APPEAL from the Circuit Court of Cook County; the Hon. DAVID
A. CANEL, Judge, presiding.
MR. PRESIDING JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:
Charles Evans (plaintiff) brought a medical malpractice action against Dr. David Bachman and Northwestern Memorial Hospital (defendant). The trial court dismissed defendant hospital from the suit, denied plaintiff's petition to vacate the dismissal and denied plaintiff leave to file his third amended complaint. Plaintiff appeals from these orders.
On October 14, 1976, plaintiff filed his complaint naming Dr. Bachman as the sole defendant. The complaint alleged the doctor had committed several negligent acts in connection with the diagnosis, treatment, surgery and postoperative care of plaintiff's fractured ankle. The complaint alleged "the first time Plaintiff had reasonable grounds to believe or learned of any possible negligence or malpractice having taken place as the result of the wrongful acts and omissions of the Defendant, was on or about August, 1976." The complaint named defendant as a respondent in discovery. Ill. Rev. Stat. 1977, ch. 110, par. 21.1.
On April 1, 1977, plaintiff filed an amended complaint which named defendant as a party in count II. The amended complaint alleged defendant had been negligent in care and treatment of plaintiff in connection with surgery on October 17, 1974. The amended complaint did not contain any additional statement concerning when defendant's alleged negligence was discovered.
On April 18, 1977, defendant filed a motion to dismiss both as a "Respondent in Discovery" and as a "Direct Party Defendant." The motion asserted the unconstitutionality of the respondent in discovery statute pursuant to a finding of the circuit court. Additionally, the motion stated that according to the amended complaint the allegedly negligent acts of defendant were committed during plaintiff's hospitalization from October 17, 1974, to November 7, 1974. Accordingly, as defendant was first joined by the amended complaint filed on April 1, 1977, the motion averred the plaintiff's action was barred by the two-year statute of limitations. Defendant raised these same issues in an amended motion to dismiss the amended complaint.
On January 5, 1978, plaintiff filed a memorandum in opposition to defendant's motion to dismiss. In the memorandum, plaintiff stated: "The defendant has based its motion on the fact that it had originally been named as a Respondent in Discovery and that Plaintiff has attempted to avoid the Statute of Limitations by relying upon the Respondents in Discovery provisions of the Civil Practice Act. This is not the case. Plaintiff relies upon the discovery rule and maintains he had no knowledge of the injury until August, 1976."
On March 22, 1978, plaintiff filed a second amended complaint. Counts II and IV pertain to the alleged liability of defendant. Plaintiff alleged in count IV that at no time "from October 18, 1974 until August, 1976, did any treating physician or treating nurse directly communicate with the Plaintiff and explain material medical facts of his condition * * *." Count IV further alleged defendant "fraudulently concealed from the Plaintiff all material facts giving rise to his then existing medical condition * * *." Plaintiff concluded he came "within the statutory exception to the statutory limits period and meets the requirements of the fraudulent concealment exception to the tolling of the statute of limitations."
On April 24, 1978, the trial court granted defendant's motion and dismissed defendant from the action. The court's judgment order held plaintiff did not rely upon the respondent in discovery statute and the allegations of plaintiff's complaint were insufficient to raise the discovery rule and plaintiff had failed properly to plead fraudulent concealment.
On May 8, 1978, plaintiff filed a petition to vacate the order of dismissal and for leave to amend the second amended complaint. This motion was denied on June 8, 1978. On that date, plaintiff tendered a third amended complaint to the court. Counts II, IV and VI of the third amended complaint contain allegations against defendant. This third amended complaint does not differ greatly from its predecessors. It alleged that, because of fraudulent concealment by defendant, plaintiff "neither knew or could have known of his true medical condition and injury and the facts supporting his cause of action until on or about August, 1976 * * *." The trial court denied plaintiff's request for leave to file the third amended complaint and denied plaintiff's petition to vacate dismissal of defendant.
In this court, plaintiff contends the trial court erred in dismissing defendant from the action and abused its discretion in denying plaintiff's request for leave to file a third amended complaint. Plaintiff also contends the allegations in the second and third amended complaints were legally sufficient to invoke the discovery rule and fraudulent-concealment exceptions to the statute of limitations.
Plaintiff first contends his suit was timely brought by virtue of the discovery rule. The applicable statute of limitations for medical malpractice concerning actions against physicians and hospitals (Ill. Rev. Stat. 1977, ch. 83, par. 22.1), provides no such actions 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 * * *." In plaintiff's amended complaint and second amended complaint against defendant, plaintiff alleged his hospitalization and surgery occurred on or about October 17, 1974. Defendant was made a party on April 1, 1977. Thus, the statute of limitations bars plaintiff's action against defendant for expiration of the two-year period unless an exception is applicable under the discovery rule or because of fraudulent concealment.
The discovery rule, as stated in the above statute, has been affirmatively established in Illinois law under a number of decisions of the highest court of this State. (See the cases collected in Auster v. Keck (1976), 63 Ill.2d 485, 487, 349 N.E.2d 20.) However, in the instant case the problem arises from the fact that under the allegations of plaintiff's pleadings it is affirmatively and strongly established that during August 1976 plaintiff became aware and was placed upon notice of his medical affliction and that this condition was allegedly wrongfully caused by the defendant. The two-year statute did not run until October 1976. Thus plaintiff was completely informed of his alleged injury and of defendant's alleged culpability some two or perhaps three months before expiration of the basic two-year limitation period.
1 In this regard it is the settled law of Illinois that where a plaintiff has learned of his injury within two years of its occurrence, the discovery rule is not applicable to extend the time for bringing an action. In Dolce v. Gamberdino ...