APPEAL from the Circuit Court of Cook County; the Hon. DAVID
A. CANEL, Judge, presiding.
MR. JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:
Plaintiff, Mary Bebee, appeals from a judgment of the circuit court of Cook County dismissing her medical malpractice action as to defendants Dr. Robert L. Fields, Dr. Samuel Yelin, and Thorek Medical Center on the basis that the cause was barred by the statute of limitations (Ill. Rev. Stat. 1977, ch. 83, par. 22.1).
Plaintiff filed her original malpractice complaint on December 19, 1977. On March 22, 1978, she amended the complaint and added Dr. Samuel Yelin as a party defendant. On September 21, 1978, plaintiff was granted leave to file a second amended complaint instanter.
This complaint in summary alleged that on or about November 25, 1975, December 1, 1975, and December 22, 1975, plaintiff was under the care and treatment of defendants; that on those dates defendant Dr. Fields referred plaintiff to defendant Thorek Medical Center for treatment and surgery; that on those dates defendant Dr. Yelin treated the plaintiff and performed surgical procedures known as celiac ganglion blocks; that as a direct and proximate result of those procedures, plaintiff's left leg became paralyzed, a condition known as left foot drop; that this condition existed after the first block was performed on or about November 25, 1975, and existed after the blocks on or about December 1 and 22, 1975, were performed; and that such condition existed as a result of defendants' negligent care and treatment. The complaint further alleged that the first time plaintiff had reason to believe or learn of any possible malpractice as a result of the surgical procedures was on or about January 12, 1977; that at no time after the blocks were performed did defendants apprise plaintiff of any negligence which might have or did occur from the surgical procedures; that immediately subsequent to and for a period long after the blocks had been performed, defendants, knowing of plaintiff's injury, fraudulently concealed from plaintiff that any negligence or malpractice caused plaintiff's injury; and that as a direct and proximate result of defendants' negligence plaintiff lost the use of her left leg.
On September 22, 1978, defendants filed a motion to dismiss supported by an affidavit of defendant Fields alleging that plaintiff's injury existed prior to December 19, 1975, and that plaintiff's suit, filed on December 19, 1977, was barred by the two-year statute of limitations. On that same date, the trial court granted defendants' motion to dismiss from which plaintiff filed a timely notice of appeal.
In Lipsey v. Michael Reese Hospital (1970), 46 Ill.2d 32, 262 N.E.2d 450, our supreme court applied the time of discovery rule to medical malpractice cases holding that a cause of action in medical malpractice cases accrues when the person injured learns of his injury or should reasonably have learned of it. The court found it "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." (46 Ill.2d 32, 41.) On the date plaintiff's complaint was filed, section 21.1 of the Limitations Act (Ill. Rev. Stat. 1977, ch. 83, par. 22.1), which reflects the language of Lipsey, provided in pertinent part:
"No action for damages for injury * * * against any physician or hospital duly licensed under the laws of this State, * * *, 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 * * *." (Emphasis added.)
At the time Lipsey was decided, the applicable statute was section 14 of the Limitations Act (Ill. Rev. Stat. 1969, ch. 83, par. 15) which provided in pertinent part: "Actions for damages for an injury to the person, * * * shall be commenced within two years next after the cause of action accrued." In 1975, the legislature, apparently in response to the Lipsey holding, amended section 21.1 of the Limitations Act, which then applied only to foreign substance cases, and enacted a provision applicable to all forms of medical malpractice. This section, in pertinent part, provided:
"No action for damages for injury * * * against any physician or hospital duly licensed under the laws of this State, * * * 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 * * * 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 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 * * *." (Ill. Rev. Stat. 1975, ch. 83, par. 22.1.)
In 1976, section 21.1 was again amended (Pub. Act 79-1434, § 6, eff. Sept. 19, 1976), and the five-year absolute limitation time in which to bring such actions was reduced to four years. Although not in issue in the present case, we note that this four-year absolute time limitation period was recently upheld as constitutional in Anderson v. Wagner (Docket Nos. 50880, 50980, 50981 cons., filed October 2, 1979, ___ Ill.2d ___, ___ N.E.2d ___.
1 Defendants contend that under the facts of this case, it is the date of knowledge of injury that determines when the cause of action accrues, and that because plaintiff admits she was aware of her injury on November 25, 1975, her complaint filed on December 19, 1977, was not within the two-year statutory limitation period.
Plaintiff, on the other hand, contends that the time of discovery rule enunciated in Lipsey, and as it has been interpreted by subsequent appellate court cases, means when the plaintiff first learned that her injury was actionable, i.e., when she reasonably should have known that the injury was caused by another's negligence. Plaintiff argues that although she knew of the left foot drop after the initial surgery on November 25, 1975, she did not become aware that the condition was caused by defendants' negligence until January 12, 1977, and therefore her complaint, which was filed 11 months later, was within the two-year statutory limitation time.
Our supreme court has yet to decide the issue presented in the instant case where a time gap allegedly exists between discovery of the injury and discovery that the injury may have been wrongfully caused. In Lipsey, the facts required no distinction to be drawn between discovery of injury and discovery of negligence since both, in that case, were discovered virtually simultaneously. However, it is interesting to note that in Lipsey the court framed the issue as whether the statute 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 defendants' claimed negligence. The court further stated that 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. ...