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05/25/89 Karen B. Kaplan, v. David M. Berger Et Al.

May 25, 1989

KAREN B. KAPLAN, PLAINTIFF-APPELLANT

v.

DAVID M. BERGER ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

539 N.E.2d 1267, 184 Ill. App. 3d 224, 132 Ill. Dec. 461 1989.IL.796

Appeal from the Circuit Court of Lake County; the Hon. Bernard E. Drew, Jr., Judge, presiding.

Rehearing Denied July 12, 1989.

APPELLATE Judges:

JUSTICE WOODWARD delivered the opinion of the court. UNVERZAGT, P.J., and NASH, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WOODWARD

On March 27, 1985, plaintiff, Karen Kaplan, filed a two-count complaint which alleged that defendants, Dr. David Berger and Highland Park Orthopedic Clinic , committed medical malpractice by failing to properly diagnose a malignant schwannoma, the result of which was the metastasis of the cancer to plaintiff's groin. She appeals from orders by the circuit court of Lake County which granted defendants' motions for summary judgment. We reverse and remand.

Initially, we address defendant Berger's motion to strike certain portions of plaintiff's reply brief. Specifically, he objects to certain passages of plaintiff's evidence deposition referred to in her reply brief. Defendant Berger argues that plaintiff makes reference to quotations from her deposition transcript which were never raised in the court below. We note that the entire transcript is part of the record on appeal. Defendant cites no authority for his argument and, pursuant to Rule 341(e)(7) (113 Ill. 2d R. 341(e)(7)), we find this issue waived.

On May 21, 1986, plaintiff filed an amended two-count complaint against the two defendants. In count I, plaintiff alleged that Dr. Berger failed to conduct a proper and appropriate examination of her right leg when she made an office call in February 1982; that he failed to obtain or recommend an appropriate orthopedic, neurological, or other consultation; and that he failed to admonish her that, based on her family and personal history of cancer, further exploration of those complaints should have been undertaken immediately.

Count I of plaintiff's amended complaint alleged that as a direct and proximate result of Dr. Berger's omissions, the diagnosis of plaintiff's condition of ill-being, namely, the malignant schwannoma or spindelle cell sarcoma, was delayed until April 1983. As a result thereof, plaintiff's surgical and other treatment was greater than it would otherwise have been, and the prognosis for an otherwise normal life expectancy was substantially diminished by the delay in obtaining a proper diagnosis and treatment.

Count II of the amended complaint alleged that on October 13, 1981, defendant HPOC and its staff employees failed to undertake complete and appropriate diagnostic measures to determine the cause of the pain in plaintiff's right leg, which was ultimately diagnosed as a fracture of the fibula; that on February 13 and again on February 14, 1983, defendant failed to undertake appropriate examination and diagnostic measures to determine the cause of plaintiff's right leg complaints; and that it failed to obtain and record a complete family and personal history from plaintiff.

Dr. Berger filed a motion for summary judgment on the ground that (1) plaintiff's cause was barred by the medical malpractice statute of limitations (Ill. Rev. Stat. 1985, ch. 110, par. 13-212) and (2) plaintiff's injury was not proximately caused by Berger's acts or omissions. HPOC filed two separate motions for summary judgment. In the first motion, it argued that (1) plaintiff's cause was barred by the medical malpractice statute of limitations (Ill. Rev. Stat. 1985, ch. 110, par. 13-212), and (2) plaintiff's injury was not proximately caused by services it rendered to her in October 1981 or February 1983. The court below granted both defendants' motions for summary judgment, and this appeal followed.

First, we observe that the purpose of summary judgment is not to try an issue of fact but to determine whether there are any issues of material fact. (Golden v. Marshall Field & Co. (1985), 134 Ill. App. 3d 100.) Summary judgment is a drastic measure to be granted only where the evidence, when construed most strongly against the moving party, establishes clearly and without doubt the right thereto. (Becovic v. Harris Trust & Savings Bank (1984), 128 Ill. App. 3d 107.) Summary judgment should be awarded with caution so as not to preempt the right to trial by jury or the right to present fully a factual basis for a case when a material dispute may exist. W.H. Lyman Construction Co. v. Village of Gurnee (1985), 131 Ill. App. 3d 87.

We first address Dr. Berger's argument that plaintiff waived the issue of proximate causation of the injury and, consequently, this court is required to affirm summary judgment on this ground. Plaintiff argues the issue of proximate causation and whether plaintiff's suit was timely filed are tightly interwoven. We agree. Here, as alleged by plaintiff, Dr. Berger's failure to provide proper treatment (proximate causation) delayed her determination of the true nature of the growth in her leg until April 1983. This omission pushed back the running of the relevant statute of limitations. We find that plaintiff's argument does address both issues. Nevertheless, for the sake of clarity, we will address the issues of proximate causation and statute of limitations separately.

Next, we address plaintiff's argument that her malpractice action was not time barred under the applicable statute (Ill. Rev. Stat. 1983, ch. 110, par. 13-212), which provides in pertinent part:

"No action for damages for injury or death against any physician . . . or hospital . . . 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 . . . of the injury or death for which damages are sought . . .."

In Witherell v. Weimer (1981), 85 Ill. 2d 146, our supreme court interpreted this provision thusly:

"The statute starts to run when a person knows or reasonably should know of his injury and also knows or reasonably should know that it was wrongfully caused. At that point the burden is upon the injured person to inquire further as to the existence of a cause of action." (85 Ill. 2d at 156.)

Plaintiff knows or should know her injury was wrongfully caused when she obtains "sufficient information concerning [her] injury and its cause to put a reasonable person on inquiry to determine whether actionable conduct is ...


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