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Hoffman v. Orthopedic Systems

February 07, 2002


The opinion of the court was delivered by: Justice Hartman


Appeal from the Circuit Court of Cook County. Honorable Sophia H. Hall, Judge Presiding.

Plaintiff, Barbara K. Hoffman, brought this action against defendants, Dr. F. Todd Wetzel, Louis A. Weiss Memorial Hospital (Weiss Hospital), an Illinois not-for-profit corporation, and Orthopedic Systems, Inc. (OSI), a Delaware corporation manufacturing medical products, for injuries she sustained during the performance of back surgery. Plaintiff's amended complaint alleged two counts against OSI for strict liability and negligence. Her actions against Weiss Hospital and Dr. Wetzel were voluntarily dismissed.

Following plaintiff's deposition, OSI moved for summary judgment under Code of Civil Procedure (Code) sections 2-1005 (735 ILCS 5/2-1005 (West 2000)), 13-202 (735 ILCS 5/13-202 (West 2000)) and 13-213 (735 ILCS 5/13-213 (West 2000)), asserting that plaintiff's complaint was time-barred by the two-year statute of limitations, which motion the circuit court granted. Plaintiff appeals, raising the issue of whether the court erred by granting OSI's summary judgment motion by construing the discovery rule improperly.

On September 27, 1995, plaintiff underwent back surgery, which included a decompression of the L4-5 and L3-4 discs in her spine, reexploration of a prior spinal decompression, a laminectomy at the L3-4 vertebrae, a bilateral facetectomy at the L4-5 vertebrae and a bilateral foraminotomy at the L3-4 and L4-5 vertebrae. *fn1 Dr. Wetzel, who performed the surgery at Weiss Hospital, first explained to plaintiff that the procedure was to be fairly simple, would last for one and one-half hours and would relieve pressure on the L3, L4 and L5 areas of the spine.

Prior to the surgery, plaintiff was positioned on an Andrews Spinal Surgery Table (Andrews Table), Model SST-3000(TM), a table designed, manufactured and sold by OSI, which is used to position patients for spinal surgery with their hips flexed and in a kneeling position at a 90-degree angle.

By deposition, plaintiff testified that after being prepared for back surgery, she next remembered waking up in the intensive care unit, where nurses told her that she had hepatitis, causing her nausea. Doctors informed plaintiff that she had liver failure, kidney failure, gastrointestinal bleeding, pneumonia, a heart arrhythmia and septicemia. Dr. Michael Berger, an internist, and Dr. Nelson Kanter, a pulmonary specialist, told plaintiff that "everything that could go wrong went wrong." Plaintiff's renal physician told her that she was "very, very sick," and that she was "never going to be the same again, ever." According to plaintiff, following her surgery, "nobody expected me not to die." Dr. Wetzel repeatedly stated in front of plaintiff that he was glad she did not die.

During her recovery, plaintiff underwent temporary kidney dialysis, from which she suffered hallucinations, and had seven blood transfusions within two weeks. When plaintiff asked for an explanation for her near-death experience, she was given "a different story from everybody," and was told, "shit happens." Dr. Wetzel told plaintiff that her complications were due to the anesthesia she was given prior to surgery. Nurses, residents or whomever came into her hospital room told plaintiff that a monitor alarm went off during surgery, her blood pressure dropped and doctors had trouble "getting a vein or artery in order to give [plaintiff] the stuff to push it back up." She was told the monitor was broken. Plaintiff was discharged from the hospital on October 19, 1995.

After release from the hospital, plaintiff could not leave her home for two or three months. Thereafter, she underwent continued physical therapy and rehabilitation.

Prior to the surgery, plaintiff had retained a law firm, Harvey L. Walner and Associates, to handle the accident claim against the CTA, resulting in a back pain claim, precipitating the September 27, 1995 surgery. On October 28, 1995, as part of the investigation into the accident, plaintiff's attorney sent a letter requesting Weiss Hospital to forward her medical records in order to determine the nature and extent of her injuries. Plaintiff recovered a $2,500 settlement from the CTA. According to plaintiff, about four to six months after the surgery, she asked her attorney "to look into whether or not there was any doctor malpractice relating to what had happened" with respect to the 1995 surgery.

On April 23, 1998, plaintiff returned to Weiss Hospital to undergo knee surgery. When she expressed reluctance regarding the general anesthesia she was to receive, citing her previous experience, Dr. William Conrad, an anesthesiologist, informed her that an internal hospital investigation of the September 27, 1995 surgery led doctors to conclude that the Andrews Table caused her complications. Dr. Conrad explained that during the surgery, she was placed on the Andrews Table on her knees, bent at the waist, with her sternum area resting on a bar called the Autoglide Torso Lift(TM). Dr. Conrad told plaintiff that at some point during the surgery, the bar moved to plaintiff's stomach, under her rib cage, with her body weight slowly pushing down on the bar and crushing her liver during the surgery, resulting in the complications she suffered. The investigation did not determine whether the bar slipped into the questionable position or originally was placed in that position prior to surgery. *fn2

After learning that the Andrews Table caused her injuries, plaintiff filed a complaint on May 7, 1998, alleging that the operating table was not reasonably safe in design or manufacture, was defective and that its defects caused her injuries. As previously noted, plaintiff also named Weiss Hospital and Dr. Wetzel in her complaint, alleging that they had caused her injuries by failing to position her properly and to monitor her position on the Andrews Table.

On November 22, 2000, OSI moved for summary judgment, arguing that plaintiff's action was time-barred by the two-year statute of limitations, which two-year period OSI contended began on the date of her surgery. The circuit court granted OSI's summary judgment motion on February 21, 2001, finding that the lawsuit was filed beyond the applicable statute of limitations. Plaintiff appeals.

Plaintiff asserts that summary judgment in this case was improper, because the statute of limitations does not commence until the claimant is aware of the injury and its source and that a genuine issue of material fact exists as to when plaintiff ...

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