Cunningham v. Huffman

• Decision Date: 25 February 1993
• Docket Number: No. 73263,73263
• Citation: 609 N.E.2d 321,154 Ill.2d 398,182 Ill.Dec. 18
• Parties: , 182 Ill.Dec. 18 Lynn CUNNINGHAM, Appellee, v. Merrill HUFFMAN, et al., Appellants.
• Court: Illinois Supreme Court

Page 321

609 N.E.2d 321

154 Ill.2d 398, 182 Ill.Dec. 18

Lynn CUNNINGHAM, Appellee, v. Merrill HUFFMAN, et al., Appellants.

No. 73263.

Supreme Court of Illinois.

Feb. 25, 1993.

Rehearing Denied March 29, 1993.

Keith E. Emmons, Todd M. Tennant and Laura D. Clower, Dobbins, Fraker, Tennant, Joy & Perlstein, Champaign, for appellant Carle Clinic Ass'n.

Hinshaw & Culbertson (Stephen R. Swofford, of counsel), Chicago, for amicus curiae Illinois Ass'n of Trial Defense Counsel.

Marvin Kamensky, Michael B. Brohman, Marci A. Firfer and Lee Levin, Kamensky & Rubinstein, Lincolnwood, for amicus curiae Associated Physicians Ins. Co.

Scott D. Lane and Thomas P. Hartnett, Lane & Lane, Chicago, for amicus curiae Illinois Trial Lawyers Ass'n.

Phebus, Tummelson, Bryan and Knox, Urbana (Nancy J. Glidden and Joseph W. Phebus, of counsel), for appellee.

Justice HEIPLE delivered the opinion of the court:

The case before us today requires us to determine whether the Illinois medical malpractice statute of repose can countenance a judicially imposed exception in the form of the so-called continuous course of treatment doctrine. (Ill.Rev.Stat.1989, ch. 110, pars. 2-619(a)(5), 13-212.) That is to say, whether the Illinois four-year statute of repose is tolled until the date of last treatment when there is an ongoing patient/physician relationship. While several of our sister States and our own appellate court have embraced the doctrine, the 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 appeal.

On March 1, 1977, Dr. Merrill Huffman, a physician specializing in obstetrics and gynecology and a member of the Carle Clinic Association (Carle), inserted an intrauterine device (IUD) into plaintiff, Lynn Cunningham. Subsequently, plaintiff began complaining of cramping, an unusually heavy and lengthy menstrual period, and mid-cycle spotting. Then, on April 8, 1980, after Huffman's probing failed to disclose the presence of the 1977 IUD, he inserted another.

Plaintiff continued to experience medical problems. In January 1981, she explored the possibility of tubal ligation with Huffman. On March 12, 1981, Huffman performed the tubal ligation. At that time he also removed an IUD. Despite this procedure, there was no change in her condition.

[182 Ill.Dec. 20] Plaintiff last saw Huffman on December 14, 1983.

On June 19, 1986, plaintiff again sought care for her condition at Carle, but this time from doctors other than Huffman. Plaintiff made an appointment with Dr. Melinda Dabrowski, the only doctor with an opening at the time. Plaintiff's complaints to Dabrowski also concerned menstrual cycle abnormalities. Dabrowski's care of plaintiff continued into August 1988.

On November 25, 1988, Dr. James Yambert attended to plaintiff in Carle's emergency room for abdominal pain. At that time, an X-ray photograph revealed a foreign object in plaintiff's pelvic region consistent with an IUD. Yambert then referred plaintiff to Powell, the OB-GYN doctor on call at the time. Powell ordered an ultrasound vaginal probe which failed to disclose the presence of the IUD. Powell did not review the X ray taken earlier that day. Powell understood the plaintiff's problem to be menstrual cycle abnormalities.

On December 19, 1988, plaintiff underwent surgery wherein a physician not associated with Carle Clinic removed an IUD.

On March 21, 1989, plaintiff brought a four-count medical malpractice lawsuit against defendants Huffman, Dabrowski, Powell, and Carle. Count I of plaintiff's complaint alleged a cause of action for general negligence against Huffman and Carle. Count II also alleged negligence against Huffman and Carle, but plaintiff alleged negligence of specific acts. Counts III and IV alleged negligence against Dabrowski and Powell but those counts have since been voluntarily dismissed.

The circuit court of Champaign County dismissed counts I and II of plaintiff's complaint with prejudice, finding that plaintiff was time-barred pursuant to sections 2-619(a)(5) and 13-212 of the Code of Civil Procedure (Code) (Ill.Rev.Stat.1989, ch. 110, pars. 2-619(a)(5), 13-212), and that there was no showing that the continuous course of treatment doctrine was or should be the law in Illinois.

