Statute Of Limitations

Illinois Association of Defense Trial Counsel Springfield, Illinois www.iadtc.org 800-232-0169 IDC Quarterly Volume 18, Number 4 (18.4.10) Recent Decisions By: Stacy Dolan Fulco* Cremer, Shaughnessy, Spina, Jansen & Siegert LLC Statute Of Limitations Appropriate for the Court to Determine When the Plaintiff Knew of Her Injury In Nair v. Bloom, 890 N.E.2d 1113 (1st Dist. June 23, 2008), the plaintiffs, Josetta Nair and her husband, Segran Nair, sued two physicians, Rush-Copley Memorial Hospital and The Rush System for Health for medical malpractice and loss of consortium. Nair, 890 N.E.2d at 1114. The plaintiffs filed their complaint against the defendants on August 29, 2002. The defendants filed a motion for summary judgment, contending the complaint was untimely filed, and the trial court granted the motion. Id. at 1115-1116. The plaintiff appealed the trial court s decision. To begin its analysis, the appellate court first cited the statute of limitations which applied to this matter, Section 13-212 of the Code of Civil Procedure. Id. at 1116. Section 13-212(a) provides: (a) Except as provided in Section 13-215 of this Act, no action for damages for injury or death against any physician, dentist, registered nurse, or hospital 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, or received notice in writing of the existence of the injury or death for which damages are sought in the action, whichever of such date occurs first, but 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. 735 ILCS 5/13-212(a) (West 2004). The appellate court noted that the statute of limitations begins to run when a person knows or reasonably should known of his injury and also knows or reasonably should know that it was wrongfully caused. Id. at 1116 citing Knox College v. Celotex Corp., 88 Ill. 2d 407, 415, 430 N.E.2d 976 (1981). At that point the burden is upon the injured person to inquire further as to the existence of a cause of action. Nair, 890 N.E.2d at 1116 citing Witherell v. Weimer, 85 Ill. 2d 146, 156, 421 N.E.2d 869 (1981). The focus of Nair is the analysis of when the plaintiff knew, or should have known, that she was injured. According to Illinois law, the plaintiff need not have knowledge of a specific defendant s negligent conduct or of the existence of a cause of action before triggering the statute. Knox College, 88 Ill. 2d at 415, citing Nolan v. Johns-Manville Asbestos, 85 Ill. 2d 161, 170-171, 421 N.E.2d 864 (1981). At some point the injured person becomes possessed of sufficient information concerning his injury and its cause to put a reasonable person on inquiry to determine whether actionable conduct is involved. At that point, under the discovery rule, the running of the limitations period commences. Knox College,88 Ill, 2d at 416. In most cases, the time when an injured party knows or reasonably should know of his injury and that it was wrongfully caused is an issue of fact. Witherell, 85 Ill. 2d at 156. But where it is apparent from the Page 1 of 6

undisputed facts that only one conclusion can be drawn, the question becomes one for the court. Id. In this case, the defendants motion for summary judgment asked the appellate court to uphold the trial court s ruling that, as a matter of law, there were sufficient facts to support the conclusion that the plaintiff knew she was injured more than two years before the complaint was filed. Id. The defendants argued that the limitations period began to run on the date of the plaintiff s second surgery, September 15, 1998, after which she experienced new symptoms of leg pain, weakness and numbness. The plaintiffs argued they did not know of the defendants alleged malpractice until August 2001, within two years of the filing of their complaint in August, 2002. Nair, 890 N.E.2d at 1116-1117. The appellate court cited to testimony of the plaintiff, Josetta Nair, and greatly relied on that testimony in making its decision. The following testimony by plaintiff Josetta Nair was considered highly relevant to the statute of limitations issue by the appellate court: Q. By the time you went to the rehab back in 98, you knew that your leg problem was associated with your surgeries, didn t you? A. Yes. Q. You knew you didn t have the surgery on your legs, right? A. Right. Q. You knew that the thing that brought you into the hospital first on September 2nd was your abdomen and not your legs. A. Right. Q. You had never had problems whatsoever with your legs before September 16th, true? A. True. Q. So there was no question in your mind that this new problem with your legs was because of the surgeries you had undergone, surgery or surgeries you had undergone? A. That all of my physical problems