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09/29/97 PATRICIA HOCHBAUM v. MARLENE E. CASIANO

September 29, 1997

PATRICIA HOCHBAUM, PLAINTIFF-APPELLANT,
v.
MARLENE E. CASIANO, JOSEPH M. MERCOLA, INDIV., JOSEPH M. MERCOLA, D.O.S.C., ELI LILLY & COMPANY, AND DISTA PRODUCTS COMPANY, A DIVISION OF ELI LILLY & COMPANY, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. Honorable PHILLIP L. BRONSTEIN, Judge, Presiding.

Rehearing Denied November 21, 1997. Released for Publication November 26, 1997.

The Honorable Justice Buckley delivered the opinion of the court. Campbell, P.j. and O'brien, J., concur.

The opinion of the court was delivered by: Buckley

The Honorable Justice BUCKLEY delivered the opinion of the court:

Plaintiff, Patricia Hochbaum, brought this medical malpractice and product liability action against Dr. Marlene Casiano and Dr. Joseph Mercola, her treating physicians, and Eli Lilly and Company and its division Dista Products (Lilly), manufacturers of the drug Prozac. Plaintiff sought to recover damages for personal injuries she sustained when she attempted to commit suicide while being treated with Prozac by Dr. Casiano and Dr. Mercola. The circuit court granted summary judgment in favor of defendants, finding that the action was barred by the two-year statute of limitations. Plaintiff now appeals, claiming that (1) the discovery rule tolled the limitations period, and (2) plaintiff was a person under a legal disability so as to toll the statute.

In September 1986, plaintiff began seeing Dr. Mercola, a family practitioner, for headaches. In December 1986, Dr. Mercola diagnosed plaintiff as suffering from depression caused by marital discord. Over the next 2 1/2 years, Dr. Mercola prescribed numerous antidepressant drugs as well as Hydrocet, a narcotic pain killer, for her headaches. By December 1987, plaintiff's condition had not improved and she had developed a dependency on Hydrocet. Plaintiff visited Dr. Casiano, a psychiatrist, who also prescribed antidepressant and pain-killing medications.

On July 8, 1988, Dr. Mercola started plaintiff on Prozac, an antidepressant medication manufactured by Lilly. At approximately the same time, Dr. Mercola also prescribed Prozac to plaintiff's son, David, to treat attention deficit disorder. Shortly thereafter, David became violent and started falling asleep in class. Plaintiff attributed this behavior to the Prozac and on her own discontinued David's use of the drug.

Plaintiff also experienced symptoms she believed were related to Prozac. She testified in her deposition that she became withdrawn and began to feel "weird" after starting on Prozac. She also had a panic attack which she attributed to the drug.

On April 2, 1989, plaintiff went to Dr. Mercola and asked him to take her off her medications. She was hysterical and crying. Dr. Mercola instructed plaintiff to continue taking her medications. Later that day, plaintiff slashed her left wrist in an apparent attempt to commit suicide. After the attempt, she put a towel to her wrist to try to stop the bleeding.

Plaintiff was discovered by her former husband, John Hochbaum, who took her to Humana Hospital, where she was involuntarily admitted. Later that night, plaintiff voluntarily admitted herself to the psychiatric ward of Central DuPage Hospital and came under the care of Dr. Kenneth Phillips. Dr. Phillips met with plaintiff the same day and concluded that plaintiff's suicide attempt was the result of her depression, her addiction to pain medication, and her having had about three alcoholic drinks that day.

Dr. Phillips met with plaintiff again on April 5, 1989. He stated that he found plaintiff to be fully cognizant of who and where she was and of the events transpiring around her. She understood the consequences of her actions, and she showed at least average judgment. Dr. Phillips determined that plaintiff should be discharged the following day, April 6, 1989.

Ellen Dove was plaintiff's social worker while she was in the hospital. Dove found plaintiff to be alert and aware during her hospitalization. Plaintiff was cooperative and planned to attend an addiction recovery group after her discharge. Dove further noted that plaintiff's insurance was limited, but she believed plaintiff was quite capable of such things as applying for public aid.

Plaintiff's mother, Carol Locascio, visited plaintiff during her hospitalization. Locascio stated in her deposition that during this visit, plaintiff told her she believed Prozac contributed to her suicide attempt and that she would not have done it if she had not been taking the drug.

Approximately 1 1/2 years later, plaintiff learned through the news media of a possible connection between Prozac and suicidal behavior. On April 8, 1991, plaintiff filed her complaint in this case seeking damages for her suicide attempt of April 3, 1989. Following discovery in which the evidence summarized above was gathered, defendants filed a motion for summary judgment for failure to comply with the two-year statute of limitations. On ...


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