McIntyre v. Christ Hosp.

• Citation: 536 N.E.2d 882,129 Ill.Dec. 832,181 Ill.App.3d 76
• Decision Date: 21 March 1989
• Docket Number: No. 88-1716,88-1716
• Court: United States Appellate Court of Illinois
• Parties: , 129 Ill.Dec. 832 James W. McINTYRE, Plaintiff-Appellant, v. CHRIST HOSPITAL, a corporation, Dr. Karande, Dr. Chen and Estate of Dr. Krolikowski, 1 Defendants (Dr. Joseph Cannon, Defendant-Appellee).

Page 882

536 N.E.2d 882

181 Ill.App.3d 76, 129 Ill.Dec. 832

James W. McINTYRE, Plaintiff-Appellant, v. CHRIST HOSPITAL, a corporation, Dr. Karande, Dr. Chen and Estate of Dr. Krolikowski, ¹ Defendants (Dr. Joseph Cannon Defendant-Appellee).

No. 88-1716.

Appellate Court of Illinois First District, Second Division.

March 21, 1989.

Rehearing Denied April 29, 1989.

Randolph C. Greune, Burton S. Odelson, Odelson & Sterk, Ltd., Evergreen Park (John J. Lowrey and Mary Jo Smerz, Chicago, of counsel), for plaintiff-appellant.

Kiesler & Berman, Chicago (Rory Cassidy, of counsel), for defendant-appellee.

Justice HARTMAN delivered the opinion of the court:

This appeal arises from the circuit court's order granting defendant-appellee Dr. Joseph Cannon's ("defendant") motion for summary judgment, based on section 13-212 of the medical malpractice statute of limitations. Ill.Rev.Stat.1985, ch. 110, par. 13-212.

James McIntyre ("plaintiff") was born on September 13, 1963. On July 7, 1970, when plaintiff was six years old, defendant performed surgical repair of a hernia previously diagnosed by Dr. John R. Krolikowski the family physician. Thereafter, plaintiff never again saw defendant.

At all times prior to and following the hernia surgery, plaintiff's testicles were undescended, according to plaintiff's affidavit, and at that time he did not know he had testicles, nor did he have any mass in that area or other indications that testicles were in fact present, but undescended.

Plaintiff visited Dr. Krolikowski regularly during grade and high school, at least once each year for physical examinations which included procedures wherein the doctor examined his genital area. Notwithstanding these procedures, Dr. Krolikowski never advised plaintiff or his mother, who accompanied him to the examinations until he reached high school age, that anything was wrong or abnormal with plaintiff's genitalia. Plaintiff was not concerned about his missing testicles because of reassurances from Dr. Krolikowski that "Everything [was] fine," and assumed the condition was "a direct part and parcel" of the hernia surgery.

Around the time plaintiff entered his freshman year of high school, he began noticing he had "less in the way of testicles than the other guys." Throughout high school, he was self-conscious about his lack of testicles, but was never ridiculed by the other boys. He never confided in his parents or friends about his condition, not wishing to draw attention to himself. Because of Dr. Krolikowski's reassurances, he never thought something was "wrong," however.

Plaintiff became 18 years of age on September 13, 1981. From 1981 through 1984, when he worked for the Chicago Park District, plaintiff received mandatory pre-employment physicals at the beginning of each summer from a Park District doctor. During the 1981-83 examinations, plaintiff could not recall whether the doctor asked him about any genital problems.

In December of 1983, when he was twenty years old, plaintiff developed a kidney stone for which he underwent surgery, performed by Dr. Frederick Wohlberg. Following the surgery, Dr. Wohlberg advised plaintiff he had undescended testicles. This was the first time plaintiff was aware that he even had testicles. He averred he previously had no reason to believe any remedial measures could have been taken regarding his condition, and had no knowledge of the medical implications of undescended testicles. The next day, plaintiff underwent a surgical procedure that attempted to lower his testicles.

In an affidavit, Dr. Wohlberg stated that based upon a reasonable degree of medical certainty, defendant deviated from the appropriate standards of care in the earlier treatment of plaintiff's hernia, which required: detection of plaintiff's condition of undescended testicles in an examination that should have followed the surgery; informing plaintiff's parents of the condition; and, further surgery to lower the testicles.

Plaintiff filed suit against defendant, claiming medical malpractice, on January 22, 1985, thirteen months after Dr. Wohlberg informed him of the undescended testicles. The complaint alleged that defendant negligently failed to properly examine, diagnose, inform, and treat plaintiff for his ongoing condition of undescended testicles. The suit was filed over 14 years after the alleged malpractice (July, 1970), and three years, four months after plaintiff reached majority.

Defendant moved for summary judgment in the circuit court, contending plaintiff's cause of action was time-barred under section 13-212. (Ill.Rev.Stat.1985, ch. 110, par. 13-212.) He argued that plaintiff, upon reaching age 18 in 1981, knew or through the use of reasonable diligence should have known of his condition at some point during high school, and therefore should have brought this action within two years of his eighteenth birthday. The circuit court granted summary judgment for defendant, concluding that since plaintiff was aware of being considerably different, it was unreasonable as a matter of law for him not to inquire further into the existence of a cause of action arising from his condition.

