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Phillips Hanks, Individually and As Next v. Scott Cotler

September 29, 2011

PHILLIPS HANKS, INDIVIDUALLY AND AS NEXT
THE FRIEND OF CAMMEREN TYLER HANKS, COLLIER PHILLIP
HANKS, AND CHRISTIAN NATHANIEL HANKS, MINORS
PLAINTIFFS-APPELLANTS,
v.
SCOTT COTLER, INDIVIDUALLY AND AS AGENT OF RUSH UNIVERSITY MEDICAL CENTER; SYED ZAIDI, INDIVIDUALLY AND AS AGENT OF RUSH UNIVERSITY MEDICAL CENTER; RUSH UNIVERSITY MEDICAL CENTER; HUGH M. O'NEILL, INDIVIDUALLY AND A AGENT OF FAMILY PRACTICE HEALTH CARE; AJAY BAJAJ, INDIVIDUALLY AND AS AGENT OF MIDWEST ) GASTROENTEROLOGY ASSOCIATES, LTD.; THOMAS J. LAYDEN; THELMA WILEY-LUCAS, INDIVIDUALLY AND AS AGENT OF RUSH UNIVERSITY MEDICAL CENTER; AND ALLYSON HANKS, DEFENDANTS-APPELLEES.



Appeal from Circuit Court ofCook County. No. 08 L 9056 HonorableThomas P. Quinn, ) Judge Presiding.

The opinion of the court was delivered by: Presiding Justice Lavin

PRESIDING JUSTICE LAVIN delivered the judgment of the court, with opinion. Justices Pucinski and Sterba concurred in the judgment and opinion

OPINION

¶ 1 Phillip Hanks, the appellant, sought medical treatment for various physical symptoms in 2002. Early test results suggested the possible diagnosis of hepatitis C. His care providers performed, among other procedures, an endoscopic diagnostic procedure called an ERCP (endoscopic retrograde cholangiopancreatography), which was designed to aid doctors in determining the cause of the patient's complaints. That procedure was, to say the least, complicated, resulting in various medical problems and causing Hanks to file a complaint in 2003 against defendants Dr. Scott Cotler, Dr. Syed Zaidi, and Rush Medical Center (Rush), alleging medical negligence. This complaint was voluntarily dismissed in 2008 and refiled later that same year. The refiled complaint added various additional health care providers as defendants, including Dr. Hugh M. O'Neill, Dr. Ajay Bajaj, Dr. Thomas J. Layden, Dr. Thelma Wiley-Lucas, Midwest Gastroenterology Associates, Ltd., and Family Practice Health Care. Remarkably enough, appellant at that time also added his ex-wife as a defendant, claiming, inter alia, that she had previously failed to cooperate in the malpractice litigation and had, therefore, abandoned any "interest" in the litigation. The twice-amended complaint contained 24 counts.*fn1

Defendant moved to dismiss various counts of the second amended complaint, with the circuit court eventually dismissing counts III through VII, IX, and XII through XXI, for various reasons, chief among them being that the malpractice lawsuit was time-barred by the relevant statute of limitations and not saved by the relevant statute of repose. On appeal, Hanks contends that the trial court's ruling dismissing those counts for being time-barred were in error and that the trial court improperly refused to recognize a cause of action for his children's loss of society, which presumably would not be time-barred because of their minority. We affirm the trial court in all respects.

¶ 2 I. BACKGROUND

¶ 3 A. Factual Background

¶ 4 The following facts were derived from Hanks' second amended complaint. In February 2002, Hanks was advised by his primary care physician, Hugh M. O'Neill M.D., that Hanks' blood test results indicated the possible diagnosis of hepatitis C. Hanks was referred to Dr. Ajay Bajaj for further examination, but that doctor was "booked" for the following two months. Because of this, Hanks instead visited a hepatologist, Dr. Talal Sunbulli at Little Company of Mary Hospital, who ordered a "hepatic profile," which examines liver enzymes in an individual's blood. Based on the hepatic profile, Dr. Sunbulli ordered a liver biopsy, which was performed on March 29, 2002. The biopsy indicated that Hanks' hepatitis C infection was so slight as to be classified at the "minimal gradation of grade I, stage 0."

¶ 5 Shortly after this biopsy, Hanks again consulted with Dr. Sunbulli because he began to experience jaundice and itching. Dr. Sunbulli ordered a liver ultrasound to be conducted, but its results did not indicate any duct blockage or other obstructive process that would normally cause Hanks' complaints. Hanks was subsequently advised that his jaundice would resolve over time. Hanks then returned to Dr. O'Neill on April 16, 2002, and reported the medical events between their two visits. For some reason, Dr. O'Neill allegedly contacted Dr. Bajaj instead of Dr. Sunbulli and scheduled an April 19, 2002, appointment on Hanks' behalf for the purpose of further exploring his symptoms. During that appointment, Dr. Bajaj referred Hanks to Rush, assuming he was specifically referring Hanks to Dr. Donald Jensen, a nationally renowned liver specialist, but it developed that Jensen had left Rush for a position at the University of Chicago. Hanks was instead seen at Rush by Dr. Scott Cotler, whom he claimed was "much less experienced."

¶ 6 Hanks met with and was examined by Dr. Cotler. It was alleged that Cotler did not consult with Sunbulli and advised Hanks to undergo the aforementioned ERCP to help evaluate the potential role of his biliary system in causing his complaints. The ERCP was scheduled to be performed on that day. Dr. Syed Zaidi performed the ERCP, which had to be aborted because Hanks unexpectedly awoke during the procedure while a scope was still in his abdomen. Hanks was hospitalized at Rush following the aborted ERCP, where he experienced nausea, fever, pain in his lower abdominal area, and significant weight loss. He was diagnosed as having ERCP-induced pancreatitis, a medical condition in which the pancreas is acutely inflamed as a result of the trauma caused by the instrumentation involved in the procedure.

