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Hill v. Pedapati

November 28, 2001


Appeal from the Circuit Court of Winnebago County. No. 97-L-2 Honorable Ronald L. Pirrello, Judge, Presiding.

The opinion of the court was delivered by: Justice Bowman


Plaintiff, Rosalie A. Hill, brought this medical malpractice action in the circuit court of Winnebago County against defendants Prakash Pedapati, M.D., Thornton C. Kline, Jr., M.D., and SwedishAmerican Hospital Association of Rockford (SwedishAmerican). The trial court entered summary judgment for defendants on the basis that the cause of action was barred by the two-year statute of limitations for medical malpractice (735 ILCS 5/13--212(a) (West 1996)). On appeal, plaintiff argues that the lawsuit was timely under the discovery rule. We reverse and remand.

The record reveals that in June 1993 plaintiff underwent surgery for the removal of an anal carcinoma and later received radiation treatment. Defendants Pedapati and Kline supervised the radiation treatment, which was administered during the period from August 16, 1993, through October 12, 1993, at SwedishAmerican. After the surgery, but prior to the radiation treatment, plaintiff developed vaginal pain and severe pain associated with bowel movements. During the course of the radiation treatments plaintiff suffered severe pain, redness, peeling, and bleeding in the pelvic and abdominal region. This cleared up within about a month after the completion of the radiation treatments, but plaintiff temporarily suspended the radiation treatments on two occasions because of the pain.

Plaintiff continued to suffer vaginal and rectal pain and also suffered pain in the region from above her pubic bone to her abdomen. According to plaintiff's deposition testimony, around Thanksgiving 1993 she knew that the pain was not getting any better. Late in November 1993, surgery was performed to reconstruct plaintiff's rectum, but plaintiff continued to suffer pain associated with bowel movements. At her deposition plaintiff testified that the surgeon, Dr. McCanse, told her the pain was related to the radiation treatment and would be permanent. At some point between November 1993 and January 1995, another physician, Dr. Whitely, told plaintiff that the problems she was suffering were related to the radiation treatment and that "[t]hings will get worse before they ever get better if they get better."

Plaintiff testified at her deposition that she first thought about consulting an attorney early in 1994. She also acknowledged that she contacted Dr. Pedapati's office to determine the dates when she had suspended the radiation treatments. Plaintiff further acknowledged that when she made this inquiry she felt something was wrong with the radiation treatments. Plaintiff stated, "I was thinking that when I did have the treatment and then I took a break[,] *** I kept telling myself if I hadn't taken the rest of [the treatments] I wouldn't have been this bad." While plaintiff indicated that she had no reason to disagree with defense counsel's assertion that she made the inquiry in September 1994, plaintiff testified that she did not recall when she contacted Dr. Pedapati's office.

On January 3, 1995, plaintiff was diagnosed with a comminuted insufficiency fracture of her left pubic bone and bilateral nondisplaced sacral insufficiency fractures. On January 3, 1997, she filed this lawsuit alleging that Drs. Pedapati and Kline were negligent in administering and monitoring her radiation and treatment and that their negligence was the proximate cause of the fractures. Plaintiff sought recovery from SwedishAmerican under agency principles.

Defendants moved for summary judgment, contending that plaintiff knew or reasonably should have known of her injury, and that it was wrongfully caused, before the fractures were discovered on January 3, 1995, and her complaint filed on January 3, 1997, was untimely. Defendants relied on evidence that around Thanksgiving 1993 plaintiff knew her pain was not improving; two physicians told her that her problems were due to the radiation; she considered contacting an attorney early in 1994; and she contacted Dr. Pedapati's office because she felt her resumption of the radiation treatment (which had been suspended due to side effects) caused the problems she was experiencing. Defendants also relied on the deposition testimony of several of plaintiff's relatives that while plaintiff was receiving the radiation, and on other occasions prior to January 1995, plaintiff had complained that she was being given too much radiation or that her doctors were doing something wrong, and that she was very dissatisfied with her care. The trial court granted defendants' motion and this appeal followed.

Summary judgment is appropriate only where "the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." 735 ILCS 5/2--1005(c) (West 1996). In determining whether a genuine issue exists as to any material fact, a court must construe the pleadings, depositions, admissions, and affidavits strictly against the moving party and liberally in favor of the opponent. Gilbert v. Sycamore Municipal Hospital, 156 Ill. 2d 511, 518 (1993). Summary judgment is a drastic means of disposing of litigation and should be allowed only when the right of the moving party is clear and free from doubt. Gilbert, 156 Ill. 2d at 518.

Section 13--212(a) of the Code of Civil Procedure provides, in pertinent part:

"[N]o 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 1996).

Under the "discovery rule" set forth in this provision, the limitations period "starts to run when a person knows or reasonably should know of his injury and also knows or reasonably should know that it was wrongfully caused." Witherell v. Weimer, 85 Ill. 2d 146, 156 (1981). Stated differently, the limitations period commences when "the injured person becomes possessed of sufficient information concerning his injury and its cause to put a reasonable person on inquiry to determine whether actionable conduct is involved." Knox College v. Celotex Corp., 88 Ill. 2d 407, 416 (1981); see also Dockery v. Ortiz, 185 Ill. App. 3d 296, 305-06 (1989).

Plaintiff argues that aggressive cancer therapy often involves severe side effects and the particular side effects she suffered did not alert her to the possibility that her doctors' conduct was actionable. Plaintiff maintains that it was only when she discovered that the radiation caused fractures that she had reason to know that the treatment was negligently administered. Defendants contend that prior to January 1995 plaintiff knew she suffered injuries from the radiation. Citing Golla v. General Motors Corp., 167 Ill. 2d 353 (1995), defendants argue that the fact that plaintiff might not have known the full extent of the injuries would not prevent the statute of limitations from running. Defendants contend that plaintiff's own deposition testimony and that of her relatives establishes that she knew or suspected something was wrong with the radiation treatment before January 1995.

While plaintiff experienced burning and other severe, painful side effects from the radiation treatment, they were not so clearly outside the realm of what ordinarily accompanies aggressive cancer therapy that the typical patient would necessarily have reason to suspect that the treatment was administered negligently. Unfortunately, severe side effects are not uncommon in this setting. While these side effects were obviously very distressing, they might be considered medically "normal" in this particular context. A jury could reasonably infer that the initial side effects plaintiff suffered would not ...

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