Roper v. Markle

• Citation: 16 Ill.Dec. 827,375 N.E.2d 934,59 Ill.App.3d 706
• Decision Date: 19 April 1978
• Docket Number: No. 76-493,76-493
• Parties: , 16 Ill.Dec. 827 Thelma ROPER, Plaintiff-Appellant, v. Mary K. MARKLE, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 934

375 N.E.2d 934

59 Ill.App.3d 706, 16 Ill.Dec. 827

Thelma ROPER, Plaintiff-Appellant, v. Mary K. MARKLE, Defendant-Appellee.

No. 76-493.

Appellate Court of Illinois, Fifth District.

April 19, 1978.

David J. Letvin, Cohn, Carr, Korein, Kunin & Brennan, East St. Louis, for plaintiff-appellant.

George C. Lackey, Lackey & Lackey, Centralia, for defendant-appellee.

JONES, Justice:

Plaintiff, Thelma Roper, appeals from a judgment of the circuit court of Marion County dismissing her medical malpractice complaint on the basis that the cause was barred by the statute of limitations (Ill.Rev.Stat.1975, ch. 83, par. 22.1).

On May 27, 1976, plaintiff filed a complaint alleging that she was injured as a result of negligence on the part of defendant, Dr. Mary K. Markle. After a hearing, defendant's motion to dismiss the complaint was allowed, and plaintiff Roper was given 20 days in which to plead anew. An amended complaint was filed on June 22, 1976. The defendant Markle again moved to dismiss, asserting, inter alia, that the complaint was barred under section 14 of the Limitations Act (Ill.Rev.Stat.1975, ch. 83, par. 15) since it was not filed within two years after the cause of action accrued. On October 26, 1976, the court granted the motion, stating: "It appears from the complaint that this action is instituted more than two years after the occurrence of the plaintiff's injury." This appeal followed.

The question which we are called upon to answer is whether the limitations period's "discovery rule" applicable to medical malpractice cases tolls the running of the statutory time period until such time as the potential plaintiff knew or should have known both that he has a physical injury and that it may be a result of someone's negligence. The defendant asserts that in all cases the statute is tolled only until such time as plaintiff knew or should have known of the injury in the sense that he knew or should have known of the existence of a physical problem.

The basic allegations contained in the amended complaint, which for our purposes must be taken as true, may be summarized as follows.

Plaintiff Roper, a patient of the defendant doctor, consulted with her about the necessity of a hysterectomy. On or about April 7, 1972, Dr. Markle performed a wide cuff abdominal hysterectomy on plaintiff. As a result of defendant's negligence in performing this operation and/or in following up on it, urine leaked out of the plaintiff's ureter causing one of her kidneys to become so infected and inflamed as to necessitate its surgical removal on May 9, 1972. Plaintiff neither learned nor reasonably should have learned of the cause of this condition until on or about September 1, 1974.

Plaintiff's reply brief reveals that had this cause proceeded to trial, the significance of September 1, 1974 would have been shown by proof that on or about that date plaintiff first learned of the cause of her second operation as a result of an examination made by a urologist at Washington University Medical School.

A statute of limitations is a designated period of time during which a cause of action must be brought or forever barred. (Lincoln-Way Community High School District 210 v. Village of Frankfort, 51 Ill.App.3d 602, 9 Ill.Dec. 884, 367 N.E.2d 318.) Before courts and legislatures began applying a discovery rule to limitations periods, the statute ran from the time that the last act giving rise to a cause of action occurred. (Gray v. American Radiator & Standard Sanitary Corp., 22 Ill.2d 432, 435, 176 N.E.2d 761, 763; Myers v. Green, 5 Ill.App.3d 816, 817-18, 284 N.E. 349, 350.) In other words, the time period during which the suit must be brought began when all of the elements of the tort action were present, including a legal duty, breach of that duty, and injury resulting from such breach. Coumoulas v. Service Gas, Inc., 10 Ill.App.3d 273, 274, 293 N.E.2d 187, 188.

This is admittedly a harsh rule. It operates unfairly in situations where the plaintiff, regardless of diligence, is unable to discover that he has been injured until after the limitations period has passed. (Lincoln-Way Community High School District 210 v. Village of Frankfort, 51 Ill.App.3d 602, 607, 9 Ill.Dec. 884, 889, 367 N.E.2d 318, 323.) Simply stated, the limitations period was not tolled by the wronged party's lack of knowledge or complete ignorance of a tort-feasor's negligence or other culpable act. (Scott, For Whom the Time Tolls Time of Discovery and the Statute of Limitations, 64 Ill.B.J. 326; e. g., Simoniz Co. v. J. Emil Anderson & Sons, Inc., 81 Ill.App.2d 428, 436, 225 N.E.2d 161, 165; Mosby v. Michael Reese Hospital, 49 Ill.App.2d 336, 339, 199 N.E.2d 633, 635.)

