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October 16, 1996


Appeal from the Circuit Court of Kane County. No. 93--L--0074. Honorable R. Peter Grometer, Judge, Presiding.

Released for Publication December 5, 1996.

The Honorable Justice Doyle delivered the opinion of the court: Thomas, J., concurs. Justice Hutchinson, dissenting:

The opinion of the court was delivered by: Doyle

JUSTICE DOYLE delivered the opinion of the court:

This case examines the question of when plaintiff received sufficient information under the discovery rule to trigger the running of the limitations period in a medical malpractice action.

On February 3, 1993, plaintiff, Elsie Wells, special administrator of the estate of Robert G. Wells (decedent), sued defendant, Douglas Travis, M.D. (Travis), alleging a cause of action for medical negligence for failure to diagnose and treat diabetes mellitus that resulted in decedent's death. On January 19, 1995, plaintiff filed a first amended complaint adding defendant Karim Valika, M.D. (Valika). Counts IV, V, and VI of plaintiff's amended complaint alleged causes of action under the Wrongful Death Act (740 ILCS 180/0.01 et seq. (West 1994)), the family expense statute (750 ILCS 65/15 (West 1994)), and the Survival Act (755 ILCS 5/27--6 (West 1994)), respectively. Valika filed a motion to dismiss with prejudice pursuant to section 2--619(a)(5) of the Code of Civil Procedure (Code) (735 ILCS 5/2--619(a)(5) (West 1994)), asserting that the allegations listed in the amended complaint were time-barred by the two-year statute of limitations applicable to medical negligence causes of action (see 735 ILCS 5/13--212(a) (West 1994)). The trial court granted Valika's motion to dismiss with prejudice. This appeal followed.

Plaintiff contends the trial court erred as a matter of law in granting Valika's section 2--619(a)(5) motion.

Plaintiff's suit arose from the death of the decedent on February 10, 1991. On February 7, 1991, decedent was admitted to Sherman Hospital after a referral from his family physician, Travis. Travis requested a consultation by Valika and on February 8, 1991, Valika diagnosed decedent as suffering from newly discovered diabetes mellitus with a hypersmolar condition and severe hyperglycemia. Decedent died on February 10, 1991, from multiple complications.

On February 3, 1993, plaintiff filed suit against Travis, asserting he had been medically negligent in failing to diagnose and treat decedent's diabetes mellitus. The complaint alleged that decedent "was caused to die due to complications resulting from undiagnosed and untreated diabetes mellitus." Plaintiff's attorney filed a section 2--622 affidavit on February 3, 1993, and a written health professional's report by Robert Lindemann, M.D., on June 28, 1993. See 735 ILCS 5/2--622(a)(1) (West 1994). The report indicated Lindemann had reviewed decedent's treatment records "from 1983 through the time of his death, including his stay in *** [the] hospital." The record contains an August 21, 1992, report by Lindemann to his employer, Saprano, Inc., criticizing departures from good medical care by Travis. In this report Lindemann stated he "did not feel there was any malpractice involved in [decedent's] care once he was admitted to the hospital since he developed complications that can occur despite the best of treatment." As her only response to Rule 220 interrogatories questioning the date plaintiff first learned of Lindemann's opinions, plaintiff attached Lindemann's August 21, 1992, report.

In depositions, Travis' defense experts, William Hulesch, M.D., and David Baldwin, M.D., each criticized the medical care rendered by Valika. The depositions of Hulesch and Baldwin were taken on December 22, 1994, and December 28, 1994, respectively. In their depositions, both witnesses stated: (1) Valika mismanaged the decedent's care; (2) Valika deviated from the acceptable standard of care; and (3) decedent would have survived if Valika had treated decedent correctly.

Following the discovery depositions of Hulesch and Baldwin, plaintiff filed a motion for leave to file an amended complaint. The motion was granted and the amended complaint, adding Valika as a defendant, was filed on January 19, 1995. Plaintiff alleged in her amended complaint that the dates of the Hulesch and Baldwin depositions were the "first dates" plaintiff knew or reasonably should have known that Valika "wrongfully caused" decedent's death.

We turn first to the nature of appellate review of a trial court's dismissal of a complaint pursuant to section 2--619. The purpose of section 2--619 is to allow for the disposition of questions of law and easily proved fact issues at the outset of the case. See, e.g., Zedella v. Gibson, 165 Ill. 2d 181, 185, 209 Ill. Dec. 27, 650 N.E.2d 1000 (1995). Unlike a motion with respect to the pleadings brought under section 2--615 ( Illinois Graphics Co. v. Nickum, 159 Ill. 2d 469, 484, 203 Ill. Dec. 463, 639 N.E.2d 1282 (1994) (section 2--615 motion attacks only the legal sufficiency of the complaint and deals exclusively with defects appearing on the face of the complaint)), a trial court ruling on a section 2--619 motion may consider the "pleadings, depositions, and affidavits" ( Zedella, 165 Ill. 2d at 185). We have stated:

"The motion should be granted and the complaint dismissed if, after construing the document in the light most favorable to the nonmoving party, the court finds that no set of facts can be proved which would entitle the plaintiff to recover. [Citations.] When reviewing the propriety of a section 2--619 dismissal, all well-pleaded facts alleged in the complaint are taken as true. [Citation.] Conclusions of law or conclusions of material fact unsupported by specific factual allegations must be disregarded. [Citation.] As such, the reviewing court is concerned solely with a question of law presented by the pleadings." Nikolic v. Seidenberg, 242 Ill. App. 3d 96, 98-99, 182 Ill. Dec. 753, 610 N.E.2d 177 (1993).

Finally, an appellate court conducts an independent review of the propriety of dismissing the complaint and, therefore, is not required to defer to a trial court's reasoning. Nikolic, 242 Ill. App. 3d at 99.

The issue here is whether the trial court erred as a matter of law in granting Valika's section 2--619(a)(5) motion. Parties claiming medical negligence must file their complaint within two years of "the date on which the claimant knew, or through the use of reasonable diligence should have known, *** of the existence of the injury or death for which damages are sought in the action." 735 ILCS 5/13--212(a) (West 1994). Our supreme court has stated that "the statute starts to run when a person knows or reasonably should know of his injury and also knows or reasonably should know that it was wrongfully caused." Witherell v. Weimer, 85 Ill. 2d 146, 156, 52 Ill. Dec. 6, 421 N.E.2d 869 (1981) (discussing the operation of the discovery rule in medical negligence cases). When this occurs, the injured person is obligated to inquire further as to the existence of a cause of action. Witherell, 85 Ill. 2d at 156. The court may determine--as a matter of law--when the injured party knew or reasonably should have known both of the injury and that it was wrongfully caused, only in those situations in which the undisputed facts lead to a single conclusion. Witherell, 85 Ill. 2d at 156. In most cases though, this is a disputed question for the fact finder. Knox College v. Celotex Corp., 88 Ill. 2d 407, 416, 58 Ill. Dec. 725, 430 N.E.2d 976 (1981). As a matter of law, the latest date the statute of limitations contained in section 13--212(a) can commence is the date the plaintiff files the initial lawsuit. McCormick v. ...

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