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Witherell v. Weimer





Appeal from the Appellate Court for the Third District; heard in that court on appeal from the Circuit Court MR. JUSTICE UNDERWOOD DELIVERED THE OPINION OF THE COURT:

Plaintiff, Betty Witherell, filed a personal injury action in the Tazewell County circuit court on January 4, 1978, against Drs. J.I. Weimer and R.K. Taubert, and Ortho Pharmaceutical Corporation (Ortho). She alleged that severe injuries to her legs were the result of the negligent conduct of the doctors and as to Ortho alleged negligence, strict product liability, and breach of warranty. The pretrial motions of all defendants to dismiss and for judgment under section 48(e) of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 48(e)) were allowed on the grounds that plaintiff had failed to bring suit within the time limits allowed by the applicable statutes of limitation. The appellate court reversed and remanded, holding a question of fact existed as to the time at which the statutes of limitation commenced to run. (77 Ill. App.3d 582.) We allowed and consolidated the separate petitions for leave to appeal of the defendant doctors and Ortho.

A summary of the material considered by the parties and the court in its ruling on the motions, including the allegations of plaintiff's complaint, the contents of her affidavit, and her answers to interrogatories, is necessary. They indicate that in 1966 Dr. Weimer prescribed Ortho-Novum, a birth control pill manufactured by defendant Ortho, for plaintiff and she began taking it. Shortly thereafter she commenced to have pain and spasms in her left leg, which became swollen and "could hardly bear weight on it." The pain was so great that plaintiff had to put her left leg on a chair and "scoot" the chair to get around the house. She consulted Dr. Weimer about the condition in March of the following year. His associate, Dr. Taubert, hospitalized her and told her he thought she had a blood clot in her leg. Dr. Weimer, however, advised plaintiff that she had a muscle condition and would have to learn to live with it.

Although released from the hospital in April, plaintiff continued to have the pain and spasms in her leg which progressively worsened. The problems persisted through 1971, with Dr. Weimer reiterating that they were caused by a muscle condition and prescribing leg massage, walking, and support hose and directing her to ignore the pain. The condition was, in her words, "excruciatingly painful," but she tried to ignore it, thinking it was the muscle condition diagnosed by Dr. Weimer. Sometimes "the pain was so bad that plaintiff had to crawl back and forth to the bathroom."

In July 1972, plaintiff was again hospitalized by Drs. Weimer and Taubert. Plaintiff told Dr. Weimer that she had heard from other women that birth control pills could cause blood clots. "Dr. Weimer laughed and said that she should not worry that the pills did not cause bloodclots and that they were safe to take and that they would not harm her in any way." Plaintiff discontinued her use of the pill for a month in 1973 at the urging of her mother, but Dr. Weimer reassured her that the problem in her legs was not caused by the pills, and she resumed taking them. The condition remained relatively the same thereafter, and plaintiff continued to complain to the doctor, who kept reassuring plaintiff that the problem with her legs was a muscle condition and that she would just have to live with it. He told her that the blood clot for which she had been treated previously was gone, that she did not have blood clots in her legs, and that the trouble with her legs was strictly the muscle condition. In May of 1976, plaintiff was admitted to Pekin Memorial Hospital for the condition in her legs. Again, Dr. Weimer told her it was a muscle condition, and he prescribed whirlpool baths and walking. Plaintiff asked Dr. Weimer for a veinogram, of which plaintiff had just recently heard. The doctor, according to plaintiff, said, "Now there's nothing wrong with the veins in your legs," as he patted her on the leg.

