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10/05/87 Betty Witherell, v. James I. Weimer

October 5, 1987





515 N.E.2d 68, 118 Ill. 2d 321, 113 Ill. Dec. 259 1987.IL.1488

Appeal from the Appellate Court for the Third District; heard in that court on appeal from the Circuit Court of Tazewell County, the Hon. John A. Gorman, Judge, presiding.


JUSTICE SIMON delivered the opinion of the court. RYAN and CUNNINGHAM, JJ., took no part in the consideration or decision of this case.


In Witherell v. Weimer (1981), 85 Ill. 2d 146 (Witherell I), this court held that the circuit court had improperly dismissed plaintiff Betty Witherell's malpractice complaint as not timely filed. The case was remanded to the circuit court for further proceedings on both the statute of limitations and the merits. After a trial in the circuit court of Tazewell County, the jury returned a verdict for the plaintiff, establishing her damages as $500,000, but reducing the award by $200,000 for her 40% comparative negligence. The appellate court, with one Justice Dissenting, reversed and ordered a new trial (148 Ill. App. 3d 32), and we allowed the plaintiff's petition for leave to appeal (103 Ill. 2d R. 315). Defendant, Dr. James Weimer, did not file a petition for leave to appeal, but raises numerous grounds for cross-relief. (See 87 Ill. 2d R. 318.) Dr. Weimer's former partner, Dr. Russell Taubert, was also a defendant at trial but died during the pendency of these proceedings. The plaintiff did not move to substitute a representative of his estate "within 90 days after the death [was] suggested of record" (Ill. Rev. Stat. 1985, ch. 110, par. 2-1008(b)), and this court therefore dismissed the appeal as to Dr. Taubert.

The voluminous evidence introduced at trial concerning the plaintiff's medical history is summarized in the opinion of the appellate court. We will not restate the evidence here except as necessary for resolution of the issues addressed. Betty Witherell was treated by Dr. Weimer and his partner from 1963 until 1976. Under prescriptions from them, she took oral contraceptives containing estrogen from 1966 to 1974 with the exception of a short period in 1972. The defendant and his partner testified they had not authorized refills for that period, but the plaintiff's evidence showed that the prescription had been repeatedly renewed on the authorization of those physicians. For treatment of an ovarian deficiency the defendant also gave plaintiff some 21 estrogen injections in his office, most of them between 1970 and 1972. From 1972 until 1976 plaintiff gave herself estrogen injections, which Dr. Weimer had also prescribed, at home every week.

Plaintiff has suffered from a number of ailments, including bouts of thrombophlebitis, a condition of the vein marked by inflammation of its wall and blood clots (4 Schmidt, Attorneys' Dictionary of Medicine T-70 (1986)). She was hospitalized for this condition in 1967 and 1972. In 1976 the plaintiff was again hospitalized, but the defendant diagnosed only muscle soreness and nerve pain. Shortly thereafter she was diagnosed by another physician as suffering from post-phlebitic syndrome.

A jury instruction set forth the plaintiff's claim that the doctors were negligent in that they:

"a. Did not properly interpret, diagnose and treat the signs and symptoms of the plaintiff's condition of thrombo-phlebitis in April and May of 1976.

b. Did not timely recognize the presence of thrombophlebitis in plaintiff's legs in April and May of 1976.

c. Failed to prescribe drugs which were appropriate for the plaintiff, given her condition.

d. Continued to allow her to take birth control pills and estrogen notwithstanding that they knew that the plaintiff had thrombophlebitis or a past history of thrombophlebitis."

According to the plaintiff, the defendant's negligence resulted in serious and permanent injury to her. She testified that her legs are very painful, she has to use a cane or wheelchair to get around, she cannot stand for any period of time without suffering from leg swelling, and she has been unable to work or to participate in recreational activities. The defendant's explanation was that the plaintiff's illness resulted from an earlier trauma and from long periods of immobility and inactivity. Defendant also sought to portray her problems as largely psychological in origin.

In addition to the questions of liability and damages, evidence was presented on whether the plaintiff failed to file her complaint within two years of discovering her cause of action and whether, even if the complaint was otherwise time-barred, the defendant's conduct equitably estopped him from asserting the statute of limitations defense. The jury returned a general verdict for the plaintiff. The trial Judge entered judgment on the verdict and refused to subtract plaintiff's "collateral source" ...

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