Hill v. Pedapati

Case Date: 11/28/2001
Court: 2nd District Appellate
Docket No: 2-00-0735 Rel



No. 2--00--0735
November 28, 2001

______________________________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

______________________________________________________________________________________________

ROSALIE A. HILL,

               Plaintiff-Appellant,

v.

PRAKASH PEDAPATI, Indiv. and
as Agent of SwedishAmerican
Hospital Association of
Rockford, THORNTON C. KLINE,
JR., Indiv. and as Agent of
SwedishAmerican Hospital
Association of Rockford, and
SWEDISHAMERICAN HOSPITAL 
ASSOCIATION OF ROCKFORD,

               Defendants-Appellees.

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Appeal from the Circuit Court
of Winnebago County.

 

 

No. 97--L--2

 

 


Honorable
Ronald L. Pirrello,
 Judge, Presiding.

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JUSTICE BOWMAN delivered the opinion of the court:

Plaintiff, Rosalie A. Hill, brought this medical malpracticeaction in the circuit court of Winnebago County against defendantsPrakash Pedapati, M.D., Thornton C. Kline, Jr., M.D., andSwedishAmerican Hospital Association of Rockford (SwedishAmerican). The trial court entered summary judgment for defendants on thebasis that the cause of action was barred by the two-year statuteof limitations for medical malpractice (735 ILCS 5/13--212(a) (West1996)). On appeal, plaintiff argues that the lawsuit was timelyunder the discovery rule. We reverse and remand.

The record reveals that in June 1993 plaintiff underwentsurgery for the removal of an anal carcinoma and later receivedradiation treatment. Defendants Pedapati and Kline supervised theradiation treatment, which was administered during the period fromAugust 16, 1993, through October 12, 1993, at SwedishAmerican. After the surgery, but prior to the radiation treatment, plaintiffdeveloped vaginal pain and severe pain associated with bowelmovements. During the course of the radiation treatments plaintiffsuffered severe pain, redness, peeling, and bleeding in the pelvicand abdominal region. This cleared up within about a month afterthe completion of the radiation treatments, but plaintifftemporarily suspended the radiation treatments on two occasionsbecause of the pain.

Plaintiff continued to suffer vaginal and rectal pain and alsosuffered pain in the region from above her pubic bone to herabdomen. According to plaintiff's deposition testimony, aroundThanksgiving 1993 she knew that the pain was not getting anybetter. Late in November 1993, surgery was performed toreconstruct plaintiff's rectum, but plaintiff continued to sufferpain associated with bowel movements. At her deposition plaintifftestified that the surgeon, Dr. McCanse, told her the pain wasrelated to the radiation treatment and would be permanent. At somepoint between November 1993 and January 1995, another physician,Dr. Whitely, told plaintiff that the problems she was sufferingwere related to the radiation treatment and that "[t]hings will getworse before they ever get better if they get better."

Plaintiff testified at her deposition that she first thoughtabout consulting an attorney early in 1994. She also acknowledged that she contacted Dr. Pedapati's office to determine the dateswhen she had suspended the radiation treatments. Plaintiff furtheracknowledged that when she made this inquiry she felt something waswrong with the radiation treatments. Plaintiff stated, "I wasthinking that when I did have the treatment and then I took abreak[,] *** I kept telling myself if I hadn't taken the rest of[the treatments] I wouldn't have been this bad." While plaintiffindicated that she had no reason to disagree with defense counsel's assertion that she made the inquiry in September 1994, plaintifftestified that she did not recall when she contacted Dr. Pedapati'soffice.

On January 3, 1995, plaintiff was diagnosed with a comminutedinsufficiency fracture of her left pubic bone and bilateralnondisplaced sacral insufficiency fractures. On January 3, 1997,she filed this lawsuit alleging that Drs. Pedapati and Kline werenegligent in administering and monitoring her radiation andtreatment and that their negligence was the proximate cause of thefractures. Plaintiff sought recovery from SwedishAmerican underagency principles.

Defendants moved for summary judgment, contending thatplaintiff knew or reasonably should have known of her injury, andthat it was wrongfully caused, before the fractures were discoveredon January 3, 1995, and her complaint filed on January 3, 1997, wasuntimely. Defendants relied on evidence that around Thanksgiving1993 plaintiff knew her pain was not improving; two physicians toldher that her problems were due to the radiation; she consideredcontacting an attorney early in 1994; and she contacted Dr.Pedapati's office because she felt her resumption of the radiationtreatment (which had been suspended due to side effects) caused theproblems she was experiencing. Defendants also relied on thedeposition testimony of several of plaintiff's relatives that while plaintiff was receiving the radiation, and on other occasionsprior to January 1995, plaintiff had complained that she was beinggiven too much radiation or that her doctors were doing somethingwrong, and that she was very dissatisfied with her care. The trialcourt granted defendants' motion and this appeal followed.