were a result of that, yes. Q. But specifically your legs were a result of the surgery, right? A. Right. Id. at 1117. The appellate court also relied on the following testimony of the plaintiff Segran Nair: Q. And isn t it the truth that certainly by March of 1999 you believed that something that Dr. Bloom had done during the surgery in September of 1998 had caused this problem with her legs, isn t that true? A. Any normal person would think that a wife was walking and went to surgery of the stomach and come out not walking. So, of course, anybody would think there s got to be something, something went wrong. A. That s what I m thinking. Q. as early as March of 1999, right? A. Of course, yes. Q. So, did you have an understanding that by the spring of 2000 Miss Zelner was going to begin an investigation into the filing of a potential lawsuit on your behalf and on behalf of your wife? A. Yes. Q. And that was in April or May of 2000? A. Yes, somewhere. Id. at 1117-1118. Page 2 of 6

In arguing that the complaint was timely filed, the plaintiff relied on Young v. McKiegue, 303 Ill. App. 3d 380, 708 N.E.2d 493 (1st Dist. 1999). In Young, the plaintiff was told her husband died from complications of pneumonia, and she merely suspected he may have received inappropriate medical care. Alternatively, in this case, the plaintiffs testified they knew the injuries to Josetta s legs were caused by the surgery on September 15, 1998, and they knew the leg symptoms were not a normal outcome from abdominal surgery. Plaintiff Segran Nair testified they retained a lawyer in the Spring of 2000 for the purposes of filing a lawsuit against the responsible physicians. Based on that testimony, the appellate court found that by Spring 2000, when the plaintiffs retained two attorneys to investigate a claim on their behalf, the plaintiffs knew or reasonably should have known of their injuries and that the injuries were wrongfully caused. Nair, 890 N.E.2d at 1118-1119. The appellate court explained that there is no requirement that the plaintiff must discover the full extent of her injuries before the statute begins to run. Nair, 890 N.E.2d at 1119 citing Hoffman v. Orthopedic Systems, Inc., 327 Ill. App. 3d 1004, 1010, 765 N.E.2d 116 (1st Dist. 2002). In Hoffman, the court found it significant that the plaintiff retained an attorney within six months of her operation, demonstrating that she then was on inquiry as to whether the injury was wrongfully caused, thereby commencing the two-year limitations period within which to take appropriate legal action. Hoffman, 327 Ill. App. 3d at 1010, 765 N.E.2d 116. The courts have held that a person knows or reasonably should know an injury is wrongfully caused where he or she possesses sufficient information concerning [an] 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, 430 N.E.2d 976. At that point, it is plaintiff s burden to inquire further about the existence of a cause of action. Witherell, 85 Ill. 2d at 156, 421 N.E.2d 869; Nair, 890 N.E.2d at 1119. In making its holding, the appellate court made no finding that the plaintiff s injury was caused by a sudden, traumatic event. The appellate court noted that the classification of an injury as traumatic or nontraumatic merely aids in the determination of when the plaintiff discovered, or should have discovered, that the injury was caused by the wrongful conduct of a defendant. Nair, 890 N.E.2d at 1119 citing Pszenny v. General Electric Co., 132 Ill. App. 3d 964, 966, 478 N.E.2d 485 (1st Dist. 1985). The court went on to note that regardless of how the plaintiff s injuries are classified, by the time the plaintiffs consulted with two attorneys, the plaintiffs knew or reasonably should have known their injuries were wrongfully caused. Accordingly, the plaintiffs complaint was filed more than two years after the limitations period began and should have been dismissed; so the trial court s order granting summary judgment to the defendants was affirmed. Id. Good Samaritan Act Question of Fact as to Whether Doctor Failed to Charge Fee to Get Act s Protection In Hernandez v. Alexian Brothers Health System, 2008 WL 3000816 (1st Dist. July 31, 2008), the plaintiff, Benjamin Hernandez, the independent administrator of the estate of Alma Hernandez, filed a complaint against the defendants, Alexian Brothers Health System, Dr. Naphtali Kogan and Cardiovascular Associated, S.C. (Cardiovascular), and alleged the defendants were the proximate cause of Alma Hernandez s death. Hernandez, 2008 WL 3000816 at *1. Dr. Kogan and his employer, Cardiovascular, filed a motion for summary judgment and argued that the provisions of the Good Samaritan Act, 745 ILCS 49/25, immunized Dr. Kogan from civil liability for providing emergency medical care to Ms. Hernandez. The trial court granted the motion. Id. at *1. The plaintiff filed an appeal and presented three issues for review: (1) whether the trial court erred when it granted summary judgment because material issues of fact exist regarding whether Dr. Kogan acted in good faith when he decided not to issue a bill for his medical services; (2) whether section 25 of the Good Samaritan Act is unconstitutional special legislation (745 ILCS 49/25 (West 2002)); and (3) whether conferring immunity Page 3 of 6

