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12/31/87 Loretto Lesko, v. Joseph Zuffante

December 31, 1987

LORETTO LESKO, PLAINTIFF-APPELLANT

v.

JOSEPH ZUFFANTE, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

520 N.E.2d 810, 165 Ill. App. 3d 823, 117 Ill. Dec. 459 1987.IL.1974

Appeal from the Circuit Court of Cook County; the Hon. Brian Duff, the Hon. Thomas R. Rakowski, and the Hon. Willard Lassers, Judges, presiding.

APPELLATE Judges:

JUSTICE CAMPBELL delivered the opinion of the court. BUCKLEY and MANNING, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE CAMPBELL

Plaintiff, Loretto Lesko, appeals from orders entered by the circuit court of Cook County in a dental malpractice action filed against defendant, Dr. Joseph Zuffante. Specifically, plaintiff appeals from entry of summary judgment in favor of defendant with respect to her second amended complaint, which judgment incorporated an earlier order dismissing her original complaint; and from denial of her motion to vacate the summary judgment. On appeal, plaintiff contends that: (1) in dismissing her original complaint, the trial court improperly applied the two-year limitations period set forth in section 21.1 of "An Act in regard to limitations" (Limitations Act) (Ill. Rev. Stat. 1979, ch. 83, par. 22.1); (2) in dismissing her original complaint, the trial court erroneously ruled, as a matter of law, that plaintiff had knowledge of her dental-related injury and that the injury had been wrongfully caused by defendant as early as April or May 1978; and (3) the trial court erred in entering summary judgment with respect to plaintiff's second amended complaint. For the following reasons, we affirm the trial court.

The record indicates that during the period from October 1976 through April or May 1978, plaintiff underwent extensive dental treatment performed by defendant. Plaintiff was extremely dissatisfied with the treatment, claiming that it was aesthetically displeasing, ill-fitting, and excruciatingly painful. The record contains numerous notes written or typed by plaintiff during the treatment period which detailed her concerns and problems with the dental work. It is unclear whether these notes were ever given to defendant or whether they were just reminders to plaintiff of points to discuss with defendant. However, the record is clear as to other affirmative measures taken by plaintiff to communicate her dissatisfaction with defendant's dental work and as to her belief that the treatment had not been performed satisfactorily.

For example, on June 12, 1978, plaintiff wrote a letter to the Illinois State Dental Society complaining of pain and unsatisfactory treatment by defendant. In that letter, plaintiff stated that she had been told to see an attorney and that several other dentists had examined her bridgework and had commented that the work had been poorly done. In September 1978, plaintiff wrote a letter to the Chicago Dental Society, claiming that defendant had removed too much gum tissue. Although neither dental society offered any satisfaction, the Chicago Dental Society did advise plaintiff to consult an attorney. Finally, in February or March 1979, plaintiff was told by another dentist that defendant's treatment constituted malpractice and that he would testify to that fact.

As a result, on January 16, 1981, plaintiff filed a one-count complaint against defendant alleging malpractice. Defendant responded with an affirmative defense, stating that plaintiff had been last treated by defendant in April 1978 and the complaint had not been timely filed within the two-year statute of limitations period. Although plaintiff agreed with the trial court that the two-year limitations period set forth in section 21.1 of the Limitations Act was applicable, she denied that the complaint had not been timely filed, arguing that it had been filed within two years after the acts had been discovered to be negligent in February or March 1979.

On June 12, 1983, following plaintiff's answers to interrogatories and her deposition, defendant moved to dismiss plaintiff's complaint for failure to timely file on the grounds that her notes and letters clearly indicated that she had had knowledge of the injury and knowledge of the fact that the injury had been wrongfully caused in April or May 1978. Thus, pursuant to the two-year limitations period set forth in section 21.1, plaintiff should have filed her cause of action no later than May 1980. On January 19, 1984, Judge Duff entered an ex parte order granting defendant's motion to dismiss with prejudice. Plaintiff then moved to vacate the ex parte order. Although there is no order in the record, apparently this motion was granted because the record indicates that on March 2, 1984, Judge Duff entered a second order granting defendant's motion to dismiss and allowing plaintiff leave to file an amended complaint. On March 28, 1984, plaintiff filed a first amended complaint which added a fraudulent concealment count. Defendant moved to strike and dismiss the first amended complaint on the grounds that there was no record of proper service on defendant and that plaintiff had failed to allege any intentional affirmative acts of defendant in support of the fraudulent concealment claim. Before the court ruled on defendant's motion to dismiss, plaintiff moved to file a second amended complaint. On November 19, 1984, a hearing was held on defendant's motion and on his response to plaintiff's request to file a second amended complaint. The trial court granted defendant's motion to dismiss the first amended complaint and also granted plaintiff leave to file a second amended complaint. In entering its order, the court made no determination on the merits of the fraudulent concealment claim.

Following the filing of plaintiff's second amended complaint, defendant moved for summary judgment, arguing that plaintiff had failed to properly allege fraudulent concealment. Consequently, defendant argued, in the absence of a sufficient fraudulent concealment claim, Judge Duff's previous ruling that plaintiff had failed to timely file the malpractice action should prevail and summary judgment be entered. At the hearing on defendant's motion, Judge Rakowski recognized that the statute of limitations issue had been previously resolved by Judge Duff in the March 2, 1984, order, and that the sole issue before the court was whether plaintiff had properly alleged fraudulent concealment. Following arguments, the court stated that the issue as to whether fraudulent concealment had occurred was a question of fact and could not be resolved on a summary judgment motion. The court further noted that the applicable limitations period for a fraudulent concealment cause of action is five years. Defendant responded that pursuant to established Illinois law, even if the fraudulent concealment count had been properly alleged, the five-year limitations period for fraudulent concealment could not be used to estop the applicability of the two-year limitations period for malpractice when a reasonable amount of the two-year period remained after learning of the alleged fraudulent concealment. In this regard, defendant argued that when plaintiff learned of the alleged fraudulent concealment in February or March 1979, she still had at least one year and two months within which to file under the two-year malpractice limitations period. The trial court agreed with defendant that the two-year period applied and, on that ground, granted defendant's motion for summary judgment, precluding the necessity to address the issue as to whether fraudulent concealment had occurred. Plaintiff moved to vacate the summary judgment order on the grounds that it was predicated on an allegedly erroneous ruling made by Judge Duff that section 21.1 of the Limitations Act applied to plaintiff's claim. Plaintiff argued that the appropriate statutory provision was section 15 of the Limitations Act, which allowed a five-year period for filing.

At the hearing on plaintiff's motion to vacate, the trial court agreed that section 21.1 did not apply but disagreed with plaintiff that the five-year period specified in section 15 applied. Instead, the court held that section 14 of the Limitations Act was the applicable provision. However, because both section 21.1 and section 14 set forth a two-year limitations period, the court held that application of the erroneous statutory provision did not alter the result and plaintiff's motion to vacate the summary judgment was denied.

On appeal, plaintiff initially contends that the trial court improperly applied the two-year limitations period set forth in section 21.1 of the Limitations Act instead of the five-year period set forth in section 15. It is undisputed that in granting defendant's motion to dismiss the original complaint, Judge Duff relied upon section 21.1 of the Limitations Act as it existed at the time of filing. At that time, section 21.1 stated, in pertinent part:

"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, but in no event shall such action be brought more than 4 years after the date on which ...


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