreatment with in 1997. Dr. Frischholz noted that Bloom had beentreated by three different doctors since her treatment bydefendants. In 1992 to 1993, Bloom was treated by Dr. JosephZiccarelli, in 1996 to 1997, she was treated by Dr. Laura Sunn, andin August 1997, she began receiving treatment from Dr. Frischholzand Drs. Robert and Bernard Shulman. The report indicated thatBloom reinstated her relationship with her mother in August 1997. At that time, Bloom's mother told her that defendants' treatmentwas injurious, Bloom's memories were misrepresentations, Bloom wasnot the product of incest, and Bloom did not suffer from a multiplepersonality disorder.

Dr. Frischholz's testing of Bloom indicated that she had ahigh average to superior range of intelligence but suffered fromsevere depression of a long duration. The report also indicatedthat Bloom held various jobs from 1985 until 1997, including onewith complex and extensive responsibilities. During this time, herincome steadily increased until 1996. The report also reflectedthat from 1991 until 1997, Bloom lived with various individuals,including different boyfriends, and helped with rent, utilities,and other expenses. In 1998, she moved into her own apartment.

Defendants moved to dismiss Bloom's complaint pursuant tosection 2--619 of the Illinois Code of Civil Procedure. 735 ILCS5/2--619 (West 1998). The trial court granted the motion, findingthat Bloom failed to satisfy the requirements to establishfraudulent concealment and that she was legally disabled. Bloomappeals from the dismissal of her complaint relative to both of herclaims for fraudulent concealment and legal disability.

Section 2--619(a)(5) provides for the granting of a motion todismiss on the basis that the action was not commenced within astatute of limitations period. 735 ILCS 5/2--619(a)(5) (West1998). The standard of review of a trial court's dismissal of acomplaint pursuant to section 2--619 is de novo. Kedzie & 103rdCurrency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 116, 619 N.E.2d732 (1993). A reviewing court must ascertain whether a genuineissue of material fact existed precluding dismissal or, absent anissue of fact, whether the dismissal was proper as a matter of law. Zedella v. Gibson, 165 Ill. 2d 181, 185-86, 650 N.E.2d 1000 (1995). Bloom's last treatment by defendants was in August 1991. Thestatute of limitations relevant to a medical malpractice action,pursuant to section 13--212, is two years from the time a plaintiffknew of an injury or should reasonably have known, but in no eventmay the action be filed later than four years after the incidentgiving rise to an action. 735 ILCS 5/13--212(a) (West 1998). Section 13--215 provides an exception to the statute of limitationsfor medical malpractice actions based upon fraudulent concealmentand allows for the filing of an action within five years after theplaintiff discovers the cause of action or injury. 735 ILCS 5/13--215 (West 1998). Section 13--212(c) also provides an exception tothe limitations period for a medical malpractice action where theplaintiff is legally disabled, in which case the limitations periodbegins to run once the disability is removed. 735 ILCS 5/13--212(c) (West 1998).

Bloom contends that the statutes of limitations and reposeperiods were tolled based on the fraudulent concealment exceptionto these statutes.⁽³⁾ She argues that she sufficiently alleged inher complaint that defendants misrepresented the scientific andmedical nature of the psychotherapy given to her and deceived herinto therapy and, therefore, a material question of fact existed onthis issue. She further argues that she sufficiently alleged thatdefendants misrepresented that her hypnotically recovered memorieswere historically accurate, misrepresented that these memories werethe cause of her multiple personality disorder, and knew that thesemisrepresentations would be injurious to her. She also arguesthat the misrepresentations both created her cause of action andconcealed her injuries and this was sufficient to satisfy thefraudulent concealment exception. She further contends that shewas not required to allege that defendants engaged in any actssubsequent to treatment by them because "this" is an exception tothe general rule. Specifically, Bloom argues that "[t]hefoundation of [her] argument is that the defendants' fraudulentmisrepresentations, as to the scientific nature of their therapy,were not only stated to misrepresent the lack of safety or efficacyof their psychiatric treatment or the factual accuracy of recoveredmemories of SRA/MPD ***, but also served to conceal under [the]same fraudulent umbrella, the injuries defendants inflicted uponthe plaintiff." Bloom maintains that the instant case is unusualbecause the fraud occurred from the beginning; it did not occur, asis usually the case, after the injury.

