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Marciniak v. O'connor

OPINION FILED NOVEMBER 25, 1981.

JOAN C. MARCINIAK ET AL., PLAINTIFFS-APPELLANTS,

v.

JOSEPH S. O'CONNOR, M.D., DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. MYRON GOMBERG, Judge, presiding.

JUSTICE LINN DELIVERED THE OPINION OF THE COURT:

On February 2, 1979, plaintiffs, Joan Marciniak and her husband Eugene, filed suit against defendant, Joseph S. O'Connor, M.D., in the circuit court of Cook County. Count I of the complaint alleged that defendant negligently failed to diagnose and treat Joan Marciniak's breast cancer. In count II, Eugene Marciniak sought damages for loss of consortium. On May 16, 1980, defendant filed his motion for summary judgment, contending that plaintiffs' action was not filed within the two-year statutory time provided for medical malpractice claims. (Ill. Rev. Stat. 1979, ch. 83, par. 22.1.) On July 31, 1980 the trial court granted defendant's motion for summary judgment.

Plaintiffs' appeal asserted that when the statute of limitations began to run is an issue of material fact to be decided by the trier of fact, and accordingly it was error for the trial court to decide the issue by summary judgment as a matter of law.

We agree, and reverse and remand.

FACTS

On May 11, 1976, defendant, who limited his practice to obstetrics and gynecology, examined Joan Marciniak. The examination disclosed a lump in her right breast. Defendant, who had been her physician for many years, advised her that the lump was "something hormonal" and told her not to worry about it.

In December 1976, Joan Marciniak became aware of an increasing sense of heaviness in the breast. She had seen a television program which suggested that a lump in the breast could be very serious for women of her age, and that they are not always properly diagnosed. She became concerned that the lump was more serious than she had been led to believe.

Joan Marciniak returned to defendant for another examination on January 21, 1977. He told her the lump was a small mass and a biopsy should be done. He referred her to Dr. David P. Winchester, who advised her that she had a breast tumor which he felt was "highly suspicious" and probably malignant. The tumor had to come out, whether it was malignant or not. Aspiration cytology was done, and a mammogram and preadmission testing were ordered. Dr. Winchester scheduled a right radical mastectomy for her on January 29, 1977. She subsequently cancelled the scheduled surgery.

On January 24, 1977, Dr. Winchester's secretary received a laboratory report of Joan Marciniak's breast smear which stated that Joan Marciniak suffered from carcinoma. Dr. Winchester's secretary later set forth in her affidavit filed in support of the defendant's motion for summary judgment that Joan Marciniak called that day to cancel the scheduled surgery, and during their conversation she informed Joan Marciniak that the laboratory report indicated carcinoma of the breast. Joan Marciniak denies she was told of the results of the laboratory report.

On February 3, 1977, Joan Marciniak was admitted to Lutheran General Hospital by another surgeon of her own choice. The next day, February 4, her breast was removed and she and her husband learned that she had cancer. Both of them contend that this was the date on which they first knew or had reason to know that defendant had negligently failed to diagnose her condition, and consequently had committed medical malpractice. Joan Marciniak alleges that as a result of the delay in treatment of her cancerous condition, she now suffers from metastatic disease emanating from the breast, and is undergoing extensive chemotherapy and radiotherapy to arrest the process. She and her husband seek damages from defendant.

CHRONOLOGY

May 11, 1976 Joan Marciniak examined by Dr. O'Connor. Diagnosis: lump in breast is hormonal.

December, 1976 Joan Marciniak watched television program on breast cancer.

January 21, 1977 Joan Marciniak again examined by Dr. O'Connor, who recommended biopsy and ...


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