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Cuerton v. American Hosp. Supply Corp.

OPINION FILED AUGUST 15, 1985.

JOHNNY E. CUERTON, PLAINTIFF-APPELLANT,

v.

AMERICAN HOSPITAL SUPPLY CORPORATION ET AL., DEFENDANTS (AHMED NAGIB, M.D., DEFENDANT-APPELLEE).



Appeal from the Circuit Court of Lake County; the Hon. Lawrence Inglis, Judge, presiding.

JUSTICE HOPF DELIVERED THE OPINION OF THE COURT:

On July 16, 1981, plaintiff, Johnny E. Cuerton, filed a complaint based on products liability and negligence against American Hospital Supply Corporation and American-V. Mueller Company and McHenry Hospital for injuries sustained from surgery performed on February 12, 1980. Plaintiff's complaint against McHenry Hospital for product liability was dismissed with prejudice, and the negligence claim was stricken. American Hospital Supply Corporation's motion to dismiss was granted.

Plaintiff was granted leave to file an amended complaint. In that complaint, filed February 10, 1982, defendant, Ahmed Nagib, M.D., was named respondent in discovery. On March 31, 1983, plaintiff filed a second amended complaint which, inter alia, added Ahmed Nagib, M.D., as a party defendant. Nagib filed a 2-619 motion to dismiss (Ill. Rev. Stat. 1983, ch. 110, par. 2-619) with prejudice count V, charging him with negligence, of the second-amended complaint on the basis of section 13-212 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 13-212), claiming that the statute of limitations barred the action. The court granted Nagib's motion to dismiss and subsequently denied plaintiff's motion for reconsideration.

Plaintiff appeals, contending that the trial court erred in dismissing plaintiff's complaint because defendant's motion to dismiss pursuant to section 2-619 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2-619) was not supported by affidavit and that plaintiff's claim against defendant was not barred by the statute of limitations.

In count V of plaintiff's second amended complaint, plaintiff asserted that defendant, who furnished medical services to plaintiff for a condition known as communicating hydrocephalus, was negligent in one or more respects: (1) failing to perform surgery on February 12, 1980, in a sanitary condition; and/or (2) failing to select appropriate and adequate medical products, particularly those used February 12, 1980, and May 15, 1980. As a result of these acts or omissions, plaintiff alleged he suffered bodily injury when (1) the surgery of February 12, 1980, resulting in the development of peritonitis and paralytic ileus, requiring further medical and surgical services during plaintiff's initial hospitalization; (2) products placed in his body during the prior surgery required plaintiff's hospitalization on two more occasions, April 1 through 13 and May 4 through 30, 1980; and, (3) on September 22, 1982, a second shunt placed in plaintiff's head by defendant on May 15, 1980, ceased functioning, causing plaintiff to become comatose and, after regaining consciousness, quadriplegic.

Defendant filed a section 2-619 motion to dismiss count V (Ill. Rev. Stat. 1983, ch. 110, par. 2-619)on the basis of section 13-212 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 13-212). Attached to the motion was a letter from plaintiff's counsel to defendant, dated June 6, 1980, which stated, in relevant part:

"We are advised that Mr. Cuerton underwent surgery in February, 1980 at McHenry Hospital, and suffered an infection which, according to his mother, Mrs. Georgia Terry, apparently resulted from a contaminated tube * * *.

From the hospital reports, it appears that Mr. Cuerton suffered a prolonged fever and other effects from the infection for sometime, and that the February surgery had to be replicated in April. * * * We would appreciate your report regarding the defective product and its medical consequences upon Mr. Cuerton."

On July 18, 1983, the trial court granted defendant's motion to dismiss finding that "plaintiff knew or reasonably should have known of his injury and also knew or reasonably should have known that it was wrongfully caused by the defendant, Ahmed Nagib, M.D., within two years of June 6, 1980." Thus, plaintiff's action against defendant which was filed on March 31, 1983, was barred by the statute of limitations. Ill. Rev. Stat. 1983, ch. 110, par. 13-212.

Plaintiff subsequently filed motions to reconsider that order, and for leave to file an amended count V. Plaintiff specified that the trial court's order was erroneous as to the September 22, 1982, injury complained of in plaintiff's second amended complaint, since that injury did not occur until that date, and thus, as to that injury, plaintiff's claim was timely filed. The court denied both motions, and this appeal follows.

Plaintiff first contends that because the grounds for defendant's section 2-619 motion to dismiss (Ill. Rev. Stat. 1983, ch. 110, par. 2-619) did not appear on the face of plaintiff's complaint, defendant's failure to accompany the motion with supporting affidavits rendered the motion improper and inadequate. On the other hand, defendant argues in response that since plaintiff raises this procedural objection for the first time on appeal, it is waived.

• 1 Restating the general rule, this court has recently held that a party desiring to preserve a question for review must make appropriate objections in the court below and failure to do so constitutes a waiver. (Hargrove v. Gerill Corp. (1984), 124 Ill. App.3d 924, 929, 464 N.E.2d 1226.) In particular, failure to object at any time before the trial court to the form or substance of a motion to dismiss bars an appellant from raising that issue for the first time on appeal. (124 Ill. App.3d 924, 929, 464 N.E.2d 1226.) This rule has been held applicable in situations where a party failed to object at the proper time or in the proper manner to the absence of an affidavit supporting the motion. Buchalo v. Country Mutual Insurance Co. (1980), 83 Ill. App.3d 1040, 1045, 404 N.E.2d 473; Crowe v. Public Building Com. (1977), 54 Ill. App.3d 699, 701-02, 370 N.E.2d 32; In re Leyden Fire Protection District (1972), 4 Ill. App.3d 273, 275, 280 N.E.2d 744.

• 2 Plaintiff maintains that defendant's waiver contention is misplaced because plaintiff did in fact object to the sufficiency of the motion to dismiss in his response thereto. However, plaintiff's response cannot be found in the record submitted to this court, and, therefore, this court cannot consider its contents on review. Additionally, plaintiff did not raise this procedural objection to defendant's motion to dismiss in his motion to reconsider the trial court's order of dismissal. Accordingly, we conclude that plaintiff has waived any procedural objection at this time.

• 3 Plaintiff further contends, however, that defendant's waiver argument lacks merit, since defendant's motion to dismiss was brought pursuant to section 2-619 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2-619), which requires that the motion be supported by affidavit if the grounds for the dismissal do not appear on the face of the complaint. It is plaintiff's position that the grounds for defendant's motion are not present on the face of ...


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