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SECOND DIVISION
MAY 1, 2001

1-99-3152

Plaintiff Latonia Clark, as administrator of the estate ofAshanti Beasley, brought a medical negligence action to recoverdamages for the wrongful death of her son, Ashanti Beasley. Plaintiff sued defendants Galen Hospital Illinois, Inc., d/b/aColumbia Michael Reese Hospital and Medical Center (Michael ReeseHospital); John B. Payton, M.D.; Dr. Zubair Amin #6200; Dr.Wasef, a/k/a Vassef (Wasef); Nenette Alonzo, R.N.; and Dr. #1341Respondent in Discovery, a/k/a Dr. Baurlygen, for failure toproperly diagnose and treat her son, who allegedly died as aresult of sepsis brought on by a dislodged venus catheter onSeptember 22, 1995.

Defendants Dr. Wasef, Michael Reese Hospital, Dr. Amin andnurse Alonzo filed motions to dismiss, alleging that the suit wasbarred by the two-year statute of limitations governing medicalmalpractice actions. 735 ILCS 5/13-212(a) (West 1998). Thetrial court granted the defendants' motions and dismissed thesuit.⁽¹⁾

On appeal, plaintiff argues that the trial court erred by finding that the death of plaintiff's infant on September 22,1995, constituted a traumatic injury which triggered the statuteof limitations. Rather, plaintiff contends that the statute oflimitations commenced when she received an expert's report, onApril 11, 1997, which revealed that death was due to a dislodgedvenus catheter.

BACKGROUND

On August 28, 1995, plaintiff gave birth to Ashanti Beasley,a 23-week-old premature boy, at Michael Reese Hospital. He wastransferred to the University of Illinois Hospital at Chicago onSeptember 9, 1995. The infant died on September 22, 1995. Themedical certificate of death, filed on October 31, 1995, statedthat Ashanti died from septic shock due to disseminatedintravascular coagulation. At the time of death, plaintiffalleges that she was told "the baby died because of complicationsdue to it [sic] being premature, having an infection and lowbirth weight, and because his blood was clotting and he couldn'ttolerate all the transfusions."

Plaintiff alleges that on February 27, 1996, five monthsafter Ashanti's death, she first sought legal counsel fromHertzel Levine, who agreed to determine if she had a cause ofaction. At this meeting, plaintiff consented to the release ofthe infant's medical records. However, plaintiff was nevercontacted by Mr. Levine again.

Plaintiff subsequently retained her present attorney,obtained the infant's medical records, and hired a medicalexpert, neonatologist Dr. Stuart Danoff. On April 11, 1997,plaintiff received a report from Dr. Danoff. His report stated:

"That following said review, I am of the opinion thatthere is a reasonable and meritorious cause for the filingof the action against each of the following defendants:Galen Hospital Illinois, Inc., *** Zubair Amin, M.D., Dr.Wassef and Nenette Alonzo, for all of the following reasons:

a. Failed to order x-rays after the insertion andplacement of UVC's and UAC's;

b. Failed to properly manage plaintiff's decedent toinsure x-rays were ordered and read;

c. Failed to take due cognizance of the condition of illbeing of plaintiff's decedent and immediately order x-rayswhich would have clearly established a problem with the UVC;

d. Failed to provide proper and adequateneonatal/pediatric care to plaintiff's decedent as statedabove;

e. Failed to consult with physicians skilled in otherspecialities of medicine and capable of properly and timelydiagnosing and treating plaintiff's decedent;

f. Improperly cut the UVC line and/or improperlydislodged the UVC line.

As a direct and proximate result of one or more of theforegoing wrongful acts and/or omissions of the defendants,*** Ashanti Beasley died on September 22, 1995."

Approximately 10 months after receiving Danoff's report,plaintiff filed her original complaint for medical negligence onFebruary 19, 1998. On June 25, 1998, Dr. Wasef moved to dismissthe complaint pursuant to section 2-619(a)(5) (735 ILCS 5/2-619(a)(5) (West 1998)) as time-barred under section 13-212(a)(735 ILCS 5/13-212(a) (West 1998)) because plaintiff failed tofile it within two years of the infant's death. In response,plaintiff asserted that she did not learn that negligence couldhave caused the infant's death until April 1997, when shereceived Dr. Danoff's report. The trial court dismissedplaintiff's complaint without prejudice.

