Appeal from the Circuit Court of Cook County. No. 97 L 11350 Honorable Kathy M. Flanagan, Judge Presiding.
The opinion of the court was delivered by: Justice Wolfson
Everyone seems to agree it took too long to serve the defendant hospital with the plaintiff's complaint. The plaintiff does not seriously criticize the trial court for dismissing her lawsuit for failure to exercise reasonable diligence in obtaining service. See 177 Ill. 2d R. 103(b).
The controversy centers on the trial court's decision to dismiss the lawsuit with prejudice. The plaintiff contends the dismissal should have been without prejudice to refile. To resolve the dispute we have to examine the question of whether the statute of limitations ran before or after the dismissal. We conclude the limitations period did not run before the dismissal. For that reason, we reverse that part of the trial court's order dismissing the cause with prejudice, and we amend the trial court's order of dismissal to be without prejudice to the right to refile.
On September 23, 1997, Karen Paige-Myatt (Paige-Myatt) filed a three-count medical malpractice complaint against Dr. Melvin Bunn (Dr. Bunn), Dr. Karla Clark (Dr. Clark), and Mount Sinai Hospital Medical Center (Mount Sinai). Paige-Myatt's complaint alleged Dr. Bunn and Dr. Clark damaged Paige-Myatt's femoral nerve while performing a total abdominal hysterectomy at Mount Sinai on September 25, 1995. The complaint did not include a physician's written report as required by the Civil Practice Law. Instead, the plaintiff's attorney provided an affidavit in which he asserted,
"*** he was unable to obtain a consultation as required by [section 2-622] because a statute of limitation would impair the action and the consultation required could not be obtained before the expiration of the statute of limitations." See 735 ILCS 5/2-622(a)2 (West 1996).
On August 5, 1998, Paige-Myatt filed a two-paragraph amended complaint. Paige-Myatt alleged "the Pain Management Center at the University of Illinois" performed a diagnostic procedure called a femoral nerve block, which "*** clearly demonstrated that the Plaintiff suffered some form of injury to her femoral nerve in the area of the groin during abdominal hysterectomy surgery."
Paige-Myatt attached a December 11, 1997, letter to her attorney from Dr. Friedl Pantle-Fisher (Dr. Pantle-Fisher) of the Pain Management Center at the University of Chicago Hospitals. Dr. Pantle-Fisher reported Paige-Myatt complained of lower back, right hip, and right leg pain immediately after surgery, and her surgeon told her, "'*** this is a common problem that might persist for a week or a month after surgery.'" Dr. Pantle-Fisher said, "When the symptoms did not resolve, a work-up for the etiology of her symptoms was initiated. At that time her pain had continued for approximately 5-6 months."
Dr. Pantle-Fisher summarized the treatment Paige-Myatt received over the next 18 months: an April 1996 CT scan of the lumbar spine, which showed no abnormalities; a September 20, 1996, neurosurgical consultation, which yielded normal results except "*** diffuse sensory deficit in the right thigh above the knee in the distribution of the femoral nerve;" September 20, 1996, lumbar spine films which were normal; a September 26, 1996, EMG, which raised some suspicion of lumbar radiculopathy; a November 1996 MRI of the lumbar spine which showed some degenerative disc disease; a December 1996 lumbar myelogram which showed minimal lumbar defects; a December 1996 cerebra-spinal fluid examination which showed no abnormalities; undated CT scans of the lumbar and thoracic spine; a February 17, 1997, neurological consultation which yielded normal results except a "decreased area of sensitivity to pinprick in the right anterior thigh in the distribution of the medial femoral cutaneous branch of the femoral nerve, as well as in the distribution of the saphenous branch of the femoral nerve in an area of the anterior leg above the ankle; and a February 17, 1997, orthopedic consultation which yielded normal results.
Dr. Pantle-Fisher continued: In March 1997, Paige-Myatt had another neurological consultation, after which she began taking Tegretal for "possible neurological pain." The medication helped Paige-Myatt's pain, but she stopped taking it when she experienced unpleasant side-effects. According to Dr. Pantle-Fisher, "The findings at that time were consistent with the diagnosis of neuropathic pain arising in the distribution of the medial femoral cutaneous and saphenous branches of the femoral nerve, without motor involvement." Dr. Pantle-Fisher said the neurologist also discussed "secondary gain" with Paige-Myatt, and noted, "The etiology of her pain at that point was never addressed or discussed, nor was any connection to the surgical procedure mentioned."
On August 13, 1997, Paige-Myatt sought treatment at the University of Chicago Pain Management Center. During her first physical examination, Dr. Pantle-Fisher reported, Paige-Myatt "*** described a decreased sensation to touch in the anterior aspect of her right thigh down to the knee in the distribution of the medial femoral cutaneous nerve branch of the femoral nerve of the right leg." According to Dr. Pantle-Fisher, "Assessment at that time was right femoral neuropathy without motor involvement." On September 3, 1997, Paige-Myatt underwent a diagnostic differential epidural test, which provided no pain relief. Dr. Pantle-Fisher's "presumptive" diagnosis: "neuropathic pain with possible patchy sensory block, as well as possible central pain syndrome."
Over the next month, Paige-Myatt's pain did not improve with treatment. On September 30, 1997, Dr. Pantle-Fisher reported, Paige- Myatt received a
"*** diagnostic femoral nerve block to confirm the involvement of the femoral nerve in the patient's pain picture. Ms. Paige[-Myatt] received a femoral nerve block *** in the area of the right groin, which gave her complete pain relief for the duration of the local anesthetic. This clearly demonstrated that the patient suffered form [sic] an injury to the femoral nerve in the area of the groin ***."
Dr. Pantle-Fisher concluded:
"Since the patient's pain started immediately after surgery had been completed, it can be assumed that some form of injury to the femoral nerve might have occurred during surgery, but this is a presumptive statement, as we were not present during ...