Plaintiff appeals, arguing the circuit court erred in granting summary judgment because the question of whether he had actual or constructive knowledge of his injury and potential cause of action prior to his attaining majority was one of fact more properly determined by a trier of fact.

As a preliminary matter, section 13-212 bars claims related to medical treatment filed more than two years after a plaintiff knew or should have known of an alleged injury, and absolutely bars claims filed more than four years from the date of the act giving rise to the cause of action. (Moore v. A.H. Robins Co. (1988), 167 Ill.App.3d 19, 23, 117 Ill.Dec. 656, 520 N.E.2d 1007, appeal denied (1988), 121 Ill.2d 572, 122 Ill.Dec. 439, 526 N.E.2d 832.) The statute begins to run when plaintiff knows or reasonably should know of both the physical problem and the possibility that someone is at fault for its existence. (Roper v. Markle (1978), 59 Ill.App.3d 706, 710, 16 Ill.Dec. 827, 375 N.E.2d 934; see also Witherell v. Weimer (1981), 85 Ill.2d 146, 156, 52 Ill.Dec. 6, 421 N.E.2d 869 (Witherell I ), on remand (1986), 148 Ill.App.3d 32, 101 Ill.Dec. 679, 499 N.E.2d 46, rev'd (1987), 118 Ill.2d 321, 113 Ill.Dec. 259, 515 N.E.2d 68 (Witherell II ); Moore v. A.H. Robins Co., 167 Ill.App.3d at 23, 117 Ill.Dec. 656, 520 N.E.2d 1007.) Prior to January 1, 1988, section 13-212, however, was subject to section 13-211 of the Code of Civil Procedure (Ill.Rev.Stat.1985, ch. 110, par. 13-211) and the statutory period tolled for a surviving malpractice victim under the age of 18 until he attained majority. ² Dachs v. Louis A. Weiss Memorial Hospital (1987), 156 Ill.App.3d 465, 468, 108 Ill.Dec. 793, 509 N.E.2d 489.

A plaintiff must bring an action within two years of the date on which he knew or reasonably should have known of his injury, and also knew or reasonably should have known that it was wrongfully caused. (Ill.Rev.Stat.1987, ch. 110, par. 13-212; Saunders v. Klungboonkrong (1986), 150 Ill.App.3d 56, 59, 103 Ill.Dec. 565, 501 N.E.2d 882.) This two part inquiry is to be neither narrow nor expansive. (Knox College v. Celotex Corp. (1981), 88 Ill.2d 407, 414-15, 58 Ill.Dec. 725, 430 N.E.2d 976.) Under the statute, "wrongfully caused" does not mean knowledge by plaintiff of a specific defendant's negligent act or knowledge that an actionable wrong was committed; rather, a person knows or reasonably should know an injury is "wrongfully caused" when he possesses "sufficient information concerning his injury and its cause to put a reasonable person on inquiry to determine whether actionable conduct is involved." (Knox College, 88 Ill.2d at 416, 58 Ill.Dec. 725, 430 N.E.2d 976; Moore v. A.H. Robins Co., 167 Ill.App.3d at 23, 117 Ill.Dec. 656, 520 N.E.2d 1007.) The burden then falls on plaintiff to investigate further as to the existence of a cause of action. Witherell I, 85 Ill.2d at 156, 52 Ill.Dec. 6, 421 N.E.2d 869.

The inquiry of whether a plaintiff knew or reasonably should have known that his injury was caused by a defendant's wrongful conduct may involve the nature of the injury itself; the more obvious an injury, the more easily a plaintiff should be able to determine its cause. (Saunders, 150 Ill.App.3d at 60, 103 Ill.Dec. 565, 501 N.E.2d 882.) If the injury is an aggravation of a physical problem which could develop naturally, absent negligent causes, a plaintiff is not expected to immediately know of its potentially wrongful cause. (Lebrecht v. Tuli (1985), 130 Ill.App.3d 457, 486, 85 Ill.Dec. 517, 473 N.E.2d 1322.) Until a plaintiff knows that his seemingly innocent condition is perhaps the result of another's negligent acts, he has no opportunity to discover that a cause of action exists. Saunders, 150 Ill.App.3d at 60, 103 Ill.Dec. 565, 501 N.E.2d 882.

Ordinarily, whether plaintiff knew or reasonably should have known both of his injury and that it was caused by a wrongful act are genuine issues of fact to be determined by the finder of fact. (Witherell I, 85 Ill.2d at 156, 52 Ill.Dec. 6, 421 N.E.2d 869.) Summary judgment is appropriate only where the pleadings, depositions, and affidavits, construed most strongly against the movant and most liberally in favor of the opponent, show that judgment should be granted as a matter of law. (Aspegren v. Howmedica, Inc. (1984), 129 Ill.App.3d 402, 403-04, 84 Ill.Dec. 685, 472 N.E.2d 822; Saunders, 150 Ill.App.3d at 61, 103 Ill.Dec. 565, 501 N.E.2d 882.) If only one conclusion can be drawn from the undisputed facts, the question becomes one for the court. (Witherell I, 85 Ill.2d at 156, 52 Ill.Dec. 6, 421 N.E.2d 869.) Close questions on this issue, as here, should not be decided as matters of law, but are best left for juries. Peterson v. Loseff (1987), 159 Ill.App.3d 16, 21, 111 Ill.Dec. 101, 512...