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Marek v. O.B. Gyne Specialists II

February 20, 2001

SHIRLEY MAREK, PLAINTIFF-APPELLANT,
v.
O.B. GYNE SPECIALISTS II, S.C., AN ILLINOIS CORPORATION, DEFENDANT-APPELLEE,
AND SUSAN M. LUPO, M.D., AND JANE CARLSON, SPECIAL REPRESENTATIVE OF LEON MCGILL, M.D., DECEASED, DEFENDANTS.



The opinion of the court was delivered by: Justice McBRIDE

Appeal from the Circuit Court of Cook County

Hon. David R. Donnersberger, Judge Presiding.

Plaintiff-appellant Shirley Marek (Marek) appeals the trial court's dismissal of her second amended complaint against defendant-appellee O.B. Gyne Specialists II, S.C. (O.B. Gyne), on statute of limitations grounds. Marek filed her original complaint against O.B. Gyne and several other defendants, Gerald T. Johnson, M.D., individually and as agent/employee of Glenwood Radiologists, an Illinois corporation (Glenwood Radiologists), Leon McGill, M.D., and Susan M. Lupo, M.D. The original complaint, filed December 17, 1996, alleged that these medical care providers failed to properly diagnose, advise and treat Marek for breast cancer that developed in her right breast. Specifically, Marek alleged that Johnson, Glenwood and McGill failed to properly conduct a bi-lateral mammography and to properly diagnose and disclose to Marek "irregularities" that indicated cancer. As a result of defendants' alleged negligence in providing timely and definitive treatment for the emerging cancer, Marek claimed that she was forced to undergo a right radical mastectomy causing her pain, suffering and disfigurement.

In count I of the original complaint, Marek alleged that Johnson and Glenwood Radiologists performed a bilateral mammography on December 17, 1994, and failed to inform plaintiff of an asymmetry requiring immediate medical attention. The trial court entered summary judgment in favor of Johnson and Glenwood Radiologists and that decision is not before us on appeal.

In count II of the original complaint, Marek alleged that McGill, her gynecologist, failed to advise her of certain abnormalities noted on the December 17, 1994, mammography report generated by Johnson and Glenwood Radiologists. Further, Marek alleged that McGill was negligent in failing to arrange for an immediate clinical evaluation of the abnormality and in failing to refer her to qualified medical personnel for further diagnosis and treatment. The trial court entered summary judgment in favor of McGill and Marek has not appealed that decision.

In count III of the original complaint, Marek sued Lupo, a gynecologist, and vicariously sued O.B. Gyne, Lupo's employer, as a principal. Marek's claim in count III concerned the negligence of Lupo and O.B. Gyne, which involved Marek's gynecological examination at Lupo's office on April 15, 1995. Specifically, Marek alleged that Lupo performed an inadequate examination of her right breast and failed to immediately refer her for diagnostic testing to determine any further evidence of emerging cancer.

On September 10, 1998, Marek filed a first amended complaint which only amended count II of her original complaint and named O.B. Gyne as a principal of McGill. Count II of the first amended complaint, among other things, alleged that McGill was an agent of O.B. Gyne and that O.B. Gyne, through its agents and employees not limited to McGill, carelessly and negligently failed to advise plaintiff of the abnormalities in the December 17, 1994, mammography report, failed to summon Marek for an evaluation of the abnormality and failed to refer Marek to qualified personnel for examination of the December 17, 1994, report.

O.B. Gyne moved to dismiss count II of Marek's first amended complaint on statute of limitations grounds pursuant to section 13-212(a) and section 2-619(a)(5) of the Illinois Code of Civil Procedure. 735 ILCS 5/13-212(a) (West 1998); 2-619(a)(5) (West 1998). Section 13-212(a) provides, in relevant part:

"Except as provided in Section 13-215 of this Act, no action for damages for injury or death against any physician, dentist, registered nurse or hospital duly licensed under the laws of this State, whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall 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 or death 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 or death." 735 ILCS 5/13- 212(a) (West 1998).

The trial court initially denied this motion but reversed itself and granted the dismissal of count II without prejudice on March 29, 1999, allowing Marek to file a second amended complaint.

On April 23, 1999, Marek filed a second amended complaint. In count I, the second amended complaint alleged that Marek was McGill's patient from 1989 through 1994 and that McGill was an agent of O.B. Gyne. Marek further alleged that, after McGill retired from practicing medicine on December 1, 1994, all of McGill's records, including Marek's, were the property of O.B. Gyne. As a result, Marek alleged that O.B. Gyne was directly negligent for failing to advise Marek of the abnormalities discovered in the December 17, 1994, mammography report, failing to to call Marek in to evaluate the abnormality and for failing to summon adequate medical personnel to examine the asymmetry noted in the December 17, 1994, mammography report.

In count II of the second amended complaint, Marek alleged that she was unaware of her direct cause of action against O.B. Gyne until it answered discovery, at which time she determined that O.B. Gyne possessed McGill's records. It was only after this "discovery," as alleged by Marek, that she realized a direct cause of action existed against O.B. Gyne. In count III, the second amended complaint alleged that Lupo was negligent on April 15, 1995, by failing to refer Marek for further diagnostic testing to identify the developing cancer in Marek's right breast.

On May 27, 1999, O.B. Gyne moved to dismiss Marek's second amended complaint on the ground that it was virtually identical in all respects to the first amended complaint dismissed by the trial court on March 29, 1999. On September 1, 1999, the trial court dismissed the entire case with prejudice. The trial court's apparent rationale for the dismissal of count I was that the action was time-barred and the amendment could not relate back under section 2-616(b) of the Illinois Code of Civil Procedure. 735 ILCS 5/2-616(b) (West 1998). We say "apparent" because the transcript of this particular hearing is not part of the record on appeal and the September 1, 1999, order does not state a basis for the dismissal with prejudice. However, these were the grounds for dismissal alleged in O.B. Gyne's motion to dismiss the first amended complaint which was granted by the trial court. The trial court's apparent basis for dismissing count II of the second amended complaint was that Marek failed to file the second amended complaint against O.B. Gyne within four years of its initial negligence under section 13-212(a) of the Illinois Code of Civil Procedure. 735 ILCS 5/13-212(a) (West 1998). Marek appeals from the trial court's order of September 1, 1999.

The two questions raised on appeal are whether the trial court erred in granting O.B. Gyne's motion to dismiss count I on grounds that the statute of limitations had expired, and whether the trial court erred in granting O.B. Gyne's motion to dismiss count II on grounds that Marek failed to file her second amended complaint within four years of the initial negligence pursuant to section 13-212(a). 735 ILCS 5/13-212(a) (West 1998).

"In reviewing an order of the circuit court finding that the plaintiff's actions were time-barred as a matter of law, our [standard of] review is de novo. [Citation.]" Retzler v. Pratt & Whitney Co., 309 Ill. App. 3d 906, 919-20, 723 N.E.2d 345 (1999).

Concerning the first question, Marek claims that it is section 2-616(d) of the Illinois Code of Civil Procedure which governs whether the claims in her second amended complaint can relate back to the original action and thus, circumvent the applicable limitations period. 735 ILCS 5/2-616(d) (West 1998). Although we agree with Marek that her amended claim relates back to the original complaint, we do not agree that section 2-616(d) applies here. Section 2-616(d) expressly states that it is applicable to: "(d) A cause of action against a person not originally named a defendant *** ." 735 ILCS 5/2-616(d) (West 1998). As evidenced by the original complaint in this case, it is clear that O.B. Gyne was originally named a defendant in the original complaint and Marek admits this fact in her brief. We ...


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