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11/30/88 Kimberly Ann Miller Jordan v. Charles Lind Et Al.

November 30, 1988

KIMBERLY ANN MILLER JORDAN, PLAINTIFF-APPELLANT

v.

CHARLES LIND ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

531 N.E.2d 168, 176 Ill. App. 3d 530, 126 Ill. Dec. 35 1988.IL.1731

Appeal from the Circuit Court of Kankakee County; the Hon. Patrick M. Burns, Judge, presiding.

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SCOTT

This is a medical malpractice case wherein plaintiff alleged, by her fifth amended complaint, that defendants Dr. Charles Lind (Dr. Lind) and St. Mary's Hospital of Kankakee (St. Mary's Hospital) were negligent in their performance of nerve blocks in January 1978. The trial court granted defendants' motion for summary judgment on September 30, 1987, on the basis that the limitations period had run and that plaintiff's estoppel theory to toll the statute was not well taken.

Plaintiff received a series of lumbar nerve blocks in January of 1978 and a lumbar sympathectomy on February 23, 1978, for treatment of symptoms caused by a horse stepping on her foot. Approximately 10 nerve blocks were administered by Dr. Lind at St. Mary's Hospital over a period of several consecutive weekdays interrupted by a weekend in January of 1978. The nerve blocks consisted of the injection of an anesthetic agent into the sympathetic nerves in the lumbar spine. Plaintiff was under a local anesthesia and able to observe and provide input during the procedure. Plaintiff later had a right lumbar sympathectomy performed under general anesthesia on February 23, 1978, by physicians not subject to this appeal. Dr. Lind, however, was the anesthesiologist during that procedure.

Apparently the sympathectomy did not relieve plaintiff's condition and at the direction of Dr. Lind she was admitted to the Mayo Clinic in April of 1978. She returned to the Mayo Clinic in June of 1978. Plaintiff took her medical records from St. Mary's with her to the Mayo Clinic. Although it is unclear whether the records indicated that nerve blocks had been performed, plaintiff's deposition testimony reveals that the physicians at Mayo Clinic were aware of and criticized the nerve blocks, as well as the sympathectomy.

After plaintiff's second visit to the Mayo Clinic, she never returned to St. Mary's Hospital or the care of Dr. Lind. She was, however, treated at numerous hospitals by numerous doctors in Illinois and Colorado. Plaintiff's present condition has been diagnosed, among other things, as paralysis of the bowel and bladder.

In mid-April of 1978, plaintiff first contacted an attorney about the possibility of a medical malpractice action. She authorized the attorney to obtain her medical records from St. Mary's Hospital. Plaintiff claims that the records received were void of any documentation regarding the nerve blocks performed by Dr. Lind. On February 20, 1980, plaintiff filed her original complaint in the circuit court of Cook County against Dr. Lind, St. Mary's Hospital and others, alleging negligence in the performance of the right lumbar sympathectomy. The complaint contained no allegations regarding the earlier nerve blocks. Dr. Lind and St. Mary's Hospital subsequently filed a motion for change of venue which resulted in an order entered July 2, 1980, transferring the case to Kankakee County. A new suit was filed on January 14, 1982, in Kankakee County alleging, in essence, the same cause of action as the previous complaint filed in Cook County.

The first written interrogatories and production request addressed to Dr. Lind and St. Mary's Hospital were filed on September 30, 1982. Plaintiff first raised allegations of negligence regarding the nerve blocks by filing a second amended complaint dated May 17, 1984. The second amended complaint, as well as third and fourth amended complaints, was dismissed pursuant to defendants' motions. At issue is the fifth amended complaint filed on November 14, 1986. Counts I, II, IV and V of that amended complaint are directed against Dr. Lind and St. Mary's Hospital and concern the nerve blocks performed in January of 1978. Dr. Lind and St. Mary's Hospital moved for summary judgment on those counts which was granted on September 30, 1987. In his memorandum opinion, the trial Judge found "not only that the limitations period had clearly run but also finds that the arguments of the plaintiff to toll or estop the running of the statute of limitations are not well taken."

The procedural issue presented is whether the trial court erred in granting defendant's motion for summary judgment. In this regard plaintiff raises three specific issues for consideration: (1) whether the trial court erred in determining, for statute of limitations purposes, that the allegations of medical malpractice made in the fifth amended complaint did not relate back to the date of filing of the original complaint; (2) whether the trial court erred in determining that defendants, Dr. Lind and St. Mary's Hospital, were not estopped from asserting the statute of limitations as a defense to the allegations of medical malpractice set forth in the fifth amended complaint; and (3) whether the trial court erred in determining that section 13-215 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 13-215) was inapplicable to the case at bar.

Summary judgments are properly awarded when "the pleadings, depositions and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." (Ill. Rev. Stat. 1985, ch. 110, par. 2-1005(c). An order for summary judgment will not be reversed on appeal absent abuse of discretion by the trial court such that plaintiff's right to fundamental Justice is violated. Lindenmier v. City of Rockford (1987), 156 Ill. App. 3d 76, 508 N.E.2d 1201; Kemp v. Sisters of the Third Order of St. Francis (1986), 143 Ill. App. 3d 360, 493 N.E.2d 372.

Regarding issue (1), the record clearly indicates that plaintiff first specifically charged negligent performance of the nerve blocks by her second amended complaint filed May 17, 1984. It is equally clear from the record that the nerve blocks in question were performed by Dr. Lind in January of 1978. For purposes of this issue, we will assume, as did ...


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