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02/05/87 Judith A. Richardson Et Al v. Kuo-Chung Sun Et Al.

February 5, 1987

JUDITH A. RICHARDSON ET AL., PLAINTIFFS-APPELLANTS

v.

KUO-CHUNG SUN ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

505 N.E.2d 374, 152 Ill. App. 3d 1027, 106 Ill. Dec. 68 1987.IL.127

Appeal from the Circuit Court of Kane County; the Hon. Patrick J. Dixon, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE LINDBERG delivered the opinion of the court. INGLISand WOODWARD, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LINDBERG

Plaintiffs (Judith A. and Henry Richardson) appeal from a summary judgment entered by the circuit court of Kane County in favor of defendants (Kuo-Chung Sun, M.D.; Themistocle G. Limberis, M.D.; St. Joseph Hospital; Patricia Schmoldt, R.N.; Marianne Bitter, R.N.; and Donna J. Justus, C.R.N.A.). Plaintiffs contend that: (1) summary judgment was improper because there existed a material question of fact, and (2) judgment in favor of defendant Justus was improper because she neither moved for, nor raised, the affirmative defense which provided the basis for summary judgment. We reverse and remand for further proceedings.

The issues raised concern the statute of limitations, so only a brief summary of facts is necessary prior to discussing the issues. More specifics are better left to be summarized during that Discussion.

The defendant nurses and doctors were involved in surgery performed on plaintiff Judith A. Richardson. The procedure was a hysterectomy and was performed on April 12, 1978. Plaintiffs filed suit on April 2, 1982. The suit (Henry's was a loss-of-consortium claim) was premised on defendants' having committed medical malpractice during the surgery by using chromic catgut sutures when it was known that Judith Richardson was allergic to chromic catgut. Defendants moved for summary judgment. The dispute on that motion was whether there was a material question of fact over whether plaintiffs' suit was filed outside of the applicable limitations period under the discovery rule. The circuit court granted defendants' motions, and this appeal followed.

We consider first a motion to strike a portion of defendant Justus' brief made in plaintiffs' reply brief. Defendant Justus included in her brief a section not required by the Supreme Court Rules governing briefs titled "Prefatory Note". This section contains assertions both as to facts and as to the content of the public policy of this State. It contains, however, no citation whatsoever to any authority or page of the record supportive of the assertions made. It does not comply with Supreme Court Rule 341 which requires citation to authorities and pages of the record in support of arguments and factual assertions made in a brief. (103 Ill. 2d R. 341(e)(6), (e)(7), (f).) We, therefore, grant plaintiffs' motion and strike the "Prefatory Note" to defendant Justus' brief.

Because this is an appeal from a summary judgment, the following principles apply:

"A motion for summary judgment is proper where the pleadings, depositions and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. [Citation.] The extreme nature of the summary judgment remedy requires that the trial court exercise extraordinary diligence in its review of the record so as not to preempt the right to a trial by jury or the right to fully present the factual basis for a claim. [Citation.] The trial court must construe the pleadings, depositions and affidavits most strictly against the moving party and most liberally in favor of the opponent. Summary judgment should be granted only when the party's right to it is clear and free from doubt. [Citations.] Inferences may only be drawn from undisputed facts, and, if fair-minded persons may draw differing inferences from these undisputed facts, this presents a material issue to be tried. [Citation.] On appeal, the court will reverse an order granting summary judgment if it determines that a material issue of fact exists and that the moving party is not entitled to judgment as a matter of law. [Citation.]" (Wysocki v. Bedrosian (1984), 124 Ill. App. 3d 158, 164, 463 N.E.2d 1339, 1344.)

In the case at bar, a material issue of fact exists and reversal is therefore required.

The first issue involves the application of the statute of limitations for medical malpractice actions. The alleged malpractice occurred during a hysterectomy performed upon plaintiff Judith A. Richardson on April 12, 1978. Suit was filed on April 2, 1982. Different limitations provisions may apply to the action against the defendant nurses than apply to the action against the defendant doctors and hospital. (See Ill. Rev. Stat. 1977, ch. 83, pars. 15, 22.1; Penkava v. Kasbohm (1985), 131 Ill. App. 3d 534, 537-38, 475 N.E.2d 975, 978-79; cf. Ill. Rev. Stat. 1985, ch. 110, par. 13-212 (same limitations provisions now applicable to nurses as to doctors and hospitals).) The four-year maximum limit of the malpractice statute of limitation is not implicated in this case (see Ill. Rev. Stat. 1977, ch. 83, par. 22.1) and the parties, apparently for this reason, seem to agree that the possible different applicable statutes would each apply their two-year limits in an identical fashion under the discovery rule. (See Ill. Rev. Stat. 1977, ch. 83, pars. 15, ...


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