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12/14/89 Robert J. Cramsey, Indiv. v. Ruth Hattie Knoblock

December 14, 1989

ROBERT J. CRAMSEY, INDI

v.

AND AS INDEPENDENT ADM'R OF THE ESTATE OF BARBARA J. CRAMSEY, DECEASED, ET AL., PLAINTIFFS-APPELLANTS,

v.

RUTH HATTIE KNOBLOCK, DEFENDANT (KENT W. BARBER ET AL., DEFENDANTS-APPELLEES)



Before deciding whether the trial court erred by ruling the statute of limitations began to run on February 4, 1986, as a matter of law, it must be noted that whenever the granting of a motion to dismiss is reviewed, all well-pleaded facts alleged in the complaint are taken as true, and the test for determining the propriety of granting the motion to dismiss is whether it appears no set of facts may be proved so as to entitle plaintiff to recover from defendants. (Wheeler v. Caterpillar Tractor Co. (1985), 108 Ill. 2d 502, 485 N.E.2d 372, cert. denied (1986), 475 U.S. 1122, 90 L. Ed. 2d 187, 106 S. Ct. 1641; Johnston v. City of Bloomington (1979), 77 Ill. 2d 108, 395 N.E.2d 549.) Any allegations which are merely Conclusions of fact, unsupported by allegations of specific facts, are not admitted, however. Howell v. Blecharczyck (1983), 119 Ill. App. 3d 987, 457 N.E.2d 494.

APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

547 N.E.2d 1358, 191 Ill. App. 3d 756, 138 Ill. Dec. 737 1989.IL.1947

Appeal from the Circuit Court of Adams County; the Hon. Robert L. Welch, Judge, presiding.

APPELLATE Judges:

JUSTICE SPITZ delivered the opinion of the court. STEIGMANN and McCULLOUGH, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SPITZ

This is an appeal by plaintiffs from an order of the circuit court of Adams County dismissing the medical malpractice portions of the complaint. On October 1, 1986, the plaintiffs, Catherine M. Baker, Robert J. Cramsey II, and Robert J. Cramsey, individually and as independent administrators of the estate of Barbara J. Cramsey, deceased, filed a four-count complaint against Ruth Hattie Knoblock seeking to recover damages resulting from the wrongful death of Barbara Cramsey ensuing from an automobile collision allegedly proximately caused by the negligence of Knoblock. Knoblock is not a party to this appeal. On March 31, 1988, an amended complaint was filed by which the plaintiffs added two counts each against defendants Kent W. Barber, M.D., and the Quincy Clinic, a partnership, for the wrongful death of decedent and loss of society to the individual plaintiffs.

Counts V through VIII of the amended complaint alleged that after Barbara Cramsey suffered a head injury in the collision of April 6, 1985, she became a patient of Barber and the Quincy Clinic. The counts further allege Barber, an orthopedic surgeon, failed to have a "CT" scan (computerized tomography) performed on Barbara Cramsey even though she complained of nausea, headaches, weight gain, and visual problems and failed to perform other tests to determine if a tumor existed, failed to recognize and treat the tumor, and failed to associate himself with a physician qualified to recognize and treat the tumor. These counts further allege that in December 1985, it was determined Barbara Cramsey had a tumor, from which she died on February 4, 1986.

After defendants filed a motion to dismiss the amended complaint, plaintiffs filed a second-amended complaint June 28, 1988. Counts V through VIII of the second-amended complaint are essentially the same as those counts in the first-amended complaint, with the exception that plaintiffs further alleged plaintiff administrator of the estate first became aware the defendants failed to provide proper medical care on September 1, 1987, when Dr. John Scott, a member of the Quincy Clinic, stated during his deposition that a CT scan may have been required under the circumstances. The amended complaint also alleged that plaintiffs had not acquired hospital records of decedent until after April 1, 1986. These further allegations were added only to count V against Barber.

On July 20, 1988, the clinic filed a motion to dismiss pursuant to section 2-619 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1987, ch. 110, par. 2-619) on the grounds that the action by plaintiffs was barred by the statute of limitations since it was filed more than two years after the date plaintiffs knew or should have known, through the exercise of reasonable diligence, of the existence of the decedent's injury. As an additional ground, the clinic urged plaintiffs failed to comply with section 2-622 of the Code (Ill. Rev. Stat. 1987, ch. 110, par. 2-622). On August 27, 1988, Barber filed a section 2-615 motion (Ill. Rev. Stat. 1987, ch. 110, par. 2-615) to dismiss the counts against him alleging failure to comply with section 2-622. In addition, Barber filed a section 2-619 motion based on the statute of limitations.

On November 21, 1988, plaintiffs were granted leave to file a third-amended complaint. In the third-amended complaint, each of counts V through VIII contained a paragraph concerning the allegation of when plaintiffs became aware of the alleged failure to provide proper medical care. In addition, this third-amended complaint added a count against each of the defendants, counts IX and X. In these new counts, plaintiffs alleged the defendants named wilfully and fraudulently concealed the cause of action in that Barber's medical reports failed to state any connection between the trauma caused by the collision and the brain tumor and Scott also failed to so state a causal connection in the death certificate even though the causal connection was known. Plaintiffs alleged they knew they had a cause of action against defendants on September 1, 1987, and commenced the action on or about March 31, 1988, within five years of the discovery thereof. On December 2, 1988, plaintiffs moved to amend count X of the third-amended complaint. Of significance is the alleged allegation that Barber was a partner and agent of the clinic. On December 20, 1988, the motion to amend count X was granted.

Defendants renewed their motions to dismiss, adding the additional contention that the five-year statute of limitations for fraudulent concealment of a cause of action was not applicable to the case at bar. On February 23, 1989, plaintiff administrator filed an affidavit in which he states he talked to Scott within eight weeks of his wife's death and at that time Scott did not discuss Barber's treatment of decedent, or the failure to perform a CT scan or other tests. Nor did Scott opine at that time that such additional tests should have been performed.

On February 24, 1989, the trial court entered an order granting the motions to dismiss as to Barber and Quincy Clinic because the actions are barred by the statute of limitations. An additional reason for the dismissal of counts IX and X was a failure to state a cause of action, since there were no allegations of misrepresentation made with intent to deceive or that plaintiffs detrimentally relied on such misrepresentations. In addition, the trial court stated that because the certifying health professional who signed the certificate filed pursuant to section 2 -- 622 was a practitioner of a different specialty than Barber, counts V through X should be dismissed for this reason as well. The trial court also found there is no just reason to delay enforcement or appeal.

On March 23, 1989, plaintiffs filed a motion to reconsider the order dismissing counts V through X. The trial court denied the motion to reconsider on April 7, 1989, and on April 28, 1989, plaintiffs filed a notice of appeal.

The first issue to consider is whether the trial court erred in dismissing the third-amended complaint for failure to obtain a proper health-care professional's certification. Plaintiffs argue that when a physician is a named defendant in a lawsuit, any licensed physician is legally qualified to evaluate the treatment and a specialist in a field is not statutorily required since they are neither statutorily regulated or defined under section 11 of the ...


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