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Heredia v. O'Brien

Court of Appeals of Illinois, First District, Fourth Division

May 21, 2015

GABRIELLE HEREDIA, Plaintiff-Appellant,
v.
VIRGINIA CARROLL O'BRIEN, M.D., HANDE TUNCER, M.D., and RUSH UNIVERSITY MEDICAL CENTER, Defendants-Appellees

Page 808

Appeal from the Circuit Court of Cook County, Illinois, County Department, Law Division. No. 13 L 04302. The Honorable John H. Ehrlich, Judge Presiding.

Affirmed.

FOR APPELLANTS: Whitney B. Mayster, Esq., Dennis T. Schoen, P.C., Chicago, IL.

FOR APPELLEES: Susan M. Hannigan, Albert C. Lee, Anderson, Rasor & Partners, LLP, Chicago, IL.

PRESIDING JUSTICE FITZGERALD SMITH delivered the judgment of the court, with opinion. Justices Howse and Cobbs concurred in the judgment and opinion.

OPINION

FITZGERALD SMITH, Judge

Page 809

[¶1] This is an appeal from the circuit court's order dismissing a medical malpractice action filed by the plaintiff, Gabriella Heredia, against the defendants, two hematologists, Dr. Virginia Caroll O'Brien (hereinafter Dr. O'Brien) and Dr. Hande Tuncer (hereinafter Dr. Tuncer), and their employer, Rush University Medical Center (hereinafter Rush), arising from the plaintiff's hospitalization and treatment at Rush in the spring of 2009. The cause of action was dismissed on the basis that it was not commenced within the two-year statutory limitations period set forth in section 13-212(a) of the Illinois Code of Civil Procedure (Code) (735 ILCS 5/13-212(a) (West 2010)). On appeal, the plaintiff argues that the trial court erred in dismissing her action as untimely because her complaint was filed within two years of the date on which she first learned or should have learned through the exercise of reasonable diligence that her injuries were sustained as a result of the negligence of the hematologists involved in her treatment. For the reasons that follow, we affirm the judgment of the circuit court.

[¶2] I. BACKGROUND

[¶3] The record reveals the following undisputed facts and procedural history. The plaintiff, who was in her thirties and suffered from antiphospholipid antibody syndrome (APS)[1] and lupus, was admitted to Rush on April 24, 2009, for a stroke and was treated there until July 21, 2009. Prior to her hospitalization, the plaintiff had been prescribed and was using several anticoagulant medications as a result of a stroke she had suffered at age 20. During her hospitalization at Rush, on May 6, 2009, the plaintiff, underwent a transjugular renal (or kidney) biopsy, after which she was readministered blood-thinning therapy, including the medication Lovenox.

[¶4] Several days after her surgery, the plaintiff suffered a large hemorrhage from the area of the biopsied kidney, which had become infected. As a result, the plaintiff further developed renal and respiratory failure, multiple abscesses, aspiration pneumonia, and other serious injuries and complications for which she continued to require inpatient treatment years after her release from Rush.

[¶5] As a result, On December 30, 2010, the plaintiff filed her first complaint (hereinafter the first action), naming as the defendants the two radiologist surgeons involved in her transjugular renal biopsy on May 6, 2009, Dr. Vivek Mishra (hereinafter Dr. Mishra) and Dr. Sudheer Paruchuri (hereinafter Dr. Paruchuri)), and their employers, Affiliated Radiologists, S.C, and Rush. The plaintiff asserted that the defendants, were negligent, inter alia, in: (1) performing the transjugular kidney biopsy, (2) carelessly causing damage to the plaintiff's bowel and right kidney during the performance of that biopsy, (3) carelessly failing to provide proper and timely monitoring for hemorrhage and infection to the plaintiff following that biopsy, (4) carelessly failing to provide proper and timely treatment for injuries sustained as a result of that biopsy; and (5) otherwise being " careless and negligent in

Page 810

treating" the plaintiff. The plaintiff asserted that as a direct and proximate result of the aforementioned actions she suffered serious and permanent injuries of a personal and pecuniary nature, and she requested damages in excess of $50,000 against each of the defendants.

[¶6] In support of her complaint, pursuant to section 2-622 of the Code (735 ILCS 5/2-622 (West 2010)), the plaintiff attached an attorney's affidavit and report from a reviewing expert radiologist. That report stated that the expert had reviewed the plaintiff's medical records from Rush and that it was his opinion based on those records that the plaintiff had a reasonable and meritorious cause of action in that the defendants breached the applicable standard of care in the manner asserted in the plaintiff's complaint.

[¶7] On March 28, 2011, and June 2, 2011, the defendants in the first action filed their answers to the plaintiff's complaint denying the allegations therein. The parties subsequently proceeded with discovery.

[¶8] During discovery, and more than two years after filing of her first action against Rush, on April 26, 2013, the plaintiff filed her instant action. This time, in addition to Rush, as the defendants, the plaintiff named Dr. O'Brien and Dr. Tuncer, the two hematologists who treated her after the transjugular kidney biopsy was performed at Rush on May 6, 2009. In her complaint, the plaintiff alleged that the defendants-hematologists and Rush (as their employer) were negligent, inter alia, in: (1) prescribing, ordering and administering certain blood thinners and combinations of blood thinners following her transjugular renal biopsy; (2) failing to properly monitor the plaintiff while administering those blood thinners; (3) failing to reverse the effects of the blood thinners in a timely manner; and (4) carelessly causing the peritoneal hemorrhage and damaging the plaintiff's right kidney. The plaintiff asserted that as a direct and proximate cause of the aforementioned acts or omissions by the defendants, she suffered " a large perinephric hematoma, renal failure, right kidney necrosis, respiratory failure, peritoneal abscess, aspiration pneumonia, multiple fistulas and other injuries."

[¶9] In support of her complaint, pursuant to section 2-622 of the Code (735 ILCS 5/2-622 (West 2010)), the plaintiff again attached an attorney's affidavit and report from a reviewing expert physician attesting that the expert had been consulted in reviewing her claim and that it was his opinion, based upon a review of the plaintiff's medical records documenting her treatment at Rush, that the plaintiff had a reasonable and meritorious cause of action and that the defendants breached the applicable standard of care in the manner asserted in the plaintiff's complaint.

[¶10] On June 24, 2013, the plaintiff moved to consolidate her 2010 and 2013 causes of action, contending that they involved the same inpatient hospitalization witnesses and evidence. On July 2, 2013, the circuit court granted that motion and consolidated the cases.

[¶11] On July 26, 2013, the defendants in the instant action (the hematologists and Rush), filed a section 2-619 motion to dismiss (735 ILCS 5/2-619 (West 2010)) arguing that the cause of action was barred by the two-year statute of limitations set forth in section 13-212(a) of the Code (735 ILCS 5/13-212(a) (West 2010)). In their motion, the defendants argued that the two-year limitations period on the plaintiff's claims commenced on June 21, 2009, when she was discharged from Rush, or at the very latest, at the time she filed her first medical malpractice action on ...


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