JUDITH K. SIMPKINS and ROBERT L. SIMPKINS, Plaintiffs-Appellants,
HSHS MEDICAL GROUP, INC., d/b/a Southern Illinois Brain and Spine Center; NICHOLAS E. POULOS, M.D.; HOSPITAL SISTERS HEALTH SYSTEM; and ST. ELIZABETH'S HOSPITAL OF THE HOSPITAL SISTERS OF THE THIRD ORDER OF ST. FRANCIS, Defendants St. Elizabeth's Hospital of the Hospital Sisters of the Third Order of St. Francis, Defendant-Appellee.
from the Circuit Court of St. Clair County. No. 13-L-183
Honorable Vincent J. Lopinot, Judge, presiding.
Attorneys for Appellants Robert W. Schmieder II, Bradley M.
Lakin, SL Chapman LLC
Attorneys for Appellee Michael J. Nester, Chi-yong
Throckmartin, Jason M. Gourley, Donovan Rose Nester, P.C.,
JUSTICE CATES delivered the judgment of the court, with
opinion. Justice Chapman concurred in the judgment and
1 The plaintiffs, Judith K. Simpkins and Robert L. Simpkins,
appeal an order of the circuit court dismissing count IV of
the first amended complaint against defendant, St.
Elizabeth's Hospital of the Hospital Sisters of the Third
Order of St. Francis (Hospital), on grounds that the
allegations were time-barred. On appeal, the plaintiffs
contend that the allegations in count IV of the amended
complaint relate back to the original complaint and are not
time-barred and, alternatively, that count IV was timely
filed prior to the expiration of the statute of repose and
within two years of discovering the negligence of the
Hospital's staff. For reasons that follow, we reverse the
circuit court's order dismissing count IV of the first
amended complaint and remand the cause for further
2 FACTUAL BACKGROUND
3 In January 2010, plaintiff Judith Simpkins consulted
defendant Nicholas E. Poulos, M.D., because of low back pain
and pain in the left buttock, thigh, and calf. Dr. Poulos, a
neurosurgeon, evaluated Judith's condition, diagnosed
left lumbar radiculopathy secondary to multilevel spinal
stenosis, and recommended a lumbar laminectomy. In February
2010, Dr. Poulos performed a lumbar laminectomy at vertebral
levels L3 through L5. The office notes for Dr. Poulos
indicate that the procedure provided relief for about four
months. Subsequently, Judith began to experience pain in her
right buttock, radiating into the thigh and calf. She
returned to Dr. Poulos for an evaluation of these symptoms.
Dr. Poulos recommended a series of transforaminal blocks and
epidural injections, but these therapies provided only
temporary relief. Because Judith's symptoms persisted,
Dr. Poulos recommended additional surgery.
4 On January 26, 2011, Dr. Poulos performed an anterior
lumbar spinal fusion surgery. The surgical procedure was
performed at the Hospital in Belleville, Illinois. During the
procedure, Dr. Poulos affixed two Medtronic plates to
stabilize the fusions at the L4-L5 and the L5-S1 vertebrae.
Postoperatively, Judith suffered significant medical
complications and was transferred to a rehabilitation
facility for further care. Subsequently, she developed an
abdominal wound dehiscence and an infection, requiring an
additional hospital stay. She was discharged home on March 2,
2011. On April 11, 2011, Judith had follow-up X-rays of the
lower lumbar spine. The X-rays showed the Medtronic plate at
L5-S1 was well positioned and the Medtronic plate at L4- L5
had pulled about 10 millimeters off of the spine. After
reviewing the X-rays, Dr. Poulos decided to schedule Judith
for follow-up X-rays and an imaging scan to further define
the vascular anatomy and determine whether there was any
additional movement of the displaced plate. Although Judith
was not reporting any physical symptoms, there was concern
about the potential for vascular compromise because the
displaced plate was in close proximity to the inferior vena
cava and the aorta.
5 Approximately two weeks later, Judith had follow-up X-rays
and an abdominal computerized tomography (CT) scan. The CT
scan, performed on April 21, 2011, indicated that the
displaced plate had not migrated further but that it was
causing the distal abdominal aorta to bow. The CT also showed
that the displaced plate was touching, but not displacing,
the vena cava. Dr. Poulos met with the plaintiffs on April
27, 2011. During that visit, Dr. Poulos recommended a
semi-elective revision surgery to remove the displaced plate
and to affix pedicle screws to stabilize the fusion. Dr.
Poulos indicated that without the surgery, over time, Judith
would be "at risk for erosion of her aorta and a
potentially catastrophic hemorrhage." With Judith's
consent, Dr. Poulos planned to schedule the surgery within
the next two weeks. On May 9, 2011, the plaintiffs made an
unscheduled visit to Dr. Poulos's office. According to
the office notes, Judith reported that she was anxious about
the surgery. Dr. Poulos reviewed the procedure with the
plaintiffs, including its risks and benefits.
