Hauk v. Reyes

• Citation: 246 Ill.App.3d 187,616 N.E.2d 358
• Decision Date: 13 July 1993
• Docket Number: 3-92-0038,Nos. 3-91-0771,s. 3-91-0771
• Parties: , 186 Ill.Dec. 405 Catherine L. HAUK and Jeffrey Hauk, Plaintiffs-Appellants, v. Jesse REYES, M.D., Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 358

616 N.E.2d 358

246 Ill.App.3d 187, 186 Ill.Dec. 405

Catherine L. HAUK and Jeffrey Hauk, Plaintiffs-Appellants, v. Jesse REYES, M.D., Defendant-Appellee.

Nos. 3-91-0771, 3-92-0038.

Appellate Court of Illinois,

Third District.

July 13, 1993.

Raymond C. Rose (argued), Kanoski, Rose & Associates, Peoria, Duane K. Bayer, Kanoski & Associates, Rushville, for Catherine L. Hauk, Jeffrey Hauk.

Burrel Barash (argued), Barash, Stoerzbach & Henson, Galesburg, for Jesse Reyes, M.D.

Gary M. Peplow, Heyl, Royster, Voelker & Allen, Peoria, for John H. Day, M.D., Narendra K. Gupta, M.D.

Justice BARRY delivered the Opinion of the Court upon Rehearing:

Plaintiffs Catherine L. Hauk and Jeffrey Hauk appeal from summary judgment entered in favor of defendant Jesse Reyes in a medical malpractice action based on defendant's alleged failure to diagnose correctly the fracture of Catherine's spine which resulted in her permanent quadriplegia. The trial court ruled that plaintiffs' action against defendant is barred by the medical malpractice statute of limitations.

On appeal, plaintiffs contend that the trial court erred in refusing to apply the five year limitation for fraudulent concealment of the cause of action. We agree with plaintiffs.

On the morning of November 28, 1984, Catherine Hauk was seriously injured in an automobile accident and was taken by ambulance to the emergency room at Graham Hospital in Canton, Illinois, where she was received at 9:20 a.m. Plaintiff complained of severe lower back pain and pain in the right hip region. X-rays of plaintiff's chest, pelvis, and lumbosacral spine were ordered by Dr. John Day, plaintiff's attending physician. The X-rays were taken by Connie Schleich, radiology administrator and chief technologist at Graham Hospital, and were interpreted by Dr. Reyes.

The initial diagnosis given to Dr. Day and Dr. Harendra Gupta, the consulting orthopedist, was that the patient had a stable compression fracture of her spine (vertebra T-11) and had nondisplaced fractures of four ribs. Based on that information, Dr. Gupta recommended bed rest with a gradual increase in activity. Plaintiff was given pain medication and was not immobilized. In fact, she was allowed bathroom privileges with assistance.

By the morning of November 29, plaintiff had developed numbness in her lower extremities, and her treating physicians consulted a neurologist who ordered an immediate CT (computerized tomography) scan. The scan showed a comminuted, bursting type fracture of L-1 (first lumbar vertebra), a condition which should be treated by immobilizing the patient and undertaking immediate surgery. Plaintiff was transferred to Peoria for the surgery which was not successful, and she became a quadriplegic.

Plaintiffs consulted an attorney and Catherine's medical records were obtained from Graham Hospital in October of 1986. In her file was found Dr. Reyes' report interpreting the X-rays which stated in part:

"The body of L 1 is not well visualized on the lateral view, but on the AP projection, there is evidence of fracture of the right transverse process. On the lateral view, there is poor definition of the superior and inferior end plates as well as the anterior portion of the body which suggests the presence of a comminuted depressed bursting type fracture. There is also cortical irregularity at the anterior body of T 11 which is also probably a fracture. CT scan or tomograms suggested for further evaluation."

This typed report was dated November 28, 1984, and was the only X-ray report in plaintiff's permanent file. The outside of Catherine's X-ray folder contained the following handwritten notation:

"11/28/84--Attending physician notified about suspected Fx of L1 & CT scan suggested."

The source of this note is unknown.

On the basis of Dr. Reyes' X-ray report, dated November 28, recommending a CT scan and the failure of the attending physicians to order a scan, counsel determined that Drs. Day and Gupta were negligent in their treatment of plaintiff. On November 19, 1986, plaintiffs filed a medical malpractice action naming Dr. Day and Dr. Gupta as defendants.