A joint brief was filed on behalf of defendants Rush,Associated Mental Health Services, and Dr. Braun. Defendant Dr.Schevers filed a separate brief. However, all defendants'arguments are essentially the same. They contend that Bloom wasrequired to allege affirmative acts by defendants that weredesigned to prevent her from discovering her cause of action, whichshe failed to do. According to defendants, none of Bloom'scomplaints alleged that any of the defendants, even during herfour-month treatment period by them in the defendant facilities,did anything with the intent to conceal a cause of action fromBloom or prevented her from discovering a cause of action. Defendants contend that Bloom instead alleged that themisrepresentations made during the treatment were sufficient tosupport her claim of fraudulent concealment. However, according todefendants, this theory has repeatedly been rejected by theIllinois courts. According to defendants, the underlyingfraudulent conduct claim cannot invoke the fraudulent concealmentexception unless that conduct contained a component specificallyintended to lull plaintiff out of suing them.

Under the fraudulent concealment doctrine, the statute oflimitations will be tolled if the plaintiff pleads and proves thatfraud prevented discovery of a cause of action. Clay v. Kuhl, 189Ill. 2d 603, 613, 727 N.E.2d 217 (2000). If the fraudulentconcealment doctrine applies, a plaintiff can commence her suit atany time within five years after she discovers she has a cause ofaction. 735 ILCS 5/13--215 (West 1998). The plaintiff generallymust " 'show affirmative acts *** designed to prevent the discoveryof the action.' " Clay, 189 Ill. 2d at 613, quoting Hagney v.Lopeman, 147 Ill. 2d 458, 463, 590 N.E.2d 466 (1992). In otherwords, a claimant must show "affirmative acts or representations[by a defendant] that are calculated to lull or induce a claimantinto delaying filing [her] claim or to prevent a claimant fromdiscovering [her] claim." Barratt v. Goldberg, 296 Ill. App. 3d252, 257, 694 N.E.2d 604 (1998). "Furthermore, the allegedlyfraudulent statements or omissions that form the basis of the causeof action may not constitute the fraudulent concealment in theabsence of a showing that they tend to conceal the cause ofaction." Barratt, 296 Ill. App. 3d at 257; Foster v. Plaut, 252Ill. App. 3d 692, 699, 625 N.E.2d 198 (1993); Smith v. Cook CountyHospital, 164 Ill. App. 3d 857, 862, 518 N.E.2d 336 (1987); Zagarv. Health & Hospitals Governing Comm'n of Cook County, 83 Ill. App.3d 894, 898, 404 N.E.2d 496 (1980). While the acts constituting afraudulent concealment generally occur after the cause of actionhas accrued, "they may be concurrent or coincident with it, or evenprecede it, provided they are of such a nature or character as tooperate after the time when the cause of action arose and therebyprevent its discovery, and were so designed and intended." Keithley v. Mutual Life Insurance Co. of New York, 271 Ill. 584,598, 111 N.E. 503 (1916).

In the instant case, the trial court granted defendants'motion to dismiss, concluding there was no contact between Bloomand defendants subsequent to termination of her treatment and,therefore, there were no statements made by them to fraudulentlyconceal her cause of action or to induce her not to do anything. The court further rejected Bloom's contention that the basis forher cause of action also constituted fraudulent concealment.

