United States District Court, Northern District of Illinois, E. D
November 24, 1981
EDWARD J. NELSON AND GRACE B. NELSON, PLAINTIFFS,
DR. KANAKMAL JAIN, DEFENDANT.
The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
Edward J. Nelson ("Edward") and his wife Grace B. Nelson (collectively
"Nelsons") have sued Dr. Kanakmal Jain ("Jain") claiming medical
malpractice. Jain has moved (1) for summary judgment and (2) to strike
the Complaint and assess costs and attorneys' fees against Nelsons. For
the reasons stated in this memorandum opinion and order, Jain's summary
judgment motion is granted, but his motion to strike and for attorneys'
fees is denied.
On October 26, 1977 Edward sustained an injury to his right shoulder
while at his place of employment. Between October 27 and December 2, 1977
Edward was treated for his injuries by Jain, who diagnosed the injury as
an interior dislocation of the right shoulder. On December 2 Edward saw
an orthopedic specialist, Dr. Walch, who diagnosed the injury as a full
thickness tear of the right rotator cuff and advised surgery. On December
15, Edward underwent surgery at Alexian Brothers Medical Center for repair
of a right rotator cuff tear.
Edward continued to have problems with his right shoulder and on July
11, 1978 filed a workers' compensation application with the Illinois
Industrial Commission. Early in 1979 Edward obtained a further evaluation
of his condition from the Mayo Clinic. About October 3, 1980 Edward was
offered a lump sum of $36,630 in settlement of the workers' compensation
claim. On October 9 Edward sought the advice of attorney Paul Grauer
("Grauer") to assist him in determining whether the proposed settlement
was fair and reasonable. On October 11 Edward supplied Grauer with copies
of the medical records relating to the injury. On the same day Grauer
told Edward that in his opinion (1) the proposed workers' compensation
settlement was fair and reasonable and (2) a possible malpractice claim
existed against Jain (that was the first time anyone had suggested the
possibility of such a claim to Edward). Edward immediately authorized
Grauer to investigate the possibility of filing a malpractice claim. That
investigation resulted in the filing of this action October 23, 1980.
Count I — Medical Malpractice
Complaint ¶ 9 charges a number of failures on Jain's part. Those in
turn assertedly caused a delay in Edward's receiving proper treatment,
giving rise to Edward's aggravated and continuing injury. Because Jain
stopped treating Edward December 2, 1977 that was the last date on which
medical malpractice could have occurred — and Complaint ¶ 9
identifies that date for the occurrence of Jain's last wrongful act.
Illinois' General Assembly has established a two-year limitation
period, subject to a statutory discovery rule, for medical malpractice
actions (Ill.Rev.Stat. ch. 83, § 22.1):
No action for damages for injury or death against any
physician or hospital . . . shall be brought more than
two 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. . . .
Because this action was filed October 23, 1980, Nelsons must bring
themselves within the discovery rule to avoid being barred by
limitations. To that end they allege in Complaint ¶ 13:
That the first time plaintiff had reasonable grounds
to believe, or learned of any possible negligence or
malpractice having taken place as a result of the
treatment rendered by the Defendant Doctor as
aforesaid was on or about October 11, 1980.
Jain's summary judgment motion asserts there is no evidence to support
that allegation, for Edward knew or should have known of any alleged
negligence more than two years before this action was filed. Just this
year the Illinois Supreme Court announced its definitive standard for
applying the discovery rule in medical malpractice actions, Witherell v.
Weimer, 85 Ill.2d 146
, 156, 52 Ill. Dec. 6, 11, 421 N.E.2d 869
The statute starts to run when a person knows or
reasonably should know of his injury and also knows or
reasonably should know that it was wrongfully caused.
At that point the burden is upon the injured person to
inquire further as to the existence of a cause of
action [citing cases]. In many, if not most, cases the
time at which an injured party knows or reasonably
should have known both of his injury and that it was
wrongfully caused will be a disputed question to be
resolved by the finder of fact. (Lipsey v. Michael
Reese Hospital, 46 Ill.2d 32, 262 N.E.2d 450 (1970)].)
Where it is apparent from the undisputed facts,
however, that only one conclusion can be drawn, the
question becomes one for the court. Berry [v. G. D.
Searle & Co., 56 Ill.2d 548, 309 N.E.2d 550 (1974)].
Under that standard the facts stated in Edward's own affidavit
demonstrate that the statute of limitations ran before Nelsons filed
Edward's Complaint states that as a result of Jain's actions Edward's
right arm has become permanently disabled. What that allegation implies
(and Complaint ¶ 9 confirms) is that (1) Jain's improper diagnosis
delayed the necessary surgery and (2) but for the delay in receiving the
appropriate surgery Edward would have recovered full use of his right
arm. Thus the injury Edward allegedly suffered was the failure to recover
use of his right arm after surgery. As Edward's affidavit states:
(1) "Following the above surgery, I continued to
have medical problems with my right shoulder. . . ."
(2) On July 11, 1978 Edward filed a workers'
compensation application with the Illinois Industrial
Commission based on his shoulder injury.
Edward was therefore clearly aware of his injury more than two years
before filing this action.
