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Young v. McKiegue

March 03, 1999

YOUNG, DECEASED, PRESIDING. PLAINTIFF-APPELLANT,
v.
DR. MARK MCKIEGUE, INDIVIDUALLY AND AS AGENT OF DR. RUSSELL THORNTON, MIDWEST PHYSICIAN GROUP, LTD., AND DR. MICHAEL SETTECASE, DEFENDANTS-APPELLEES, AND OLYMPIA FIELDS OSTEOPATHIC MEDICAL CENTER, A MEMBER OF THE CHICAGO OSTEOPATHIC HOSPITALS AND MEDICAL CENTERS, DR. RUSSELL THORNTON, DR. ROBERT CHING, DR. PESEK, DR. DAVID STAMBANES, AND UNKNOWN STAFF, NURSES AND DOCTORS AT OLYMPIA FIELDS OSTEOPATHIC MEDICAL CENTER, AND DR. K EN PEREZ, DEFENDANTS.



The opinion of the court was delivered by: Justice Cerda

Young v. McKiegue,

MARGARET YOUNG, as special of Cook administratrix for the estate of HAROLD

Appeal from the Circuit Court County. Honorable Paul Alfred, Judge

The question presented by this appeal is whether we can determine, as a matter of law, the date when the two-year statute of limitations governing medical malpractice actions under section 13-212(a) of the Code of Civil Procedure (Code) (735 ILCS 5/13-212(a) (West 1996)), and applicable to plaintiff's claims under the Wrongful Death Act (740 ILCS 180/1 (West 1994)), began to run against defendants-appellees. Plaintiff, Margaret Young, as special administratrix for the estate of her deceased husband, Harold Young (decedent), appeals the dismissal of counts I through III of her fifth and sixth amended complaints as brought against defendants Dr. Mark McKiegue, Midwest Physician Group (Midwest Physician), and Dr. Michael Settecase (collectively "defendants"). Counts I through III of the subject complaints assert claims for wrongful death under the Wrongful Death Act based on defendants' alleged negligent medical treatment and care of the decedent in August and September 1993. Upon motions filed by defendants under section 2-619(a)(5) of the Code (735 ILCS 5/2-619(a)(5) (West 1996)), the circuit court dismissed the claims as time barred, and plaintiff appeals. For the following reasons, we affirm in part, reverse in part, and remand for further proceedings.

I. BACKGROUND

The following facts are derived from the well-pleaded facts of plaintiff's amended complaints and the reasonable inferences drawn therefrom, which for purposes of this appeal must be accepted as true (In re Chicago Flood Litigation, 176 Ill. 2d 179, 184, 680 N.E.2d 265, 268 (1997)), as well as the various evidentiary materials filed by both parties in connection with defendants' motions. In re Annexation to City of Joliet, 282 Ill. App. 3d 684, 688, 668 N.E.2d 1073, 1076 (1996) (court may consider when ruling on 2-619 motion "pleadings, depositions, affidavits, and other evidence offered by the parties"). On August 26, 1993, the decedent was transferred from St. Margaret of Mercy Hospital to Olympia Fields Osteopathic Medical Center (Olympia Fields), where he was admitted for treatment of pneumonia. The decedent received inpatient treatment at Olympia Fields from August 27, 1993 to September 3, 1993. The decedent was scheduled to return home on September 3, but was readmitted for further evaluation after he coughed up a quantity of blood at the hospital immediately before he was to be discharged.

The decedent was determined to be hypoxic and was provided oxygen. Dr. McKiegue saw the decedent sometime before 7:00 p.m. on September 3, and noted that, although the decedent's condition had improved, he complained of a shortness of breath. The medical records show the decedent experienced pressurized pain in his chest and numbness in his left arm over the course of the evening. Plaintiff was at Olympia Fields on September 3 and she stated that the decedent's condition suddenly began to deteriorate after he coughed up the blood. She stated that, throughout the evening, the decedent complained of chest pain as well as coldness and heaviness in his arm, and appeared to be clammy, sweaty and in discomfort.