Bloom and defendants generally rely on the same cases insupport of their arguments that the trial court erred or did noterr in granting defendants' motion to dismiss, respectively. InFoster, the plaintiff alleged that the defendants negligentlymisdiagnosed her physical condition (healing of a compressionfracture) as schizophrenia and improperly treated her forschizophrenia. When Foster later learned of her true condition,she filed an action against the defendants for medical malpractice. In addition to the above allegation, she apparently alleged thatthe defendants fraudulently concealed her claim. The trial courtdismissed Foster's complaint, finding that there were no well-pledallegations that the defendants intentionally deceived her. Theappellate court agreed, finding that the plaintiff's assertionswith respect to fraudulent concealment "amount[ed] to merereiterations of the assertions which form the basis of plaintiff'ssubstantive medical negligence claims." Foster, 252 Ill. App. 3dat 700. The Foster court concluded, however, that these assertionsdid not establish that the defendants "made any misrepresentationswhich they knew to be false, with the intent to deceive theplaintiff, and upon which the plaintiff detrimentally relied." Foster, 252 Ill. App. 3d at 700. The court also stated that theassertions failed to demonstrate that the defendants "engaged inany conduct which lulled or induced the plaintiff to delay thefiling of her claims until after the limitations period had run." Foster, 252 Ill. App. 3d at 700.

In Zagar, the plaintiff filed a "fraud and malpractice" actionagainst various doctors and the Cook County Hospital. Theplaintiff's complaint was dismissed based on her failure to complywith the notice provision of the Local Governmental andGovernmental Employees Tort Immunity Act (745 ILCS 10/8--102,repealed by Pub. Act. 84--1431, eff. November 25, 1986)). Inseeking to convince the trial court that her action was timelyfiled, the plaintiff relied upon the fraudulent concealmentexception to the statute of limitations relevant to medicalmalpractice actions. The plaintiff's complaint had alleged that

"the doctors, knowing plaintiff did not ***suffer from leakage of the mitral value or anyother heart ailment, falsely represented toher that she did, and that an operation wouldshow its cause; she was 'induced and coercedto submit to such unnecessary andexperimenting surgical operations ***', whichwere a 'fabrication'; *** [the doctor] also'perpetrated fraud' upon plaintiff byconcealing the facts that she had an ejectionmurmur and that the X-ray [sic] showed noevidence of heart ailments." Zagar, 83 Ill.App. 3d at 895-96.

In the Zagar plaintiff's original complaint, she also alleged thatshe "was probably used as a guinea pig by the doctors'experimentation." Zagar, 83 Ill. App. 3d at 895. According to theZagar court, the gist of the plaintiff's complaint was that the"defendants fraudulently concealed from her the fact that they wereusing her as a 'human guinea pig' by conducting experiments uponher person without her informed consent, thereby denying herknowledge of when her cause of action accrued and preventing hercompliance with the notice requirements of the [Tort Immunity]Act." Zagar, 83 Ill. App. 3d at 897. The Zagar court noted thatthe only allegation of fraudulent concealment related to the"doctors' diagnoses of the nature and gravity of [the plaintiff's]illness." Zagar, 83 Ill. App. 3d at 898. This was the fraud thatformed the basis of the plaintiff's cause of action and there wereno additional allegations in the plaintiff's complaint that thedefendants intended to conceal her cause of action. Thus, thecourt concluded that this allegation was insufficient to satisfythe fraudulent concealment exception. Zagar, 83 Ill. App. 3d at898.

Here, Bloom clearly did not allege or argue that defendantsdid anything to conceal her cause of action. Rather, she arguedthat defendants made misrepresentations that concealed herinjuries. She did not allege that the conduct of any of defendantswas meant to or intended by them to prevent her from discovering acause of action. Similarly, she did not allege that defendants'conduct was designed to prevent discovery of her cause of action. She simply did not allege the component of intent in her complaint. See Keithley, 271 Ill. at 598. Nor did Bloom allege thatdefendants did or said anything to lull or induce her to delayfiling her claim until after the statute of limitations hadexpired. We agree with defendants that the case at bar is similarto Zagar and the same result "must be had." We also do not findHauk v. Reyes, 246 Ill. App. 3d 187, 616 N.E.2d 358 (1993), uponwhich Bloom relies, persuasive because, in Hauk, the doctor revisedhis X ray interpretation of the nature of the injury to theplaintiff's spine after learning his original diagnosis was wrong,and then backdated the report. The doctor's conduct certainlycould be construed as an act to conceal a cause of action, whereas,in the case at bar, we have no such conduct on the part ofdefendants.

