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06/21/88 Barbara Bailey Et Al., v. D. J. Petroff

June 21, 1988

BARBARA BAILEY ET AL., PLAINTIFFS-APPELLANTS

v.

D. J. PETROFF, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

525 N.E.2d 278, 170 Ill. App. 3d 791, 121 Ill. Dec. 472 1988.IL.977

Appeal from the Circuit Court of Madison County; the Hon. A. A. Matoesian, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE HARRISON delivered the opinion of the court. WELCH and LEWIS, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HARRISON

Plaintiffs Barbara Bailey and David Bailey, Sr., appeal from a judgment of the circuit court of Madison County which dismissed with prejudice their individual claims for medical malpractice against defendant, Dr. D. J. Petroff. Those claims, set forth in counts I and III of plaintiffs' second amended complaint, were dismissed by the court on the grounds that they were not commenced within the time limited by law. On this appeal, plaintiffs contend that the circuit court's judgment should be reversed and the cause remanded because their claims were timely under section 2-616(b) of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2-616(b)). In the alternative, they argue that the circuit court's judgment should be set aside because defendant waived his right to assert a statute of limitations defense. For the reasons which follow, we affirm.

In order to properly analyze plaintiffs' appeal, a brief review of the history of the pleadings is necessary. The case commenced on February 19, 1985, when Barbara Bailey, as "mother and next friend of David Bailey, a minor" filed a three-count complaint for damages against Dr. Petroff and Merrill Dow Pharmaceuticals, Inc. Count I of that complaint, directed against Dr. Petroff, alleged that Petroff had treated Barbara during her pregnancy and provided prenatal care for David. Barbara gave birth to David on January 25, 1983, and David was subsequently discovered to be suffering from serious birth defects. According to the complaint, these birth defects were caused by the medical malpractice of Dr. Petroff. Specifically, the complaint alleged that Dr. Petroff had failed to exercise the care and skill required of him under the circumstances in that he did one or more of the following:

"(a) Negligently and carelessly gave plaintiff, Barbara Bailey, a prescription for the drug Bendectin when defendant knew or should have known of its ability to cause birth defects;

(b) Negligently and carelessly failed to keep informed of the medical literature concerning adverse effects of Bendectin when prescribed for pregnancy;

(c) Failed to recommend the proper dosage of Bendectin for the plaintiff, Barbara Bailey."

Counts II and III of the complaint were directed against Merrill Dow Pharmaceuticals, Inc. They alleged causes of action based, respectively, on products liability and negligence arising from Merrill Dow's manufacture, distribution, and sale of Bendectin. Both counts were subsequently dismissed voluntarily and without prejudice on a motion filed by plaintiff pursuant to section 2-1009 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2-1009).

Dr. Petroff filed an answer to the complaint on March 22, 1985. Nearly one year later, following the voluntary dismissal of Merrill Dow from the case, plaintiff moved for leave to file an amended complaint. Leave was granted by the court without objection, and on March 5, 1986, the first amended complaint was filed. That complaint also contained three counts, but Merrill Dow was no longer named as a party. The sole defendant was Dr. Petroff. Once again, Petroff was alleged to have committed malpractice. The basis for that malpractice, however, changed significantly. All references to his prescription of the drug Bendectin to Barbara Bailey were omitted. Instead, it was now alleged:

"(a) Defendant negligently and carelessly failed to inform the plaintiff that the complications of her pregnancy were not normal;

(b) Defendant negligently and carelessly failed to inform the plaintiff of the availability of diagnostic tests to ...


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