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07/07/87 Amy Nordsell, Indiv. and v. Ent Et Al.

July 7, 1987

AMY NORDSELL, INDI

v.

AND AS SPECIAL ADM'R OF THE ESTATES OF CARA AUBREY NORDSELL, DECEASED, AND SARA KATHERINE

NORDSELL, DECEASED, PLAINTIFF-APPELLANT

v.

VERNON KENT ET AL., DEFENDANTS-APPELLEES

ALL FOUR DEFENDANTS HAVE ASSERTED AS GROUNDS FOR DISMISSAL OF THE COMPLAINT AND/OR FOR SUMMARY JUDGMENT SECTION 13-212 OF THE ILLINOIS CODE OF CIVIL PROCEDURE (ILL. RE

v.

STAT. 1985, CH. 110, PAR. 13-212), WHICH PROVIDES IN PERTINENT PART AS FOLLOWS:



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

510 N.E.2d 606, 157 Ill. App. 3d 274, 109 Ill. Dec. 738 1987.IL.966

Appeal from the Circuit Court of Will County; the Hon. Edwin B. Grabiec, Judge, presiding.

APPELLATE Judges:

JUSTICE BARRY delivered the opinion of the court. STOUDER and SCOTT, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BARRY

In this medical malpractice action, plaintiff Amy Nordsell appeals from orders of the circuit court entering summary judgment in favor of defendants Dr. Vernon Kent and Silver Cross Hospital and dismissing her complaint as to defendants Northwestern Memorial Hospital and Dr. Rudy E. Sabbagha.

According to the allegations of plaintiff's complaint, Amy Nordsell was admitted to Silver Cross Hospital on July 26, 1983, where she gave birth to twin girls. Cara Aubrey Nordsell was stillborn, while Sara Katherine Nordsell lived until August 9, 1983. Plaintiff has alleged that defendants Kent and Sabbagha failed to properly assess the gestational age of the unborn twins, thereby allowing plaintiff to proceed with premature labor resulting in emergency surgery. She has further alleged that the defendant hospitals, through their respective agents, failed to properly assess the gestational age of her unborn twins.

"No action for damages for injury or death against any physician . . . or hospital duly licensed under the laws of this State, whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought more than 2 years after the date on which the claimant knew, or through the use of reasonable diligence should have known, or received notice in writing of the existence of the injury or death for which damages are sought in the action, whichever of such date occurs first . . .."

Defendants further assert in their motions that plaintiff alleges defendants' negligence caused injury to Amy and the death of Cara on July 26, 1983, and the death of Sara on August 9, 1983, and that the complaint was filed on August 14, 1985, more than two years after the dates of the injuries and deaths.

In opposition to the motions to dismiss and for summary judgment, plaintiff filed copies of the death certificates of the twins and her own affidavit. In her affidavit, plaintiff averred that she was told by Dr. Kent and other hospital employees that "the twins were simply too small and that post-natal death was not uncommon under those circumstances"; that she had no knowledge of any wrongdoing on the part of anybody until well after August 15, 1983, when legal consultation produced documentation that Dr. Kent failed to properly diagnose the twins' gestational age; and that she received post-operative treatment after the death of her twins and was unable to consider alternative causes of death. The death certificate of Cara stated that the immediate cause of death was "stillborn due to or as a consequence of placental insufficiency at 30 wks. gestation." The death certificate for Sara listed as the cause of death, "renal failure" and also listed "prematurity" as another significant condition.

The trial court granted the motions for summary judgment in favor of Dr. Kent and Silver Cross Hospital and granted the motions to dismiss of Dr. Sabbagha and Northwestern Memorial Hospital. After plaintiff's motions to reconsider those rulings were denied, this appeal followed.

During oral argument before this court, counsel for plaintiff stated without contradiction that Dr. Kent had been plaintiff's obstetrician during her pregnancy, that he had prescribed medication to prevent a spontaneous abortion of the fetuses, that Dr. Sabbagha and Northwestern Hospital performed a sonogram to help determine the gestational age, that shortly before July 26, 1983, Dr. Kent stopped the drug, and plaintiff was admitted to Silver Cross Hospital for delivery.

On appeal, plaintiff admits that the holding of Lutes v. Farley (1983), 113 Ill. App. 3d 113, 446 N.E.2d 866, mandated a dismissal of the counts of her complaint that apply to Cara, the stillborn infant. In Lutes v. Farley, this court said:

"The discovery rule as applied to medical malpractice cases means that the cause of action does not accrue in the sense of triggering the statute of limitations until the plaintiff learned of her injury or should have ...


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