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03/25/87 Jose Aznel, v. Diego Gasso Et Al.

March 25, 1987





507 N.E.2d 83, 154 Ill. App. 3d 785, 107 Ill. Dec. 419 1987.IL.365

Appeal from the Circuit Court of Cook County; the Hon. Alan E. Morrill, Judge, presiding.


PRESIDING JUSTICE McNAMARA delivered the opinion of the court. WHITE and FREEMAN, JJ., concur.


Plaintiff, Jose Aznel, brought this medical negligence action against Dr. Diego Gasso and St. Mary of Nazareth Hospital. The complaint alleges that Dr. Gasso's failure to perform the proper surgery in a timely manner compelled plaintiff to undergo multiple operations, caused permanent damage to his abdominal wall, and caused him to develop multiple hernias. Defendants moved for summary judgment on the ground that the action was not timely filed. The trial court granted the motions, and plaintiff appeals. St. Mary's Hospital has been dismissed from the appeal.

The motions for summary judgment were supported by excerpts from the deposition testimony of plaintiff. The record also contains the deposition testimony of Dr. Gasso and of Dr. Anthony N. Silvetti, plaintiff's family physician.

Plaintiff was initially injured while employed as a laborer in February 1971. On March 20, 1971, he complained of severe low abdominal pain. On that date, Dr. Silvetti had him admitted to the hospital, at which time plaintiff commenced a course of treatment with Dr. Gasso that continued until December 1973. The course of treatment included multiple operations. On March 17, 1971, Gasso performed an exploratory laparotomy, removed plaintiff's gallbladder, and repaired two hernias. On March 22, 1971, Dr. Gasso performed a colostomy. On April 20, 1971, plaintiff was discharged from the hospital. He was readmitted on May 20, 1971, and he underwent further surgery on May 28, 1971, when Dr. Gasso removed a perforated portion of plaintiff's bowel. Plaintiff was discharged on June 8, 1971. On July 11, 1971, plaintiff was readmitted, and, on July 14, 1971, he was operated on by Dr. Gasso for closure of the colostomy and repair of a ventral hernia. Plaintiff was discharged from the hospital on July 24, 1971. Plaintiff was rehospitalized in January 1972 and underwent surgery for repair of two hernias.

On April 20, 1973, Dr. Gasso told plaintiff that he had so many abdominal hernias that they were no longer operable. One of plaintiff's wounds has remained open since 1973.

In December 1973, Dr. Gasso moved his practice to Florida, and he referred plaintiff back to Dr. Silvetti for continuing outpatient treatment. Since that time, plaintiff has seen Dr. Silvetti up to 20 times annually. In 1977, Dr. Silvetti and plaintiff discussed plaintiff's abdominal hernias and their relation to the series of operations performed by Dr. Gasso in 1971 and 1972.

In September 1979, Dr. Teresi treated plaintiff for the hernia condition at Martha Washington Hospital. Plaintiff was discharged from the hospital on January 14, 1980.

Although he had previously contemplated suing Dr. Gasso, plaintiff first consulted an attorney in March or April 1983 and was advised that he had no legal recourse because he had waited too long to file suit. On January 18, 1984, plaintiff flew to Florida and was examined by Dr. Gasso for the first time in more than 10 years. Plaintiff indicated that he wanted to obtain Dr. Gasso's opinion as to how to cure the condition. Dr. Gasso advised plaintiff to undergo further surgery. The doctor felt surgery was feasible in 1984 even though in 1973 he believed that the hernias were inoperable. There were new materials available for repairing hernias in 1984. In addition, Dr. Gasso prescribed cough medicine to alleviate the abdominal pain produced when plaintiff coughed. Plaintiff returned to Chicago on the same day.

On May 11, 1984, plaintiff filed this medical malpractice action against defendants. He alleged in the complaint that his injuries emerged in December 1983 and that he did not discover, and should not have discovered, his injuries until that time.

The issue is whether plaintiff's complaint was timely filed. Plaintiff invokes the continuous-care exception to the statute of limitations and contends that the action was timely because the complaint was filed less than five months after January 18, 1984, the last date plaintiff was treated by Dr. Gasso. Dr. Gasso counters that the action was not timely because the last date plaintiff was treated by him, January 18, 1984, was not part of a continuous course of treatment of plaintiff. Dr. Gasso maintains that the cutoff date for filing the complaint was September 19, 1980, four years following the September 19, 1976, effective date of the statutory amendment to the ...

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