Thereafter plaintiff apparently discharged Dr. Weimer and Dr. Taubert, left the hospital and consulted Dr. Juco, a Peoria physician, who had her admitted to a Peoria hospital. After performing a veinogram on her legs, Dr. Juco told plaintiff she had bilateral thrombosis, that some of the veins were occluded from the old blood clots and that the condition of her legs was serious. About three months later plaintiff, without benefit of counsel, filed what is described as a "letter complaint" against Drs. Weimer and Taubert in the circuit court of Peoria County. That complaint was later dismissed without prejudice on the court's own motion and the instant suit filed. Plaintiff's bill of particulars in the current suit describes her then current condition as having "extensive deep vein thrombosis in both lower extremities, with considerable recannulization. Plaintiff's legs are always in pain. The only variation is that the pain goes from tolerable to excruciating. Her legs must be elevated at all times. She uses a cane for walking, except when she is in a wheelchair. If plaintiff goes out of her home she must do so in a wheelchair. She cannot play the piano, she cannot dance, she can engage in no sporting events such as fishing, she cannot do her housework, her condition interferes with sexual intercourse between her and her husband, and in numerous other aspects interferes with the daily enjoyment of her life."

Excerpts from the Ortho-Novum product information apparently contained in the physician's desk reference book indicate that "A statistically significant association has been demonstrated between use of oral contraceptives and the following serious adverse reactions: Thrombophlebitis * * *." It also states: "The physician should be alert to the earliest manifestations of thrombotic and thromboembotic disorders, thrombophlebitis * * *. Should any of these occur or be suspected, the drug should be discontinued immediately."

Accompanying the motions for judgment were affidavits of Drs. Weimer and Taubert, from two other doctors who had examined plaintiff, and from Miriam Nafziger, a hospital nurse. Dr. Weimer stated plaintiff had been a patient since 1963, had been hospitalized in 1967 "with a diagnosis of thrombophlebitis of the left calf," and again in 1972 for "the treatment of thrombophlebitis of the right leg in the calf area." On both occasions plaintiff's condition was fully explained to her. He also hospitalized plaintiff in May 1976 for leg problems which were diagnosed as "possible neuritis and myositis" unrelated to her earlier thrombophlebitis. Dr. Taubert's affidavit was substantially similar, both doctors indicating plaintiff initially gave them a history of pain and swelling in her left leg during the preceding three or four years. In a rebutting affidavit, plaintiff stated that she was told by the defendant doctors in 1967 and 1972 that she had blood clots in her legs; she denied that Dr. Weimer or Dr. Taubert ever told her she had thrombophlebitis and stated the first time she ever heard the word "thrombophlebitis" was in 1976 when she was examined by Dr. Juco.

Dr. Benito M. Camacho's affidavit stated he saw plaintiff in March and April 1977 as a result of her referral to him by Dr. Juco; that she gave him a history of deep vein thrombosis in 1967 when she was taking birth control pills which were "thought to be the inciting factor" for the thrombosis. Attached to the affidavit were copies of his office records containing the notes of the March and April interviews.

In his affidavit Dr. Francis Rafool stated he had admitted plaintiff to Methodist Hospital in Peoria in 1969, at which time plaintiff had told him "she had had swelling of her left leg following a thrombophlebitis about two years prior to June 25, 1969, and that on that date of June 25, 1969, she was on birth control pills."

Nurse Nafziger stated in her affidavit that she cared for plaintiff while the latter was hospitalized in May 1976; at that time plaintiff told affiant that plaintiff had had blood clots and pain in her legs for the past nine years.

Plaintiff's rebutting affidavit denies telling Dr. Camacho what his medical history notes indicated she had told him, and denies telling either Dr. Rafool or Nurse Nafziger that she had thrombophlebitis.

Plaintiff's allegations of negligence on the part of Drs. Weimer and Taubert are predicated on their failure to diagnose her condition of thrombophlebitis, failing to treat that condition properly, and their continuing negligence in continuing to prescribe birth control pills for her even though those pills could be causing her thrombophlebitis. It is alleged that these acts of negligence continued up to the time plaintiff discharged the doctors in May 1976. The negligence claim against Ortho is predicated on allegations that proper warnings were not given regarding a possible relationship between Ortho-Novum and thrombophlebitis. The strict liability and breach of warranty claims are based, respectively, on charges that Ortho-Novum was not a reasonably safe product and not of merchantable quality.

The question before us is the time at which plaintiff's cause of action accrued for purposes of the statute of limitations and whether any acts of defendants have tolled the running of the statute as to them.

The statute of limitations governing plaintiff's action against the doctors is section 21.1 ...

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