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November 24, 1981


The opinion of the court was delivered by: Shadur, District Judge.


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, 874 (1981):

  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 ...

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