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06/30/89 Alfonso Dockery, Deceased, v. Arcadio F. Ortiz

June 30, 1989

DOCKERY, ET AL., PLAINTIFFS-APPELLANTS

v.

ARCADIO F. ORTIZ, JR., ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

ALFONSO DOCKERY, Deceased, by his Special Adm'r, Marian

541 N.E.2d 226, 185 Ill. App. 3d 296, 133 Ill. Dec. 389 1989.IL.1064

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

APPELLATE Judges:

JUSTICE WOODWARD delivered the opinion of the court. NASH, J., concurs. PRESIDING JUSTICE UNVERZAGT, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WOODWARD

Plaintiffs, Alfonso Dockery and Marian Dockery, filed a complaint in the circuit court of Lake County on October 10, 1986, against the defendant doctors alleging medical malpractice and loss of consortium after the amputations of Alfonso's legs. After his death, Marian Dockery was appointed special administrator and substituted in his stead in this cause, and plaintiffs' second amended complaint added wrongful death claims.

The court granted the defendants' motions for summary judgment grounded on the premise that plaintiffs' claims were time barred, and plaintiffs appeal.

Plaintiffs contend the court erred in granting summary judgment where the only pleadings and affidavits which properly could be considered by the court showed that a genuine issue of material fact existed: that is, whether plaintiffs knew of their injury and its wrongful causation as of February 1985, as contended by plaintiffs, or as of May 1984, as contended by the defendants. If the former, plaintiffs' complaint was timely; if the latter, it was barred by section 13-212 of the Limitations Act (Act) (Ill. Rev. Stat. 1985, ch. 110, par. 13-212(a)). Plaintiffs argue the court improperly considered unauthenticated excerpts from depositions in reaching its decision that plaintiffs knew or reasonably should have known of their injury and its wrongful causation by May 11, 1984, the date Alfonso Dockery's left leg was amputated.

The plaintiffs' statement of facts is unacceptable; it does not even mention the fact a motion for summary judgment was filed or that the court entered judgment on same in favor of the defendants. Pursuant to Supreme Court Rule 341 (113 Ill. 2d R. 341(f)), appellees provide a more complete statement of facts. The following facts are a synthesis of the facts set forth by the parties and the pleadings. No reports of proceedings of the hearings on the summary judgment motion and the plaintiffs' subsequent motion to strike and to vacate have been filed.

Although plaintiffs claim there are no undisputed facts, it is undisputed that the plaintiff experienced pain in his left foot and was hospitalized at St. Therese Medical Center and Hospital in Waukegan, Illinois, on October 4, 1982, under the care of the defendants. On October 11, defendant Dr. Ortiz performed aortofemoral and femoropopliteal bypasses. Alfonso continued to have pain and went to St. Joseph's Hospital in Marshfield, Wisconsin, where additional bypass surgeries were performed on December 9 and December 16, 1983, by Dr. Mark Swanson. Plaintiff's pain was 100% relieved following these surgeries.

On May 1, 1984, plaintiff suffered severe pain in both legs after attempting to remove an automobile tire from its rim. He went to the emergency room at St. Therese Medical Center and Hospital (St. Therese Hospital) in Waukegan and was admitted there under the defendants' care until May 5. On May 5, he was admitted to St. Joseph's Hospital in Marshfield, Wisconsin. Bypass surgery was performed there on May 6, which was unsuccessful, and plaintiff's left leg was amputated five days later, on May 11. Subsequently, in November 1984, his right leg was also amputated.

Plaintiffs' medical malpractice complaint against the defendants for treatment rendered during the period October 1982 to May 1984 was filed on October 10, 1986. Defendants filed a motion to dismiss pursuant to section 2-619 of the Civil Practice Law on the ground the action was not commenced within the two-year time period prescribed by section 13-212 of the Act. (Ill. Rev. Stat. 1985, ch. 110, pars. 2-619(a)(5), 13-212.) Defendants alleged that inasmuch as plaintiff's left leg was amputated above the knee at St. Joseph's Hospital on May 11, 1984, he knew, or through the use of reasonable diligence should have known, of the alleged cause of action as of that date. The motion was supported with affidavits of defendants Ortiz, Agujar, and Allian, each of whom averred he neither consulted with nor treated Alfonso Dockery for any reason following his discharge from St. Therese Hospital on May 5, 1984.

Plaintiffs' response denied they knew or reasonably should have known that medical malpractice had been committed from the mere fact of the amputation and that the cause was filed within the four-year outside limit prescribed in the Act. (Ill. Rev. Stat. 1985, ch. 110, par. 13-212(a).) Plaintiffs' response was supported by the affidavit of Alfonso Dockery in which he averred he was 56 years old, had 11 years of education, did not graduate from high school, and spent his entire life doing factory work. He further averred that from October 1982 to February 1985 he had numerous surgical procedures and amputations which resulted in the loss of both his legs at the hip and that until February 1985 he believed he lost his legs due to his diabetes which, he averred, was the opinion of Dr. Arcadio Ortiz that was related to him in October 1982. Plaintiff averred additionally that from May 1984 to April 1985 he was heavily sedated for pain and was not aware until January or February 1985 that he had lost both his legs and that such loss may have been due to a mistake made by the doctors. Plaintiff averred he never sued anyone, and he did not know until August 1986 that a doctor could be sued for a mistake. Because the plaintiffs had filed a counteraffidavit to the defendants' motion to dismiss and had filed a jury demand, the court denied the defendants' motion to dismiss. Ill. Rev. Stat. 1985, ch. 110, par. 2-619(c).