In light of the foregoing, we hold that the trial courtproperly dismissed Bloom's complaint based on her failure tosufficiently allege allegations to satisfy the requirements of thefraudulent concealment exception to the statute of limitations.

Bloom next contends that she was unable to discover herinjuries prior to the expiration of the statute of limitations dueto her psychological condition. She argues that the statute ofrepose is tolled if a medically caused injury "mimics a naturallyoccurring illness or condition" and, based on her condition, shecould not discern her injuries because of her serious psychiatricillness and severe depression.

Defendants contend that Bloom waived this issue because shefailed to raise it before the trial court. Alternatively,defendants contend that Bloom's argument is meritless because thediscovery rule does not apply to the statute of repose. DefendantSchevers further maintains that the discovery rule is notapplicable because there is nothing in the record to show thatBloom was unaware of the features of her personality that she nowclaims are injuries and she was unable to identify any alternativecause of her injuries.

We find that Bloom has waived this issue in failing to allegeit in her complaint and to raise and argue it before the trialcourt. See Employers Insurance of Wausau v. Ehlco LiquidatingTrust, 186 Ill. 2d 127, 161, 708 N.E.2d 1122 (1999) (issues raisedfor the first time on appeal are waived).

Bloom lastly contends that because she was unable toappreciate the fact or nature of her injury due to her diminishedmental state and psychiatric disability, the statute of limitationswas tolled because of a legal disability. 735 ILCS 5/13--212(c)(West 1998). She urges this court to follow the definition oflegal disability utilized in the Statute on Statutes (Statute) (5ILCS 70/1.06 (West 1998)). Section 1.06 of the Statute defines a "person under a legal disability" as

"a person 18 years or older who (a) because ofmental deterioration or physical incapacity isnot fully able to manage his or her person orestate, or (b) is a person with mental illnessor a person with developmental disabilitiesand who because of his or her mental illnessor developmental disability is not fully ableto manage his or her person or estate, or (c)because of gambling, idleness, debauchery orexcessive use of intoxicants or drugs, sospends or wastes his or her estate as toexpose himself or herself or his or her familyto want or suffering." 5 ILCS 70/1.06 (West1998).

Defendants contend that the standard for legal disability isset forth in Selvy v. Beigel, 309 Ill. App. 3d 768, 723 N.E.2d 702(1999), and Bloom cannot meet this standard. Defendants argue thatthere is ample evidence in the record that Bloom was able toregularly function on her own behalf. Defendants also contend thatthe Statute's definition is not applicable here. Defendantsfurther argue that other definitions of disability and any findingsof disability from other entities, such as the Social SecurityAdministration, are irrelevant because the standards of thoseentities are different.

We find Bloom's argument unpersuasive. In Bruso v. AlexianBrothers Hospital, 178 Ill. 2d 445, 687 N.E.2d 1014 (1997), oursupreme court rejected an argument similar to Bloom's. In Bruso,one of the defendants' arguments was that the Statute's definitionof legal disability applied to the definition of legal disabilityfor purposes of section 13--212(c). The Bruso court rejected thisargument. First, it found that to apply the section 1.06definition to section 13--212 would be inconsistent with thelegislative intent to protect the rights of those who are notcompetent to do so for themselves. Second, the Bruso court foundthat applying such a definition could be repugnant to the contextof section 13--212 because the Statute's definition identifiesseveral bases, including idleness and debauchery, as "legallydisabled." Bruso, 178 Ill. 2d at 456, quoting 5 ILCS 70/1.06(c). The Bruso court concluded that the legislature certainly did notintend to include "idleness" and "debauchery" as a legal disabilitythat would toll the medical malpractice statute of limitations. Bruso, 178 Ill. 2d at 457. Thus, the Bruso court disagreed withthe defendants' contention that the Statute's definition must beused to define "legal disability" for purposes of section 13--212(c). Bruso, 178 Ill. 2d at 456.

