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12/14/87 James O. Smith, v. Cook County Hospital Et Al

December 14, 1987

JAMES O. SMITH, PLAINTIFF-APPELLANT

v.

COOK COUNTY HOSPITAL ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

518 N.E.2d 336, 164 Ill. App. 3d 857, 115 Ill. Dec. 811 1987.IL.1845

Appeal from the Circuit Court of Cook County; the Hon. James E. Murphy, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE QUINLAN delivered the opinion of the court. O'CONNOR and MANNING, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE QUINLAN

On May 14, 1981, James O. Smith (Smith), the plaintiff, filed a four-count complaint for medical malpractice against the defendants board of commissioners, County of Cook (Cook County), Dr. Donald E. Hoard (Hoard), and Dr. Howard Heilbrunn (Heilbrunn), and other defendants not party to this appeal. Smith's complaint alleged medical malpractice by the defendants for their treatment of Smith from January 1973 until June 1976. Cook County and Dr. Hoard filed motions for summary judgment, and Dr. Heilbrunn filed a section 2-619 (Ill. Rev. Stat. 1985, ch. 110, par. 2-619) motion to dismiss; all the motions were based upon a statute of limitations defense. The trial court granted the defendants' motions on January 30, 1986. Smith subsequently filed a motion to vacate which was denied on January 27, 1987.

Smith was first admitted to Cook County Hospital on January 21, 1973, due to a burn on his arm. After being in Cook County Hospital about a week, he began experiencing soreness and tightness in his lower back. He stayed in Cook County's neurology department until February 23, 1973. From approximately January 8, 1973, until June 1976, plaintiff was treated at various times in Cook County Hospital and Fantus Clinic (a Cook County Hospital clinic) and was treated during this time by Drs. Hoard and Heilbrunn, Cook County Hospital employees. Allegedly, neither doctor told him the true nature of his back ailment. *fn1

Smith subsequently moved to Detroit, Michigan, and began to see another doctor, Doctor Fragatos, for his ailments. Smith, at Dr. Fragatos' request, attempted to obtain his Cook County medical records. Smith made one phone call and two written requests for his records from Cook County in 1977. In 1978, after these requests went unanswered, Smith went to Cook County Hospital to try to get his records and was told by the personnel three that the records would be mailed to him. Smith then sent a letter to the United States Attorney's office in Detroit to attempt to get that office to intervene to assist him in obtaining his records. Sometime in 1979, Smith consulted an attorney regarding potential claims for malpractice.

Smith finally received his records in 1980; the cover letter which came with the records was dated January 3, 1980. Within a week after he received these records, he personally took them over to his attorney's office. Smith, on his attorney's advice, underwent a physical examination on December 22, 1980. Smith filed his suit for medical malpractice on May 14, 1981, and sent statutory notice to the defendants pursuant to the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) at the same time. (Ill. Rev. Stat. 1985, ch. 85, par. 8-102.) The trial court granted defendants' motion to dismiss and motions for summary judgment, and accordingly dismissed Smith's claim as to Dr. Heilbrunn, and entered judgment in favor of Dr. Hoard and Cook County. Smith's motion to vacate was denied, as stated previously, and Smith now appeals the order of dismissal and summary judgment to this court. We affirm.

Smith presents three issues for review: (1) whether the trial court erred when it granted the defendants' motion to dismiss and motions for summary judgment by finding that the four-year statute of limitations in section 13-212 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1985, ch. 110, par. 13-212) barred Smith's claim and that the fraudulent concealment exception in section 13-215 of the Code did not apply; (2) whether the trial court erred when it found that defendants were not equitably estopped from asserting a statute of limitations defense; and (3) whether the trial court erred when it found that statutory notice under section 8-102 of the Tort Immunity Act was not properly provided.

The first issue deals with whether section 13-212 of the Code of Civil Procedure was properly applied to the facts in this case. (Ill. Rev. Stat. 1985, ch. 110, par. 13-212.) Section 13-212 was amended in 1976 and currently provides that no action shall be brought against a physician or hospital for malpractice more than two years after plaintiff knew or, through the use of reasonable diligence, should have known of the injury, but in no event shall the action be brought more than four years after the date on which the injury occurred. (Ill. Rev. Stat. 1985, ch. 110, par. 13-212.) 2 Section 13-212 has been interpreted by our supreme court to mean that a cause of action accrues when a plaintiff knows or reasonably should have known of an injury and that the injury was wrongfully caused. (Rio v. Edward Hospital (1984), 104 Ill. 2d 354, 361, 472 N.E.2d 421, 424.) Generally, the point in time when an injured party knows or reasonably should have known both of his injury and that it was wrongfully caused is a disputed fact question for a jury. However, where it is apparent from the undisputed facts that only one Conclusion can be drawn, the question is one for the court. Witherell v. Weimer (1981), 85 Ill. 2d 146, 156, 421 N.E.2d 869, 874.

