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Ikenn v. Northwestern Memorial Hospital





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


Plaintiff appeals the dismissal of her medical malpractice action, and the sole issue presented for review is whether her claim is barred by the applicable limitations period.

The pertinent portions of plaintiff's second amended complaint alleged that she was born prematurely on November 24, 1953, at Wesley Memorial Hospital (the Hospital); that after birth she was placed in an incubator and for a period of four weeks an uncontrolled flow of oxygen was administered to her; that each defendant breached a duty of care owed her "[b]y administering to a premature infant an uncontrolled flow of oxygen continuously for a long period of time and in excessive quantities * * *"; that as a direct and proximate result of such breach of duty, plaintiff became blind in both eyes; that she had no knowledge that her blindness might or could have been caused by any or all of the defendants until a certain magazine article was read to her in March 1975; that no physician or other medical personnel had informed her of the cause of her blindness prior to March 1975; and that she had no knowledge of the treatment administered at the hospital until November 1976.


Plaintiff contends that the applicable statute of limitations begins to run when the injured party discovers or should have reasonably discovered not only the nature of her affliction but also that it may have been wrongfully caused. We agree

Illinois law provides that:

"No action for damages for injury * * * 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 * * * of the existence of the injury * * * for which damages are sought in the action. * * *.

If the person entitled to bring the action is, at the time the cause of action occurred, under the age of 18 years, * * * the period of limitations does not begin to run until the disability is removed. (Ill. Rev. Stat. 1977, ch. 83, par. 22.1.)

Such provision has been viewed as the codification of the discovery rule announced in Rozny v. Marnul (1969), 43 Ill.2d 54, 250 N.E.2d 656 (i.e., a cause of action accrues when plaintiff knew or should have known of defendant's error) and first applied to medical malpractice cases in Lipsey v. Michael Reese Hospital (1970), 46 Ill.2d 32, 262 N.E.2d 450. See Fure v. Sherman Hospital (1978), 64 Ill. App.3d 259, 380 N.E.2d 1376.

Lipsey involved a plaintiff who entered defendant hospital for the removal of a lump located on her left arm. A biopsy was performed by members of defendant's staff, who determined that the lump was benign. Three years later, after another lump was found to be malignant, a reexamination of a frozen section of the first lump established that it had also been malignant. Plaintiff then underwent radical surgery for the removal of her left breast, shoulder, and arm. Within two years of this surgery but in excess of two years after the initial erroneous biopsy plaintiff brought an action for medical malpractice, which was dismissed. On appeal, the supreme court framed the issue as follows:

"The principal issue * * * is whether the two year period of limitations * * * began to run * * * at the time of the plaintiff's first surgery and the alleged negligence, or at the time that the plaintiff discovered her true condition or should have known of it and the defendant's claimed negligence. If the latter standard should have been applied by the trial court, dismissal of the plaintiff's complaint on the ground that it was barred by the Statute of Limitations was improper." (46 Ill.2d 32, 37, 262 N.E.2d 450, 453.)

Following a review of relevant decisions of this and other jurisdictions and after noting that the point in time at which a cause of action for medical malpractice accrues had not been legislatively mandated, the Lipsey court reversed the dismissal, stating:

"We extend the rule of time of discovery followed by us in Rozny and hold that, in medical malpractice cases as this, the cause of action accrues when the person injured learns of his injury or should reasonably have learned of it. * * *

* * * `* * * It is manifestly unrealistic and unfair to bar a negligently injured party's cause of action before he has had an opportunity to discover that it exists. This is true whether the malpractice consists of leaving a foreign object in the body or whether it consists of ...

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