Cangemi v. Advocate South Suburban Hosp.
| Decision Date | 06 March 2006 |
| Docket Number | No. 1-04-3155.,1-04-3155. |
| Citation | 845 N.E.2d 792 |
| Parties | Michael CANGEMI and Madeline Clement Belt, Plaintiffs-Appellants, v. ADVOCATE SOUTH SUBURBAN HOSPITAL, an Illinois corporation, Edgar Del Castillo, M.D., Defendants-Appellees. |
| Court | United States Appellate Court of Illinois |
Robert A. Holstein, Holstein Law Offices, LLC, Chicago, for Appellant.
Brian Schroeder, Cassiday, Schade & Gloor, LLP, Chicago, for Appellee Advocate South Suburban Hospital.
Susan Condon, Clausen Miller P.C., Chicago, for Appellee Edgar Del Castillo, M.D.
Michael Cangemi and his mother, Madeline Clement Belt, appeal the dismissal of their amended complaint against defendants Advocate South Suburban Hospital (Advocate Hospital) and Edgar Del Castillo, M.D., for medical negligence for injuries allegedly sustained during the delivery of Michael in 1982. Plaintiffs allege that the statutes of limitation and repose normally applicable to such a cause of action (see 735 ILCS 5/13-212 (West 2004)) do not apply here because the defendants fraudulently concealed the existence of the cause of action (see 735 ILCS 5/13-215 (West 2004)). Plaintiffs further appeal the circuit court's denial of their motion to file a second amended complaint. For the reasons that follow, we affirm.
On July 7, 2003, plaintiffs filed their complaint, seeking recovery for brain damage sustained by Michael prior to his delivery via caesarean section in 1982, and for other damages sustained by both Michael and Madeline, including pain, discomfort, emotional distress, loss of normal life and "other damages of a personal and pecuniary nature." Plaintiffs' complaint named as defendants Advocate Hospital, Drs. Del Castillo, Simpson, and McMann, and the estates of the deceased Drs. Hiatt and Chavez. Count I of the complaint charged direct negligence against Advocate Hospital, while counts II and III charged Advocate Hospital with vicarious liability for the negligence of the other defendants on the theories of respondeat superior and apparent agency. Count IV was a direct charge of negligence against Dr. Hiatt. Count V alleged that the statutes of limitation and repose that would normally be applicable to the above counts were tolled in this case because the defendants fraudulently concealed Michael's injuries by not informing Madeline of the circumstances surrounding his birth.
Defendants Advocate Hospital, Del Castillo, and McMann each subsequently moved for dismissal pursuant to sections 2-615 and 2-619 of the Code of Civil Procedure. 735 ILCS 5/2-615, 2-619 (West 2004). The estates of Drs. Hiatt and Chavez were not served, no appearances where made on their behalf, and they were not explicitly included in any of the other defendants' motions to dismiss. On December 23, 2003, the circuit court granted Advocate Hospital's and Dr. Del Castillo's section 2-615 motions to dismiss and struck plaintiffs' complaint with leave to amend. The court declined to rule on these defendants' section 2-619 motions and the court did not address either of Dr. McMann's and Dr. Simpson's combined motions to dismiss. With regard to Advocate Hospital and Dr. Del Castillo's section 2-615 motions, the court noted that the complaint was insufficient to support fraudulent concealment because no allegations were made that the defendants acted in an affirmative manner to conceal the circumstances around Michael's birth.
On March 19, 2004, plaintiffs filed their first amended complaint in which they dropped Dr. Simpson as a defendant. The complaint consisted of six counts and a "historical and factual background" section which contained specific allegations of fraudulent concealment applicable to all counts. Count I remained a direct charge of negligence against Advocate Hospital, and counts II and III remained as charges of vicarious liability against Advocate hospital on the theories of respondeat superior and apparent agency. Counts IV, V, and VI, respectively, charged Drs. Hiatt, Del Castillo, and Chavez with negligence.
