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11/03/87 of James Arndt, Deceased, v. Resurrection Hospital

November 3, 1987

APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION ILENE M. ARNDT, INDI

v.

AND AS SPECIAL ADM'R OF THE ESTATE OF JAMES ARNDT, DECEASED, PLAINTIFF-APPELLANT,

v.

RESURRECTION HOSPITAL, DEFENDANT (NATHANIEL MCPARLAND, DEFENDANT-APPELLEE)



517 N.E.2d 1, 163 Ill. App. 3d 209, 115 Ill. Dec. 36 1987.IL.1631

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

APPELLATE Judges:

JUSTICE BILANDIC delivered the opinion of the court. SCARIANO, P.J., and STAMOS, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BILANDIC

Plaintiff appeals from orders dismissing her second amended complaint against defendant Dr. McParland, with prejudice, on the ground that it was time barred, and denying her motion to reconsider that dismissal., Plaintiff brought a wrongful death action alleging medical malpractice against defendant Dr. McParland and others not involved in this appeal.

The plaintiff's decedent, James Arndt, was hospitalized at Resurrection Hospital from January 7, 1983, until the time of his death on January 18, 1983.

On December 21, 1984, plaintiff filed a complaint against defendant Resurrection Hospital claiming that her husband died as a result of negligent care and treatment by the hospital while he was a patient. Dr. McParland was named as a "respondent in discovery" in that complaint pursuant to section 2-402 of the Code of Civil Procedure. Ill. Rev. Stat. 1985, ch. 110, par. 2-402.

Plaintiff took Dr. McParland's discovery deposition on May 14, 1985, and learned, for the first time, that his conduct was actionable. On September 18, 1985, with leave of court and without objection, plaintiff filed an amended complaint naming Dr. McParland as a party defendant. Her amended complaint alleged that Dr. McParland operated on the decedent without complete and adequate knowledge of decedent's condition, and that Dr. McParland's negligence resulted in the death of the decedent.

On January 22, 1986, plaintiff filed a second amended complaint with leave of court and without objection. The second amended complaint contained an additional paragraph alleging that plaintiff did not learn of Dr. McParland's negligence until his discovery deposition was taken on May 14, 1985.

Defendant moved to dismiss plaintiff's second amended complaint on the ground that it was time barred. The trial court granted the motion to dismiss, with prejudice, because the action was filed more than two years after decedent's death (January 18, 1983); the discovery provision in section 13-212 of the Code of Civil Procedure, (herein after the Medical Malpractice Limitations Act) does not toll the statute of limitations in a medical malpractice action for wrongful death (Ill. Rev. Stat. 1985, ch. 110, par. 13-212); and because Dr. McParland was not made a defendant within six months after being named a "respondent in discovery" pursuant to section 2-402 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-402)., Plaintiff's motion to reconsider was denied. This appeal followed.

The essential dates and events are:

January 18, 1983: Date of death.

December 21, 1984: Complaint filed against the

hospital and Dr. McParland

named as a respondent in ...


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