Defendants' answer to plaintiffs' second amended complaint raised the affirmative defenses of the statute of limitations and that the loss of plaintiff's legs and his death were due to his arteriosclerosis and cardiovascular disease. Plaintiffs' answer to defendants' first affirmative defense was that plaintiff did not learn of the medical malpractice until approximately February 1985 and had no reason to suspect medical negligence until that time. Plaintiffs denied defendants' second affirmative defense, stating the cause of death was the proximate result of the medical negligence alleged in the complaint. Thereafter, plaintiffs voluntarily dismissed counts V and VI of their complaint for wrongful death on behalf of their adult children.

Defendants then filed a motion for summary judgment. It alleged plaintiffs knew or reasonably should have known of the existence of their injuries and their wrongful causation no later than May 11, 1984, either because the amputation of plaintiff's left leg on that date was a traumatic event which triggered the running of the limitations period, or because the history of plaintiff's medical treatment indicates he was dissatisfied with defendants' medical care inasmuch as he sought treatment twice in another medical facility several hundred miles from his home after receiving treatment from the defendants. The motion was supported with excerpts of Marian Dockery's and Dr. Arcadio Ortiz' depositions and copies of St. Joseph's Hospital operative reports which tended to establish (1) plaintiff's left foot pain did not diminish after the Ortiz surgery in October 1982 at St. Therese's in Waukegan but, rather, it increased and spread into his left leg; (2) he felt "100% fine" after additional bypass surgery performed at St. Joseph's in Marshfield in December 1983; and (3) after his admission to St. Therese's on May 1, 1984, for tremendous pain and numbness in both legs, plaintiff's left leg began to turn progressively darker and cold to the touch, his pain increased during the next four days, he was alert and coherent during that time, he was transferred to St. Joseph's in Marshfield, where bypass surgery was performed on May 6, and his left leg was amputated above the knee on May 11, 1984.

Plaintiffs' response to defendants' motion for summary judgment admitted plaintiffs knew of their injury but denied they knew of its wrongful causation. They argued that plaintiff, who had achieved only a twelfth-grade education and was engaged in labor activities all his life, could not reasonably have known that the amputation of his left leg in May 1984 may have been wrongfully caused by the defendants' malpractice. Plaintiffs' response was supported by excerpts of Marian Dockery's deposition, the October 11, 1982, operative report of Dr. Ortiz, and a report prepared by his family physician, Dr. Gerard Pierre-Jerome, which established (1) that Alfonso Dockery was told by Dr. Ortiz that if he did not have surgery, he might eventually have to lose a leg and that the diabetes was contributing to his condition; (2) after the October 1982 surgery, Dr. Ortiz told plaintiff that the pain would take time to go away; and (3) his leg felt better after the additional bypass surgery at Marshfield until May 1984 when he used his feet to try to get a tire off a rim. Plaintiffs argued his continued pain and the additional, as opposed to corrective, bypass surgery performed in Marshfield in 1983 were not sufficient to reasonably put him on notice of any wrongful causation, particularly where Dr. Ortiz "predicted" in October 1982 that he may eventually lose a leg because he had diabetes and occluded arteries.

Defendants' reply to the plaintiffs' response noted that the reasonable-man standard requires an objective, not subjective, analysis. Further, the facts that plaintiff's pain worsened during the four days in May 1984 when he was under the defendants' care and that he transferred several hundred miles away to Marshfield for treatment "clearly [indicated] that the plaintiff felt that he may have received improper care or diagnosis" under the defendants' care. Defendants' reply was supported by reference to, rather than copies of, excerpts of the depositions of the two doctors who treated the plaintiff in Marshfield, Drs. Swanson and Duffy. The excerpts established that plaintiffs were aware of their potential claim against the defendants in May 1984 when plaintiff transferred from St. Therese's. Specifically, defendants represented that Dr. Swanson was deposed as follows:

"Q. Were you at the hospital waiting for Mr. Dockery when he arrived?

A. I believe I was.

Q. And, what did you find when he arrived?

A. Well, I found a guy with both legs that were dying, a pretty sick man. Accompanying him was an arteriogram which showed occluded aorta and a pretty desperate situation.

Q. Did you have an opportunity to discuss with Mr. Dockery, your plan at that time?

A. Yes, I did.

Q. And what did you tell him?

A. I told him I thought we had a desperate situation, that I was almost sure he was going to lose probably both legs. What I was concerned about is the level of his ischemic sign was getting so high that he might end up clear up into his hips. That I hoped that I thought we ought to try something to get blood flow back there to try to save as much of his legs in terms of from the hip down as that was possible. But I thought there was a tiny outside chance we might be able to save one leg and, you know, even less of an outside chance to save the left leg which already had problems.

Q. Doctor, did Mr. Dockery or his wife ever indicate to you that they were dissatisfied with the care Mr. Dockery received in May of 1984 at St. Therese?

A. Yes.

Q. Can you tell me what they said?

A. Just in a general way. He just couldn't understand why he laid [ sic ] in the hospital for four and a half days hurting.

Q. That was Mr. Dockery that ...


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