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10/26/88 Sara Kirksey, v. Richard C. Trefzger

October 26, 1988

SARA KIRKSEY, PLAINTIFF-APPELLANT

v.

RICHARD C. TREFZGER, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

530 N.E.2d 559, 175 Ill. App. 3d 891, 125 Ill. Dec. 401 1988.IL.1573

Appeal from the Circuit Court of McLean County; the Hon. Wayne C. Townley, Jr., Judge, presiding.

APPELLATE Judges:

JUSTICE LUND delivered the opinion of the court. GREEN, P.J., and KNECHT, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LUND

Plaintiff Sara Kirksey filed a medical malpractice action against defendants Richard Trefzger, M.D., and Mennonite Hospital. Mennonite Hospital moved for summary judgment, which was granted by the circuit court. We affirmed that ruling on appeal. (Reynolds v. Mennonite Hospital (1988), 168 Ill. App. 3d 575, 522 N.E.2d 827.) Subsequently, Trefzger, the remaining defendant, moved for summary judgment alleging the cause of action against him was barred by section 13-212 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1987, ch. 110, par. 13-212). The circuit court of McLean County granted the motion and entered summary judgment in favor of defendant. Plaintiff appeals. We reverse and remand.

Plaintiff raises only one issue on appeal: whether the trial court erred in granting summary judgment for defendant. Defendant adds an additional question regarding the sufficiency of the allegation in plaintiff's complaint invoking the discovery rule. The record contains only the pleadings and plaintiff's discovery deposition. A summary of these documents follows.

In 1980, plaintiff was employed as a factory worker by the Eureka Company in Bloomington, Illinois. On or about February 21, 1980, plaintiff was injured when she reached for a vacuum cleaner that was falling from the assembly line. She heard something pop in her neck and experienced pain. However, she continued to work that day. The next day her neck was stiff. The pain continued to increase over the next few months, eventually spreading to her back, right shoulder, arm, and hand. There were frequent occasions when plaintiff would wake up at night and her entire right arm would be paralyzed. During this same time frame, she had painful cramping of her right hand.

Following visits to the company physician, she consulted defendant about the problem. She had been seeing defendant for treatment of other ailments, and she brought the matter of her continued pain to him in March 1980. Initially, defendant gave her some exercises to do. In April 1980, defendant ordered her to undergo more intensive physical therapy, placed her in traction, and gave her some medication. Still, her pain continued. It reached the point where she described it as excruciating. In May 1980, defendant discussed the possibility of surgery to remove her right first rib in order to relieve pressure on a nerve that was being pinched. The condition was known as thoracic outlet syndrome. Plaintiff eventually agreed to undergo the surgery because of her pain, and the rib resection was performed on June 4, 1980.

During the surgery, plaintiff's lung was punctured, and she experienced some breathing difficulties afterward. However, as to her neck pain, she noted some improvement in the weeks following surgery. The pain never ceased but improved to where she described it as tolerable. Near the end of June 1980, plaintiff hired the attorney who now represents her in this cause to pursue a workers' compensation claim for her injury.

Plaintiff returned to work in early August with restrictions set by defendant on what work she could perform. She worked for only three days. On the third day, she was asked to engage in heavy labor for a few minutes to cover for someone who was on a break. In doing so, she experienced renewed and intensified pain. She was again out of work, this time for six weeks. She returned to work in late September. She stated that the pain had subsided at this time to where she could proceed with normal functioning; it did not hinder day-to-day living or her ability to work.

Nevertheless, the pain in the right side of her neck continued, and defendant referred plaintiff to Dr. Larry Nord, an orthopedic surgeon, in December 1980. Following an examination, Nord told her she had a neck strain that had gone untreated. Upon hearing this, she questioned Nord regarding the necessity of her rib resection surgery. Nord told her he could not give an opinion on that because he had not examined her prior to the surgery. He could only diagnose her current condition. Dr. Nord prescribed physical therapy and medication similar to the treatment originally prescribed by defendant.

In January 1981, plaintiff visited a third physician at the request of her attorneys. According to plaintiff, this physician, Dr. Douglas Collins, generally agreed with Dr. Nord's diagnosis. She received cortisone shots from him as well as a lecture about living with pain.

Plaintiff had not left defendant's care at this point, but had simply been referred to Dr. Nord for another opinion. When plaintiff returned to defendant on her next visit in February 1981, she discussed with defendant the diagnosis that Nord had given her. She told defendant that Nord had given her a different diagnosis of her problem. She could not recall his response.

In May 1981, she asked defendant to remove the work restrictions because she found the particular tasks available to her at work boring. Defendant removed the restrictions.

The insurance company involved in plaintiff's workers' compensation action requested that plaintiff undergo training in coping with pain. Plaintiff complied and entered a clinic in Champaign in November 1981. She did not get along with her physician at the clinic, and she left after 11 days.

She continued to see Dr. Nord and defendant for treatment in the early months of 1982. Plaintiff's last visit to defendant was in June 1982. She reinjured her right arm and hand while working at Eureka in May 1982. Dr. Nord diagnosed the injury as carpal tunnel syndrome and operated in August 1982. She returned to work after the surgery and worked for the remainder of 1982.

Over the next several years, plaintiff visited several other physicians. In August 1986, plaintiff visited Dr. Paul Pederson. He diagnosed her as having lupus and prescribed medication for her. Pederson told her she had probably had lupus for quite some time. She stated that since she began taking the medication in August 1986, her pain decreased dramatically and was sometimes nonexistent. She currently feels the best she has felt in years.

In summarizing her statements regarding defendant, she stated that no doctor ever criticized the rib resection surgery performed by defendant. No physician ever told her defendant had misdiagnosed her condition or performed unnecessary surgery. Rather, it was on a visit to her attorneys ...


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