The plaintiffs alleged the following in their first amended complaint. At approximately 9 p.m. on January 17, 1982, Madeline was admitted to Advocate Hospital due to labor pains for her pregnancy with Michael. She was two weeks past her due date and was admitted upon the authorization of her physician, Dr. Richard Hiatt, although he was not present at the time of her admission. During the evening of January 17, and into the morning of January 18, Madeline experienced contractions at five-minute intervals followed by irregular contractions. She also experienced lower abdominal pain, back pain, severe pressure in the abdomen and "bloody show." Dr. Hiatt was called several times after her admission but was "unavailable."
In the early morning of January 18, Madeline discharged meconium stains and amniotic fluid and her cervix was dilated to three centimeters. At 7:55 a.m., a fetal monitor was placed on her by hospital staff. At approximately 9:50 a.m., while apparently awaiting the arrival of her physician, Dr. Hiatt, Madeline saw a doctor for the first time since being admitted when Dr. Del Castillo arrived after being summoned by hospital staff for consultation. Dr. Del Castillo observed "fetal distress," called a "code blue," and ordered an emergency caesarean section. He had Madeline sign a consent form for the surgery but did not tell her that he had observed fetal distress. Rather, he said:
Michael was delivered via caesarean section at approximately 11 a.m. on January 18, 1982. He had suffered fetal distress prior to birth, had been "stillborn,"1 and required resuscitation with oxygen upon delivery. Plaintiffs' complaint further alleged that although hospital records indicated that Dr. Hiatt had performed the surgery, he actually did not arrive until after it was completed.
In the recovery room after the delivery, Madeline spoke to a nurse named Karen. Madeline asked Karen whether Dr. Hiatt had arrived in time to perform the surgery and whether there were any complications. Karen responded by saying:
Later that afternoon, another nurse, named Gertrude, attended to Madeline. Madeline asked Gertrude whether Dr. Hiatt had been to see her yet and whether he had performed the surgery. Gertrude responded that Dr. Hiatt had not yet been to see her, but that he had performed the caesarean section. Upon inquiry by Madeline, Gertrude further stated "the records show your baby had no problems, everything was fine."
The next day, on January 19, 1982, Dr. Hiatt visited Madeline in her room at the hospital for the first time. He stated that everything went "fine" during the delivery. He further stated:
On January 20, 1982, Madeline was visited in her hospital room by Dr. Chavez. He introduced himself as one of the doctors who had assisted in delivering her baby. Dr. Chavez stated:
In February of 1982, Madeline visited Dr. McMann in her office. Madeline asked Dr. McMann whether she had received Michael's birth records. Dr. McMann stated that she had. She further stated:
In the summer of 2002, approximately 20 years later, Madeline, who had since moved to Texas, was in Chicago visiting a friend. She decided that a complete set of Michael's medical records might be helpful in his attempts to obtain financial assistance for college from the state of Texas on the basis of being developmentally slow. Michael had recently graduated from high school at the age of 20. Madeline visited Advocate Hospital and obtained a partial set of Michael's birth records. On her return flight to Texas in August of 2002, Madeline reviewed those records and "learned for the very first time that Michael had suffered from fetal distress due to loss of oxygen prior to birth which necessitated the emergency C-section and that Michael was not breathing when born and had to be resuscitated."
In April of 2004, defendants Advocate Hospital, Dr. Del Castillo, and Dr. McMann each filed motions to dismiss plaintiffs' first amended complaint pursuant to sections 2-615 and 2-619. As before, the estates of Drs. Hiatt and Chavez remained unserved and no appearances were made on their behalf. On May 19, 2004, plaintiffs filed a consolidated response to the defendants' motions to dismiss. Attached to plaintiffs' response were numerous exhibits including affidavits of Madeline and her attorney, several of Michael's hospital records, and nursing protocols. None of these documents had previously been part of the...
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