On November 12, 1998, plaintiff filed her first amendedcomplaint, which added that she first sought legal counsel onFebruary 27, 1996. Dr. Wasef again moved to dismiss the actionas time-barred. The trial court granted the second motion todismiss without prejudice, with directions that the subsequentcomplaint should specify:

"when and how plaintiff was put on notice *** plaintiff'sargument is right that she had no notice and couldn't haveknown what the negligence was at the time of the death ofher child. There had to be something between then and whenshe went to the lawyer, and I want at least that to bespelled out in the complaint with regard to when."

In plaintiff's second amended complaint, she made thefollowing allegations to support her view that she had no noticeof the wrongful nature of the infant's death until April 1997:

"Plaintiff did not discover that decedent AshantiBeasley's death was wrongfully caused by the negligence ofthe Defendants, or became possessed with sufficientinformation concerning the cause of his death until April of1997 when neonatologist Stuart Danoff M.D. reviewed the onlyavailable records in this cause and determined that thedeath was wrongfully caused and did not die solely fromcomplications due to being premature, having an infection,low birth weight, and because his blood was clotting and hecouldn't tolerate all the transfusions, and conveyed thatfact to her attorneys. The first time Plaintiff soughtlegal counsel in this cause was in late February, 1996, whenafter discussing her hospitalization and her baby's deathwith a friend the friend suggested she contact her attorneyHertzel Levine who was handling a few cases for her,thereafter, she met with Mr. Hertzel Levine on February 27,1996 who indicated to her that he did not know if she had acase, but would have her sign a medical authorization so hecould order the medical records, to determine if she had acase. That she was never contacted again by Mr. Levine, inany regard."

Dr. Wasef moved to dismiss the second amended complaintagain on statute of limitations grounds. On July 1, 1999, thetrial court granted Dr. Wasef's motion to dismiss with prejudiceon the grounds that plaintiff's second amended complaint wastime-barred. Defendants further allege that the trial courtdetermined as a matter of law under Nordsell v. Kent, 157 Ill.App. 3d 274, 510 N.E.2d 606 (1987), that the infant's death was asudden and traumatic event putting plaintiff on immediate noticeto inquire whether the death was wrongfully caused.

Defendants Michael Reese Hospital, Dr. Amin and nurseAlonzo then moved to dismiss the second amended complaint on thesame statute of limitations grounds asserted by Dr. Wasef. OnJuly 27, 1999, the trial court granted defendants' motion withprejudice.

Plaintiff appeals. We reverse and remand.

ANALYSIS

Plaintiff contends that the trial court erred by dismissingher complaint as time-barred. Section 2-619(a)(5) allowsdismissal of a case when "the action was not commenced within thetime limited by law." 735 ILCS 5/2-619(a)(5) (West 1998). Whenconsidering a section 2-619 motion, all pleadings and supportingdocuments must be construed in a light most favorable to thenonmoving party, and the motion should be granted only when nomaterial facts are disputed and defendant is entitled todismissal as a matter of law. Young v. McKiegue, 303 Ill. App.3d 380, 386, 708 N.E.2d 493 (1999). Review of a dismissalpursuant to section 2-619 is de novo. Young, 303 Ill. App. 3d at386.

Medical malpractice actions are governed by a two-yearstatute of limitations under section 13-212(a) of the Code ofCivil Procedure. 735 ILCS 5/13-212(a) (West 1999). Undersection 13-212(a), any claim of malpractice against a physicianor hospital must be filed within two years of "the date on whichthe claimant knew, or through the use of reasonable diligenceshould have known, *** of the existence of the injury or deathfor which damages are sought." 735 ILCS 5/13-212(a) (West 1999). The statute of limitations is tolled until plaintiff knows orreasonably should have known both that an injury occurred andthat it was wrongfully caused. Witherell v. Weimer, 85 Ill. 2d146, 156, 421 N.E.2d 869 (1981).

