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March 29, 1996


Appeal from the Circuit Court of Cook County. Honorable Patrick E. McGann, Judge Presiding.

The Honorable Justice Cerda delivered the opinion of the court: Rizzi, P.j., concurs. Greiman, J., dissenting.

The opinion of the court was delivered by: Cerda

The Honorable Justice CERDA delivered the opinion of the court:

Plaintiff, Frank Wolf, executor of the estate of Lieselotte Wolf (Mrs. Wolf), appeals from the dismissal of counts VI through VIII and XIV through XVI alleging the failure of Rudsen Bueser, M.D., to diagnose Mrs. Wolf's breast cancer, pursuant to section 2-619(a)(5) of the Code of Civil Procedure (735 ILCS 5/2-619(a)(5) (West 1992)). Plaintiff argues that the trial court erred in dismissing the complaint as being filed after the statute of limitations had run and that plaintiff sufficiently pleaded equitable estoppel and fraudulent concealment.

The issue in this case involves application of the discovery rule for the commencement of the statute of limitations for this medical malpractice action for metastasis of plaintiff's cancer (the spread of the cancer to a different part of her body).

In 1981 Mrs. Wolf had a benign cyst surgically removed from her left breast. In 1985 Mrs. Wolf had a mammogram of her right breast that was interpreted as normal by Drs. Metz and Green. On June 29, 1987, Mrs. Wolf wanted to be rechecked and had mammograms that were interpreted by Dr. Bueser, a radiologist. Mrs. Wolf never discussed the results with Dr. Bueser but only with Dr. Metz, who stated that there was only a cyst.

Sometime in April 1988 a mammogram was performed on the right breast, and Drs. Green and Rosenzweig diagnosed Mrs. Wolf as having only a cyst. On April 26, 1988, Mrs. Wolf visited Dr. Caldwell for a second opinion. A biopsy and mammogram were performed. Dr. Caldwell diagnosed cancer and told Mrs. Wolf that she may have had the cancer for about six to seven years. He also told her that Dr. Bueser's mammograms were "no good" and that he could not see anything in those mammograms.

Dr. Rosenzweig told Mrs. Wolf a couple of days later that he did not believe she had cancer. He referred her to a surgeon, who advised her that surgery was needed. On May 10, 1988, a mastectomy was performed on Mrs. Wolf's right breast, and lymph nodes were also removed. Chemotherapy began in June 1988. In September 1989 Mrs. Wolf learned that the cancer had metastasized to her abdomen after she noticed fullness in the abdomen. Mrs. Wolf died on August 22, 1990, as a result of the cancer.

On December 15, 1989, plaintiff filed the first medical malpractice complaint, but Dr. Bueser was not named as a defendant until the second amended complaint, which was filed on January 31, 1991.

Count VI of plaintiff's sixth amended complaint alleged that Dr. Bueser was negligent in failing to diagnose Mrs. Wolf's breast cancer and that the cause of action was brought within two years after the date on which plaintiff or Mrs. Wolf knew or through the use of reasonable diligence should have known of the injury and death for which damages were sought. Allegedly Mrs. Wolf through the exercise of reasonable diligence first suspected that her condition was wrongfully caused during or after September 1989 when her cancer was diagnosed as having metastasized.

Count VII alleged that plaintiff could not have discovered the cause of action against Dr. Bueser before October 30, 1992, when Dr. Caldwell testified at his deposition that the mammograms contained no numbers, date, or names to establish that they were in fact read by Dr. Bueser and were illegible. Dr. Bueser knew that the mammograms were illegible. Plaintiff alleged that Dr. Bueser omitted to inform Mrs. Wolf or other doctors caring for Mrs. Wolf that the mammograms were nondiagnostic and that he failed to request that Mrs. Wolf repeat the mammograms. Dr. Bueser knowingly made representations with the intent that his agents or those in privity with him would communicate them to Mrs. Wolf and with the intent that Mrs. Wolf rely on the representations, which were communicated to Mrs. Wolf.

Plaintiff also alleged that the representations and omissions were intentionally or recklessly calculated by Dr. Bueser to deceive Mrs. Wolf and to prevent her from discovering her cause of action against Dr. Bueser and to conceal his own negligent conduct and wrongdoing. Mrs. Wolf alleged that in fact she relied on the representations by not pursuing further treatment and by not bringing the action earlier due to the fiduciary relationship she had with her doctors.

Count VIII alleged that Dr. Bueser was equitably estopped from asserting any statute of limitations because plaintiff could not have discovered the fraudulent nature of Dr. Bueser's representations or conduct until Dr. Caldwell's deposition.

Counts XIV, XV, and XVI were brought pursuant to the Wrongful Death Act (740 ILCS 180/1 et seq. (West 1993)). Count XIV alleged negligence, count XV alleged fraudulent concealment, and count XVI alleged equitable estoppel.

Dr. Bueser filed a motion to dismiss the sixth amended complaint pursuant to section 2-619(a)(5) of the Code of Civil Procedure (735 ILCS 5/2-619(a)(5) (West 1992)) for the failure to file suit within two years of discovering the injuries and for the failure to state claims of fraudulent concealment and equitable estoppel.

The trial court granted the motion to dismiss with prejudice. The trial court found that there was no just reason to delay enforcement of or appeal from the order, and plaintiff appealed.

Plaintiff first argues on appeal that the trial court erred in granting the motion to dismiss because the basis of the action was the misdiagnosis resulting in metastasis and that it was a question of fact when Mrs. Wolf discovered the injury of metastasis.

Section 2-619(a)(5) of the Code of Civil Procedure authorizes a defendant to file a motion for dismissal on the ground that the action was not commenced within the time limited by law. (735 ILCS 5/2-619(a)(5) (West 1992)).) If the grounds do not appear on the face of the pleading attacked, the motion shall be supported by affidavit. (735 ILCS 5/2-619(a)(5) (West 1992)).) Parties may file not only affidavits but deposition transcripts. In re Estate of Silverman (1993), 257 Ill. App. 3d 162, 172, 628 N.E.2d 763, 195 Ill. Dec. 299.

For purposes of the motion to dismiss, all well-pleaded facts in the pleading as well as reasonable inferences to be drawn from those facts are taken as true. ( Waterford Executive Group, Ltd. v. Clark/Bardes, Inc. (1994), 261 Ill. App. 3d 338, 343, 633 N.E.2d 1003, 199 Ill. Dec. 207.) The movant's asserted affirmative matter will not defeat a cause of action if it is merely evidence that the movant expects to submit in contesting an ultimate fact contained in the pleading. Curtis Casket Co. v. D.A. Brown & Co. (1994), 259 Ill. App. 3d 800, 805, 632 N.E.2d 204, 198 Ill. Dec. 145.

A trial court should grant a motion for involuntary dismissal if, after construing the documents supporting the motion in the light most favorable to the party opposing the motion, the trial court finds no disputed fact issues ( Meyers v. Rockford Systems, Inc. (1993), 254 Ill. App. 3d 56, 61, 625 N.E.2d 916, 192 Ill. Dec. 761) and finds that no set of facts can be proved that would entitle plaintiff to recover ( Nikolic v. Seidenberg (1993), 242 Ill. App. 3d 96, 99, 610 N.E.2d 177, 182 Ill. Dec. 753).

Only when facts are undisputed, and it is apparent from those facts that only one conclusion can be drawn, does it become a question of law when a party knew or reasonably should have known of the injury and that it was wrongfully caused. Bradtke v. Reotutar ...

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