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Avakian v. Chulengarian

March 08, 2002

LEON AVAKIAN AND ISABEL AVAKIAN, PLAINTIFFS-APPELLANTS,
v.
JACK CHULENGARIAN, DEFENDANT AND THIRD-PARTY PLAINTIFF
(JACK CHULENGARIAN, P.C. AND ASSOCIATES, AND NORTHERN ILLINOIS FOOT AND ANKLE CENTRES, LTD., DEFENDANTS AND THIRD-PARTY PLAINTIFFS-APPELLEES; ROBERT WOLFE, AMERICAN FAMILY MEDICINE, JONATHAN PARKER, THOMAS W. ENGEL, GRANT STOVER, LIBERTYVILLE EMERGENCY MEDICAL ASSOCIATES, LTD., AND CONDELL MEDICAL CENTER, DEFENDANTS; PFIZER, INC., THIRD-PARTY DEFENDANT-APPELLEE).



Appeal from the Circuit Court of Lake County. No. 98-L-377 Honorable John R. Goshgarian, Judge, Presiding.

The opinion of the court was delivered by: Justice Kapala

Released for publication March 13, 2002.

LEON AVAKIAN AND ISABEL AVAKIAN, PLAINTIFFS-APPELLANTS,
v.
JACK CHULENGARIAN, DEFENDANT AND THIRD-PARTY PLAINTIFF
(JACK CHULENGARIAN, P.C. AND ASSOCIATES, AND NORTHERN ILLINOIS FOOT AND ANKLE CENTRES, LTD., DEFENDANTS AND THIRD-PARTY PLAINTIFFS-APPELLEES; ROBERT WOLFE, AMERICAN FAMILY MEDICINE, JONATHAN PARKER, THOMAS W. ENGEL, GRANT STOVER, LIBERTYVILLE EMERGENCY MEDICAL ASSOCIATES, LTD., AND CONDELL MEDICAL CENTER, DEFENDANTS; PFIZER, INC., THIRD-PARTY DEFENDANT-APPELLEE).

Appeal from the Circuit Court of Lake County. No. 98-L-377 Honorable John R. Goshgarian, Judge, Presiding.

The opinion of the court was delivered by: Justice Kapala

Plaintiffs, Leon and Isabel Avakian, appeal the dismissal of four counts of their third amended complaint that were directed against Jack Chulengarian, P.C. & Associates (the corporation), and Northern Illinois Foot & Ankle Centres, Ltd. (NIFAC). These new allegations altered the plaintiffs' theory of vicarious liability by changing the identity of the treating physician-agent. The trial court ruled that they were filed beyond the four-year statute of repose (735 ILCS 5/13--212(a) (West 2000)). On appeal, plaintiffs assert that (1) the counts relate back to the original timely filed complaint; (2) the statute of repose does not bar the additional counts; (3) the affidavit and report pursuant to section 2--622 of the Code of Civil Procedure (Code) (735 ILCS 5/2--622 (West 1994) were sufficient; and (4) the trial court erred in denying their motion for reconsideration. We reverse and remand.

I. FACTS

This case involves injuries suffered by Leon Avakian after ingesting Diflucan, an oral medication prescribed to him for treatment of his athlete's foot. Which of two doctors examined Avakian and prescribed the medicine is hotly debated between the parties. Plaintiffs adamantly assert that Avakian was treated by Dr. Chulengarian, while the defendants assert Chulengarian was not involved in the care or treatment of Avakian. Rather, defendants assert that Avakian was treated by Dr. Kachigian. Kachigian is not a party to this lawsuit and is believed to be in Los Angeles.

Avakian visited NIFAC on May 13, 1996, in response to a newspaper offer for a free consultation. Physician services at NIFAC are provided by the corporation, through Chulengarian and Kachigian. Avakian was advised that he had a severe case of athlete's foot and was told to schedule a regular appointment for treatment. On May 21, 1996, Avakian reported back to NIFAC for a scheduled visit and was again examined and diagnosed with athlete's foot.

While the parties dispute the identity of the treating physician, it is undisputed that, during this May 21 visit to NIFAC, Avakian was given a prescription for Diflucan to treat the athlete's foot. Avakian was advised that, after two or three months, new nails would grow and the condition would be gone, and he was directed to follow up in two or three weeks. Apparently, the prescription was written and signed by Kachigian but was written on Chulengarian's prescription pad, and it was Chulengarian's name that appeared on the prescription bottle. The prescription was filled at Walgreen's on May 25, 1996.