Once the discovery date is ascertained here, it must further be determined if the exception to section 13-212 for fraudulent concealment, contained in section 13-215, applies. (See Ill. Rev. Stat. 1985, ch. 110, pars. 13-212, 13-215.) Section 13-215 states that if a defendant has "fraudulently concealed" the existence of a cause of action, the injured party has five years within which to bring suit after he discovers the cause of action. (Ill. Rev. Stat. 1985, ch. 110, par. 13-215.) The concealment contemplated in section 13-215 must consist of affirmative acts or representations which are calculated to lull or induce a claimant into delaying filing of his claim or to prevent a claimant from discovering his claim. Mere silence on the part of the defendant and failure by the claimant to learn of the cause of action are not enough. (Zagar v. Health & Hospitals Governing Comm'n (1980), 83 Ill. App. 3d 894, 898, 404 N.E.2d 496, 500.) Moreover, fraudulent misrepresentations which constitute the basis of the claim do not amount to fraudulent concealment unless these actions tended to conceal the cause of action. (83 Ill. App. 3d at 898, 404 N.E.2d at 500.) Finally, this exception does not apply when the party affected by the fraud might, with ordinary diligence, have discovered it. (Greenock v. Rush Presbyterian-St. Luke's Medical Center (1978), 65 Ill. App. 3d 266, 271, 382 N.E.2d 321, 324.) If the claimant discovers the fraudulent concealment, or should have discovered it through ordinary diligence, and a reasonable time remains within the remaining limitations period, section 13-215 will not toll the running of the limitations period. (Real v. Kim (1983), 112 Ill. App. 3d 427, 435, 445 N.E.2d 783, 789.) Illinois courts have found that discovery of a claim with as little as 5 1/2 months remaining within the statute of limitations period constitutes a reasonable time within which to file a medical malpractice claim under section 13-215. (See Brown v. Mason (1985), 132 Ill. App. 3d 439, 477 N.E.2d 61.) While reasonableness is generally a fact question, it may be determined by a court, without a hearing on that issue, if no hearing on reasonableness is requested and if it is clear that a reasonable time did in fact remain within the statute of limitations. See Anderson v. Wagner (1979), 79 Ill. 2d 295, 402 N.E.2d 560, appeal dismissed sub nom. Woodward v. Burnham City Hospital (1980), 449 U.S. 807, 66 L. Ed. 2d 11, 101 S. Ct. 54.

Here, under section 13 -- 212, the outside time limit was four years from the date of the last injury. The latest date that Smith could file under section 13 -- 212 would be June 1980, or four years after his last treatment. Smith claims that he first actually discovered his claim on December 22, 1980, the date he saw a physician at his attorney's request. He further alleges that there was fraudulent concealment here, as recognized under section 13 -- 215, and that the reasonable diligence exception does not apply since Illinois law also recognizes a fiduciary relationship exception to the reasonable diligence exception. In support of this contention, Smith cites cases involving trustee-beneficiary relationships. (See, e.g., Prueter v. Bork (1981), 105 Ill. App. 3d 1003, 435 N.E.2d 109.) Smith argues that Cook County's failure to deliver his records and the doctors' failure to diagnose his ailment also constituted affirmative acts of fraudulent concealment. Moreover, he claims that since the doctors here occupied a fiduciary relationship with him, citing Prueter as authority for a fiduciary relationship exception to the reasonable diligence requirement, the date of Smith's actual discovery of the cause of action on December 22, 1980, was the date from which the statute of limitations began to run, regardless of the fact that he may have had a reasonable time left within which to file when he received his medical records.

We disagree. In this case, the last date of the alleged injury was June 1976. Regardless of the discovery date, the claim had to have been filed under section 13 -- 212 by June 1980. (See Mega v. Holy Cross Hospital (1986), 111 Ill. 2d 416, 490 N.E.2d 665.) Smith here had ongoing pain since January or February 1973 and had also been consulting an attorney regarding potential claims since 1979. We cannot agree with Smith's contention that he did not discover his injury and claim until December 22, 1980, almost a year after he had received all his medical records from Cook County, which he had immediately, delivered to his attorney, who received them on or about January ...


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