¶ 7 Hanks returned to Dr. Bajaj around September 4, 2002, to complete the previously aborted ERCP. The procedure was apparently performed appropriately and no biliary duct obstruction was discovered. Another liver biopsy, however, was recommended and completed on November 5, 2002. It is after completion of the liver biopsy that Hanks alleges his medical providers began actively steering him in the wrong medical direction. Specifically, he alleged that Drs. Bajaj, O'Neill, and Cotler conferred with each other and agreed that Hanks' hepatitis C infection had advanced at a rapid rate and could have by then invaded his liver cells. Hanks later met with Dr. Bajaj, who told Hanks that his hepatitis C had not advanced significantly since March 2002, and continued to treat and prescribe medication for Hanks in relation to his jaundice, itching, diarrhea, pancreatitis and stage I hepatitis.

¶ 8 Dr. O'Neill later spoke with Cotler regarding Hanks' recent liver biopsy. Cotler stated that he was acquainted with Dr. Thelma Wiley-Lucas, a doctor at the University of Illinois at Chicago Medical Center (UIMC) that worked with Dr. Thomas J. Layden almost exclusively on hepatitis C patients. Cotler related that he would ask Dr. Wiley-Lucas to create a workup of Hanks for possible liver cancer. Cotler was alleged to have told O'Neill that Wiley-Lucas was aware of the aborted ERCP and "was confident that she would not tell [Hanks] anything about his current condition as being related if she were to order a workup." O'Neill subsequently called Wiley-Lucas and arranged for her to see Hanks on December 9, 2002. Wiley-Lucas informed O'Neill at that time that she was winding down her employment with UIMC and would be moving to Rush and would not be able to treat Hanks after performing a workup on him. In a meeting with Hanks around November 20, 2002, O'Neill allegedly said that the referral to Wiley-Lucas was prompted by the failure to find any causes to Hanks' persistent jaundice, diarrhea, and other related ailments.

¶ 9 On December 9, 2002, Hanks was seen by Wiley-Lucas. A letter by Wiley-Lucas indicated she was aware of the March 2002 liver biopsy indicating Hanks' hepatitis C infection to be at an extremely low level, as well as the subsequent CT and ultrasound scans that were conducted to determine whether any blockages existed that might have been causing Hanks' jaundice. Hanks' complaint was openly critical of the fact that the letter apparently did not mention the aborted ERCP or any consequences related to it. Another liver biopsy was performed on Hanks' liver on December 11, 2002. The biopsy, dated December 17, 2002, indicated that Hanks' hepatitis C was at stage III, with fibrosis (a precancerous condition) being present. Wiley-Lucas performed an abdominal CT scan, which showed a mass formation in Hanks' liver.

¶ 10 When Wiley-Lucas departed from UIMC, Hanks' treatment was continued by Dr. Layden at UIMC. However, Hanks alleges none of the medical professionals at UIMC was made aware of the December 2002 scans and test results until nearly a year later. In spring of 2004, Hanks returned to Wiley-Lucas for treatment at Rush and she was said to have no recollection of previously meeting or treating Hanks. Hanks also alleges that while Wiley-Lucas acquired portions of his medical history, she failed to acquire records of her treatment of him while at UIMC and thus failed to advise him that he had stage III hepatitis C, fibrosis, and a growth on his liver. On August 10, 2005, Hanks and Wiley-Lucas met at Rush, where Hanks asked whether she believed his hepatitis C had become worse. He also explained that none of his medications seemed to have any effect on his tiredness. Wiley-Lucas allegedly said the fatigue was due to subsiding pancreatitis and that Hanks had cirrhosis of the liver.

¶ 11 Hanks was diagnosed on August 29, 2006 with liver cancer, ultimately receiving a liver transplant about 14 months later. Hanks' second amended complaint also recounts his numerous hospitalizations for his various maladies throughout the years, including diabetes, acute and chronic pancreatitis, and liver cancer. He attributes all of his aggravated medical problems to the aborted ERCP in April 2002.

¶ 12 B. Procedural Background

¶ 13 Hanks initially filed a lawsuit pertaining to the underlying facts on March 20, 2003, naming Dr. Zaidi, Dr. Cotler, and Rush as defendants. Hanks' 2003 complaint contained several counts, including various allegations of medical negligence resulting in personal injury and loss of consortium. The medical negligence counts against Cotler alleged that he failed to properly examine Hanks or advise him as to the risks associated with an ERCP. It was also alleged that Cotler deviated from the applicable standard of care by failing to monitor Hanks' condition after the aborted ERCP. The allegations against Zaidi were fairly similar, with the additional allegation that he attempted the ERCP without properly ascertaining whether Hanks was properly sedated, all of which "induced pancreatitis to set in aggravating [Hanks'] existing medical condition."

ΒΆ 14 Discovery commenced and progressed up to the taking of depositions of Hanks' treating physicians, but on April 22, 2008, Hanks voluntarily dismissed his complaint. Several months later, Hanks refiled his complaint, which revolved around the same treatment but which contained new defendants and new theories of liability. Defendants moved to dismiss the complaint but Hanks, in response, requested and was granted leave to amend the complaint. Hanks' first amended complaint was eventually dismissed but he was granted leave to file a second amended complaint, which Hanks did on October 23, 2009. The second amended complaint, which is at issue on appeal, contained 24 counts alleging various theories of liability amongst the numerous defendants. Defendants again moved to dismiss the second amended complaint under sections 2-615 and 2-619 of the Code of Civil Procedure (735 ILCS 5/2-615, 2- 619 ...


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