At about 8:50 p.m., Dr. McKiegue ordered an electrocardiogram (EKG) and a chest x-ray, and arrangements were made to transfer the decedent to intensive care. Plaintiff noted one of the doctors treating the decedent, Dr. Robert Ching, appeared "panicky" before the decedent's transfer. Plaintiff further stated a nurse who was assisting Dr. Ching told her "she knew [the decedent] was dying." At about 1:00 a.m. on September 4, 1993, the decedent experienced respiratory failure and, following unsuccessful attempts at resuscitation, died a short time later.

Dr. Ching later informed plaintiff that her husband died as a result of complications from his pneumonia. Plaintiff immediately questioned Dr. Ching about the care received by the decedent and demanded an autopsy, explaining she "wanted to find out what [went] wrong" because she believed the decedent may have suffered from problems not disclosed to her by the physicians. Plaintiff stated that, ever since the events of September 3, she "thought that [the doctors] didn't do enough," and suspected inappropriate medical care may have contributed to the decedent's death. Plaintiff specifically expressed concern over the fact the decedent died only hours after being prepared to leave the hospital. According to plaintiff, "[p]eople don't just die of pneumonia after they are in the hospital ten days."

An autopsy of the decedent was performed on September 4, 1993. The final autopsy report states the decedent's death was immediately caused by "anoxia due to bronchopneumonia and pulmonary edema." The report further lists as contributory factors: "1. Pulmonary thromboembolism; 2. Myocardial infarction, recent (septum) old, with recent extension; 3. Coronary atherosclerosis; 4. Right hydrothorax; 5. Organized thrombus in abdominal aorta; 6. Extension of previous infarct." The death certificate prepared by Dr. McKiegue likewise indicates the immediate cause of death was "pulmonary edema" brought about by "pneumonia." No cardiac ailment is identified in the document.

At some point between September 4, 1993, and October 20, 1993, plaintiff contacted her attorney for purposes of investigating the nature of the decedent's death and the care he received at Olympia Fields. Per her attorney's recommendation, plaintiff requested a copy of the medical records, including the autopsy report, on October 20, 1993. Plaintiff received the records some time in December 1993, and forwarded them to her attorney about two weeks thereafter. Plaintiff also signed a retainer agreement with her attorney in December 1993 for purposes of pursuing the instant lawsuit.

Sometime after receiving the medical records in December 1993, plaintiff's attorney sent the information to two medical experts, Dr. David Bakken, an infectious-disease specialist, and Dr. John Markis, a cardiovascular specialist at Harvard University. The record does not reflect the particular dates on which plaintiff's attorney submitted the medical records for the experts' review. The evidence, however, suggests the medical records were sent first to Dr. Bakken sometime between December 1993 and August 1994, and then forwarded to Dr. Markis sometime between August 1994 and February 1995.

On or about August 17, 1994, plaintiff's attorney received a physician's report prepared by Dr. Bakken. Dr. Bakken concluded "the physicians caring for [the decedent] deviated from the standard of care by not recognizing that his increasing respiratory distress which occurred on September 3 was cardiac in nature." According to Dr. Bakken, the EKG performed upon the decedent's readmittance to the hospital "is consistent with an acute inferior wall myocardial infarction," which was "corroborated by the post mortem findings." Dr. Bakken opined the decedent's death "was due to the development of pulmonary edema secondary to myocardial infarction which was not recognized" by the medical staff on September 3, 1993, and concluded the decedent may have survived if his "acute cardiac event" had been properly treated. Dr. Bakken recommended the medical records be reviewed by a competent cardiologist to corroborate his findings and Conclusions.

The record suggests that, per Dr. Bakken's recommendation, plaintiff's attorney forwarded the decedent's medical records to Dr. Markis. On or about February 16, 1995, plaintiff's attorney received a written report from Dr. Markis, which was in many aspects consistent with the findings and Conclusions reached by Dr. Bakken. Like Dr. Bakken, Dr. Markis stated the decedent's death was a result of cardiac arrest brought about by acute myocardial ischemia that was not timely recognized and treated by the medical professionals attending to the decedent on September 3, 1993. Based on his findings, Dr. Markis concluded that the physicians and staff failed to meet the appropriate standard of care, and opined that the decedent "would have had a far better chance of survival had [the] deviations from the standard of care not been made." Plaintiff stated that prior to February 1995 she understood and believed ...


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