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Ferrara v. Wall

July 20, 2001

JOSEPH J. FERRARA, PLAINTIFF-APPELLANT
v.
JOHN C. WALL, DEFENDANT-APPELLEE



Appeal from the Circuit Court of McHenry County. No. 99--LA--364 Honorable Michael J. Sullivan, Judge, Presiding

The opinion of the court was delivered by: Justice Geiger

UNPUBLISHED

The plaintiff, Joseph Ferrara, appeals from the May 25, 2000, order of the circuit court of McHenry County dismissing the medical malpractice action he brought against the defendant, John Wall, M.D., pursuant to section 2--619(a)(5) of the Code of Civil Procedure (the Code) (735 ILCS 5/2--619(a)(5) (West 2000)). The trial court found that the plaintiff's complaint was time-barred by the limitations period for medical malpractice actions. 735 ILCS 5/13--212(a) (West 1998). We affirm.

The following allegations are contained in the plaintiff's complaint. On June 2, 1993, at the direction of the defendant, the plaintiff underwent a prostate specific antigen test (PSA test). The defendant received the results of the PSA test on June 8, 1993. The test results indicated that the plaintiff had an abnormally high PSA level. The defendant failed to inform the plaintiff of the test results.

On October 31, 1995, again at the direction of the defendant, the plaintiff underwent a second PSA test. After receiving the results of this second test, the defendant informed the plaintiff that his PSA level was abnormally high. It was also at this time that the plaintiff first learned of the abnormal results of his June 1993 PSA test.

On November 6, 1995, the plaintiff sought treatment from a different physician and was diagnosed with prostate cancer. In December 1995, the plaintiff underwent a radical retropubic prostatectomy.

On June 1, 1998, the plaintiff filed suit against the defendant alleging medical malpractice. The suit was voluntarily dismissed on December 22, 1998, and refiled on December 22, 1999. The refiled suit consisted of one count and alleged that the defendant had breached his duty to timely inform the plaintiff of the results of his June 1993 PSA test and failed to provide the appropriate medical care in response to those test results. The plaintiff alleged that, as a result of these omissions, he was deprived of the opportunity to seek immediate medical treatment for his medical condition.

On January 12, 2000, the defendant filed a motion to dismiss pursuant to section 2--619(a)(5) of the Code. 735 ILCS 5/2--619(a)(5) (West 2000). The defendant argued that the plaintiff's original June 1, 1998, complaint was time-barred under both the statute of limitations and statute of repose for medical malpractice actions. 735 ILCS 5/13-212(a) (West 1998). The defendant argued that the statute of repose required that the plaintiff's complaint be filed by June 8, 1997, which was four years after the defendant received the plaintiff's June 1993 PSA test results. The defendant also argued that the statute of limitations required that the plaintiff's complaint be filed by June 8, 1995.

On May 25, 2000, the trial court granted the motion to dismiss. The record does not indicate whether the trial court found that the plaintiff's complaint was time-barred by the statute of limitations, the statute of repose, or both. Following the denial of his motion to reconsider and for leave to file an amended complaint, the plaintiff filed a timely notice of appeal.

We first consider a motion that has been taken with the case. The defendant requests that we strike certain statements in the plaintiff's reply brief that the defendant asserts are unsupported by the record. However, our review of the plaintiff's reply brief reveals no violation of Supreme Court Rule 341 (177 Ill. 2d R. 341). Accordingly, we deny the motion to strike.

Turning to the merits, the plaintiff argues that his complaint was not time-barred under either the limitations or repose period contained in section 13--212(a) of the Code. In reliance upon Cunningham v. Huffman, 154 Ill. 2d 398 (1993), the plaintiff argues that the defendant's failure to notify him of his abnormal PSA test results constituted an ongoing course of negligent medical treatment and that the repose period did not begin to run until October 31, 1995, when the defendant finally informed the plaintiff of the test results. The plaintiff further argues that his complaint was not barred by the two-year statute of limitations because the defendant's insurance carrier induced him to delay filing his complaint.

Section 2--619(a)(5) of the Code allows for dismissal of a cause of action if "the action was not commenced within the time limited by law." 735 ILCS 5/2--619(a)(5) (West 2000). A motion to dismiss pursuant to section 2--619 of the Code admits all well-pleaded facts and reasonable inferences drawn therefrom. Hermitage Corp. v. Contractors Adjustment Co., 166 Ill. 2d 72, 85 (1995). Additionally, a section 2--619 motion admits the legal sufficiency of the complaint but asserts an affirmative matter to avoid or defeat the claim. 735 ILCS 5/2--619(a) (West 2000). Our standard of review governing dismissals pursuant to section 2--619 is de novo. Doe v. Montessori School, 287 Ill. App. 3d 289, 297 (1997).

Medical malpractice actions in Illinois must be filed within the time periods mandated in section 13--212(a) of the Code. 735 ILCS 13-212(a) (West 1998). That section provides as follows:

"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 ...


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