Section 13-212 of the Code provides, in relevant part, that "in no event shall such action be brought more than 4 years after the date on which occurred the act or omission or occurrence alleged in such action to have been the cause of such injury or death." (Ill.Rev.Stat.1989, ch. 110, par. 13-212(a).) Relying on the decisions of several other jurisdictions, plaintiff argued that the continuous course of treatment doctrine tolled the running of the statute of repose until the end of the patient/physician relationship, so long as there has been continuous treatment--whether negligent or not--for a condition occasioned by a prior negligent act. See Metzger v. Kalke (Wyo.1985), 709 P.2d 414; see also Comstock v. Collier (Colo.1987), 737 P.2d 845, 849 (and cases cited; although cases relied upon by Comstock did not require continued negligence, Comstock court did).

The trial court also denied plaintiff's motion for leave to amend her complaint by adding count V, which alleged a cause of action against Carle based on specific negligent acts or omissions. Count V further averred that a continuous course of treatment was involved because a tubal ligation is a prevention of pregnancy and, if not properly performed, the woman may still become pregnant.

In plaintiff's second motion for leave to amend the complaint, she sought to add count VI. The trial court denied this motion as well. The allegations of count VI were identical to those of count V except that it alleged that the treatment by Huffman, Dabrowski, and Powell constituted a continued course of treatment for gynecological problems arising out of Huffman's insertion of the first IUD on March 1, 1977, or the second IUD on April 8, 1980. As in count V, count VI alleged that she continuously remained a patient of the obstetrical-gynecological service of Carle until December 9, 1988. Plaintiff further alleged that the insertion of one of the IUDs in a manner that caused it to be imbedded in the uterus constituted a continuing negligent act which endured until its presence was revealed to plaintiff on November 25, 1988, or until it was removed on December 19, 1988. The trial court denied plaintiff's motions.

On appeal, the appellate court affirmed the dismissal of counts I and II as to Huffman, but held that the trial court erred in dismissing those same counts, as to Carle, without leave to amend. The appellate court further held that the trial court erred in refusing to allow plaintiff to amend her complaint along the lines suggested in counts V and VI. The appellate court stated that in medical malpractice actions, the statute of repose is triggered only on the last day of treatment, and if the treatment is for the same condition, there is no requirement that the negligence be continuous throughout the treatment.

Carle now appeals to this court and asks us to determine: (1) whether the continuous course of treatment doctrine applies to a multispecialty health care institution, and (2) whether the appellate court disregarded the doctrine of res judicata when it permitted a claim against an employer for the acts or omissions of an employee, in the face of a judgment on the merits in favor of the employee for the same acts or omissions.

CONTINUOUS COURSE OF TREATMENT

Subject to the fraudulent concealment exception provided in section 13-215 of the Code (Ill.Rev.Stat.1989, ch. 110, par. 13-215), the legislature has clearly stated that no "action be brought more than 4 years after the date on which occurred the act or omission or occurrence alleged in such action to have been the cause of such injury." Confronted with the clear, unambiguous language of the statute, we cannot adopt the continuous course of treatment doctrine as formulated by the appellate court.

We find it significant that the General Assembly has amended section 13-212 numerous times but has never expressly provided for any exception to the statute of repose except for cases of fraudulent concealment. Had the General Assembly intended the continuous course of treatment doctrine to be the law of this State, it could have specifically provided so, as the legislative bodies in New York and Texas have done. (See N.Y.Civ.Prac.L. & R. 214-a (McKinney Supp.1992); Tex.Rev.Civ.Stat.Ann. art. 4590i, § 10.01 (West Supp.1992).) In Michigan, the legislature has come full circle. In 1975, the Michigan legislature amended its medical malpractice limitations provision to include a codification of the continuous course of treatment doctrine. (1975 Mich.Pub.Act 142; Mich.Comp.Laws § 600.5838(1) (1987).) By 1986, however, after a 10-year experiment with the doctrine, the Michigan legislature eliminated the provision. (1986 Mich.Pub.Act 178; Mich.Comp.Laws § 600.5838 (Supp.1992).) Given the attention paid to the so-called "medical malpractice crisis" in recent years, it is fair to assume that the Illinois General Assembly was aware of such developments and purposefully declined to act.

We are not alone in our interpretation today. The courts in Delaware, Kansas and Maryland have also come to the same conclusion when confronted with statutes similar to ours. (See Ewing v. Beck (Del.1987), 520 A.2d 653; Hecht v. First National Bank & Trust Co. (1971), 208 Kan. 84, 490 P.2d 649; Hill v. Fitzgerald (1985), 304 Md. 689, 501 A.2d 27.) Although we are cognizant of several jurisdictions which have adopted the doctrine without legislative initiative (see Comstock v. Collier (Colo.1987), 737 P.2d 845; Bixler v. Bowman (1980), 94 Wash.2d 146, 614 P.2d 1290; Tamminen v. Aetna...