APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION
538 N.E.2d 164, 182 Ill. App. 3d 46, 130 Ill. Dec. 953 1989.IL.475
Appeal from the Circuit Court of Cook County; the Hon. Thomas P. Quinn, Judge, presiding.
Date Reported: Supplemental Opinion Filed on Denial of Rehearing May 16, 1989 at 182 Ill. App. 3d 46 at 58. As Amended May 16, 1989.
JUSTICE EGAN* delivered the opinion of the court. SCARIANO, J., concurs.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE EGAN
The plaintiff, Phyllis Ravin, filed a complaint against Searle Pharmaceuticals, Inc. (Searle), for personal injuries she allegedly incurred by use of an intrauterine device known as a CU-7, manufactured by Searle. In substance, the complaint alleged that the device was defectively designed. The court allowed the defendant's motion for summary judgment on the ground that the complaint had been filed after the expiration of the statute of limitations. (Ill. Rev. Stat. 1985, ch. 110, par. 13-202.) The plaintiff contends that the court erred because a fact question exists that can be resolved only by a trial.
The factual basis for the defendant's motion for summary judgment and for the court's ruling was the deposition of the plaintiff; and the following recitation of the facts is derived from that deposition.
She started using an intrauterine device , the Lippes Loop, in January of 1972. She had opted for using an IUD at that time because she had experienced either problems or poor results from other forms of contraception. She had two pregnancies aborted, the second one occurring when she was using a diaphragm and foam as a means of prevention. In July of 1972, her gynecologist, Dr. Klein, removed the Lippes Loop. Although she could not recall what prompted its removal, subsequent notations of Dr. Klein indicated that she was suffering from "acute pain from intrauterine device." She was successfully treated with antibiotics. The Lippes Loop was replaced with a Dalkon Shield, which was subsequently replaced by the defendant's CU-7 on about April 20, 1976. She had suffered vaginitis while using the Dalkon Shield. She had periodic check-ups with Dr. Klein while she was using the IUDs.
In early November 1977, she began to experience pain and other symptoms such as constipation and "bloatedness." When the symptoms continued, she went to the emergency room at Lutheran General Hospital. Test results proved negative. However, the staff at the hospital told the plaintiff they wanted her to see one of their gynecologists. She declined, stating that she would see her own gynecologist. After examining her, Dr. Klein immediately removed the IUD and scheduled her for surgery, because he could feel a giant mass. She said it was solely Dr. Klein's decision to remove the IUD. He explained that an IUD should not remain in the body when something else can be felt within the uterus.
Surgery was performed, and the mass was removed along with one fallopian tube and part of each ovary. It was her understanding that those organs were removed because they were infected, although she concluded that Dr. Klein did not tell her what caused the infection. She reached that Conclusion because if Dr. Klein had told her the CU-7 might have been responsible for the infection, she never would have allowed him to place a second one in her body.
In December 1977 Dr. Klein inserted a second CU-7. She began to suffer from cramping sometime before March of 1978, and she believed the second IUD was removed during that month. The pain she experienced was less
In September 1985, after reading newspaper coverage and seeing television reports of various lawsuits brought against IUD manufacturers, the plaintiff asked her new gynecologist, Dr. Jarolim, if the CU-7 might have caused the problems she experienced in 1977 and 1978. Dr. Jarolim's initial response was that he doubted a causal connection existed but that he would review the records of Dr. Klein, who had died. After Dr. Jarolim reviewed the records, he said that most probably an IUD had been responsible for the problems that resulted in the plaintiff's surgery and that he would testify to that Conclusion. She then consulted an attorney.
The applicable law has been set out in two cases decided by the supreme court on the same day. In one case the court discussed the history of the rule governing the statute of limitations in medical malpractice cases (Witherell v. Weimer (1981), 85 Ill. 2d 146, 421 N.E.2d 869), and the other discussed the rule in strict liability cases (Nolan v. Johns-Manville Asbestos (1981), 85 Ill. 2d 161, 421 N.E.2d 864). Both cases make it clear that the rule applicable to both classes of cases is the same: The cause of action accrues when the plaintiff knows or reasonably should know of an injury and also knows or reasonably should know that the injury was wrongfully caused. Witherell, 85 Ill. 2d 146; Nolan, 85 Ill. 2d at 169.
We agree with the defendant's interpretation of Nolan that the running of the statute is not tolled until the plaintiff knows or should know he has a cause of action against the defendant. The court so expressed itself. (85 Ill. 2d at 170.) But the court clarified its holding as follows (85 Ill. 2d at 171):
"We hold, therefore, that when a party knows or reasonably should know both that an injury has occurred and that it was wrongfully caused, the statute begins to run and the party is under an obligation to inquire further to determine whether an actionable wrong was committed. In that way, an injured person is not held to a standard of knowing the inherently unknowable, [citation] yet once ...