Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

08/15/88 Albert Seibert, v. Bernard R. Cahill Et Al.

August 15, 1988

ALBERT SEIBERT, PLAINTIFF-APPELLANT AND CROSS-APPELLEE

v.

BERNARD R. CAHILL ET AL., DEFENDANTS-APPELLEES AND CROSS-APPELLANTS



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

527 N.E.2d 1042, 173 Ill. App. 3d 545, 123 Ill. Dec. 404 1988.IL.1256

Appeal from the Circuit Court of Peoria County; the Hon. Thomas G. Ebel, Judge, presiding.

APPELLATE Judges:

JUSTICE WOMBACHER delivered the opinion of the court. SCOTT and HEIPLE, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WOMBACHER

The plaintiff, Albert Seibert, sued the defendant, Dr. Bernard R. Cahill, alleging he was negligent in treating him for an injury he sustained in an employment-related accident. The trial court dismissed the plaintiff's complaint, ruling it was barred by the applicable statute of limitations contained in section 13-212 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 13-212). This appeal follows.

After being injured on July 23, 1982, the plaintiff sought treatment from Dr. Cahill, of Orthopedic Associates of Peoria, S.C. Dr. Cahill continuously treated the plaintiff from July 23, 1982, through May 3, 1985. The plaintiff in his original complaint claimed Dr. Cahill was negligent when he punctured the plaintiff's tibial artery while inserting a pin therein on January 9, 1984. Attached to the plaintiff's complaint was counsel's affidavit indicating he was unable to obtain the requisite medical consultation in time to prevent the statute of limitations from running. On August 6, 1986, the plaintiff filed the required medical report.

On June 16, 1987, the plaintiff was granted leave to file an amended complaint which he did instanter. The plaintiff, through his amended complaint, charged Dr. Cahill with negligence in treating him on August 2, September 3, and September 24, 1982, during the initial stage of treatment; however, his amended complaint failed to state the defendant was negligent in puncturing his artery while performing surgery on January 9, 1984. Defendant motioned to dismiss plaintiff's amended complaint on June 23, 1987, alleging it was barred by the applicable statute of limitations and that plaintiff failed to concurrently file the requisite affidavit with the complaint. The plaintiff filed the required affidavit on September 21, 1987.

The plaintiff argues the continuous treatment he received from Dr. Cahill constituted a single transaction and related back to the original complaint. Therefore, his cause of action did not accrue until Dr. Cahill completed treating the plaintiff. The plaintiff contended his complaint was timely filed.

The trial court found the plaintiff's amended complaint alleged a new cause of action; therefore, it was barred by the statute of limitations.

The trial court correctly ruled the plaintiff's action was barred by section 13-212 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 13-212). Plaintiff's amended complaint filed on June 16, 1987, alleging Dr. Cahill's negligence which occurred more than four years earlier, did not relate back to the original complaint, which alleged medical negligence during surgery on January 9, 1984. Section 13-212 of the Code of Civil Procedure provides:

"[No] action for damages for injury or death against any physician, dentist, registered nurse, 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 occurred the act or omission or occurrence alleged in such action to have been the cause of such injury or death." Ill. Rev. Stat. 1987, ch. 110, par. 13-212.

There are various public policy reasons that the legislature enacted this four-year maximum on medical malpractice actions. One reason is to prevent extended exposure to liability in medical malpractice cases. (Roberson v. Taylor (1983), 115 Ill. App. 3d 587, 591, 451 N.E.2d 16, citing Moore v. Jackson Park Hospital (1983), 95 Ill. 2d 223, 240, 447 N.E.2d 408 (Ryan, C.J., specially Concurring).) It is apparent from the language of the statute this four-year limit is an absolute limit. Plaintiff's amended complaint was filed nearly five years after the alleged medical negligence occurred as complained of in his amended complaint. Obviously, the negligence alleged occurred without this four-year limit, and the trial court was correct in dismissing plaintiff's amended complaint as failing to satisfy the statute of limitations.

If plaintiff's amended complaint "related back" to the original complaint, it would not be barred as ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.