Generally, the issue of when a party knew or should haveknown that an injury was wrongfully caused is one of fact. Witherell, 85 Ill. 2d at 156. The term "wrongfully caused" doesnot mean plaintiff must have knowledge of a specific defendant'snegligent conduct or knowledge of the existence of a cause ofaction before the statute is triggered. Saunders v.Klungboonkrong, 150 Ill. App. 3d 56, 59, 501 N.E.2d 882 (1986);Knox College v. Celotex Corp., 88 Ill. 2d 407, 416, 430 N.E.2d976 (1981). Instead, the phrase refers to that point in timewhen "the injured person becomes possessed of sufficientinformation concerning his injury and its cause to put areasonable person on inquiry to determine whether actionableconduct is involved." Knox, 88 Ill. 2d at 416.

Courts often examine the nature of the injury itself indetermining when a plaintiff knew or reasonably should have knownthat an injury was caused by wrongful conduct. Saunders, 150Ill. App. 3d at 60, citing Kristina v. St. James Hospital, 63Ill. App. 3d 801, 813, 380 N.E.2d 816 (1978). If plaintiff'sinjury is caused by a "sudden traumatic" event, the statute oflimitations begins to run on the date the injury occurs. Pszennyv. General Electric Co., 132 Ill. App. 3d 964, 966, 478 N.E.2d485 (1985). A traumatic injury has been defined as one where thedamage is caused by external violence (Roper v. Markle, 59 Ill.App. 3d 706, 711, 375 N.E.2d 934 (1978)) or which is immediateand caused by an external force (Pszenny, 132 Ill. App. 3d at966). See Ikenn v. Northwestern Memorial Hospital, 73 Ill. App.3d 694, 392 N.E.2d 440 (1979) (blindness resulting from excessiveamount oxygen given to premature infant); Berry v. G.D. Searle &Co., 56 Ill. 2d 548, 309 N.E.2d 550 (1974) (stroke and paralysisdue to ingestion of birth control pills); Bates v. Little Co. ofMary Hospital, 108 Ill. App. 3d 137, 438 N.E.2d 1250 (1982)(injuries suffered when plaintiff was pinned underneath aforklift truck); Urchel v. Holy Cross Hospital, 82 Ill. App. 3d1050, 403 N.E.2d 545 (1980) (paralysis caused by car accident andsubsequent medical treatment).

In contrast, the nature and circumstances of the injury maybe such that its cause is unknown or apparently innocent at thetime it occurs. Kristina, 63 Ill. App. 3d at 813. "If theinjury is *** an aggravation of a physical problem which maynaturally develop, absent negligent causes, a plaintiff is notexpected to immediately know of either its existence or potentialwrongful cause." Saunders, 150 Ill. App. 3d at 60. In thislatter situation, it would be "'manifestly unrealistic and unfairto bar a negligently injured party's cause of action before hehas had an opportunity to discover that it exists.'" Kristina, 63Ill. App. 3d at 813, quoting Lipsey v. Michael Reese Hospital, 46Ill. 2d 32, 41, 262 N.E.2d 450 (1970).

Defendant urges this court to adopt the rule that aninfant's death or injury should be classified, per se, as theresult of a "sudden traumatic" event based on two Third Districtdecisions: Nordsell v. Kent, 157 Ill. App. 3d 274, 510 N.E.2d606 (1987), and Lutes v. Farley, 113 Ill. App. 3d 113 (1983). InLutes, the plaintiff delivered a stillborn child in May 1978after receiving morphine. Plaintiff alleged in her complaintthat she did not discover the wrongful causation of that injuryuntil July 1980 when her sister began a nursing course andlearned that morphine should not be administered to pregnantwomen. Lutes, 113 Ill. App. 3d at 114.