Edward's affidavit also demonstrates conclusively that he knew or
reasonably should have known that his injury was wrongfully caused. When
Edward switched from Jain to Dr. Walch he was given a radically different
diagnosis of his condition. Edward put enough faith in the latter
diagnosis to undergo surgery. Shortly after the surgery Edward was aware
that (1) he had not fully recovered from the surgery, (2) Jain had
improperly diagnosed his condition and (3) the surgery had been delayed
because of the improper diagnosis. Given those facts Edward had the
burden, in Witherell terms, "to inquire further as to the existence of a
cause of action."
Edward's Complaint does not allege (nor does his affidavit indicate)
the discovery of a single additional fact between October 23, 1978 and
1980 to indicate that "his injury . . . was wrongfully caused." Only one
event occurred during that time: Edward gave his medical records to
Grauer, who then advised him that a possible medical malpractice action
But such advice is not made the triggering event for application of the
discovery rule. If it were, it would place a premium on being an
ostrich, on blinding oneself to the obvious inferences from plain facts.
Instead Witherell focuses only on facts reasonably indicating that the
known injury was wrongfully caused, at which point the injured party
cannot wait for someone to draw him or her a road map. At that time he or
she must investigate whether a legal cause of action exists. As the
Illinois Supreme Court said in Nolan v. Johns-Manville Asbestos,
85 Ill.2d 161, 170, 52 Ill.Dec. 1, 5, 421 N.E.2d 864, 868 (1981) (decided
contemporaneously with Witherell):
We wish to emphasize that the rule we announce is not
the same as a rule which states that a cause of action
accrues when a person knows or should know of both the
injury and the defendants' negligent conduct. Not only
is such a standard beyond the comprehension of the
ordinary lay person to recognize, but it assumes a
conclusion which must properly await legal
United States v. Kubrick, 444 U.S. 111, 122, 100 S.Ct.
352, 359, 62 L.Ed.2d 259 (1979), cited favorably in
Witherell, put the matter in a way that might have been
written for this case:
We are unconvinced that for statute of limitations
purposes a plaintiff's ignorance of his legal rights
and his ignorance of the fact of his injury or its
cause should receive identical treatment. . . . The
prospect is not so bleak for a plaintiff in possession
of the critical facts that he has been hurt and who
has inflicted the injury. He is no longer at the mercy
of the latter. There are others who can tell him if he
has been wronged, and he need only ask. If he does ask
and if the defendant has failed to live up to minimum
standards of medical proficiency, the odds are that a
competent doctor will so inform the plaintiff.
Edward was in possession of all necessary facts before October 23,
1978. It takes only a reasonable lay person, not a medical or legal
expert, to realize that a misdiagnosis can cause injury. When Nelson did
not recover full use of his arm after the operation, the known fact that
Jain's initial diagnosis had differed from the one upon which Edward
submitted himself to surgery was enough to shift the burden to Edward "to
inquire further as to the existence of a cause of action." Accordingly
Count I of Nelsons' Complaint must be dismissed.
Count II — Loss of Consortium
In Complaint Count II Grace Nelson alleges loss of consortium based on
the injury to Edward. Can that claim survive where Edward's primary
action is time barred?
In Knox v. North American Car Corp., 80 Ill. App.3d 683, 35 Ill.Dec.
827, 833, 399 N.E.2d 1355, 1361 (1st Dist. 1980) the court first decided
that an injury claim premised on a breach of warranty theory failed on
limitations grounds. It then turned to the related loss of consortium
claim, 80 Ill. App.3d at 690, 35 Ill.Dec. at 832, 399 N.E.2d at 1360:
Plaintiffs finally contend that even if Johnnie
Knox's suit for personal injuries is barred by the
statute of limitations, plaintiff, Irene Knox, is
nevertheless entitled to maintain her action for loss
Before Irene Knox may recover for loss of her
husband's consortium, she must prove that defendant is
liable for her husband's injuries [citing authority].
Since we have held, as a matter of law, that defendant
cannot be held liable to her husband for breach of an
implied warranty, Irene Knox's action for loss of
consortium must also fail.
Knox's holding that loss of consortium claims are totally derivative and
dependent on survival of the primary cause of action
controls this case. See, Jarvis v. Stone, 517 F. Supp. 1173
Jain's Motion To Strike
Jain has moved under Rule 11 to strike Nelsons' Complaint and assess
costs and attorney's fees. His motion is based on the charge that Nelsons
lacked any factual basis for Complaint ¶ 13.
This Court need not enter into the parties' dispute as to Nelsons'
response to Jain's Interrogatory 20. One fact is clear: On October 11,
1980 (the date specified in Complaint ¶ 13) Nelsons' attorney told
them a malpractice action might be possible. True enough this Court has
held that fact legally insufficient to salvage Nelsons' claim. But the
factual basis for the allegation was there if Nelsons had been right on
the law — and no party may be mulcted in attorneys' fees just for
losing a legal argument asserted colorably and in good faith. Jain's
motion to strike and for fees is denied.
There is no genuine issue of material fact, and Jain is entitled to a
judgment as a matter of law on Count I. Because Jain has prevailed on
Count I, Count II must also be dismissed. Jain's entire motion for
summary judgment under Rule 56 is therefore granted. Jain's motion to
strike and for attorneys' fees is denied (though Jain is of course
entitled to recover statutory costs).