On June 16, 1996, Avakian reported to the emergency room of Condell Memorial Hospital complaining of heartburn and allegedly manifesting jaundice. He was treated by Doctors Engel and Stover, given aspirin, and sent home. The next day, Avakian still felt ill so he visited Dr. Wolfe, his regular physician, of American Family Medical Center. Wolfe took blood tests and again sent Avakian home. The following day, on June 18, 1996, Wolfe phoned Avakian and advised him that he had tested positive for a hepatitis-like disease, and they made an appointment for the next day to discuss treatment. However, before this appointment, plaintiff reported to the emergency room at Highland Park Memorial, where he was diagnosed with total liver failure and slipped into a coma-like condition. He was flown to Chicago and received a liver transplant on June 23, 1996.

On May 20, 1998, plaintiffs filed a 16-count complaint against various doctors and facilities. Counts I and II were directed against Chulengarian and alleged careless and negligent acts or omissions in the treatment of Avakian stemming from the treatment Avakian received on May 21, 1996. Counts III and IV, directed against the corporation and NIFAC, alleged that Chulengarian was the agent or employee of the corporation and NIFAC and that they were vicariously liable for the treatment rendered to Avakian by Chulengarian. Counts V through XVI were not directed against Chulengarian, the corporation, or NIFAC (collectively defendants), but were directed against other doctors and facilities that are not involved in this appeal.

The complaint was accompanied by a section 2-622 attorney affidavit (735 ILCS 5/2--622(a) (West 1994)), and eventually plaintiffs filed section 2-622 physician's reports. The report regarding the care received by Avakian on May 21, 1996, was concerned with the treatment rendered by NIFAC, the corporation, and Chulengarian, and named Chulengarian as the treating physician. It stated that medication with Diflucan calls for three months of medication, 1 tablet per day; that a base value of the patient's liver status should have been taken prior to initial treatment with Diflucan and then repeated 30 days later in order to verify that there was no liver dysfunction; and that the care provided by these defendants had failed to meet the applicable standard of care and therefore proximately caused Avakian's liver condition and his need for the transplant.On November 19, 1998, in the midst of a flurry of separate motions to dismiss on behalf of the various defendants, Chulengarian filed a motion to dismiss pursuant to section 2--1010 of the Code. 735 ILCS 5/2--1010 (West 1998). Chulengarian asserted in his motion that he was not "directly or indirectly" involved in the care of Avakian or the occurrences alleged. The trial court ordered the expedited and limited depositions of Avakian and Chulengarian for the purposes of ruling on the motion to dismiss, and both depositions were taken on January 11, 1999. Avakian testified that he recognized Chulengarian and that it was Chulengarian who treated him on May 21, 1996. Chulengarian's testimony during his own deposition was that he had no recollection of treating Avakian and the handwriting on Avakian's chart was not his own, did not look familiar, and must have been that of Kachigian. The court denied Chulengarian's motion.

Plaintiffs filed both a first and a second amended complaint, which alleged with more particularity that plaintiffs' injuries were caused by the prescription of Diflucan. Both of these amended complaints were supplemented by the same section 2--622 reports and affidavits. Defendants have not challenged the timeliness of either the first or second amended complaints. Defendants did, however, file a third-party complaint against Pfizer, Inc. (Pfizer), the manufacturer of the medication. On May 25, 2000, the plaintiffs amended their complaint for a third time, to add the four counts that are the subject of this appeal. Two of these four counts alleged a theory of vicarious liability against NIFAC and the corporation for the negligent treatment of Avakian by Kachigian. The remaining two counts alleged vicarious liability for Kachigian's treatment of Avakian based upon apparent authority. Plaintiffs did not retreat from their claim that Chulengarian was the treating physician, and they retained those allegations in the third amended complaint. These four counts were added in the alternative.

On November 14, 2000, pursuant to section 2--619(a)(5) of the Code (735 ILCS 5/2--619(a)(5) (West 2000)), the trial court granted Chulengarian's motion to dismiss the four counts of the third amended complaint as time-barred by the statute of repose (735 ILCS 5/13--212(a) (West 1998)). The trial court reasoned that plaintiffs had been aware since Chulengarian's deposition that his theory of defense was that he was not the treating physician. Since plaintiffs failed to add a theory of recovery based upon negligent treatment by Kachigian within four years, the trial court held that the additional counts were beyond the statute of repose. Further, because the addition of the four counts would necessitate that defendants prepare a different defense, i.e., no treatment as opposed to nonnegligent treatment, the trial court found that defendants would be prejudiced and held that the amendments did not relate back to an original timely filed complaint.

In their motion, defendants also asserted that the section 2--622 report spoke to treatment rendered by Chulengarian rather than Kachigian, and therefore could not support the four additional counts. Whether or not the trial court relied on this basis for granting the motion to dismiss is not clear from its order. Plaintiffs filed a motion for reconsideration, which was denied on January ...


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