The court held that the stillbirth was a "sudden, traumaticevent which should prompt some investigation by the injured partyand trigger the application of the discovery rule." Lutes, 113Ill. App. 3d at 115. The court did not rely on any definition ofthe term "sudden, traumatic event," however, and simply citedBerry v. G.D. Searle & Co., 56 Ill. 2d 548, 309 N.E.2d 550(1974), for support. In Berry, plaintiff sought damages forinjuries sustained after having taken a birth control pill calledEnovid. The drug was prescribed and sold to her on and beforeMay 29, 1965. On May 30, 1965, plaintiff suffered a stroke andparalysis after ingesting the drug. Plaintiff filed her actionmore than two years after her injury, alleging that she did notlearn that the drug caused her injury until June 1, 1967. Berry,56 Ill. 2d at 550.

The Illinois Supreme Court held that plaintiff's action intort accrued on the date of the occurrence of the stroke. Thecourt explained:

"[The complaint] asserts that on May 30, 1965, she suffereda cerebral vascular accident. Her reply brief candidlystates that she 'knew she was ill, that she had suffered astroke and was partially and permanently paralyzed.' However, she maintains that it was not until June 1, 1967,that she knew that Enovid was the cause of the condition. From plaintiff's description of the severity of hercondition in the complaint and her reply brief it isinconceivable that her injury was not occasioned by atraumatic event and that she knew of this injury more thantwo years prior to the filing of her complaint." Berry, 56Ill. 2d at 559.

In our view, Berry relied on the unusualness of plaintiff'scondition and the obvious severity of her injury to classify thestroke as a "traumatic event." However, Berry provided nospecific guidance relating to this term. See Kristina, 63 Ill.App. 3d at 813 ("nowhere in Berry does the court define the exactmeaning of the term 'traumatic injury'"). We also note that indetermining that a stillbirth constitutes a traumatic injury as amatter of law, Lutes relied solely upon Berry -- an adult injurycase.

Nordsell took the holding in Lutes one step further. InNordsell, plaintiff gave birth to twin girls on July 26, 1983. Cara was stillborn, while Sara died two weeks later on August 9,1983. Plaintiff's complaint, filed on August 14, 1985, allegedthat defendants failed to properly assess the gestational age ofthe unborn twins, thereby allowing plaintiff to proceed withpremature labor resulting in emergency surgery. Plaintiffalleged that defendants told her the twins were simply too smalland that postnatal death was not uncommon under thecircumstances. Plaintiff also alleged that she had no knowledgeof wrongdoing until after August 15, 1983, when legalconsultation produced evidence that defendants failed to properlydiagnose gestational age. Nordsell, 157 Ill. App. 3d at 275-76.Additionally, the death certificate stated the cause of Cara'sdeath was "stillborn due to *** placental insufficiency" whileSara's certificate listed "renal failure" and "prematurity" asthe cause of death. Nordsell, 157 Ill. App. 3d at 276.

The court in Nordsell relied on its previous decision inLutes to conclude that Cara's stillbirth constituted a sudden,traumatic event which triggered the statute of limitations. Withrespect to Sara, the court stated:

"Even if Cara's stillbirth did not trigger the discoveryrule as to Sara, nevertheless Sara's death two weeks laterwas the same sort of traumatic injury as would causeplaintiff to inquire into the existence of a cause of actionas to Sara." Nordsell, 157 Ill. App. 3d at 277.

The plaintiff in Nordsell argued that Lutes should not apply toSara because she lived two weeks and was not stillborn. Thecourt indicated that this argument would have been morepersuasive if plaintiff had alleged a different negligent act asto Sara. However, plaintiff alleged negligence in the improperdetermination of gestational age for both twins. Nordsell, 157Ill. App. 3d at 277.

Defendant argues that this court is bound by Nordsell'sdecision relating to Sara. Some factual similarities do exist: plaintiffs in both cases were told that premature infants do notsurvive; the death certificates did not alert plaintiffs towrongful causation of death; and Sara survived two weeks whileAshanti lived about 25 days. However, the plaintiff in Nordsellfailed to plead a specific date on which she reasonably couldhave learned of the injury. Here, plaintiff specifically pleadedthat she could not have learned of the cause of the injury untilApril 11, 1997, the date she received her expert's report.

