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07/16/87 Raymond Peterson, v. Herbert S. Loseff Et Al.

July 16, 1987

RAYMOND PETERSON, PLAINTIFF-APPELLANT

v.

HERBERT S. LOSEFF ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

512 N.E.2d 5, 159 Ill. App. 3d 16, 111 Ill. Dec. 101 1987.IL.992

Appeal from the Circuit Court of Cook County; the Hon. Odas Nicholson, Judge, presiding.

APPELLATE Judges:

JUSTICE LINN delivered the opinion of the court. McMORROW, P.J., and JIGANTI, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LINN

Plaintiff Raymond Peterson brings this appeal seeking reversal of a trial court's order dismissing his four-count complaint. In his complaint, Peterson alleges that he suffered an injury as a result of negligence on the part of defendants Dr. Herbert S. Loseff and Lutheran General Hospital (defendants). The trial court dismissed Peterson's complaint ruling that, as a matter of law, Peterson's action was barred by the applicable statute of limitations (Ill. Rev. Stat. 1985, ch. 110, par. 13-212). The trial court found that Peterson knew or should have known that his injury was the result of malpractice in June of 1980, and that as a result, his filing of a complaint on December 30, 1983, was untimely.

Peterson now appeals contending that the trial court erred in dismissing his lawsuit.

We reverse and remand.

Background

This appeal is before the court following the trial court's ruling that Peterson's complaint fails to properly state a cause of action under Illinois law. Accordingly, we must accept as true all of the wellpled allegations in Peterson's complaint and must draw all reasonable inferences in his favor. Sweis v. City of Chicago (1986), 142 Ill. App. 3d 643, 491 N.E.2d 1342.

Peterson's complaint reveals that Dr. Loseff treated Peterson in January of 1980 for a fractured left femur. Peterson contends, inter alia, that Loseff negligently cared for the fracture and provided negligent follow-up treatment. Peterson further alleges that he could not have known or should not have known of any possible malpractice by Dr. Loseff until January 1, 1982, when such was brought to Peterson's attention while he was receiving treatment from another physician.

Peterson's action against Lutheran General Hospital is based on negligent treatment that Peterson allegedly received while he was a patient at the hospital during January of 1980. Peterson was a patient at the hospital for treatment related to his fractured left femur. Like his action against Dr. Loseff, Peterson contends that he could not have known, and should not have known, of the malpractice committed by the hospital until Peterson learned of it while he was receiving treatment from another physician on January 1, 1982.

Peterson filed this complaint on December 30, 1983. Following the taking of Peterson's deposition, both defendants moved to dismiss pursuant to section 2-619 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2-619). The defendants relied on deposition testimony by Peterson which, in the defendants' opinion, establishes as a matter of law that Peterson knew or should have known of his injury at least by June of 1980. Specifically, the defendants point to Peterson's statements that he had undergone several surgeries to correct his foot, that Peterson was aware of discolorization and swelling, and that Peterson knew that his leg was not healing properly. In addition, the fact that Peterson entered another hospital in June of 1980 for further surgery is argued by the defendants to be clear evidence that Peterson should have realized that his leg and foot problems were the result of someone's negligence.

Peterson, on the other hand, asserts in his complaint that the possibility of malpractice did not become evident until he visited a subsequent treating physician on January 1, 1982. Peterson alleges that it was at that time that he first became aware that negligence may have played a role in his foot's failure to heal. That being the case, Peterson asserts that he could not have known or should not have known of any possible malpractice until January 1, 1982, and that as a result, his complaint, filed on December ...


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