upon physicians working in hospitals, pursuant to the provisions of section 25 of the Good Samaritan Act, defeats the purpose of the Illinois Hospital Licensing Act, 210 ILCS 85/1, et seq. (West 2002). Id. The relevant facts are that on June 6, 2002, Ms. Hernandez was an in-patient at St. Alexius Medical Center (St. Alexius). While undergoing a biopsy in the radiology department at St. Alexius, Ms. Hernandez suffered a cardiac arrest and was transferred to the emergency room, where any available cardiologist was paged over the intercom to attend to Ms. Hernandez. Id. Dr. Kogan, a board-certified cardiologist, was a member of the St. Alexius physicians staff on June 6, 2002. Dr. Kogan also had a contract with St. Alexius to provide 24-hour on-call coverage at St. Alexius on a rotational schedule. On June 6, 2002, Dr. Kogan responded to the emergency room page and found Ms. Hernandez intubated and asystolic when he began his resuscitation efforts. Dr. Kogan inserted a central line into Ms. Hernandez s femoral artery and ordered an echocardiogram, which he interpreted at her bedside. Dr. Kogan then attempted pericardiocentisis from multiple locations. These resuscitation efforts failed and Ms. Hernandez died on June 6, 2002. Id. To support his motion for summary judgment, Dr. Kogan prepared and relied on his own affidavit. In his affidavit Dr. Kogan averred, in pertinent part: 4. Though I was a member of the medical staff of St. Alexius, neither by contract, agreement, nor pursuant to any Hospital policy, rule or regulation was I obligated to respond to the request for assistance. I was not a member of any designated code response team at St. Alexius, nor was Cardiovascular Associates contracted to provide emergency response assistance to Hospital codes. I was not on call in the emergency room to respond to cardiac emergencies on June 6, 2002. 5. I provided care to Ms. Alma Hernandez to the best of my abilities; she was in full cardiac arrest when I arrived and she was never resuscitated. 6. Neither Cardiovascular Associates nor I billed Ms. Hernandez, or her family or her insurer for my medical efforts to revive her on June 6, 2002. Id. at *2. In addition to relying on the affidavit testimony, Dr. Kogan also argued that he was immunized from civil liability by the provisions of section 25 of the Good Samaritan Act, 745 ILCS 49/25, because Dr. Kogan rendered emergency care and did not bill Ms. Hernandez.. Id. The plaintiff argued that material issues of fact existed which precluded summary judgment because Dr. Kogan s decision not to bill Ms. Hernandez was not made in good faith. The appellate court noted that the purpose of the Good Samaritan Act 9 referring to 745 ILCS 49/2) is to encourage persons to volunteer their time and talents. Hernandez, 2008 WL 3000816 at *2. Section 25 of the Good Samaritan Act, 745 ILCS 49/25, immunizes volunteer physicians from civil liability only if they: (1) in good faith, (2) provide emergency care, (3) without fee. Estate of Heanue v. Edgcomb, 355 Ill. App. 3d 645, 650-52, 823 N.E.2d 1123 (2nd Dist. 2005). Therefore, the court had to first determine whether there were any genuine issues of material fact in dispute regarding Dr. Kogan s good faith in providing emergency care to Ms. Hernandez without fee, because summary judgment is only proper when the right of the moving party is free of doubt. Hernandez, 2008 WL 3000816 at *7, citing 735 ILCS 5/2-1005; Jones v. Chicago HMO Ltd. of Illinois, 191 Ill. 2d 278, 291, 730 N.E.2d 1119 (2000). The appellate court noted that there is no definition for good faith in the Good Samaritan Act but the Illinois Supreme Court has held that good faith is an unambiguous phrase that means honest, lawful intent, or is the opposite of fraud and bad faith. Hernandez, 2008 WL 3000816 at *7, citing People v. Guagliata, 362 Ill. 427, 432, 200 N.E. 169 (1936), quoting, Crouch v. First National Banks, 156 Ill. 342, 357, 40 N.E. 974 (1895) and McConnel v. Street, 17 Ill. 153, 254 (1855). Page 4 of 6