Due to a clerical oversight, the supporting affidavit of a medical doctor was not filed with the complaint but was filed late with leave of court after the two year statute of limitations had expired. Defendants were allowed to take an interlocutory appeal from the court's ruling. On appeal this court first reversed the trial court and then, after the intervening decision of the supreme court in McCastle v. Sheinkop (1987), 121 Ill.2d 188, 117 Ill.Dec. 132, 520 N.E.2d 293, we withdrew our opinion and instead affirmed. (Hauk v. Day (1988), 167 Ill.App.3d 758, 118 Ill.Dec. 550, 521 N.E.2d 1243.) Our mandate was not issued until November 5, 1988, after the Illinois Supreme Court denied defendants' petition for leave to appeal, nearly four years after the injury was incurred.

Plaintiff's counsel then scheduled discovery depositions, and in the course of taking the deposition of Connie Schleich, the X-ray technologist who took plaintiff's X-rays and discussed them with defendant, learned for the first time on May 15, 1989, that defendant had prepared a report containing his initial interpretation of the X-rays as disclosing no serious problem. Schleich stated that defendant did not diagnose a bursting type fracture until after the CT scan on November 29, and that he must have prepared a second version of his X-ray report on November 29, backdated to November 28.

In subsequent depositions Dr. Day (September 15, 1989) and Dr. Gupta (October 18, 1989) testified that they were not informed by defendant on November 28, 1984, of any suspicion of a comminuted bursting type fracture and that neither doctor saw the final version of defendant's X-ray report before plaintiff's medical file was transported to Peoria with her on November 29. Dr. Day stated that he first saw the report when he prepared a discharge summary on December 9, 1984.

Dr. Reyes account differed from that of Dr. Day and Dr. Gupta. He said that he sent a handwritten report to the emergency room with his first impression that plaintiff's back injury was not serious, and then told Dr. Gupta on the phone that he had suspicions of a more serious pathology. When another radiologist, Dr. Zaheer, arrived at Graham Hospital about noon, defendant said that he consulted him and together they determined that plaintiff's injury was a serious fracture. Defendant said he called Dr. Gupta to inform him of the revised finding and that he dictated his final report, incorporating the revised diagnosis, about 12:30 p.m. on November 28.

According to Connie Schleich, Dr. Zaheer did not arrive at the hospital until 4 p.m. on that day. Also, Dr. Gupta denied receiving a call from defendant revising his previous findings and denied that defendant ever suggested a CT scan.

Plaintiffs filed an amended complaint against defendant on November 6, 1989, alleging that he prepared a final X-ray report which he backdated to November 28, and that he destroyed his preliminary handwritten report, thereby fraudulently concealing plaintiffs' cause of action for negligent diagnosis. Defendant's motion to dismiss the amended complaint on grounds that the statute of limitations had expired was denied on the ground that the allegations of fraudulent concealment allow application of a five year period of limitation regardless of diligence. The trial court noted that, with a motion to dismiss, the allegations of the complaint must be assumed to be true.

Defendant subsequently filed a motion for summary judgment again on the ground that the statute of limitations had expired. The trial court granted summary judgment in favor of defendant. The court ruled that a question of fact exists as to whether defendant fraudulently concealed plaintiffs' cause of action, but that summary judgment was not precluded thereby because plaintiffs, in the exercise of ordinary diligence, should have discovered the fraudulent concealment of the cause of action much earlier instead of more than four years after the injury. Furthermore, the court ruled that plaintiff did not allege any affirmative acts amounting to fraudulent concealment, but relied instead upon defendant's silence. The court held that the five year limitation period for fraudulent concealment could not be invoked.

On appeal, the issue is whether plaintiffs are entitled to the five year period of limitation for an action based on fraudulent concealment under the circumstances of this case.

Looking first at the statutory provisions involved, section 13-212 of the Code of Civil Procedure (Ill.Rev.Stat.1991, c. 110, par. 13-212) provides that a medical malpractice action must be brought no more than two years after the claimant knew or through the use of reasonable diligence should have known of the injury, but in no event more than four years after the date of the act, omission, or occurrence alleged to have been the cause of injury.

The statute of limitations for fraudulent concealment in section 13-215 of the Code is an exception to the general limitation period and provides:

"If a person liable to an action fraudulently conceals the cause of such action from the knowledge of the person entitled thereto, the action may be commenced at any time within five years after the person entitled to bring the same discovers that he or she has such cause of action, and not afterwards."

In determining when a plaintiff should reasonably have discovered the possibly wrongful causation of an injury, the courts have distinguished between a sudden traumatic injury and an injury with an insidious onset, with the traumatic event prompting investigation by the injured party and triggering application of the discovery rule. In Lutes v. Farley (3d Dist.1983), 113 Ill.App.3d 113, 68 Ill.Dec. 695, 446 N.E.2d 866, the stillbirth of a child was held to be such...