Cunningham v. Huffman
| Decision Date | 16 January 1992 |
| Docket Number | No. 4-91-0500,4-91-0500 |
| Citation | 223 Ill.App.3d 878,166 Ill.Dec. 118,585 N.E.2d 1140 |
| Parties | , 166 Ill.Dec. 118 Lynn CUNNINGHAM, Plaintiff-Appellant, v. Merrill HUFFMAN and Carle Clinic Association, Defendants-Appellees. |
| Court | United States Appellate Court of Illinois |
Phebus, Tummelson, Bryan & Knox, Urbana (Joseph W. Phebus, Nancy J. Glidden, of counsel), for plaintiff-appellant.
Keith E. Emmons, Gregg W. Bonelli, Dobbins, Fraker, Tennant, Joy & Perlstein, Champaign, for defendants-appellees.
On March 21, 1989, plaintiff Lynn Cunningham brought a medical malpractice action in the circuit court of Champaign County against defendants Merrill Huffman, Melinda A. Dabrowski, J. Roger Powell, and Carle Clinic Association (Carle). On September 19, 1989, the circuit court dismissed counts I and II of plaintiff's complaint (both against Huffman and Carle) with prejudice, and dismissed counts III (against Dabrowski and Carle) and IV (against Powell and Carle) with leave to amend. On November 28, 1989, the trial court denied plaintiff's motion to reconsider the dismissal of counts I and II and further denied plaintiff's motion to amend the complaint by adding count V against Carle. On April 1, 1990, the trial court conducted a hearing on plaintiff's motion to reconsider, or in the alternative, for a Rule 308 finding to allow an interlocutory appeal (see 134 Ill.2d R. 308), and on a motion to amend the complaint by adding a count VI against Carle. Plaintiff's motions were denied. On May 21, 1991, plaintiff moved to voluntarily dismiss counts III and IV, which motion was allowed on May 30, 1991. Thereafter, plaintiff appealed. The only issue raised on appeal is whether the continuous course of treatment doctrine, as recognized in Illinois and applied to the facts of this case, requires reversal of the circuit court orders dismissing counts I and II of plaintiff's complaint for medical malpractice and denying plaintiff leave to amend the complaint by adding counts V and VI.
Count I of plaintiff's complaint attempts to allege a cause of action for general negligence against defendants Huffman and Carle. It alleges Huffman is a physician specializing in obstetrics and gynecology, who is a member of the Carle Association of Physicians whose acts or omission complained of were in the course and scope of his work for Carle. On March 1, 1977, Huffman inserted an intrauterine device (IUD) into plaintiff. On April 8, 1980, he inserted another IUD into plaintiff, but allegedly failed to remove the IUD inserted in 1977. On March 12, 1981, Huffman performed a tubal ligation on plaintiff, but removed only one of the IUDs. The remaining IUD was not removed until December 19, 1988, and its removal was by a physician not associated with Carle. It is alleged that, had Huffman possessed and applied the knowledge, skill, and care of a reasonably well-qualified specialist in obstetrics and gynecology, he would have removed the first IUD before inserting the second IUD, would have removed both IUDs for a period of time before the tubal ligation to ascertain the necessity of the operation, and would have left neither IUD in plaintiff after the tubal ligation. Plaintiff invokes the doctrine of res ipsa loquitur, alleges her injuries were proximately caused by the conduct of defendant, and further alleges that plaintiff's complaint is timely filed for one or more of the following reasons: (1) the IUD inserted on March 1, 1977, or April 8, 1980, remained in plaintiff until December 19, 1988, constituting a continuous course of treatment; (2) plaintiff remained a patient of Huffman and other physicians at Carle, for gynecological purposes, until December 9, 1988; and (3) Huffman failed to advise plaintiff that he left the IUD in her and advised her that her problems and complications arose from causes other than the presence of the IUD.
Count II is also a cause of action against Huffman and Carle based on a theory of negligence and attempts to allege the negligence in specific acts. It alleges the same acts and omissions as alleged in count I. The only difference between the counts is the allegations of negligence, which are stated in count II as follows:
"8. That in the aforesaid course of treatment, Defendant Huffman in the course and scope of his work with Carle Clinic Association was guilty of negligence in one or more of the following ways or a combination thereof:
A. Failed to remove the intrauterine device of March 1, 1977, before inserting the intrauterine device of April 8, 1980.
B. Failed to remove the intrauterine device of March 1, 1977, and the intrauterine device of April 8, 1980, for a trial period prior to performing the tubal ligation of March 12, 1981, so as to ascertain whether the plaintiff was experiencing an adverse reaction to one of said intrauterine devices.
C. Failed to remove either the intrauterine device of March 1, 1977, or of April 8, 1980, when he performed the tubal ligation of March 12, 1981, with the result that said intrauterine device was needlessly left in the plaintiff until removed by another physician on December 19, 1988, thus constituting a continuous course of treatment by the defendant lasting until December 19, 1988."
