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Martinez v. Rosenzweig





APPEAL from the Circuit Court of Cook County; the Hon. DAVID A. CANEL, Judge, presiding.


Plaintiffs, Mr. and Mrs. Martinez, appeal from an order dismissing their complaint and amended complaint pursuant to section 48(1)(e) of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 48(1)(e)) on the basis that the action was barred by the applicable statute of limitations (Ill. Rev. Stat. 1977, ch. 83, pars. 15, 15.1 and 22.1). The sole issue on appeal is whether plaintiffs' complaint was timely filed. We reverse and remand.

On March 7, 1977, plaintiffs filed a three-count complaint against Dr. Oscar Rosenzweig. They alleged that on or about February 1, 1973, defendant, who specialized in gynecology, inserted a copper intra-uterine device (hereafter I.U.D.) into Mrs. Martinez' uterus as a method of birth control. Several months later, she became pregnant, but on September 12, 1973, the pregnancy was aborted. Mrs. Martinez continued to see defendant intermittently for treatment of abdominal pains and a vaginal infection. She was unaware of her medical condition until July 23, 1975, when another physician surgically removed the I.U.D. from her bladder. In count I she alleged negligence on defendant's part in: (a) failing to determine what happened to the I.U.D.; (b) failing to evaluate her condition; (c) failing to conform to a reasonable standard of care over a 2 1/2-year period; and (d) failing to perform tests necessary to locate the I.U.D. In count II recovery was sought for defendant's negligence under a theory of res ipsa loquitur. Count III was brought by Mr. Martinez for loss of consortium.

On July 15, 1977, plaintiffs filed an amended complaint adding three counts against A.H. Robins Company (hereafter Robins), the alleged manufacturer of the I.U.D. in question. In count IV, plaintiffs alleged that Robins was negligent in failing to give defendant-physician or Mrs. Martinez proper instructions on the use of the I.U.D. and specifically for failure to warn Mrs. Martinez that the I.U.D. could readily pass through her body tissue. Count V was brought under the theory of res ipsa loquitur, alleging negligent manufacture of the I.U.D. Finally, in count VI, Mr. Martinez sought damages for loss of consortium.

Defendant Robins thereafter moved to dismiss plaintiffs' complaint for failure to file within the period of the statute of limitations. In the alternative, Robins sought to have count V dismissed for failure to state a cause of action under the theory of res ipsa loquitur since defendant Robins did not have exclusive control of the I.U.D. On October 12, 1977, plaintiffs amended their complaint to seek recovery against Robins under strict tort liability also. Dr. Rosenzweig also attempted to have count II dismissed for failure to state a cause of action under res ipsa loquitur but the motion was not acted upon.

Dr. Rosenzweig joined in Robins' motion to dismiss the complaint and on October 19, 1977, the trial court granted their motion to dismiss plaintiffs' complaint for failure to comply with the statute of limitations.

On November 3, 1977, plaintiffs filed a petition for rehearing on the dismissal order, accompanied by an affidavit. In the affidavit, Mrs. Martinez stated that after Dr. Rosenzweig had delivered her third child she asked him for a birth control method. She received the I.U.D. manufactured by co-defendant Robins. About six weeks later, Dr. Rosenzweig advised her that she was pregnant. She asked him what had happened to the I.U.D. and he replied that he was not sure, but it probably dropped out or would come out when the baby was born. The plaintiffs assumed this was true. During the ensuing months of treatment including the delivery of the premature fetus, Dr. Rosenzweig never mentioned the I.U.D. and plaintiffs never thought that it was still in Mrs. Martinez' body.

After the miscarriage in September 1973, Mrs. Martinez continued intermittent treatment with Dr. Rosenzweig until July 7, 1975. During this time "she had severe discharges and `learned to live' with the gnawing pain in her abdomen." Because of a sudden, severe pain in her abdomen, she visited Dr. Rosenzweig on July 7, 1975. When he was unable to diagnose the problem, she consulted another doctor. The second doctor quickly determined that a foreign object was lodged in her abdomen, necessitating the operation of July 23, 1975.

Plaintiffs asserted that the negligence of Dr. Rosenzweig continued until July 7, 1975, their last visit to him. They had no way of knowing the I.U.D. remained in Mrs. Martinez' body while the doctor was treating her. They claimed that Robins' negligence continued until the I.U.D. was removed on July 23, 1975. Until that time, plaintiffs did not and could not have known that the I.U.D. remained in Mrs. Martinez' body.

On November 28, 1977, after a hearing, the trial court affirmed its order dismissing the complaint. This appeal followed.


The Limitations Act (Ill. Rev. Stat. 1977, ch. 83, pars. 1 through 12a and 13 through 27) determines the time in which various actions may be brought. Section 21.1 governs medical malpractice claims and provides in pertinent part:

"No action for damages for injury or death against any physician or hospital duly licensed under the laws of this State, whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought more than 2 years after the date on which the claimant knew, or through the use of reasonable diligence should have known, or received notice in writing of the existence of the injury or death for which damages are sought in the action, whichever of such date occurs first, but in no event shall such 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." Ill. Rev. Stat. 1977, ch. 83, par. 22.1.

Section 14 governs actions for personal injuries and provides:

"Actions for damages for an injury to the person, or for false imprisonment, or malicious prosecution, or for a statutory penalty, or for abduction, or for seduction, or for criminal conversation, shall be commenced within two years next after the cause of action accrued." Ill. Rev. Stat. 1977, ch. 83, par. 15.

Section 14.1, dealing with actions for loss of consortium, provides:

"Actions for damages for loss of consortium or other actions deriving from injury to the person of another shall be commenced within the same period of time as actions for damages for injury to such ...

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