Castello v. Kalis

816 N.E.2d 782, 352 Ill. App. 3d 736, 287 Ill. Dec. 815
CourtAppellate Court of Illinois
DecidedSeptember 14, 2004
Docket1-03-0840
StatusPublished
Cited by68 cases

This text of 816 N.E.2d 782 (Castello v. Kalis) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Castello v. Kalis, 816 N.E.2d 782, 352 Ill. App. 3d 736, 287 Ill. Dec. 815 (Ill. Ct. App. 2004).

Opinion

PRESIDING JUSTICE BURKE

delivered the opinion of the court:

Plaintiff John Castello appeals from an order of the circuit court granting defendant Olga Kalis’ motion for summary judgment in plaintiff’s negligence action against defendants. On appeal, plaintiff contends that the trial court erred in holding that the claims against Kalis 1 were time-barred as a matter of law under the applicable statute of limitations. For the reasons set forth below, we affirm.

STATEMENT OF FACTS

In 1988, Vivianne Castello began receiving routine gynecologic and obstetrical care from Dr. Joseph Capezio, Dr. Robert Turner and the practice group of Women’s Health Specialists. In January and November 1992, Vivianne’s Pap smear slides were forwarded to Cytology Unlimited (Cytology) and reported as normal. Likewise, in September 1993, Vivianne’s Pap smear slide was forwarded to Cytology, and defendant, a cytotechnologist employed by Cytology, interpreted and reported the slide to he within normal limits. In April 1996, Vivianne had another Pap smear taken and the slide was again reported by Cytology as normal.

In July 1996, Vivianne experienced bleeding following sexual intercourse. In August, she contacted Women’s Health Specialists regarding the bleeding and expressed to Drs. Capezio and Turner her concern that the bleeding was indicative of cervical cancer. Vivianne was repeatedly reassured by her doctors that she was not a candidate for cervical cancer and that cancer was not the source of her irregular bleeding. By January 1997, Vivianne’s symptoms were becoming more severe, and she was experiencing bleeding with other activities, such as heavy lifting. Vivianne complained regularly to Capezio and Turner that she was concerned that she might have cervical cancer based on various medical books she had read regarding abnormal bleeding. Vivianne had another Pap smear taken in early 1997 and Cytology once again reported that the slide was normal. The physicians repeatedly told Vivianne to stop worrying about the possibility of cervical cancer, noting that she was too young for cervical cancer and that her prior Pap smears contained normal results.

Finally, Turner recommended that Vivianne undergo a cervical biopsy on February 27, 1997. On March 3, Turner advised Vivianne that the biopsy showed that she had cervical cancer and he recommended that she see Dr. James Dolan, an oncologist. In response to subsequent interrogatories, Vivianne stated that March 3, 1997, was the date that she “became aware of the alleged malpractice stated in [her] Complaint.”

Vivianne followed up with Dr. Dolan the very next day. Dolan told Vivianne that she had a four-centimeter lesion on her cervix, which “[wa]s basically the entire cervix.” Dolan informed her that she had a very aggressive, fast-growing cancer, estimated that her life expectancy could be as little as 30 months and questioned why the biopsy had not been given sooner. Thereafter, Vivianne had to undergo a radical hysterectomy.

On April 2, 1997, Vivianne requested copies of her entire medical file from Women’s Health Specialists. Vivianne also requested that Dr. Turner call her regarding a rereading of her previous Pap smears. Vivianne subsequently alleged in an eight-page statement dated May 1997 that, when Turner returned her telephone call on April 2, he told Vivianne’s husband, plaintiff John Castello, that another physician, Dr. Taxi, had reviewed one or more of Vivianne’s previous Pap smear slides and had determined that “[her] previous pap’s [sic] showed cancer.” In a subsequent deposition, plaintiff corroborated Vivianne’s statement concerning Turner’s telephone call.

When Vivianne called the Women’s Health Specialists office on April 8, 1997, the nurse informed her that there were no written confirmations of Dr. Taxi’s alleged findings. When Vivianne arrived at the office later that day to retrieve her medical records, the nurse told Vivianne that she had spoken with Dr. Turner and that Turner had denied telling plaintiff that Taxi had reread the Pap smear slides. Vivianne was then told that her slides had not been reviewed.

In April 1997, Vivianne and plaintiff retained an attorney. In a later discovery deposition, plaintiff was questioned as to why he and his wife sought legal counsel. Plaintiff responded, “[I]t goes back to the slides, that we were told they were fine and [subsequently] learned that they had cancer on them ***.” On April 22, Vivianne’s attorneys requested her Pap smear slides from Cytology. Vivianne’s January 1992, November 1992, September 1993, April 1996 and January 1997 slides were produced by Cytology on April 30, 1997.

In May 1997, Vivianne drafted an eight-page statement regarding her case, in which she stated:

“I feel that [Turner and Capezio] should have taken me a little more seriously since I had all the warning signs of Cervical Cancer [sic]. Everything I read in medical books suggested cervical cancer. *** I continually questioned them about the possibility *** but was continually assured that I had nothing to worry about. They should have done the proper testing such as an earlier [P]ap smear. Due to the controversy about the reliability of [P]ap smears, a biopsy should have been done at an earlier date ***. *** By their failure to diagnose sooner, I have had to undergo surgery with many side effects at a young age.”

On the Fourth of July weekend in 1997, Vivianne and her family were on vacation when Vivianne casually met Dr. Stephen Cruikshank, a gynecologist, who criticized the medical care she had received leading up to her diagnosis of cancer. Cruikshank thought that she should have had a biopsy much sooner and ultimately testified as an expert witness at trial.

On April 17, 1998, Vivianne filed a complaint against Turner, Capezio and Women’s Health Specialists, alleging that Turner and Capezio were negligent in failing to properly and thoroughly investigate her repeated complaints of vaginal bleeding from August 1996 to February 1997 and that, as a result of their negligence, she suffered “a significant delay in the diagnosis [of] cervical cancer.”

In July 1998, Vivianne traveled, with all of her Pap smear slides, to receive treatment from M.D. Anderson Cancer Center in Houston, Texas. While at the cancer center, Dr. Ruth Katz, a pathologist, reported to Vivianne that her 1996 Pap slide showed atypical cells and that the 1997 Pap smear slide indicated cervical cancer. It is unclear from a review of the record whether Vivianne was given any information concerning her 1992 and 1993 Pap smear slides. Although the report from the M.D. Anderson Cancer Center shows that the Pap smear slides from 1992, 1993, 1996 and 1997 were present and inventoried, under the identification numbers for the slides from 1992 and 1993, the report contains the information “no diagnosis rendered” as to the 1992 and 1993 slides. Also, under the identification number for the 1993 slide, the report states, “See comment.” The comment on the bottom of that page states, “There are a few cells that show features of atypical immature metaplasia.”

On October 20, 1998, Vivianne filed a first amended complaint, adding as defendants Cytology and Dr.

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Bluebook (online)
816 N.E.2d 782, 352 Ill. App. 3d 736, 287 Ill. Dec. 815, Counsel Stack Legal Research, https://law.counselstack.com/opinion/castello-v-kalis-illappct-2004.