Pursuant to sections 2-619(a)(5) and 13-212 of the Illinois Code of Civil Procedure (Code) (Ill.Rev.Stat.1989, ch. 110, pars. 2-619(a)(5), 13-212), Huffman and Carle moved to dismiss counts I and II. In the motion, defendants direct the court's attention to the affidavit of the anonymous physician attached to plaintiff's complaint which indicates the last chart entry of Huffman with regard to plaintiff was on December 14, 1983. Attached to the motion was Huffman's affidavit which stated he first provided medical care or treatment to plaintiff on December 30, 1974, and last provided medical care or treatment on December 14, 1983. The motion then concludes that since more than four years have elapsed between Huffman's last care and treatment of plaintiff and the filing of the complaint, and since the doctrine of continuous course of treatment is not the law of Illinois, counts I and II should be dismissed.
In a memorandum filed August 2, 1989, the trial court found the defendants' motion to dismiss counts I and II should be allowed. The trial court found that plaintiff filed this cause of action more than five years after termination of care and treatment. In addition, there was no showing that the continuous course of treatment doctrine was or should be the law of Illinois, or even if it were the law of Illinois, that there was any continuing care by Huffman or by Carle subsequent to December 14, 1983.
In her first motion to reconsider the trial court's findings, plaintiff points out that the doctrine of continuous course of treatment was only one reason alleged by her that the complaint was timely filed against Huffman and Carle. The additional reason was the doctrine of estoppel enunciated in Witherell v. Weimer (1981), 85 Ill.2d 146, 52 Ill.Dec. 6, 421 N.E.2d 869, which the trial court's memorandum did not address.
Plaintiff also filed a motion for leave to amend her complaint by adding count V. Count V attempts to allege a cause of action against Carle based on specific negligent acts or omissions. Count V alleges Carle is an association of physicians engaged in the practice of medicine in Illinois and maintains an obstetrical and gynecological service including Huffman, Dabrowski and Powell, all physicians employed by Carle and held out by Carle as specialists in obstetrics and gynecology. In addition to the care and treatment from Huffman previously alleged in counts I and II, plaintiff alleged that since a tubal ligation is a prevention of pregnancy and, if improperly performed, the woman may still become pregnant, a continuous course of treatment was involved. Further allegations include that subsequent to the tubal ligation, plaintiff experienced bleeding, for which she was treated by defendant on various occasions, including the administration of Provera. On November 25, 1988, X rays were taken of plaintiff at Carle Hospital which were viewed by Powell and which revealed the presence of an IUD. As specific acts or omissions of negligence, plaintiff alleged: (1) failure to remove the March 1, 1977, IUD before inserting another IUD on April 8, 1980; (2) failure to remove both for a period of time before the tubal ligation in order to ascertain whether plaintiff was experiencing an adverse reaction to one of the IUDs; (3) failure to remove one of the two IUDs during the tubal ligation; (4) failure to diagnose that an IUD had been left in plaintiff after the tubal ligation; (5) prescribing Provera for internal bleeding without diagnosing the cause of the bleeding; (6) failure to effect prompt removal of the IUD; (7) rather than confirming the presence of the IUD, recommending a hysterectomy in an attempt to obscure the fact plaintiff's problems were caused by the IUD; (8) failure to timely diagnose the continued presence of the IUD following the tubal ligation; and (9) failing to promptly remove the IUD after its presence was diagnosed. Supplemental affidavits of plaintiff's attorney and the anonymous physician were filed in support of plaintiff's complaint.
After finding defendants were not estopped from asserting plaintiff's failure to comply with the period of repose and statute of limitations in section 13-212 of the Code, and that proposed count V is a restatement of original counts I and II previously dismissed, the trial court denied plaintiff's motions to reconsider and for leave to amend the complaint. Again, plaintiff moved to reconsider and amend the complaint. This motion to reconsider was directed at the trial court's order refusing to allow plaintiff to amend the complaint by adding count V. In the motion,...
To continue reading
Request your trial
-
Wilk v. 1951 W. Dickens, Ltd.
...to a motion for summary judgment, especially in the case where a determination of fact is involved. Cunningham v. Huffman, 223 Ill.App.3d 878, 886, 166 Ill.Dec. 118, 585 N.E.2d 1140 (1992). A. Defendants' Liability Business owners, such as tavern operators, owe a duty to exercise reasonable......
-
Ashley v. Evangelical Hospitals Corp.
...supervision." "Ordinarily, the application of the statute of repose is a question of law * * *." (Cunningham v. Huffman (1992), 223 Ill.App.3d 878, 886, 166 Ill.Dec. 118, 585 N.E.2d 1140.) "The phrase 'arising out of' is broad and generally means 'originating from,' 'growing out of,' or 'fl......
- Illinois Mun. League Risk Management Ass'n v. Siebert
-
Cunningham v. Huffman
...issue is of first impression with us. The facts of this case are set forth in greater detail in the opinion below. (223 Ill.App.3d 878, 166 Ill.Dec. 118, 585 N.E.2d 1140.) We highlight only those facts necessary for an understanding of this On March 1, 1977, Dr. Merrill Huffman, a physician......