Since 1965 the harshness of this rule has been ameliorated by the application of a so-called discovery rule to various types of cases. In most instances the application has been by a process of judicial interpretation. The essence of the discovery rule is that the limitations period begins to run not when the last act giving rise to a cause of action has occurred but when the plaintiff knew or should have known that he was "injured."

The primary area in which adoption of the discovery rule has been legislative in nature is that of medical malpractice. By virtue of legislation in 1965, section 21.1 of the Limitations Act (Ill.Rev.Stat.1965, ch. 38, par. 22.1) was added. Section 21.1 then applied only to "foreign substance" cases. It provided that as to a patient in whom a foreign substance was negligently permitted to remain after treatment, causing injury, the period of limitations for filing an action did not begin until the person knew or should have known of the facts of hurt and damage to his body.

The current section 21.1 of the Limitations Act (Ill.Rev.Stat.1975, ch. 83, par. 22.1) applies to all varieties of medical malpractice and read in pertinent part at the time this action was commenced as follows:

"No action for damages for injury * * * against any physician * * * duly licensed under the laws of this State, whether based upon tort, or breach of contract, or otherwise arising out of patient care shall be brought more than 2 years after the date on which the claimant knew, or through the use of reasonable diligence should have known * * * of the existence of the injury * * * for which damages are sought in the action, whichever of such date (sic) occurs first, but in no event shall such action be brought more than 5 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 * * *."

We note at the outset that the language of the trial court's finding with respect to the triggering event of the limitations period, i. e., "the occurrence of the plaintiff's injury," is overly broad. A literal reading of it would only be consistent with the pre-discovery rule that the occurrence of the last act giving rise to a cause of action starts the running of the limitations period. We take the court's finding to be that the instant action is barred because not pursued within two years of the time the plaintiff knew she had an infection of the kidney which required the organ's removal, or early May 1972.

It is plaintiff's contention that the discovery rule requires that the limitation period be computed from the time when she knew or should have known that her kidney's damaged condition resulted from defendant's negligence rather than from some non-negligent cause.

The legislature's adoption of a discovery rule limitations statute which applies to all medical malpractice cases was prompted by our supreme court's decision in Lipsey v. Michael Reese Hospital (1970), 46 Ill.2d 32, 262 N.E.2d 450.

In Lipsey the court was confronted with a malpractice case of a type other than the foreign substance variety, namely faulty diagnosis. It was therefore not governed by the version of section 21.1 of the Limitations Act (Ill.Rev.Stat.1969, ch. 63, par. 22.1) then in effect but by the general personal injuries provision, section 14 (Ill.Rev.Stat.1969, ch. 83, par. 15), which directs that actions be commenced within two years of their accrual. No general malpractice statute of limitations was in effect until November 11, 1975.

The facts of Lipsey were that the plaintiff consulted Dr. Menaker, a defendant, about a lump on her arm in late 1963. The lump was thereafter excised by this doctor at the defendant hospital. A biopsy report, issued subsequent to testing by the Hospital's pathology department, indicated that the tumor was not malignant. In 1966, plaintiff complained again to Dr. Menaker about a lump under her arm. In April of that year, she entered the defendant hospital and Dr. Menaker removed several enlarged lymph nodes from under plaintiff's arm, as well as a lesion from her left breast. This time the Hospital's report disclosed a malignancy in both areas. Further surgery was apparently necessary. Plaintiff chose to have it performed later that month in a New York hospital by a different doctor. This surgery was radical in nature, involving removal of her left breast, shoulder and arm. A frozen section of the lump removed in 1963 was examined at the New York hospital and pronounced malignant, revealing the error made in the biopsy of 1963.

The plaintiff brought an action for damages in December of 1966 based on this misdiagnosis of a cancerous condition as noncancerous in nature. The trial court granted a motion for summary judgment in favor of defendants and dismissed the complaint on the grounds that suit had not been instituted within two years after the cause of action accrued. An appeal was taken directly to our supreme court.

The supreme court framed the issue as whether the two-year period of limitations for tort actions (Ill.Rev.Stat.1969, ch. 83, par. 15) "began to run in October of 1963 at the time of the plaintiff's first surgery and the alleged negligence, or at the time that the...