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Lind v. Zekman





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


The plaintiff, Fannie Lind, appeals from the entry of a summary judgment in favor of the defendant, Dr. Theodore Zekman. The trial court entered the summary judgment order after determining that the plaintiff's claim was barred by the applicable statute of limitations pertaining to personal injuries. (Ill. Rev. Stat. 1973, ch. 83, par. 15.) We reverse.

The plaintiff first became a patient of Dr. Zekman's in 1952. On February 4, 1969, Dr. Zekman performed a lens extraction on the plaintiff's right eye. Thereafter, on March 13, 1969, or March 17, 1969, he removed the stitches placed in the plaintiff's eye incident to the operation. At this time, the plaintiff observed that while she could distinguish light from dark with her right eye, she could no longer differentiate objects with that eye. After this discovery, Lind consulted a number of physicians concerning her condition, some at the direction, suggestion and accompaniment of Dr. Zekman. On July 1, 1969, the plaintiff's condition was diagnosed as epithelial downgrowth, a diagnosis confirmed by two other physicians. Over approximately the next four years, the plaintiff was treated by as many as eight physicians, including the defendant, and, in an effort to retard the epithelial downgrowth, underwent x-ray treatment and various surgical procedures including an unsuccessful corneal transplant.

In March 1975, the plaintiff consulted an attorney and through him an eye specialist who for the first time linked the plaintiff's eye condition with the defendant's surgical technique during the lens extraction procedure. Thereafter, on November 4, 1975, the plaintiff filed a malpractice action against Dr. Zekman.

The complaint alleged that Dr. Zekman was negligent in either improperly stitching the plaintiff's eye during the original procedure, or in the alternative, in failing to use due care in the removal of the stitches. The complaint further alleged that the plaintiff did not discover Dr. Zekman's negligent conduct until March 1975. In his answer, the defendant raised the affirmative defense that the action was barred by the two-year statute of limitations (Ill. Rev. Stat. 1973, ch. 83, par. 15) and moved to dismiss the action on this ground.

Subsequently, the defendant filed a motion for summary judgment based on the plaintiff's answers to interrogatories and to answers to certain questions propounded to her during her deposition. These confirmed that she knew of her injury in March 1969 when she lost the vision in her right eye and in July 1969 when her condition was diagnosed by Drs. Hughes, Newell and Maumenee. The defendant maintained that these answers prove that the plaintiff knew of her injury before 1975, contrary to the plaintiff's allegations in her complaint, and that the plaintiff should have filed the present action at the latest by 1972.

In response, Lind argued that her cause of action did not accrue when she first became aware of her condition, but only later when she discovered the act or event which led to her condition. This occurred, she maintained, when a specialist advised her in March 1975 that her epithelial downgrowth was caused by the formation of a fistulous tract which resulted from improper suturing or improper suture removal. It should be noted that the defendant introduced no statements or deposition testimony from the physicians who treated the plaintiff refuting the plaintiff's allegation that she learned of the causal connection between the lens extraction operation and the epithelial downgrowth in March 1975. Nor did he otherwise deny the validity of that date either in his answer or in his motion for summary judgment. The trial court granted the defendant's motion for summary judgment on February 21, 1978, and the plaintiff filed the present appeal.

• 1 The statute of limitations in effect at the time that the plaintiff filed her suit *fn1 stated in pertinent part that:

"Actions for damages for an injury to the person, * * * shall be commenced within two years next after the cause of action accrued." (Ill. Rev. Stat. 1973, ch. 83, par. 15.)

A statute of limitations, by setting a time limit in which an action must be initiated, attempts to insure that a defendant will have a reasonable opportunity to investigate a claim and prepare a defense within a time period in which facts are still accessible and witnesses are still available. (Tom Olesker's Exciting World of Fashion, Inc. v. Dun & Bradstreet, Inc. (1975), 61 Ill.2d 129, 334 N.E.2d 160; Roper v. Markle (1978), 59 Ill. App.3d 706, 375 N.E.2d 934; Mosby v. Michael Reese Hospital (1964), 49 Ill. App.2d 336, 199 N.E.2d 633.) Until recently, it was recognized that the limitation period in a tort action began to run from the time that the last act giving rise to the cause of action occurred. (Gray v. American Radiator & Standard Sanitary Corp. (1961), 22 Ill.2d 432, 176 N.E.2d 761; Mosby v. Michael Reese Hospital; Gangloff v. Apfelbach (1943), 319 Ill. App. 596, 49 N.E.2d 795.) However, in Rozny v. Marnul (1969), 43 Ill.2d 54, 250 N.E.2d 656, our supreme court rejected the "time of negligence" rule and adopted in its stead a "discovery" rule to prevent the harsh results occasioned where the former rule was applied to a plaintiff who failed to discover his injury until after the termination of the limitation period. (E.g., Mosby v. Michael Reese Hospital.) Under the discovery rule, as applied to Illinois malpractice cases, in Lipsey v. Michael Reese Hospital (1970), 46 Ill.2d 32, 262 N.E.2d 450, a medical malpractice action accrues and "the limitations period begins to run not when the last act giving rise to a cause of action has occurred but when the plaintiff knew or should have known that he was `injured'." Roper v. Markle (1978), 59 Ill. App.3d 706, 708, 375 N.E.2d 934.

Initially, it should be noted that the defendant does not argue that he will be prejudiced by an application of the discovery rule or that the discovery rule should not otherwise be applied in this particular case, as was recently argued in Nolan v. Johns-Manville Asbestos & Magnesia Materials Co. (1979), 74 Ill. App.3d 778, 392 N.E.2d 1352. Rather, we are asked to determine whether the limitations period commences when a party discovers or should have discovered his injury, or whether the period commences when a party discovers his injury is actionable. This issue was addressed by the Fifth Appellate District in Roper v. Markle (1978), 59 Ill. App.3d 706, 375 N.E.2d 934, and the court's reasoning in that decision has been followed in several recent cases: Nolan v. Johns-Manville Asbestos & Magnesia Materials Co.; Martinez v. Rosenzweig (1979), 70 Ill. App.3d 155, 387 N.E.2d 1263; Licka v. William A. Sales, Ltd. (1979), 70 Ill. App.3d 929, 388 N.E.2d 1261; Kristina v. St. James Hospital (1978), 63 Ill. App.3d 810, 380 N.E.2d 816. We find it equally persuasive.

• 2, 3 In Roper, the defendant performed a hysterectomy on the plaintiff on or about April 7, 1972. Shortly after that surgery, on May 9, 1972, it was discovered that one of the plaintiff's kidneys was inflamed and would have to be removed. Over two years later, on September 1, 1974, the plaintiff first learned that the defendant's negligence during the hysterectomy caused the inflammation which necessitated the removal of her kidney. Roper filed suit within two years of the discovery of the cause of her injury; however, the trial court dismissed the action on the basis that it was filed after the limitation period had lapsed. On appeal, this court reversed, holding that, in a medical malpractice case, a cause of action accrues when the plaintiff knew or should have known that a condition was the result of the negligent act or omission of another. After a thorough analysis of the purpose of statutes of limitation and a review of the Illinois malpractice discovery rule cases, the court reasoned that:

"* * * where the injury manifests itself at one time but there is no reason to know that the injury was caused by another until a later time, the later time starts the statute's running since it reflects the date on which the claimant knew or should have known of the `injury.'

Such an interpretation is consistent with the purpose of statutes of limitations. Their purpose is not to shield a wrongdoer but rather to discourage the presentation of stale claims and to ...

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