More significantly, we are not persuaded by Nordsell'sreasoning with respect to Sara. We note that the classificationof an injury as traumatic or nontraumatic, alone, is of nosignificance. Kristina, 63 Ill. App. 3d at 813. The onlybenefit to be derived from such a classification would be indetermining when the plaintiff discovered, or should havediscovered, that the injury was caused by wrongful conduct. Kristina, 63 Ill. App. 3d at 813. Accord Watkins v. Health &Hospitals Governing Comm'n, 78 Ill. App. 3d 468, 471, 397 N.E.2d228 (1979); Saunders, 150 Ill. App. 3d at 60; Hale v. Murphy, 157Ill. App. 3d 531, 534, 510 N.E.2d 488 (1987); Gara v. Semerad,183 Ill. App. 3d 622, 629, 539 N.E.2d 298 (1989). The moreobvious the injury, the more easily a plaintiff should be able todetermine its cause. Watkins, 78 Ill. App. 3d at 471.

Defendant also relies on Ikenn v. Northwestern MemorialHospital, 73 Ill. App. 3d 694, 392 N.E.2d 440 (1979). In thatcase, plaintiff alleged that she was born prematurely and wasgiven an uncontrolled flow of oxygen for four weeks while she wasin an incubator following birth. Excessive quantities of oxygencaused her to become blind in both eyes. She also alleged thatshe discovered the possible cause of her blindness at age 22 whena magazine article was read to her. Ikenn, 73 Ill. App. 3d at694-95. The court held that plaintiff's blindness was the typeof physical problem which imparted constructive knowledge that itwas a traumatic event occasioned by another's wrongful act. Thecourt explained that blindness is an unusual condition and thatplaintiff could have easily determined its cause by merely makinginquiry, certainly before her twentieth birthday. The court alsonoted that plaintiff made no allegations that she could not havereasonably known of the cause of her blindness earlier or thatshe reasonably believed her condition was of innocent causation. Ikenn, 73 Ill. App. 3d at 700.

The instant case is factually distinguishable from Ikenn. Plaintiff's blindness in Ikenn was deemed an uncommon conditionthat does not naturally occur following a premature birth. Incontrast, here, the death of a 23-week-old premature infant whosuffers from several other complications is not as unusual. Under such circumstances, it was reasonable for plaintiff tobelieve that Ashanti's death resulted from natural causes,especially when that belief was supported by assertions frommedical personnel and the death certificate. Furthermore, unlikeIkenn, the plaintiff here does allege that she could not havereasonably known of cause of Ashanti's death at an earlier time -- namely, until April 11, 1997, when she first received theexpert's report.

Two instructive cases upon which plaintiff relies areWatkins v. Health & Hospitals Governing Comm'n, 78 Ill. App. 3d468, 471, 397 N.E.2d 228 (1979), and Young v. McKiegue, 303 Ill.App. 3d 380, 386, 708 N.E.2d 493 (1999). Watkins involved adiabetic plaintiff who brought an action seeking damages foramputation of her leg, alleging that it was necessitated by ablood clot due to a negligent injection of dye. The complaintwas filed more than two years after the amputation, but less thantwo years after the plaintiff was informed of the hospital'snegligence. Watkins, 78 Ill. App. 3d at 469.

The court rejected defendant's argument that plaintiff's legamputation was a "traumatic event" which commenced the running ofthe limitations period. The court observed that "classificationof an injury as traumatic or nontraumatic, alone, is of nosignificance. *** Courts have been holding that the more obviousthe injury the more easily a plaintiff should be able todetermine its cause." Watkins, 78 Ill. App. 3d at 471, citingBerry, 56 Ill. 2d at 559. Instead, the court found the discoveryrule to be controlling: the limitations period does not begin torun until the injured party discovers, or should have reasonablydiscovered, not only the nature of the injury but also thepossibility that it was wrongfully caused. Watkins, 78 Ill. App.3d at 472. Since the plaintiff, a known diabetic, could havereasonably believed the amputation was caused by her diabeticcondition, the court held that a triable issue of fact existed todetermine whether she should have discovered the defendants'negligence more than two years before the action was filed. Watkins, 78 Ill. App. 3d at 472-73.

