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Jones v. Dettro

November 08, 1999


Appeal from Circuit Court of Coles County No. 98L2 Honorable Paul C. Komada, Judge Presiding.

The opinion of the court was delivered by: Justice McCULLOUGH


8 November 1999

On April 22, 1999, the supreme court entered a supervisory order directing this court to vacate the denial of the petition for leave to appeal, to allow the appeal, and to address the certified questions. Pursuant to that mandate, we address the three certified questions. Defendant Mark Dettro, M.D., appeals pursuant to Supreme Court Rule 308 (155 Ill. 2d R. 308). Plaintiffs, Kristi A. Jones and George Jones, brought this medical malpractice action to recover damages for the alleged negligent failure of defendant to diagnose and treat Kritsti's lymphoma. Defendant's motion for summary judgment raised the questions of whether the plaintiffs' actions were barred by the limitations and repose periods set forth in section 13-212(a) of the Code of Civil Procedure (Code) (735 ILCS 5/13-212(a) (West 1996)). The complaint, filed January 6, 1998, alleged Kristi first complained to defendant of the lump in her groin on January 2, 1991; she had a three- or four-year history of swollen glands or cyst formations; and because she followed and relied on defendant's advice, she was unaware of the existence of the cause of action until "on or after" January 11, 1996.

Pursuant to Supreme Court Rule 308(a) (155 Ill. 2d R. 308(a)), the trial court identified the following questions of law to which substantial grounds for difference of opinion existed and the determination of which would materially advance the ultimate determination of this litigation:

"(a) Is the Plaintiff's failure to keep medical appointments with the Defendant physician and with referred specialists admissible on the issue of whether the treatment provided was continuous and unbroken, or does such conduct only relate to Plaintiff's contributory negligence?

(b) Must Plaintiff come forward with some evidence from an opinion witness to show that the allegedly continuous and unbroken course of treatment was also negligent?

(c) Are the matters alleged in paragraphs 3 and 6 of Plaintiff's supplemental Affidavit specific enough as to date and occurrence described to constitute admissible evidence, and to create a question of fact[?]"

We answer these questions as follows: (a) yes, it is also admissible on the question of whether the treatment was continuous; (b) yes; and (c) yes.

Concerning question (a), subject to an exception for fraudulent concealment (735 ILCS 5/13-215 (West 1996)), no action for damages for injury against a physician may:

"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 *** 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." 735 ILCS 5/13-212(a) (West 1996).

The term "occurrence" is not limited to a single event, and the plaintiff may recover if she demonstrates (1) a continuous course of negligent treatment occurred and (2) the treatment was so related as to constitute one continuing wrong. A continuous course of negligent treatment must take place, as opposed to a mere continuous course of treatment. Cunningham v. Huffman, 154 Ill. 2d 398, 405-07, 609 N.E.2d 321, 325 (1993). The continuous-course-of-negligent-treatment rule extends the statute of limitations or tolls the running of the statute of repose. Hertel v. Sullivan, 261 Ill. App. 3d 156, 161, 633 N.E.2d 36, 39 (1994). Once a physician's treatment is discontinued, the statutory period begins to run. Cunningham, 154 Ill. 2d at 406, 609 N.E.2d at 325; Collins v. Sullivan, 287 Ill. App. 3d 999, 1002, 679 N.E.2d 423, 424 (1997).

In Collins, treatment was not deemed continuous where nine years passed between plaintiff's 1982 and 1991 treatments. Collins, 287 Ill. App. 3d at 1002, 679 N.E.2d at 425. In Flynn v. Szwed, 224 Ill. App. 3d 107, 115, 586 N.E.2d 539, 545 (1991), a year-long course of treatment, followed by a 15-month gap, two weeks of treatment, and a 12-month gap did not constitute continuous treatment sufficient to toll the limitations period. Intermittent or occasional medical services at substantial intervals do not satisfy the continuous treatment doctrine. Flynn, 224 Ill. App. 3d at 115, 586 N.E.2d at 545, citing Aznel v. Gasso, 154 Ill. App. 3d 785, 788, 507 N.E.2d 83, 86 (1987). Moreover, a misdiagnosis is not "by its very nature" a continuous act. Flynn, 224 Ill. App. 3d at 115, 586 N.E.2d at 545. As a result, the failure to keep appointments is admissible and relevant to whether the course of treatment was continuous.

We next turn to question (b). As noted, plaintiffs must establish a continuous course of negligent treatment by defendant. Generally, the questions of the timeliness of plaintiffs' complaint and the time the statute of limitations begins to run are questions of fact, but they may become questions of law if the crucial facts are undisputed and only one Conclusion can be drawn from the undisputed facts. Golla v. General Motors Corp., 167 Ill. 2d 353, 358-59, 657 N.E.2d 894, 897 (1995); Federal Signal Corp. v. Thorn Automated Systems, Inc., 295 Ill. App. 3d 762, 767, 693 N.E.2d 418, 421 (1998). Plaintiffs have the burden of proving the existence of facts that would call into play a rule tolling the ...

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