6 On May 13, 2011, Dr. Poulos performed the revision surgery
at the Hospital. In the operative note, Dr. Poulos observed
there was "no evident arterial or venous injury."
Following the surgery, Judith was placed in the intensive
care unit (ICU). According to the Hospital record, at 4:30
p.m., Dr. Poulos left a written order directing the nurses to
perform a vascular assessment every two hours. According to
the order, a Doppler check of the dorsalis pedal pulses was
to be performed as part of each vascular assessment. The ICU
records indicate that within a few hours after the surgery,
Judith began to complain of numbness in her left foot.
According to the ICU records, Beth Stewart, an ICU nurse who
cared for Judith during the evening shift, conducted
neurological assessments at 5 p.m. and 6 p.m. Stewart
documented Judith's complaints of numbness of her left
foot. Stewart noted that Judith was able to move both feet,
and that the neurological check was positive for Doppler
pedal pulses. As a part of her documentation, Stewart also
noted that she informed Dr. Poulos of her findings.
7 At approximately 8 p.m. on May 13, 2011, another ICU nurse,
Cynthia Kovach, began to care for Judith. According to the
ICU records, Kovach performed a neurological check at 8 p.m.
Kovach observed that Judith had tingling in both feet, that
sensation was intact, that she could move all of her
extremities, and that her legs were weaker. At 10:47 p.m.,
Kovach observed that Judith had tingling and numbness below
the knees in both of her legs, and that these symptoms were
greater on the right leg. Kovach noted that Judith was able
to feel touch and pinch sensations in both legs but that
sensations had diminished. At approximately 1 a.m., Kovach
observed diminished sensations in Judith's feet. At 2:11
a.m., Kovach noted a further diminution of sensation in both
of Judith's feet and a weak plantar push on the right.
She also documented Judith's complaints that her legs
were feeling heavy and tingling was present below her left
knee to her foot. To the extent we can interpret the records,
there appears to be no indication that Kovach assessed
Judith's pedal pulses with a Doppler device during the
period from 8 p.m. until 4 a.m. and no indication that Kovach
notified Dr. Poulos of Judith's changing condition during
that time frame.
8 At 4:20 a.m., on May 14, 2011, the Hospital records appear
to indicate that Dr. Poulos spoke with Kovach and ordered a
stat CT of Judith's lumbar spine. It is unclear whether
Dr. Poulos called the ICU, or whether someone from the ICU
contacted Dr. Poulos. In the next nursing assessment at 5:27
a.m., Kovach recorded absent sensation in Judith's right
foot and continued tingling below the left knee to her foot.
Kovach also noted that the Doppler showed Judith's pedal
pulses were weak, with the right side weaker than the left.
Kovach documented that Judith complained of pain in both legs
and lower back, that Judith's legs felt heavy, and that
Judith could move her legs only very slowly. At 5:40 a.m.,
Dr. Poulos contacted the ICU, issued an order to page Dr.
Finlay, a vascular surgeon, and asked him to call Dr. Poulos
at home. At 5:45 a.m., Dr. Finlay called the ICU with an
orders to obtain consents and prepare Judith for surgery.
9 When Dr. Finlay arrived at the hospital, he evaluated
Judith and ordered an arterial Doppler imaging assessment.
Dr. Finlay observed that Judith had poor blood flow and
decreased sensations in both legs. He diagnosed bilateral
lower extremity (BLE) ischemia with aortic occlusion. He
recommended an emergent aorto-bilateral lower extremity
thromboembolectomy to attempt to restore blood flow to the
vessels in Judith's legs and to determine what was
causing the occlusion. Dr. Poulos also came to the Hospital
and evaluated Judith. He suspected ischemia, secondary to an
10 At 8 a.m. on May 14, 2011, Julie Denton, presumably the
day-shift ICU nurse, conducted a vascular assessment and
charted that sensation to both of Judith's feet was
"absent." Judith was evaluated by a physician on
the hospitalist service at 8:40 a.m. Shortly after that
evaluation, Judith was taken to the operating room. She
underwent emergency surgery, performed by Dr. Finlay.
According to Dr. Finlay's operative report, Judith had
developed bilateral lower extremity ischemia and an
aortoiliac dissection with complete occlusion of the aorta.
Additionally, there was complete occlusion of the common
iliac arteries, bilaterally, with distal thrombus. Dr. Finlay
performed an aortoiliofemoral thromboembolectomy bilaterally,
a stent graft repair, and an aortobiiliac dissection.
Postoperatively, Dr. Finlay noted that Judith was to be
observed for development of compartment syndrome because the
surgical procedure lasted approximately 4 hours and 20