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Thornton v. Shah

August 8, 2002

SANDRA THORNTON, SPECIAL ADMINISTRATOR OF THE ESTATE OF ALEC DANTE THORNTON, DECEASED, SANDRA THORNTON, INDIVIDUALLY, AND PAUL THORNTON, INDIVIDUALLY, PLAINTIFFS-APPELLANTS,
v.
KUMUDCHA SHAH, M.D., AND HUMANA HEALTH PLAN, INC., A CORPORATION, A/K/A HUMANA HEALTH CARE PLANS, A/K/A HUMANA HEALTH CARE PLANS - MICHAEL REESE, A/K/A MICHAEL REESE HEALTH PLAN, INC., A/K/A HUMANA HEALTHCHICAGO, INC., A/K/A HUMANA HEALTH CARE PLAN, INC., DEFENDANTS-APPELLEES.



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

The opinion of the court was delivered by: Justice Hartman

UNPUBLISHED

Plaintiffs, Sandra and Paul Thornton, brought this action against defendants, Kumudcha Shah, M.D., and Humana Health Plan, Inc. (Humana), seeking damages arising out of the in utero death of Alec Dante Thornton. Counts I and II of plaintiffs' fifth amended complaint, which are directed against Dr. Shah and sound in medical malpractice, allege that Dr. Shah failed to treat and respond properly to Sandra's medical condition after her symptoms were communicated to him via a January 7, 1994 telephone call from a Humana triage nurse. Counts III, IV and V of the complaint are directed against Humana and sound in contract, alleging that Humana failed to provide plaintiffs access to a Humana physician, as provided in the Humana Michael Reese HMO Plan (Humana Plan). Count VI of plaintiffs' complaint also is directed against Humana and sets forth a claim of negligent spoliation.

Humana filed a combined motion to dismiss counts III through VI pursuant to Code of Civil Procedure (Code) sections 2-615 (735 ILCS 5/2-615 (West 2000) (section 2-615)) and 2-619(a)(5) (735 ILCS 5/2-619(a)(5) (West 2000) (section 2-619(a)(5))), or alternatively, section 2-619(a)(9) (735 ILCS 5/2-619(a)(9) (West 2000) (section 2-619(a)(9))), under section 2-619.1 (735 ILCS 5/2-619.1 (West 2000)).

On September 11, 2000, the circuit court of Cook County granted Humana's motion and dismissed counts III through V with prejudice, pursuant to section 2-619(a)(5), and count VI with prejudice, under sections 2-615 and 2-619(a)(5). Plaintiffs' motion for reconsideration was denied. Plaintiffs appeal.

On appeal, plaintiffs question whether the circuit court (1) properly dismissed counts III through V of plaintiffs' fifth amended complaint as time-barred under section 13-212 (735 ILCS 5/13-212 (West 2000) (section 13-212)) of the Code; (2) properly dismissed count VI of plaintiffs' fifth amended complaint as untimely pursuant to section 13-205 (735 ILCS 5/13-205 (West 2000) (section 13-205)) of the Code and for failure to state a cause of action for negligent spoliation under section 2-615; and (3) abused its discretion by denying plaintiffs leave to file an action for fraud.

Plaintiffs were enrolled in the Humana Plan because Paul, as a United States Postal Service employee, contracted with Humana under the Federal Employees Health Benefits Program. The Humana Plan provided coverage for Paul and his family, which included medical and surgical benefits such as "[c]omplete obstetrical (maternity) care for all covered females, including prenatal, delivery and postnatal care by a Plan doctor." Guidelines for Humana Plan enrollees required patients to call their primary care doctor in the event of an emergency.

By deposition, Sandra testified that on January 7, 1994, at nine months of pregnancy, she attended her appointment with Dr. Shah at Humana's Calumet City clinic, during which he performed an internal exam and listened for the fetal heartbeat. Dr. Shah informed Sandra that she was dilated one or two centimeters and that everything was normal.

Thereafter, Sandra went to her place of employment, where, at 5:00 p.m., she began to experience heavy vaginal bleeding and sporadic contractions that were 15 to 20 minutes apart. Sandra paged Paul and notified him of the bleeding, telling him that she believed the baby would be delivered that evening. Sandra and Paul then agreed to meet at their home, where Sandra called her mother and told her, "Well, we're going to have the baby tonight and we're just waiting around now." Sandra told her mother that her vaginal blood flow was heavier than her first pregnancy. Sandra's mother suggested that she call her doctor.

At 7:00 p.m., Sandra called the Humana after-hours telephone number that she had received from Dr. Shah during her appointment earlier that day. A woman identifying herself as a Humana nurse answered Sandra's telephone call. Sandra informed the nurse about her morning exam, that she was dilated one or two centimeters, bleeding and experiencing contractions 15 to 20 minutes apart. She also told the nurse that during her first pregnancy, she had experienced bleeding, but not as heavy as her current episode, and regular contractions, not sporadic contractions like the ones occurring for this pregnancy. Sandra asked the nurse to have a doctor call her. The nurse told Sandra that she would speak to Dr. Shah and call her back.

Sandra stated that an hour later, the Humana nurse called back and told her that Dr. Shah said the bleeding was normal, due to the internal exam from the earlier appointment, and to call the after-hours number when the contractions become 10 minutes apart. The nurse did not advise Sandra that if her problems continued, she should go to the hospital. Although Sandra's vaginal bleeding and contractions persisted from Friday, January 7, 1994, through Monday, January 10, 1994, the contractions never became 10 minutes apart and, following the medical advice given to her, Sandra did not go to the hospital.

Sandra called Dr. Shah on January 12, 1994, to request a verification letter excusing her husband from attending work the previous weekend. Sandra told Dr. Shah that she did not stop bleeding until Monday and that her contractions never became 10 minutes apart, to which Dr. Shah responded that her condition was "normal," and that he would see her on Friday for her next appointment.

On Friday, January 14, 1994, during her examination with Dr. Shah, Sandra noticed her file had a note attached to it which stated that Dr. Shah had spoken to her on Wednesday regarding a letter of substantiation for her husband. Sandra again asked Dr. Shah whether her heavy vaginal bleeding over the weekend was normal and Dr. Shah responded that her symptoms were normal so long as her contractions did not become 10 minutes apart. Dr. Shah then attempted to check the fetal heartbeat, but could not detect any fetal heart tones. Dr. Shah asked Sandra whether she had felt any movement by her baby the night before. Sandra responded that she did not know whether she had felt any movement. An ultrasound procedure confirmed that the fetal heart chambers were not moving.

Sandra testified that she went to the hospital that evening to deliver the fetus by induction. After the delivery, Sandra's other obstetrician, Dr. Imre Hidvegi, showed both her and Paul that the fetus had died as a result of strangulation from the umbilical cord, which was wrapped five times around the fetus' neck.

In a letter to plaintiffs' counsel, dated February 14, 1997, Humana identified the two triage nurses who would have answered the after-hours telephone line on the night of January 7, 1994, ...


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