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12/29/95 CAROL WEIDMAN v. FRANK WILKIE

December 29, 1995

CAROL WEIDMAN, PLAINTIFF-APPELLANT,
v.
FRANK WILKIE, DEFENDANT, AND MARK GUINAN, DAVID GARAGIOLA, RADIOLOGY IMAGING SPECIALISTS, LTD., AND LITTLE COMPANY OF MARY HOSPITAL, DEFENDANTS-APPELLEES.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE KENNETH L. GILLIS, JUDGE PRESIDING.

Presiding Justice Hoffman delivered the opinion of the court: Cahill and S. O'brien, JJ., concur.

The opinion of the court was delivered by: Hoffman

PRESIDING JUSTICE HOFFMAN delivered the opinion of the court:

The plaintiff, Carol Weidman, appeals from orders of the circuit court granting motions for involuntary dismissal in favor of the defendants, Mark Guinan, David Garagiola, and Radiology Imaging Specialists, Ltd., and for summary judgment in favor of the defendant, Little Company of Mary Hospital. The issues on appeal are 1) whether the circuit court properly found that the plaintiff's actions against these defendants were untimely as a matter of law, and 2) whether the defendants are estopped from raising statute of limitations defenses by reason of inaccurate information contained in medical reports they prepared. For the reasons which follow, we reverse the orders of the circuit court and remand this action for further proceedings.

The facts leading up to this litigation are not in dispute. In December 1989, the plaintiff, a registered nurse, began to experience back pain and difficulty walking. In May 1990, she consulted the defendant, Guinan, her family physician. Guinan referred her to the defendant, Frank Wilkie, a neurosurgeon.

Wilkie examined the plaintiff on May 7, 1990. After ordering certain tests, Wilkie diagnosed the plaintiff as suffering from disc disease and recommended surgery. Wilkie performed a laminectomy on the plaintiff at Little Company of Mary Hospital on May 15, 1990. On May 25, 1990, the plaintiff was discharged from the hospital and returned home.

Some weeks after her surgery, the plaintiff began to experience pain in her back and right leg which progressively worsened as time passed. On three occasions in August 1990, she sought emergency room care at Little Company of Mary Hospital. During that same month, the plaintiff underwent certain diagnostic tests including a CAT scan performed by employees of Little Company of Mary Hospital and an MRI by Radiology Imaging Specialists, Ltd. The CAT scan report and the MRI, which were interpreted by the defendant, David Garagiola, revealed scar tissue and encased nerve roots in the area of the plaintiff's May 1990 surgery. Neither report noted any bone infection.

On August 31, 1990, the plaintiff was readmitted to Little Company of Mary Hospital and treated by both Guinan and Wilkie. She remained in the hospital until September 12, 1990. After her discharge, the plaintiff began treatment at the University of Chicago Pain Clinic. Those treatments continued through October 1990.

The plaintiff saw Wilkie on November 12, 1990, and complained of continuing back pain. According to the plaintiff, Wilkie explained that additional surgery could be performed to remove the scar tissue and release the encased nerve roots noted on the CAT scan and MRI reports. The plaintiff consented to the surgery which was performed by Wilkie at Little Company of Mary Hospital on November 15, 1990. The records of that surgery fail to note that any bone infection was detected.

After her surgery of November 15, the plaintiff remained hospitalized until December 4, 1990, when she was transferred to Marianjoy Rehabilitation Center. She remained at Marianjoy until January 4, 1991, when she was transferred to Central DuPage Hospital.

While at Central DuPage Hospital, the plaintiff came under the care of Dr. Lewis, an infection control specialist, and Dr. Kolavo, a reconstruction surgeon. Both doctors informed the plaintiff that she was suffering from an infection in her back. On January 15, 1991, surgery was performed on the plaintiff at Central DuPage Hospital which consisted of a debridement of the infection in her spine and reconstructive bone grafting. On January 31, 1991, the plaintiff required a spinal fusion to stabilize her back. The plaintiff remained hospitalized until February 20, 1991, when she returned to Marianjoy. On March 17, 1991, she was discharged front Marianjoy and returned home.

According to the plaintiff, she retained an attorney in 1991 to process a claim for Social Security disability benefits. In the course of that representation, the attorney obtained copies of her medical records and engaged a medical consultant to review those records. The plaintiff testified she was informed by her attorney in August 1992 that the CAT scan and MRI taken in August 1990 disclosed the existence of osteomyelitis and vertebral destruction. Plaintiff maintains that this was the first indication she received that she was suffering from osteomyelitis prior to her November 15, 1990, surgery.

On October 16, 1992, the plaintiff filed her original complaint in this action. In that complaint, she pled a cause of action for medical negligence against Wilkie for failing to diagnose and treat her osteomyelitis, and for performing the November 15, 1990, surgery which she claimed was contraindicated. At that time, the plaintiff named Little Company of Mary Hospital and Radiology Imaging as respondents in discovery pursuant to section 2-402 of the Code of Civil Procedure (Code), but she failed to join them as defendants within the six-month period provided in that statute. 735 ILCS 5/2-402 (West 1992).

On April 22, 1993, the plaintiff filed an amended complaint which, for the first time, named Guinan, Garagiola, Radiology Imaging, and Little Company of Mary Hospital as defendants and alleged actions for medical negligence against each of them. Guinan, Garagiola, and Radiology Imaging filed motions pursuant to section 2-619(a)(5) of the Code (735 ILCS 5/2-619(a)(5) (West 1992)) claiming that the plaintiff's actions against them were barred by the two-year statute of limitations set forth in section 13-212 of the Code (735 ILCS 5/13-212 (West 1992)). Little Company of Mary Hospital filed a motion ...


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