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01/27/87 Ronald Passmore, As v. Walther Memorial Hospital

January 27, 1987

PASSMORE, PLAINTIFF-APPELLANT

v.

WALTHER MEMORIAL HOSPITAL ET AL., DEFENDANTS -APPELLEES



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

RONALD PASSMORE, as Guardian of the Estate of Edward

504 N.E.2d 778, 152 Ill. App. 3d 554, 105 Ill. Dec. 493 1987.IL.62

Appeal from the Circuit Court of Cook County; the Hon. Lester B. Foreman, Judge, presiding.

Rehearing Denied March 3, 1987.

APPELLATE Judges:

JUSTICE BILANDIC delivered the opinion of the court. SCARIANO, P.J., and HARTMAN, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BILANDIC

Plaintiff, Ronald Passmore, guardian of the estate of his son, Edward Passmore, sued Walther Memorial Hospital, Dr. Arthur Spindola, and Dr. H. Kaplan for medical malpractice. Plaintiff appeals from the trial court's order dismissing the second amended complaint with prejudice for failing to file the action within the time limitations set forth in the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 13-212).

The second amended complaint alleged that on May 16, 1962, Edward Passmore, then eight months old, was admitted to Walther Memorial Hospital where he was treated by attending physicians Kaplan and Spindola. It also alleges that as a result of the malpractice of the defendants, "on or about May 16, 1962, EDWARD PASSMORE, became and continues to be disabled, totally without understanding or capacity to make or communicate decisions regarding his person and totally unable to manage his estate or financial affairs." The complaint further alleged that this condition continued from the date of the acts of malpractice in May of 1962, through and including December 16, 1983, when Ronald Passmore was "duly appointed guardian of the estate and person of the disabled plaintiff, Edward Passmore," and "Letters of Office" issued.

Edward Passmore was born on September 13, 1961. He became 18 years old on September 13, 1979. More than four years later, on December 16, 1983, he was legally adjudicated disabled. On March 29, 1984, this action was filed.

Defendants' motion to dismiss was based on plaintiff's failure to bring this action prior to September 13, 1981, which was two years after Edward Passmore became 18. Defendants further assert that since Edward Passmore was not legally adjudicated disabled during this two-year period, the statute of limitations was not tolled. The trial court held that "under legal disability," in section 13 -- 212, "means under a legally adjudicated disability and in this case since there was no legal adjudication during the minority of this child or during the two-year period following his reaching majority, . . . this case is time barred."

It is undisputed that an action could be brought within two years after Edward Passmore became 18. The portion of the statute dealing with the limitation period for minors and persons under legal disability provides:

"If the person entitled to bring an action, specified in Sections 13-201 through 13-212 of this Act, at the time the cause of action accrued, is under the age of 18 years, or under legal disability, . . . he or she may bring the action within 2 years after the ...


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