Appeal from the Circuit Court of Cook County; the Hon. Thomas
J. O'Brien, Judge, presiding.
JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:
Plaintiff Pamela Real, as special administrator of the estate of William Real, filed an action under the Wrongful Death Act and the Probate Act of 1975 (Ill. Rev. Stat. 1979, ch. 70, par. 1 et seq.; ch. 110 1/2, par. 27-6) alleging that medical malpractice by the defendants (K.S. Kim, M.D., Northwestern Memorial Hospital, and Northwestern Radiology Group, a medical corporation) caused the death of William Real.
Defendants' motions to dismiss plaintiff's complaint were granted by the trial court on the grounds that her claims were barred by section 21.1 of the Limitations Act (Ill. Rev. Stat. 1979, ch. 83, par. 22.1, now codified at section 13-212 of the Code of Civil Procedure, Ill. Rev. Stat. 1981, ch. 110, par. 13-212) and that, as a matter of law, the defendants were not estopped from asserting the Limitations Act as a defense. A claim apparently remains pending before the trial court against another physician, but the court found that there was no just reason for delaying appeal of its order (see 87 Ill.2d R. 304(a)). In her appeal plaintiff presents the following issues:
(1) whether section 21.1 of the Limitations Act bars a special administrator from maintaining a medical malpractice action on behalf of a decedent's estate in a case where the alleged acts of negligence occurred more than four years before the complaint was filed;
(2) whether a wrongful death action can be brought in a case where, on the date of the death complained of, the Limitations Act would have precluded the decedent from bringing an action on his own behalf for the acts which allegedly caused his death;
(3) whether the complaint states facts which, if proven, would estop the defendants from raising the Limitations Act as a defense;
(4) whether an entity formed under the Medical Corporation Act (Ill. Rev. Stat. 1979, ch. 32, par. 631 et seq.) to diagnose and treat human ailments constitutes a "physician" under section 21.1 of the Limitations Act.
The following allegations (which are assumed to be true for the purpose of resolving the legal issues presented by this appeal) are material to our decision:
William Real suffered from an unidentified neurological ailment and, as part of a medical evaluation, he was referred to Northwestern Memorial Hospital in April of 1976 for what the complaint calls "an EMI scan with and without infusion." This test was performed by various unknown physicians who worked for Northwestern Radiology Group, a medical corporation, and on April 13, 1976, the test results were evaluated and reported as normal by Dr. K.S. Kim, another employee of the medical corporation.
According to the complaint, this diagnosis was incorrect because proper interpretation of the results of the EMI test would have "disclosed the presence of an abnormality." In the alternative, the complaint alleges that the defendants failed to properly conduct the test, or failed to report that the test results were so equivocal that they were "of no diagnostic value." Each of these acts or omissions allegedly constitutes negligence.
In June of 1979, more than three years after he was allegedly misdiagnosed, William Real was diagnosed as having brain cancer. But because the misdiagnosis allegedly given by the defendants in April of 1976 induced William to delay seeking further medical assistance, the cancer was terminal by the time it was discovered, and William died on August 9, 1980.
Then, on June 19, 1981 (more than four years after the alleged acts and omissions concerning the EMI test), plaintiff filed a medical malpractice action against the defendants.
The pertinent portion of section 21.1 of the Limitations Act provides that,
"No action for damages for injury or death against any physician or hospital duly licensed under the laws of this State, whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought more than 2 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, whichever of such date occurs first, but in no event shall such action be brought more than 4 years after the date on which occurred the act or omission or occurrence alleged in such action to have been the cause of such injury or death." Ill. Rev. Stat. 1979, ch. 83, par. 22.1, now codified at section 13-212 of the Code of Civil Procedure, Ill. Rev. Stat. 1981, ch. 110, par. 13-212.
The first issue is whether this limitations provision barred plaintiff from bringing a medical malpractice action against the defendants. Plaintiff asserts that a cause of action for medical malpractice did not accrue, and the two-year "discovery" limitations period did not begin to run, until the point in time when William Real's brain cancer became incurable. Thus plaintiff concludes that the defendants had the burden of proving that plaintiff's complaint was not filed within two years of when William knew or should have known that his cancer had become incurable.
We need not decide whether plaintiff has correctly identified when William Real's cause of action accrued because section 21.1 bars the survival action filed on behalf of William's estate even if a cause of action did not accrue until William died.
Section 21.1 plainly states that "in no event shall [a medical malpractice] action be brought more than 4 years after the date on which occurred the act or omission or occurrence alleged in such action to have been the cause of [the complained of] injury or death." (Ill. Rev. Stat. 1979, ch. 83, par. 22.1, now codified at section 13-212 of the Code of Civil Procedure, Ill. Rev. Stat. 1981, ch. 110, par. 13-212.) Under this portion of section 21.1, the four-year limitations period begins to run from the date of the alleged acts of negligence, even if ...