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Watkins v. Health & Hospitals Governing Com.

OPINION FILED NOVEMBER 15, 1979.

DOROTHY WATKINS, PLAINTIFF-APPELLANT,

v.

THE HEALTH AND HOSPITALS GOVERNING COMMISSION OF COOK COUNTY ET AL., DEFENDANTS-APPELLEES.



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

MR. JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:

The plaintiff, Dorothy Watkins, brought an action for medical malpractice to recover for the loss of her right leg at the knee. The defendant, Health and Hospitals Governing Commission of Cook County (commission) moved to dismiss the complaint and amended complaint on the grounds that the suit was barred by the applicable statute of limitations (Ill. Rev. Stat. 1973, ch. 85, pars. 8-101, 8-102, 8-103). The motion was allowed by the trial court. Plaintiff moved to vacate the order of dismissal and the court denied the motion. Plaintiff appeals from that order. We reverse.

The issue to be determined is whether the statute of limitations begins to run when the injured party discovers, or should have reasonably discovered, not only the nature of her injury but also that the injury may have been wrongfully caused.

The complaint as amended alleged that on or about January 16, 1973, plaintiff was confined to Cook County Hospital for treatment of a kidney infection. The course of treatment specifically required that she be injected with a certain type of dye in connection with one of the tests being performed upon her. As a result of the dye injection, plaintiff developed blood clots, ultimately necessitating the amputation of her right leg at the knee. She was discharged from the hospital in May 1973 and continued treatment at Cook County Hospital until September 23, 1974. On September 23, 1974, she was advised that the amputation of her leg was the result of the negligent care and treatment given by Cook County Hospital.

On November 27, 1974, the commission was served with notice of plaintiff's claim. On August 7, 1975, the County of Cook was also served with statutory notice of the asserted cause of action.

Plaintiff's original complaint was filed on September 23, 1976. On March 21, 1977, the commission moved to dismiss the complaint. An amended complaint was thereafter filed on June 22, 1977. On July 25, 1977, the commission filed a motion to dismiss plaintiff's amended complaint, based on the statute of limitations of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1973, ch. 85, pars. 8-101, 8-102, 8-103). That act provides that an action must be commenced within 2 years from the date the "injury was received or the cause of action accrued." It also provides a written notice upon the commission within 1 year. The trial court granted the defendant's motion to dismiss on October 14, 1977. Plaintiff then filed her motion to vacate the dismissal order. On December 30, 1977, the trial court denied plaintiff's motion to vacate the order of dismissal. Plaintiff appeals that order.

Plaintiff contends that the applicable statute of limitations begins to run when the injured party knew, or should have known, both that she had a physical injury and that the injury was the result of someone's negligence.

The statute of limitations applicable to plaintiff's malpractice claim is section 21.1 of the Limitations Act (Ill. Rev. Stat. 1975, ch. 83, par. 22.1), which provides in relevant part:

"No action for damages for injury or death against any physician or hospital duly licensed under the laws of this State * * * 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 or death for which damages are sought in the action * * *, but in no event shall such action be brought more than 5 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."

The commission, in filing its motion to dismiss, relies on sections 8-102 and 8-103 of the Local Governmental and Governmental Employees Tort Immunity Act. Section 8-102 requires written notice of the claim within 1 year of the injury or cause of action, and section 8-103 sets forth the effect of failure to serve notice. These two sections of the Act apply to any actions brought for alleged malpractice at Cook County Hospital.

The issue in this case revolves around the application of the statute of limitations. Defendant relies on the Local Governmental and Governmental Employees Tort Immunity Act in its dismissal action because of Cook County Hospital's involvement. However, both the Limitations Act and the Local Governmental and Governmental Employees Tort Immunity Act have the same statutory limitations. First, we consider the Limitations Act (Ill. Rev. Stat. 1975, ch. 83, par. 22.1) in determining whether plaintiff's cause of action was wrongfully dismissed.

As first announced in Rozny v. Marnul (1969), 43 Ill.2d 54, 250 N.E.2d 656, section 21.1 of the Limitations Act has been called the "discovery rule." The rule was later applied in medical malpractice cases. (Lipsey v. Michael Reese Hospital (1970), 46 Ill.2d 32, 262 N.E.2d 450.) Lipsey stated that a cause of action accrues in medical malpractice cases when the person injured learns of his injury, or should reasonably have learned of it. The court stated:

"The reason for the application of the discovery rule is the same in each instance. 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 faulty diagnosis or treatment." Lipsey, 46 Ill.2d 32, 41.

• 1 In a more recent case, Roper v. Markle (1978), 59 Ill. App.3d 706, 710, 375 N.E.2d 934, 938, the court interpreted what the Lipsey court stated in reference to the phrase "learns of the injury." Roper interpreted that phrase as intending to express that the statute of limitations begins to run "when there is a concurrence of the actual or constructive knowledge of both the physical problem and the possibility that someone is at fault for its existence." Kristina v. St. James Hospital (1978), 63 Ill. App.3d 810, 380 N.E.2d 816, and ...


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