In Young, a decedent's widow brought a wrongful death actionagainst treating physicians, including Dr. McKiegue. In August1993, decedent was admitted for treatment of pneumonia. OnSeptember 3, 1993, when he was due to be discharged, decedentcoughed blood and complained of shortness of breath and chestpain. Dr. McKiegue ordered an EKG and transferred decedent tointensive care. He died shortly after on September 4, 1993. Young, 303 Ill. App. 3d at 382-83.

Plaintiff was informed that her husband died ofcomplications from his pneumonia. The death certificate likewiseindicated that cause of death was due to pneumonia and did notidentify any cardiac ailment. However, plaintiff suspectedinappropriate medical care because decedent died only hours afterbeing prepared to leave the hospital. Young, 303 Ill. App. 3d at383. Plaintiff contacted an attorney and received decedent'smedical records by December 1993. In August 1994, plaintiffreceived the first expert's report, which indicated that treatingphysicians deviated from the standard of care by failing toidentify and properly treat decedent's heart attack on September3, 1993. Plaintiff received a second expert's report in February1995 which corroborated these findings. Young, 303 Ill. App. 3dat 384. Plaintiff filed suit in March 1995, within two years ofdecedent's death. However, she did not add Dr. McKiegue as adefendant until July 1996, when he was identified as decedent'sattending physician. Young, 303 Ill. App. 3d at 385.

In determining when the statute of limitations commenced,the court found that the first expert's report in August 1994 wassufficient to place defendant on notice that decedent's death waslikely caused by negligent care. Thus, the court determined thatthe limitations period commenced to run no later than August1994. Young, 303 Ill. App. 3d at 389. Although Dr. McKiegueasserted that plaintiff's suspicions of malpractice weresufficient to charge her with actual and constructive knowledgethat death was wrongfully caused, the court held that an issue offact existed as to whether plaintiff possessed the requisiteknowledge before August 1994. The cause was remanded for afactual finding on this issue. Young, 303 Ill. App. 3d at 389-90.

Like Dr. McKiegue, defendants here posit that the statute oflimitations commenced at death because plaintiff initiallycontacted an attorney on February 27, 1996, and must havesuspected negligence in order to do so. "However, when a partyknows or reasonably should know that her injury was wrongfullycaused does not mean when a party is suspicious that her injurywas wrongfully caused." Young, 303 Ill. App. 3d at 389-90. Rather, the trier of fact must examine the basis for plaintiff'ssuspicions and determine whether they would lead a reasonableperson to believe that wrongful conduct was involved. Young, 303Ill. App. 3d at 390. Whether plaintiff should have discoveredprior to receiving the expert's report on April 11, 1997, thatAshanti's death may have resulted from negligent medical care isa question to be determined by the trier of fact, based on theparticular facts and circumstances of this case. Watkins, 78Ill. App. 3d at 473.

Moreover, it was reasonable for the plaintiff to believethat the nature of Ashanti's death was due to nonnegligent causesat the time of death. Plaintiff gave birth to a 23-week-oldpremature infant. Plaintiff's complaint alleged that she wastold her baby died from complications due to prematurity, havingan infection and low birth weight, and problems associated withblood clotting and transfusions. In light of the fact ofAshanti's extreme prematurity, it was possible for plaintiff toreasonably believe that her baby's death resulted fromcomplications related to his premature birth. This possibilitywas enough to prevent her from knowing or suspecting thenegligence of the defendants in dislodging or cutting the venuscatheter line at the time of Ashanti's death.

Since a disputed question of fact remains as to when thestatute of limitations began to run against the defendants, thecourt's dismissal of plaintiff's claim is reversed and the causeremanded for further proceedings consistent with this opinion.

Reversed and remanded.

CAHILL, P.J. and GORDON, J., concur.

1. Defendant Payton was dismissed from the suit and Dr.Baurlygen was not named as a defendant. Neitherphysician is a party to this appeal.