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Warren v. Burris

October 23, 2001

DAVID WARREN AND JANET WARREN, PLAINTIFFS-APPELLANTS,
v.
STANLEY A. BURRIS, M.D., DEFENDANT-APPELLEE.



Appeal from Circuit Court of Sangamon County No. 94L553 Honorable Donald M. Cadagin, Judge Presiding.

The opinion of the court was delivered by: Justice Cook

UNPUBLISHED

In October 1994, plaintiffs, David and Janet Warren, filed a two-count complaint against defendant, Stanley A. Burris, M.D. Plaintiffs' complaint alleges that on May 20, 1991, defendant performed surgery on David, consisting of a cholecystectomy (surgical excision of the gallbladder), operative cholangiography (X ray of the bile ducts), and an appendectomy; that the cholecystectomy was unnecessary; and that during the surgery, defendant severed the right hepatic duct and allowed a surgical clip to remain on the duct, thereby obstructing it and preventing the drainage of bile. In February 1998, defendant filed a motion for summary judgment. In June 2000, the trial court granted defendant's motion. Plaintiffs appeal, arguing that (1) when David knew or should have known he was wrongfully injured is a genuine issue of material fact; (2) defendant's concealment of David's injury delayed discovery of the injury and should toll the statute of limitations; and (3) the trial court's finding as to fraudulent concealment precluded amendment of plaintiffs' complaint within the statute of limitations. We reverse and remand.

I. BACKGROUND

In May 1991, David went to Memorial Medical Center with the following symptoms: vomiting, abdominal pain, and dehydration, and he had lost about 25 pounds in the past three to four weeks. He also had difficulty eating g - 1 -reasy or fatty foods and suffered abdominal pain that worsened after eating. Before May 1991, David had been to the emergency room three times. Also at that time, David had been disabled since a fall in November 1989 in which he injured his middle and lower back and his heel. According to defendant, the back injuries themselves produced gas, bloating, and indigestion.

Dr. Raymond Pearson, David's original doctor, admitted David to the hospital. Pearson suggested that David see a psychiatrist for depression. Pearson informed David that depression could cause most or all of his symptoms. In his deposition, David stated that he now believed many of the symptoms that he was suffering in May 1991 were caused by depression. However, at the time, David believed that his illness was physical and that was part of the reason he asked to see another physician.

David asked Dr. Alfred Harney, an internist, to examine him. Based upon an ultrasound of David's abdomen, Harney diagnosed David with gallstones and asked defendant to examine David because he believed David had a surgical problem. According to David, the woman who had performed the ultrasound on him told him that she did not see any gallstones. Before the May 20, 1991, surgery, Jimmy Warren, David's brother--who is not a physician--was the only person that told David that he should not have the surgery. Defendant told David that he would feel much better after the surgery, and David believed that he would have a fast, speedy recovery. David chose to go through with the surgery, and defendant performed the surgery on May 20, 1991.

After the surgery, David's symptoms did not improve. One of the doctors at the hospital told David that he did not see anything in David's report that would suggest the removal of the gallbladder.

In fall 1991, David had the same complaints that he had prior to surgery. David went to Dr. Mark Harrison, a gastroenterologist, who performed a liver biopsy on David. Dr. William Drake, the pathologist who reviewed the biopsy, found that David was suffering chronic active hepatitis. Harrison had another pathologist, Dr. Jordan Mann, review the biopsy. Mann found that David had a mechanical large-duct obstruction. Drake then issued a memorandum maintaining his position that David suffered from hepatitis, not a duct obstruction. Harrison informed David of the two opinions and suggested that he undergo an endoscopic retrograde cholangiopancreatography (ERCP).

In November 1991, Harrison performed the ERCP on David. Harrison noticed the right side of the liver was not functioning normally, but he was unsure of the condition's causation. Harrison told David that he suspected that David had a blockage of the biliary system. In his deposition, Harrison stated that he believed he told David that defendant's surgery could have caused the blockage. However, in his deposition David claimed that Harrison did not make that statement.

Harrison also suspected that David was suffering from depression because many of the symptoms that he was experiencing were consistent with depression. Harrison referred David to a psychiatrist.

In late 1991, Harrison recommended that David go back to defendant. Defendant told David that he had an extra accessory duct that defendant had removed. Defendant suggested that David needed exploratory surgery because a chance existed that he had cancer. David refused to undergo surgery again.

In July 1992, David saw Dr. Phillip Johnson because David was having problems with elevated liver enzymes. At that time, David did not feel his surgery was successful and suspected that defendant's surgery could have caused his liver problems. In his notes, Johnson remarked that David told him that defendant had wanted to reopen his abdomen to look for surgical problems. In his deposition, David denied saying that. Johnson also discussed with David the fact that his liver enzymes had become elevated after defendant's surgery. Johnson found no clear diagnosis and suggested that cancer or an anatomic variant could be the cause of the elevated enzymes.

In September 1992, Harrison again examined David and diagnosed him with irritable bowel syndrome. That same month, David also went to see Dr. Barbara Mulch, who referred him to Dr. Aliperti at Barnes Hospital in St. Louis. At that time, David was still suffering the same symptoms that he had experienced before the surgery. On October 21, 1992, David received a cholangiogram at Barnes Hospital. The findings of the cholangiogram showed a "[c]omplete obstruction of the right hepatic lobe biliary system at the right level of the right hepatic duct, with adjacent surgical clips." Aliperti told David that he needed to have surgery to remove the obstruction. Because of anxiety over the surgery, David chose not to undergo the surgery. In May 1993, David developed a ...


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