Nelson v. Jain

• Citation: 526 F. Supp. 1154
• Decision Date: 24 November 1981
• Docket Number: No. 80 C 5674.,80 C 5674.
• Parties: Edward J. NELSON and Grace B. Nelson, Plaintiffs, v. Dr. Kanakmal JAIN, Defendant.
• Court: U.S. District Court — Northern District of Illinois

526 F. Supp. 1154

Edward J. NELSON and Grace B. Nelson, Plaintiffs, v. Dr. Kanakmal JAIN, Defendant.

No. 80 C 5674.

United States District Court, N. D. Illinois, E. D.

November 24, 1981.

Paul Grauer, Schaumburg, Ill., for plaintiffs.

Edward T. Butt, Jr., Douglas L. Prochnow, Wildman, Harrold, Allen & Dixon, Chicago, Ill., for defendant.

MEMORANDUM OPINION AND ORDER

SHADUR, District Judge.

Edward J. Nelson ("Edward") and his wife Grace B. Nelson (collectively "Nelsons") have sued Dr. Kanakmal Jain ("Jain") claiming medical malpractice. Jain has moved (1) for summary judgment and (2) to strike the Complaint and assess costs and attorneys' fees against Nelsons. For the reasons stated in this memorandum opinion and order, Jain's summary judgment motion is granted, but his motion to strike and for attorneys' fees is denied.

Facts¹

On October 26, 1977 Edward sustained an injury to his right shoulder while at his place of employment. Between October 27 and December 2, 1977 Edward was treated for his injuries by Jain, who diagnosed the injury as an interior dislocation of the right shoulder. On December 2 Edward saw an orthopedic specialist, Dr. Walch, who diagnosed the injury as a full thickness tear of the right rotator cuff and advised surgery. On December 15 Edward underwent surgery at Alexian Brothers Medical Center for repair of a right rotator cuff tear.

Edward continued to have problems with his right shoulder and on July 11, 1978 filed a workers' compensation application with the Illinois Industrial Commission. Early in 1979 Edward obtained a further evaluation of his condition from the Mayo Clinic. About October 3, 1980 Edward was offered a lump sum of $36,630 in settlement of the workers' compensation claim. On October 9 Edward sought the advice of attorney Paul Grauer ("Grauer") to assist him in determining whether the proposed settlement was fair and reasonable. On October 11 Edward supplied Grauer with copies of the medical records relating to the injury. On the same day Grauer told Edward that in his opinion (1) the proposed workers' compensation settlement was fair and reasonable and (2) a possible malpractice claim existed against Jain (that was the first time anyone had suggested the possibility of such a claim to Edward). Edward immediately authorized Grauer to investigate the possibility of filing a malpractice claim. That investigation resulted in the filing of this action October 23, 1980.

Count I — Medical Malpractice

Complaint ¶ 9 charges a number of failures on Jain's part. Those in turn assertedly caused a delay in Edward's receiving proper treatment, giving rise to Edward's aggravated and continuing injury. Because Jain stopped treating Edward December 2, 1977 that was the last date on which medical malpractice could have occurred — and Complaint ¶ 9 identifies that date for the occurrence of Jain's last wrongful act.

Illinois' General Assembly has established a two-year limitation period, subject to a statutory discovery rule, for medical malpractice actions (Ill.Rev.Stat. ch. 83, § 22.1):

No action for damages for injury or death against any physician or hospital... shall be brought more than two years after the date on which the claimant knew, or through the use of reasonable diligence should have known, or received notice in writing of the existence of the injury or death for which damages are sought in the action....

Because this action was filed October 23, 1980, Nelsons must bring themselves within the discovery rule to avoid being barred by limitations. To that end they allege in Complaint ¶ 13:

That the first time plaintiff had reasonable grounds to believe, or learned of any possible negligence or malpractice having taken place as a result of the treatment rendered by the Defendant Doctor as aforesaid was on or about October 11, 1980.

Jain's summary judgment motion asserts there is no evidence to support that allegation, for Edward knew or should have known of any alleged negligence more than two years before this action was filed. Just this year the Illinois Supreme Court announced its definitive standard for applying the discovery rule in medical malpractice actions, Witherell v. Weimer, 85 Ill.2d 146, 156, 52 Ill.Dec. 6, 11, 421 N.E.2d 869, 874 (1981):

The statute starts to run when a person knows or reasonably should know of his injury and also knows or reasonably should know that it was wrongfully caused. At that point the burden is upon the injured person to inquire further as to the existence of a cause of action citing cases. In many, if not most, cases the time at which an injured party knows or reasonably should have known both of his injury and that it was wrongfully caused will be a disputed question to be resolved by the finder of fact. (Lipsey v. Michael Reese Hospital, 46 Ill.2d 32, 262 N.E.2d 450 (1970).) Where it is apparent from the undisputed facts, however, that only one conclusion can be drawn, the question becomes one for the court. Berry v. G. D. Searle & Co., 56 Ill.2d 548, 309 N.E.2d 550 (1974).

Under that standard the facts stated in Edward's own affidavit demonstrate that the statute of limitations ran before Nelsons filed suit.

Edward's Complaint states that as a result of Jain's actions Edward's right arm has become permanently disabled. What that allegation implies (and Complaint ¶ 9 confirms) is that (1) Jain's improper diagnosis delayed the necessary surgery and (2) but for the delay in receiving the appropriate surgery Edward would have recovered full use of his right arm. Thus the injury Edward allegedly suffered was the failure to recover use of his right arm after surgery. As Edward's affidavit states:

(1) "Following the above surgery, I continued to have medical problems with my right shoulder...."

(2) On July 11, 1978 Edward filed a workers' compensation application with the Illinois Industrial Commission based on his shoulder injury.

Edward was therefore clearly aware of his injury more than two years before filing this action.

Edward's affidavit also demonstrates conclusively that he knew or reasonably should have known that his injury was wrongfully caused. When Edward switched from Jain to Dr. Walch he was given a radically different diagnosis of his condition. Edward put enough faith in the latter diagnosis to undergo surgery. Shortly after the surgery Edward was aware that (1) he had not fully recovered from the surgery, (2) Jain had improperly diagnosed his condition and (3) the surgery had been delayed because of the improper diagnosis. Given those facts Edward had the burden, in Witherell terms, "to inquire further as to the existence of a cause of action."

Edward's Complaint does not allege (nor does his affidavit indicate) the discovery of a single additional fact between October 23, 1978 and October 11, 1980 to indicate that "his injury ... was wrongfully caused." Only one event occurred during that time: Edward gave his medical records to Grauer, who then advised him that a possible medical malpractice action existed.

But such advice is not made the triggering event for application of the discovery rule. If it were, it would place a premium on being an ostrich, on blinding oneself to the obvious inferences from plain facts. Instead Witherell focuses only on facts reasonably indicating that the known injury was wrongfully caused, at which point the injured party cannot wait for someone to draw him or her a road map. At that time he or she must...