Summary judgment is appropriate only where "the pleadings,depositions, and admissions on file, together with the affidavits,if any, show that there is no genuine issue as to any material factand that the moving party is entitled to a judgment as a matter oflaw." 735 ILCS 5/2--1005(c) (West 1996). In determining whethera genuine issue exists as to any material fact, a court mustconstrue the pleadings, depositions, admissions, and affidavitsstrictly against the moving party and liberally in favor of theopponent. Gilbert v. Sycamore Municipal Hospital, 156 Ill. 2d 511,518 (1993). Summary judgment is a drastic means of disposing oflitigation and should be allowed only when the right of the movingparty is clear and free from doubt. Gilbert, 156 Ill. 2d at 518.

Section 13--212(a) of the Code of Civil Procedure provides, inpertinent part:

"[N]o action for damages for injury or death against anyphysician, dentist, registered nurse or hospital duly licensedunder the laws of this State, whether based upon tort, orbreach of contract, or otherwise, arising out of patient careshall be brought more than 2 years after the date on which theclaimant knew, or through the use of reasonable diligenceshould have known, or received notice in writing of theexistence of the injury or death for which damages are soughtin the action, whichever of such date occurs first, but in noevent shall such action be brought more than 4 years after thedate on which occurred the act or omission or occurrencealleged in such action to have been the cause of such injuryor death." 735 ILCS 5/13--212(a) (West 1996).

Under the "discovery rule" set forth in this provision, thelimitations period "starts to run when a person knows or reasonablyshould know of his injury and also knows or reasonably should knowthat it was wrongfully caused." Witherell v. Weimer, 85 Ill. 2d146, 156 (1981). Stated differently, the limitations periodcommences when "the injured person becomes possessed of sufficientinformation concerning his injury and its cause to put a reasonableperson on inquiry to determine whether actionable conduct isinvolved." Knox College v. Celotex Corp., 88 Ill. 2d 407, 416(1981); see also Dockery v. Ortiz, 185 Ill. App. 3d 296, 305-06(1989).

Plaintiff argues that aggressive cancer therapy often involvessevere side effects and the particular side effects she suffereddid not alert her to the possibility that her doctors' conduct wasactionable. Plaintiff maintains that it was only when shediscovered that the radiation caused fractures that she had reasonto know that the treatment was negligently administered. Defendants contend that prior to January 1995 plaintiff knew shesuffered injuries from the radiation. Citing Golla v. GeneralMotors Corp., 167 Ill. 2d 353 (1995), defendants argue that thefact that plaintiff might not have known the full extent of theinjuries would not prevent the statute of limitations from running. Defendants contend that plaintiff's own deposition testimony andthat of her relatives establishes that she knew or suspectedsomething was wrong with the radiation treatment before January1995.

While plaintiff experienced burning and other severe, painfulside effects from the radiation treatment, they were not so clearlyoutside the realm of what ordinarily accompanies aggressive cancertherapy that the typical patient would necessarily have reason tosuspect that the treatment was administered negligently. Unfortunately, severe side effects are not uncommon in thissetting. While these side effects were obviously very distressing,they might be considered medically "normal" in this particularcontext. A jury could reasonably infer that the initial sideeffects plaintiff suffered would not put a reasonable person onnotice of a malpractice claim and that the duty of inquiry onlyarose when plaintiff learned of her more serious latent injuries.

Defendants' reliance on Golla is misplaced. In Golla, theplaintiff was involved in a motor vehicle collision and sustaineda shoulder injury due to an alleged defect in the vehicle's seat,which violently slid forward during the collision. The Golla courtnoted that when an injury is caused by a sudden traumatic event,the statute of limitations begins to run at the time the injuryoccurred. Golla, 167 Ill. 2d at 361. The plaintiff in Golla didnot claim that she was unaware of her injury at the time of thecollision or that she was unaware of the causal connection betweenthe injury and the alleged defect in the automobile seat. Instead,she contended that the statute of limitations did not begin to rununtil she was aware of the ultimate extent of her injuries, whichinitially appeared to be relatively minor. Golla, 167 Ill. 2d at364, 368-69. The Golla court rejected this argument, reciting thegeneral rule that "the limitations period commences when theplaintiff is injured, rather than when the plaintiff realizes theconsequences of the injury or the full extent of her injuries." Golla, 167 Ill. 2d at 364.

In this case, however, plaintiff's injury was not the resultof a sudden traumatic event that would put her on immediate noticeof actionable conduct. Additionally, the extent of plaintiff'sinjury is closely related to the wrongfulness of its cause. Forthe reasons discussed above, a jury could conclude that plaintiffwas not on notice that defendants had done anything improper untilshe learned that the radiation had actually resulted in thefractures.

In their brief, defendants Pedapati and Kline cite severaldecisions where the discovery rule was held to bar medicalmalpractice lawsuits. See Blair v. Blondis, 160 Ill. App. 3d 184(1987); Conley v. Springfield Clinic, 130 Ill. App. 3d 369 (1985);Gaudynski v. Corbett, 81 Ill. App. 3d 910 (1980); O'Bryant v.Starkman, 53 Ill. App. 3d 991 (1977). For the reasons discussedbelow, the cases are inapposite.

