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06/11/97 S.D. v. KISHWAUKEE COMMUNITY HOSPITAL J.

June 11, 1997

S.D., A MINOR, BY HER MOTHER AND NEXT FRIEND, D.D.; AND D.D. AND L.D., INDIV., PLAINTIFFS-APPELLANTS,
v.
KISHWAUKEE COMMUNITY HOSPITAL; J. MCCORMICK; C.F. BOYLES; ISHTIAQUE BANGESH; HERIBERTO MENEDEZ; NEIL ROSS; STANLEY BRANDON; C. WILHELM; M. JOHNSEN; N. RICH (APPEARING AS N. RICH-FEYERHERM); J. KOHN; D. HENIGAN; M. BARNES; N. KUHN (APPEARING AS N. KUHN-IGNELSI); G. CAMPBELL (APPEARING AS RITA CAMPBELL); PAT DAGGERBERG (APPEARING AS PAT FAGERBERG-FREEMAN); B. ROLAND; L. LATHROP; M.S. LIPPS; M. NELSON; G. PECKER (APPEARING AS G. PECKS); RAPP (APPEARING AS ROSEMARY TAFFS); G. WEYALI (APPEARING AS G. WOJCIK); M. WIHMEYER (APPEARING AS MARY WEHMEYER); J. KROPSCINIC (APPEARING AS JACQUELYN MASCENIC); S. SLOVIK; KRAFTS; BEJNENEUZ (APPEARING AS J.J. BEJNAROWICZ); M. KOOTREY (APPEARING AS M. KOSTREY); S. MINOR (APPEARING AS A. MINOR- SORRENTINO); AND KRIS MCCLURE, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of De Kalb County. No. 96--L--9. Honorable John W. Countryman, Judge, Presiding.

Released for Publication July 11, 1997.

The Honorable Justice Inglis delivered the opinion of the court. Geiger, P.j., and McLAREN, J., concur.

The opinion of the court was delivered by: Inglis

The Honorable Justice INGLIS delivered the opinion of the court:

Plaintiffs, S.D., a minor, and her mother and next friend, D.D., and D.D. and L.D., individually, appeal the order of the circuit court of De Kalb County dismissing their medical malpractice and family expense statute (750 ILCS 65/15 (West 1994)) claims against defendants, Kishwaukee Community Hospital and a number of physicians and nurses, as time-barred under section 13--212(b) of the Code of Civil Procedure (Code) (735 ILCS 5/13--212(b) (West 1994)). We affirm in part and reverse in part and remand.

The following facts are taken from the plaintiffs' complaint. S.D. was allegedly injured during her birth on August 15, 1981, suffering severe and permanent disability due to brain damage allegedly caused by defendants. On March 14, 1995, plaintiffs filed an 11-count complaint against defendants alleging medical malpractice and seeking damages for the minor's injuries and reimbursement for the parents' past and future expenses on behalf of their child.

Defendants filed a motion to dismiss pursuant to section 2--619 of the Code (735 ILCS 5/2--619 (West 1994)), contending that plaintiffs' claim was barred by the eight-year statute of repose for minors set forth in section 13--212(b) of the Code (735 ILCS 5/13--212(b) (West 1994)). Defendants argued that section 1.06 of the Statute on Statutes (5 ILCS 70/1.06 (West 1994)) defined a "person under legal disability" in a way that expressly excluded minors. Defendants further argued that, even if the minor were considered to be mentally disabled, the repose period for actions against health care providers, as opposed to the limitations period, was no different for persons under legal disability than for any other person. Defendants also argued that plaintiffs' family expense statute claims were barred by section 13--203 of the Code (735 ILCS 5/13--203 (West 1994)) because the claims were not brought within the two-year statute of limitations or the four-year statute of repose.

Plaintiffs argued that their claims were subject to the tolling provisions of section 13--212(c) of the Code because the minor suffered from the disabilities of minority and mental incompetency. Plaintiffs contended that the tolling period for mental incompetency did not end until the disability was removed and, therefore, the four-year period of repose did not apply to this case. Plaintiffs also argued that their family expense statute action was not barred because the period required to bring derivative causes of action coincided with the period applicable to the underlying cause of action.

The trial court dismissed all counts of plaintiffs' complaint on July 3, 1996. The trial court held that section 13--212(b) of the Code applied to minors regardless of whether the minor was under any other legal disability.

Plaintiffs filed a motion to reconsider, which the trial court denied on October 3, 1996. Plaintiffs' timely appeal followed.

We are asked to decide whether subsection (b) or (c) of the medical malpractice limitations statute governs the situation where the plaintiff is both a minor and incompetent. Section 13--212 provides:

"(a) Except as provided in Section 13--215 [fraudulent concealment] of this Act, no action for damages for injury or death against any physician, dentist, registered nurse or hospital duly licensed under the laws of this State, whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought more than 2 years after the date on which the claimant knew, or through the use of reasonable diligence should have known, or received notice in writing of the existence of the injury or death for which damages are sought in the action, whichever of such date occurs first, but in no event shall such action be brought more than 4 years after the date on which occurred the act or omission or occurrence alleged in such action to have been the cause of such injury or death.

(b) Except as provided in Section 13--2l5 of this Act, no action for damages for injury or death against any physician, dentist, registered nurse or hospital duly licensed under the laws of this State, whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought more than 8 years after the date on which occurred the act or omission or occurrence alleged in such action to have been the cause of such injury or death where the person entitled to bring the action was, at the time the cause of action accrued, under the age of 18 years; provided, however, that in no event may the cause of action be brought after the person's 22nd birthday. If the person was under the age of 18 years when the cause of action accrued and, as a result of this amendatory Act of 1987, the action is either barred or there remains less than 3 years to bring such action, then he or she may bring the action within 3 years of July 20, 1987.

(c) If the person entitled to bring an action described in this Section is, at the time the cause of action accrued, under a legal disability other than being under the age of 18 years, then the period of limitations does not begin to run ...


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