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, 874
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 ...