APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION
545 N.E.2d 965, 190 Ill. App. 3d 8, 137 Ill. Dec. 204 1989.IL.1598
Appeal from the Circuit Court of Cook County; the Hon. Odas Nicholson, Judge, presiding.
PRESIDING JUSTICE FREEMAN delivered the opinion of the court. RIZZI and CERDA, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE FREEMAN
Plaintiff, Yolanda Kirby (Kirby), appeals from orders of the trial court granting the motion of defendant, Theodore Jarrett, M.D. (Jarrett), to dismiss count II of plaintiff's amended complaint based on a statute of limitations defense; and denying plaintiff's motion for reconsideration. Plaintiff's amended complaint sounds in medical negligence against Jarrett and other defendants and alleges that plaintiff sustained a perforated uterus as a result of an abortion performed upon her. On appeal plaintiff asserts that dismissal of count II was improper since a question of fact exists regarding when she knew or should have known of the injury and its wrongful cause.
For the reasons stated below, we reverse the judgment of the circuit court and remand this matter for further proceedings.
Plaintiff's original two-count complaint named Carlos Baldoceda, M.D. (Baldoceda) and Biogenetics, Ltd. (Biogenetics), as defendants. Count I alleged that Biogenetics negligently provided medical services to plaintiff when she underwent the abortion at defendant's clinic on October 23, 1982. Allegedly, Biogenetics failed to provide proper treatment when it knew or should have known that plaintiff had suffered a perforated uterus. Count II alleged that Baldoceda negligently performed the abortion procedure and failed to provide proper post-operative care.
Defendant Baldoceda proposed written interrogatories upon plaintiff. Plaintiff's answers to two of the interrogatories are at issue in this appeal. Interrogatory number 5 provides, "State, in lay terms, the nature of your injury as you saw it and when you first became aware of it." Plaintiff responded, "Incomplete abortion and perforated uterus." Interrogatory number 6 states, "If anyone ever advised you that you were injured in this incident and/or that the injury was wrongfully caused, state who told you this and when it was told to you." Plaintiff answered, "Dr. C. Wong [ sic ] at South Shore Hospital. Told this when admitted to South Shore Hospital on 10/23/82."
Baldoceda subsequently was dismissed from the action upon his motion for summary judgment, since he did not perform the abortion procedure. Plaintiff filed an amended complaint, naming Biogenetics, in count I, and appellee Jarrett, in count II, as defendants. The amended complaint alleges that Jarrett negligently performed the abortion on plaintiff. Specifically, plaintiff alleges that Jarrett, among other things, negligently perforated plaintiff's uterus and failed to provide proper post-operative care when he knew or should have known that he perforated the uterus and caused uncontrolled hemorrhaging.
Jarrett filed a motion to dismiss count II, asserting that the amended complaint was not timely filed. Jarrett asserted that the amended complaint alleges that plaintiff received the medical treatment on October 23, 1982. Further, plaintiff's answers to the interrogatories of Baldoceda indicate that plaintiff knew of the alleged injury on October 23, 1982. Yet, plaintiff failed to file the amended complaint, in which she named for the first time Jarrett as a defendant, until October 24, 1984, one day after the expiration of the limitations period set forth in section 13-212 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 13-212).
Plaintiff filed an affidavit in response, indicating that she lacked knowledge of a perforated uterus until October 26, 1982. The affidavit states that on October 23, 1982, plaintiff went to Biogenetics for an abortion. Later that day she went to South Shore Hospital complaining of severe pain. After being examined, she was advised that she possibly had an incomplete abortion. Dr. Wang told her on October 26, 1982, after surgery, that she had a perforated uterus that had occurred during the abortion. The affidavit also states that plaintiff's answers to the interrogatories of Baldoceda indicate that she understood the interrogatory language "injured in this incident" to mean her possible incomplete abortion.
Plaintiff's counsel filed an affidavit, in which he stated that he received a true and correct copy of the record from South Shore Hospital regarding plaintiff, and that attached to the affidavit are true and correct copies of the emergency room/out-patient record of October 23, 1982; a history and impression of Dr. Wang of October 25, 1982; and Wang's report of surgery of October 26, 1982.
The trial court granted the motion to dismiss with prejudice. Plaintiff filed a motion for reconsideration and an affidavit of Wang. Wang's affidavit states that on October 23, 1982, he made an initial diagnosis of "possible incomplete abortion." On October 26, 1982, Wang discovered a perforated uterus while performing exploratory surgery. After October 26, 1982, Wang informed plaintiff that she had suffered a perforated uterus during the abortion. In addition to filing a motion to reconsider, plaintiff requested leave to file a second amended complaint to allege a "discovery" date of the injury and its wrongful cause, ...