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Witherell v. Weimer





APPEAL from the Circuit Court of Tazewell County; the Hon. IVAN L. YONTZ, Judge, presiding.


Rehearing denied November 26, 1979.

On January 4, 1978, plaintiff Betty Witherell filed, in the Circuit Court of Tazewell County, personal injury actions against Drs. J.I. Weimer and R.K. Taubert, alleging negligence and against Ortho Pharmaceutical Corporation alleging negligence, strict liability and breach of warranty. Defendants Weimer and Taubert moved to dismiss the action against them, and defendant Ortho moved for summary judgment. Both motions were granted on the grounds plaintiff had failed to bring suit within the time limits allowed by the applicable statutes of limitation. We reverse and remand.

The pleadings and affidavits filed by plaintiff indicate that in 1966, pursuant to a prescription from Dr. Weimer, she began taking Ortho-Novum, a birth control pill manufactured by defendant Ortho. Shortly thereafter plaintiff began experiencing pain and spasms in her left leg. In March 1967, plaintiff consulted Dr. Weimer about the condition and was hospitalized by Weimer's associate, Dr. Taubert, who told her he thought she had a blood clot in her leg.

Plaintiff was released from the hospital on April 7, 1967, but the pain and spasms in her leg continued and progressively worsened until July 1972, when she was again hospitalized by Drs. Weimer and Taubert. During her hospitalization plaintiff told Dr. Weimer that she had heard from other women that birth control pills could cause blood clots. According to plaintiff, Dr. Weimer assured her that the pills did not cause blood clots and that they would not harm her in any way. Weimer told plaintiff she no longer had blood clots in her leg and that the pain and spasms she continued to experience were caused by a muscle condition. The painful condition of plaintiff's leg continued after she was released from the hospital, and sometime in 1973, at the urgings of her mother, she quit taking the birth control pill for about a month. However, after being reassured by Dr. Weimer that it was not the cause of her leg problem, plaintiff resumed taking the pill.

Plaintiff was again hospitalized in May 1976 by Dr. Weimer, who again told her the problem with her leg was a muscle condition. While in the hospital, plaintiff asked Dr. Weimer to perform a veinogram on her leg, but Weimer refused, saying "Now there's nothing wrong with the veins in your legs." Plaintiff left the hospital and went to see Dr. Juco, a Peoria physician. After performing a veinogram on her legs, Dr. Juco, on May 22, 1976, told plaintiff she had thrombophlebitis, a condition of the vein marked by inflammation of the vein walls and the formation of clots and crusts of coagulated blood. Dr. Juco told plaintiff that the thrombophlebitis could have been caused by her use of the birth control pill, and he directed her to stop taking it.

In support of the motions to dismiss and for summary judgment, the defense presented affidavits from Drs. Weimer and Taubert, from two other doctors who had examined plaintiff, and from a hospital nurse. Drs. Weimer and Taubert admitted hospitalizing plaintiff in 1967 and 1972, but asserted that on both occasions they diagnosed plaintiff's condition as thrombophlebitis and fully explained the condition to her. The defendant doctors said they also hospitalized plaintiff in May 1976 for a leg problem which they diagnosed as unrelated to her earlier thrombophlebitis. In a responsive affidavit, plaintiff denies that Dr. Weimer or Dr. Taubert ever told her she had thrombophlebitis and claims the first time she ever heard the word thrombophlebitis was in 1976 when she was examined by Dr. Juco.

The affidavit of Dr. Francis Rafool indicated that he hospitalized plaintiff in June 1969 at which time she told him that about two years earlier she had a swelling of her left leg following thrombophlebitis and that she was taking birth control pills on the date of her examination by him, June 25, 1969. Plaintiff denies telling Dr. Rafool in 1969 that she had previously had thrombophlebitis and claims she told him only that she had a blood clot, which is what Dr. Taubert had told her.

According to the affidavit of Nurse Miriam Nafziger, plaintiff told her in May 1976 that she had suffered from pain and blood clots in her leg for the past nine years. Dr. Benito M. Camacho stated that plaintiff told him in March 1977 that she had deep vein thrombosis in 1967, and that, at that time, it was thought to be related to her use of birth control pills.

Plaintiff admits telling Nurse Nafziger of her past trouble with her leg, but denies ever using the word thrombophlebitis. Plaintiff said she did not tell Dr. Camacho in 1977 she had thrombophlebitis in 1967, and that Camacho must have received such information from Dr. Juco, who had previously diagnosed plaintiff's condition in 1976, and who had referred her to Dr. Camacho.

In her complaint plaintiff alleges that Drs. Weimer and Taubert were negligent in failing to diagnose her condition of thrombophlebitis, failing to treat that condition properly, and continuing to prescribe birth-control pills for her despite the fact those pills were the likely cause of her thrombophlebitis. Plaintiff's negligence claim against Ortho is based on allegations that Ortho failed to give proper warnings as to the relationship between the pill Ortho-Novum and the condition of thrombophlebitis. Plaintiff bases her strict liability and breach of warranty claims on allegations that the pill Ortho-Novum was not reasonably safe for distribution and was not of merchantable quality. These allegations sufficiently stated causes of action against defendants Weimer and Taubert and against defendant Ortho. The question presented on review is whether plaintiff's actions were time barred.

The statute of limitations applicable to plaintiff's malpractice claim against defendant doctors is section 21.1 of the Limitations Act (Ill. Rev. Stat. 1977, ch. 83, par. 22.1):

"No action for damages for injury or death against any physician or hospital duly licenced 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 ...

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