In Estate of Heanue, the court pointed out that the Good Samaritan Act provides that a physician who, in good faith, provides emergency care without fee to a person is immune. Estate of Heanue, 355 Ill. App. 3d at 650. The Estate of Heanue court also pointed out that the term good faith modifies the terms provides emergency care and without fee in the Good Samaritan Act. Id. Finally, the Estate of Heanue court stated, [r]efraining from charging a fee simply to invoke the protection of section 25 [of the Good Samaritan Act] would seem to violate the requirement that the doctor s actions were in good faith, particularly if the decision not to charge a fee was made following treatment that could potentially expose a doctor to liability. Id. Following Estate of Heanue, the appellate court in Hernandez determined that it must first determine whether Dr. Kogan provided emergency medical services to Ms. Hernandez in good faith. The court found that there were no facts in dispute concerning Dr. Kogan s good faith in providing emergency medical care to Ms. Hernandez. Hernandez, 2008 WL 3000816 at *7. Next, the appellate court had to determine whether there were facts in dispute concerning Dr. Kogan s decision not to bill Ms. Hernandez for his services. The appellate court had to answer the following: (1) was a good-faith decision made because the doctor had an honest, lawful intent to provide emergency medical services to Ms. Hernandez without fee, or (2) was the doctor acting in bad faith when, after providing medical services to Ms. Hernandez, the decision was made not to bill for his medical services to invoke the protection of section 25 of the Good Samaritan Act? Id. at *8. To answer this question, the appellate court looked to Dr. Kogan s affidavit, deposition testimony and written discovery answers. In Dr. Kogan s affidavit, he established that he did not bill Ms. Hernandez for his services. Dr. Kogan s deposition testimony established: (1) that Dr. Kogan s routine practice was to submit billing information to his billing service after he had rendered care; (2) that Dr. Kogan routinely billed for interpreting echocardiograms, inserting central lines, and performing pericardiocentisis (the professional services he provided to Ms. Hernandez on June 6, 2002); and (3) that Dr. Kogan did not bill Ms. Hernandez for his medical services on June 6, 2002, because he thought it would have been inappropriate. Finally, in his answers to the supplemental good-faith interrogatories, Dr. Kogan stated that during the past five years he did not issue a bill for his professional services if he had no relationship with the patient, or if he did not enter into a doctor-patient relationship. Id. The appellate court pointed out that the deposition testimony from Ms. Biga, the CFO of Dr. Kogan s billing service since 1999, contradicted Dr. Kogan s testimony. Ms. Biga testified that she was unaware of any instance, other than Ms. Hernandez s case, when Dr. Kogan had not submitted patient information needed by the billing service to bill for professional services of the type provided to Ms. Hernandez on June 6, 2002. The plaintiff argued that Dr. Kogan s deviation from his routine billing practice raised a material question of fact as to whether the doctor s decision not to bill was made in good faith. The appellate court agreed with the plaintiff that Ms. Biga s testimony raised a question of fact. Id. The appellate court found that Dr. Kogan s answer to the supplemental good-faith interrogatory that he did not bill in cases like Ms. Hernandez s conflicted with Ms. Biga s testimony that, other than Ms. Hernandez s case, there were no other cases where Dr. Kogan had not billed patients for the same type of medical services he provided to Ms. Hernandez. The appellate court also found that Dr. Kogan s decision not to bill Ms. Hernandez raised a question of material fact as to whether Dr. Kogan acted in good faith and had an honest, lawful intent to provide medical services without fee, or whether the doctor was acting in bad faith and deviated from his routine billing practices to invoke the protection of section 25 of the Good Samaritan Act. Since questions of fact were raised, the court determined they must be resolved by a trier of fact so the trial court s granting of summary judgment was reversed and the case was remanded. Id. Page 5 of 6

About the Author Stacy Dolan Fulco is a partner at the Chicago law firm of Cremer, Shaughnessy, Spina, Jansen & Siegert LLC. She practices primarily in the areas of premises liability, products liability and wrongful death defense. She received her undergraduate degree at Illinois State University and her J.D./M.B.A. degree from DePaul University. She is a member of the IDC. * The author acknowledges the assistance of Katherine K. Haussermann in the preparation of this article. Page 6 of 6