Instead, according to Selvy, to be under a legal disability,"a person must be 'entirely without understanding or capacity tomake or communicate decisions regarding his person and totallyunable to manage his estate or financial affairs.' " (Emphasissupplied in Selvy). Selvy, 309 Ill. App. 3d at 776, quoting Sillev. McCann Construction Specialities Co., 265 Ill. App. 3d 1051,1055, 638 N.E.2d 676 (1994). See also Doe v. The CatholicArchbishop of Chicago, 301 Ill. App. 3d 123, 126, 703 N.E.2d 413(1998). Additionally, one is legally disabled if he or she " 'wasincapable of managing [his or] her person or property and could notcomprehend [his or] her rights or the nature of the act giving riseto [his or] her cause of action.' " Sille, 265 Ill. App. 3d at1054, quoting Tardi v. Henry, 212 Ill. App. 3d 1027, 1040-41, 571N.E.2d 1020 (1991). The record must contain sufficient factualallegations from which one could conclude the individual seeking tobe found legally disabled fell within one of these definitions. Doe, 301 Ill. App. 3d at 127.

In Doe, the court concluded that the record contradicted theplaintiff's contention that he was legally disabled because duringthe time of the alleged disability he graduated from college,sought medical treatment, and enrolled in a master's degreeprogram. Doe, 301 Ill. App. 3d at 127. The same findings weremade in Sille, where the court stated that during the time of theplaintiff's alleged disability he was able to run his own businessand operate construction machinery. Sille, 265 Ill. App. 3d at1055. Further, both Doe and Sille rejected arguments thatdisability under another statute constitutes a legal disability forpurposes of section 13--212. Doe, 301 Ill. App. 3d at 127; Sille,265 Ill. App. 3d at 1055.

As in Doe and Sille, the record in the instant case beliesBloom's contention of legal disability. During the time betweenher last treatment by defendants and the time she filed hercomplaint, she sought mental treatment by two differentpsychiatrists, Dr. Zicarelli from May 1994 to October 1994, and Dr.Sunn from August 1996 to January 1998, and, treatment by apsychologist, Dr. Frischholz from September 1997, apparentlythrough the time of hearing on defendants' motion to dismiss. Similarly, Bloom was employed in various jobs consistently fromJune 1985 until April 1997, with the exception of the periodbetween March and September 1996. While the record shows she didsuffer some psychiatric problems at work, including panic attacks,crying, emotional highs and lows, and an angry attitude, it stillremains a fact that Bloom was able to work. In fact, the job sheheld from the time of treatment until April 1993 involved extensiveduties, including hiring and firing, payroll and bookkeeping,ordering and receiving stock, opening and closing the store, anddesigning product displays. Further, the record shows that she wasa fiduciary representative for the company. Lastly, from 1991until 1997, Bloom lived with various individuals, includingboyfriends, and contributed to rental or mortgage payments,utilities, and living expenses.

These accomplishments are not those of someone entirelywithout capacity to make decisions regarding her person, totallyunable to manage her financial affairs, or unable to comprehend thenature of the act giving rise to her cause of action. While wenote Bloom was declared psychiatrically disabled by the SocialSecurity Administration in December 1997, retroactive to March1997, this declaration does not render her legally disabled forpurposes of section 13--212. See Doe, 301 Ill. App. 3d at 127;Sille, 265 Ill. App. 3d at 1055.

In light of the foregoing, we conclude that the trial courtproperly dismissed Bloom's complaint based on her failure tosatisfy the requirements of the legal disability exception to thestatute of limitations.

For the reasons stated, we affirm the judgment of the circuitcourt of Cook County.

Affirmed.

HALL, P.J., and WOLFSON, J., concur.

1. ¹Dr. Koziol was never served with summons and RushPresbyterian-St. Luke's School of Psychiatry is nonexistent. Thus,neither is a party to this appeal.

2. ²In her notice of appeal, Bloom states that she is seekingrelief from the trial court's order "entering summary judgment infavor of defendant." However, a motion for summary judgment wasnever filed by defendants; rather, defendants filed a motion todismiss.

3. ³While Bloom argues the sufficiency of the allegations of hercomplaint, in portions of her brief, she also appears to argue themerits of her allegations. We only address the sufficiency of thecomplaint as that is the only issue before this court.