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September 23, 1983


The opinion of the court was delivered by: Foreman, Chief Judge:


This matter is before the Court pursuant to a non-jury trial on the issue of whether defendant Jewish Hospital should be estopped from raising the statute of limitations as a defense. In an Order dated June 3, 1983, the Court held that plaintiff's case against the hospital was barred by the Illinois Statute of Limitations. 564 F. Supp. 1459. However, the Court declined to dismiss plaintiff's case because he alleged sufficient facts to invoke the doctrine of equitable estoppel.

For purposes of this limited hearing, the Court accepted as true plaintiff's allegations of medical malpractice. Although plaintiff has alleged numerous theories of negligence in his complaint, it appears now that plaintiff is relying primarily, if not solely, on the theory that there was unwarranted delay from the time plaintiff began to experience neurological distress to actual medical treatment. Specifically, agents of Jewish Hospital were allegedly negligent in failing to notify a doctor that plaintiff was losing sensation in his legs. Plaintiff alleges that due to this negligence over four hours elapsed from the time plaintiff began to suffer a deficit to the time his doctor was notified. Plaintiff alleges if it was not for this delay, plaintiff would not be paralyzed.

The narrow issue before the Court is whether plaintiff reasonably relied on defendant's conduct or representations in forebearing suit. Bomba v. W.L. Belvidere, Inc., 579 F.2d 1067, 1971 (7th Cir. 1978). On July 19 and 20, 1983, the Court heard evidence and oral argument, and the Court now reaches the following findings of fact and conclusions of law.


1. On June 8, 1978, plaintiff suffered severe injuries while working at a quarry in Ava, Illinois. Plaintiff was taken to a hospital in Murphysboro, Illinois, and doctors there recommended that he be sent to Jewish Hospital in St. Louis, Missouri.

2. Plaintiff's multiple injuries included an unstable fracture in his lower back in the L2-L3 region. When plaintiff was admitted to Jewish Hospital on June 8, 1978, he could move his legs, however, he did experience a tingling sensation. Dr. Lander, who was in charge of plaintiff's case, advised plaintiff's parents that paralysis could result from plaintiff's condition.

3. In the early morning hours of June 10, 1978, plaintiff began to experience a neurological deficit, and he began to lose sensation in his legs and feel increased numbness. At approximately 4:00 o'clock a.m., he complained to Nurse Diane Brennan. Barbara Nutty, plaintiff's mother, became aware of the change in her son's condition between 4:00 and 5:00 o'clock a.m., and she also notified Nurse Brennan. Nurse Brennan told Mrs. Nutty that Alan's doctors were aware of his condition and on the way.

4. Nurse Brennan did talk by phone to Dr. Meltzer, a resident at Jewish Hospital. However, Nurse Brennan did not tell the doctor about plaintiff's complaints of paralysis. She attributed plaintiff's complaints to a hysterical reaction produced when she suctioned his lungs to help him breathe.

5. At approximately 5:00 o'clock a.m., Mrs. Nutty called her husband, Frank Nutty. He arrived at the hospital at approximately 5:30 o'clock a.m., and after he saw his son, he asked Nurse Brennan what was going on. He was assured that doctors were on the way.

6. Mr. and Mrs. Nutty interpreted the assurances they received from Nurse Brennan to mean plaintiff's deteriorating neurological status was being dealt with, and that doctors who could stop and reverse the deterioration were aware of the situation and were on the way. Specifically, Mr. and Mrs. Nutty thought Dr. Lander was notified at least by 5:30 o'clock a.m. In fact, Mr. and Mrs. Nutty were misled because Dr. Lander was not called until 8:15 o'clock a.m.

7. At about 7:00 o'clock a.m., Dr. Kathleen James, an intern employed by Jewish Hospital, saw plaintiff while making her rounds. She noticed a definite deterioration in plaintiff's neurological status. She did not talk to plaintiff or his parents directly about his condition. Further, at no time did Dr. James tell plaintiff or his parents about the delay.

8. Dr. Lander arrived at about 9:00 o'clock a.m. He told Mr. Nutty that they would operate immediately, but he later said surgery would have to wait until Dr. Hawkins, a neurosurgeon, arrived.

9. At 1:45 o'clock p.m., surgery was performed on plaintiff to relieve the pressure on his spinal cord. After the surgery, Mr. Nutty asked Dr. Tatkow whether the delay had any effect on his son's condition. ...

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