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Kanne v. Bulkley

August 06, 1999

JEFFREY E. KANNE,
PLAINTIFF-APPELLANT,
V.
GEORGE J. BULKLEY, LEONID CALENOFF, AND EDWARD B.J. WINSLOW,
DEFENDANTS-APPELLEES.



The opinion of the court was delivered by: Justice Buckley

Appeal from the Circuit Court of Cook County The Honorable Kathy M. Flanagan, Judge Presiding.

Plaintiff, Jeffrey Kanne, filed this action against three physicians, including defendant, Dr. Edward Winslow, alleging negligence in failing to diagnose prostate cancer. Defendant moved for summary judgment pursuant to section 2-1005(c) of the Illinois Code of Civil Procedure (the Code) (735 ILCS 5/2-1005(c) (West 1996)), stating that plaintiff filed his lawsuit after both the applicable statute of limitations and statute of repose expired (735 ILCS 5/13-212(a) (West 1996)). The circuit court of Cook County granted defendant's motion for summary judgment on December 9, 1997, and this timely appeal followed. On appeal, plaintiff maintains that: (1) he brought this action before the statute of repose expired; and (2) if the limitations period started running before plaintiff was aware of his claim, the statute violated his state and federal constitutional rights. For the reasons set forth below, we affirm the decision of the circuit court.

FACTS

The pleadings, affidavits and depositions reveal the following facts relevant to this appeal: Plaintiff began seeing defendant in January of 1989 and continued to receive medical treatment from defendant until June of 1992. Plaintiff stated that when he became dissatisfied with defendant in 1992, he went to see another physician for treatment. In July of 1992, plaintiff's new physician determined that he had prostate cancer, and, as a result, plaintiff underwent a radical prostatectomy on August 27, 1992. Plaintiff's dissatisfaction with the care he received from defendant led him to retain legal counsel, who requested plaintiff's medical records from defendant in October of 1993.

After his prostatectomy, plaintiff remained cancer free until 1996, when his prostate specific antigen (PSA) tests indicated that the cancer might recur. On August 26, 1996, plaintiff filed a three-count complaint against defendant and two other physicians, claiming negligent treatment. Specifically, in count III, plaintiff alleged that defendant was negligent in one or more of the following respects:

"(a)Failed to adequately treat and care for Kanne;"

"(b)Failed to diagnose the existence of prostate cancer in Kanne;"

"(c)Failed to undertake adequate exami-nation of Kanne's prostate gland;"

"(e)Failed to order a PSA test for Kanne;"

"(f)Failed to order ultrasound or other diagnostic techniques regarding the condition of Kanne's prostate; and"

"(g)Failed to advised Kanne of a need to have regular prostate examinations."

On December 3, 1996, plaintiff voluntarily dismissed his claims against the two other physicians. Defendant then answered the complaint and moved for summary judgment pursuant to section 2-1005(c) of the Code (735 ILCS 5/2-1005(c) (West 1996)). Defendant's motion argued that plaintiff's claim was time barred by both the two-year statute of limitations and the four-year statute of repose for medical malpractice actions (735 ILCS 5/13-212(a) (West 1996)), because defendant last treated plaintiff in June 1992 and plaintiff did not file his complaint until August 1996. The circuit court granted defendant's motion for summary judgment and subsequently denied plaintiff's motion for reconsideration.

I. STANDARD OF REVIEW

Summary judgment is only appropriate where the pleadings, affidavits, depositions, admissions and exhibits in the record, when viewed in the light most favorable to the non-movant, reveal that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 1996); Busch v. Graphic Color Corp., 169 Ill. 2d 325, 333 (1996). We review the circuit court's decision granting defendant's motion for summary judgment de novo. Best v. Taylor Machine Works, 179 Ill. 2d 367, 389 (1997).

II. SECTION 13-212(a)

Plaintiff first contends that the circuit court erred in granting defendant's motion for summary judgment, because the "four-year" statute of limitations for medical malpractice actions does not start running until an injury is ...


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