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12/30/97 SHEILA TURNER v. PRABHAVTHI G. NAMA

December 30, 1997

SHEILA TURNER, SPECIAL ADM. OF THE ESTATE OF LURA NELSON, DECEASED, PLAINTIFF-APPELLANT,
v.
PRABHAVTHI G. NAMA, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County. Honorable Joseph Casciato, Judge Presiding.

The Honorable Justice Rakowski delivered the opinion of the court. McNULTY, P.j., and Tully, J., concur.

The opinion of the court was delivered by: Rakowski

The Honorable Justice RAKOWSKI delivered the opinion of the court:

The estate of Lura Nelson, plaintiff, filed this medical malpractice claim against Prabhavthi G. Nama, defendant, alleging that defendant failed to notify decedent that her Pap smear tested positive for carcinoma. The trial court granted defendant's motion to dismiss on the basis that plaintiff's complaint was not filed within the statute of repose period set forth in section 13-212(a) of the Limitations Act (735 ILCS 5/13-212(a) (West 1996)) and denied plaintiff leave to file an amended complaint. We affirm the circuit court and find that: (1) section 13-212(a) does not violate the Illinois Constitution; (2) plaintiff failed to allege sufficient facts to establish the fraudulent concealment exception to the repose period, and even assuming sufficient facts were alleged, the exception did not apply because decedent should have discovered the alleged concealment with ample time to file an action; (3) the failure to notify did not constitute an ongoing course of negligent medical treatment to establish a later date on which the repose period would begin; and (4) plaintiff's complaint is time barred because defendant's failure to notify, which is the act or omission triggering the running of the statute of repose, occurred more than four years before plaintiff's filing date.

I. FACTS

Since the trial court determined that both complaints failed to allege a timely cause of action, we first review the original complaint and then discuss the differences in the proposed amended complaint.

The original complaint, filed on April 20, 1995, alleges survival and wrongful death claims based on medical malpractice. In 1982, decedent began seeing defendant, who specializes in obstetrics and gynecology. On September 18, 1990, defendant performed a Pap smear test. Some time after September 25, 1990, plaintiff avers that defendant received decedent's Pap smear results, which indicated a class four carcinoma in situ.

On December 14, 1993, after being diagnosed with cervical cancer by another physician, decedent returned to defendant for a second opinion. Plaintiff alleges it was at this visit that defendant first told decedent of the results from the September 1990 test. Plaintiff alleges that decedent suffered a stroke on January 31, 1995, and that this caused decedent to be under legal disability from that date until she died from progressive metastatic cervical cancer on March 16, 1995.

Claiming that decedent was under defendant's care from 1982 until December 1993, plaintiff alleges that defendant had a continuing duty to ensure that decedent was notified of the test results. According to the complaint, defendant breached this duty by failing to notify decedent of the results from September 18, 1990, to December 1993 by telephone or by means that would confirm receipt, such as but not limited to registered letter or telegram with signature. Plaintiff attached to the complaint an unverified letter from an expert opining that such duty continued for at least a year and that defendant's attempts to contact the decedent and her relatives should have been carefully documented. Finally, defendant's failure to notify was the proximate cause of decedent developing progressive metastatic cervical cancer, which ultimately caused decedent's death.

Plaintiff's proposed amended complaint developed the above claim of malpractice, but also included an additional count alleging fraudulent concealment. Unlike in the original complaint, plaintiff asserts in the amended complaint that although defendant's records reflect that defendant sent a letter to decedent regarding the abnormal test results on September 18, 1990, decedent did not learn of the letter until December 14, 1993, when defendant informed decedent that a letter was sent. According to the complaint, defendant was negligent in failing to follow up after the letter to ensure that decedent knew of the Pap smear results, in failing to ensure that decedent was informed of the results from November 1, 1990, and continuing every month and a half until May 1991, in failing to attempt to contact decedent by the same means listed above, and in failing to contact decedent when decedent did not return for either a six-month or yearly check-up.

Alternatively, plaintiff alleges equitable estoppel in the proposed amended complaint which, on appeal, is characterized as fraudulent concealment pursuant to section 13-215 of the Limitations Act (735 ILCS 5/13-215 (West 1996)). Here, plaintiff alters the facts, asserting that defendant never attempted to notify plaintiff of the Pap smear results. Plaintiff further alleges that defendant intentionally and fraudulently misrepresented to decedent that a letter concerning the results was sent and that this allegedly lulled plaintiff to believe that defendant was not negligent for failing to notify. Consequently, plaintiff claims that this misrepresentation caused decedent not to file within the statute of repose.

The circuit court granted defendant's motion to dismiss pursuant to section 2-619(a)(5) of the Illinois Code of Civil Procedure (735 ILCS 5/2-619(a)(5) (West 1996)), finding that plaintiff did not file her action within the medical malpractice statute of repose (735 ILCS 5/13-212 (West 1996)).

II. ANALYSIS

Because the circuit court dismissed plaintiff's complaint for being time barred as a matter of law, we review the circuit court's order de novo ( Weidman v. Wilkie, 277 Ill. App. 3d 448, 456, 213 Ill. Dec. 900, 660 N.E.2d 157 (1995)) and accept as true all well-pleaded facts in plaintiff's complaint and draw all reasonable inferences in favor of plaintiff ( Corluka v. Bridgford Foods of Illinois, Inc., 284 Ill. App. 3d 190, 192, 219 Ill. Dec. 647, 671 N.E.2d 814 (1996)).

A. SECTION 13-212 OF THE LIMITATIONS ACT

Medical malpractice actions in Illinois must be filed within the statute of limitation periods mandated in section 13-212(a) of the Limitations Act (735 ILCS 5/13-212(a) (West 1996)). Commenting on the function of statutes of limitations, the United States Supreme Court has stated:

"Statutes of limitation find their justification in necessity and convenience rather than logic. They represent expedients, rather than principles. They are practical and pragmatic devices to spare the courts from litigation of stale claims, and the citizen from being put to his defense after memories have faded, witnesses have died or disappeared, and evidence has been lost. *** They are by definition arbitrary, and their operation does not discriminate between the just and the unjust claim, or the avoidable ...


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