In Blair, the plaintiff underwent a biopsy to determinewhether a mass in her breast was cancerous. No malignancy wasdiscovered, but the plaintiff alleged that the defendant'snegligence in performing the biopsy resulted in the disfigurementof her breast. The court rejected her argument that the statute oflimitations did not begin to run until she learned that the biopsywas unnecessary. Rather, the court held that because she washorrified and felt disfigured when she first saw the result of theprocedure, she almost immediately contacted a reconstructivesurgeon, and the reconstructive surgeon told her it was possiblethe defendant had removed too much tissue, the plaintiff was onnotice that her injury was wrongfully caused. Blair, 160 Ill. App.3d at 189.

In Conley the plaintiff experienced pain in her shoulder andher shoulder began to droop after surgery. Plaintiff alleged thatthe defendant severed a nerve in her neck. About six weeks afterthe surgery, the plaintiff reported these symptoms to thedefendant's nurse and stated that the defendant had " 'cutsomething that he shouldn't have.' " Conley, 130 Ill. App. 3d at369-70. The court held that at that point the burden was on theplaintiff to make further inquiry. Conley, 130 Ill. App. 3d at370-71.

In Gaudynski, the court held that a hip surgery patient shouldhave known that his injury was caused by the improper care thedefendants provided when he learned that the bone had becomeinfected. Gaudynski, 81 Ill. App. 3d at 914. Finally, in O'Bryantthe plaintiff sought treatment for a dislocated kneecap, thedefendant released the plaintiff from his care withoutadministering any treatment, and the plaintiff injured her leg onher way home. The O'Bryant court held that the limitations periodbegan to run, at the latest, the next day when the plaintiffrelated these facts to another physician. At that point,"[plaintiff] had a reason to believe that there might be acausative link between her physical condition and the conduct ofdefendant." O'Bryant, 53 Ill. App. 3d at 993.

While these cases illustrate the application of the discoveryrule, the results reached are clearly a function of the particularinjuries and medical procedures involved. We find no meaningfulbasis for comparison between these cases and the case before us. Unlike the injuries in Blair and Conley, and the seriouscomplication in Gaudynski, plaintiff's initial side effects werenot necessarily so severe or unanticipated that a jury could onlyconclude that plaintiff was on inquiry to determine whetheractionable conduct was involved. O'Bryant is also inapposite inview of the clear link in that case between the defendant's failureto provide treatment and the plaintiff's subsequent injury.

Defendants also emphasize the evidence that prior to January1995 plaintiff believed that she had been given too much radiation;she expressed dissatisfaction with her treatment; she thought aboutcontacting a lawyer; and she made an inquiry to one of thedefendant's offices because she thought the treatment had causedher problems. Some decisions suggest that a plaintiff's subjectiveconcerns about the quality of care may be relevant to theapplication of the discovery rule. See Blair, 160 Ill. App. 3d at189 (relying, in part, on plaintiff's "extreme dissatisfaction withthe results of the surgery"); Conley, 130 Ill. App. 3d at 370-71(holding that duty of inquiry arose when plaintiff knew of herinjury and "attributed" it to defendant's wrongful conduct). However, we do not believe the plaintiff's subjective belief iscontrolling. Mere suspicions of wrongdoing are not the same asknowledge that a wrong was probably committed. Young v. McKiegue,303 Ill. App. 3d 380, 390 (1999). The Young court observed:

"[W]hether a party possessed the requisite constructiveknowledge contemplates an objective analysis of the factualcircumstances involved in the case. Thus, the relevantdetermination rests on what a reasonable person should haveknown under the circumstances and not on what the particularparty specifically suspected. The trier of fact must examinethe factual circumstances upon which the suspicions arepredicated and determine if they would lead a reasonableperson to believe that wrongful conduct was involved. Thefact that a party suspects wrongful conduct, without examiningthe reasons underlying those suspicions, is not enough toconstitute constructive knowledge that an injury waswrongfully caused." Young, 303 Ill. App. 3d at 390.

Here, plaintiff's concerns could be viewed as an overallreaction to the combination of extremely unpleasant side effectsshe experienced, such as the burning during the treatments and herpain during bowel movements. It is not clear, however, that theseside effects were themselves actionable injuries or that areasonably diligent patient would necessarily view them as such. Even if plaintiff subjectively believed the initial side effectswere actionable, pursuant to Young she should not be foreclosedfrom recovering for other latent injuries when she subsequentlybecame aware of them and had an objective basis to believe medicalmalpractice had been committed.

We conclude that a genuine issue of fact exists as to whenplaintiff knew or reasonably should have known of her injury andits wrongful cause. Accordingly, summary judgment was improper.

For the foregoing reasons, the judgment of the circuit courtof Winnebago County is reversed, and the cause is remanded forfurther proceedings.

Reversed and remanded.

HUTCHINSON, P.J., and GEIGER, J., concur.