Foster v. Plaut

625 N.E.2d 198, 252 Ill. App. 3d 692, 192 Ill. Dec. 238
CourtAppellate Court of Illinois
DecidedAugust 27, 1993
Docket1-91-1974
StatusPublished
Cited by32 cases

This text of 625 N.E.2d 198 (Foster v. Plaut) 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
Foster v. Plaut, 625 N.E.2d 198, 252 Ill. App. 3d 692, 192 Ill. Dec. 238 (Ill. Ct. App. 1993).

Opinion

JUSTICE GIANNIS

delivered the opinion of the court:

Plaintiff instituted this action asserting personal injuries allegedly-sustained as a result of negligent psychiatric and medical treatment rendered by defendants from December 1973 through June 1977. Plaintiff also sought recovery under section 1983 of the United States Code (42 U.S.C. §1983 (Supp. V 1981)), alleging violations of his civil rights. In addition, plaintiff sought damages for the improper release of his psychiatric records and for the failure to correct those records. The trial court dismissed all but one of plaintiff’s claims, finding that they had not been brought within the applicable limitations periods. Pursuant to Illinois Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)), the trial court’s order provided that there was no just reason for delay in enforcement or appeal of the dismissal of plaintiff’s claims. On appeal, plaintiff raises 16 issues which assert, in substance, that his actions were timely filed and that the trial court erred in dismissing all but one of the claims raised in his amended complaint.

The record reflects that plaintiff’s initial complaint was filed on April 24, 1989, and alleged medical malpractice claims against defendants Plaut, Esau, North Park Clinic (hereinafter North Park), Boxer, Barglow, Visotsky, Hammond, and Northwestern University Student Health Service (hereinafter the University Health Service). Plaintiff alleged that the defendants’ acts of negligence occurred during the course of psychiatric and medical treatment rendered to him from 1973 to 1977. Plaintiff alleged further that each defendant had fraudulently concealed these causes of action and that he did not discover his claims until April 24,1984.

Defendants moved to dismiss this complaint, asserting that plaintiff’s claims were barred because they were not brought within the four-year limitations period for medical malpractice actions set forth in section 13 — 212 of the Illinois Code of Civil Procedure (111. Rev. Stat. 1989, ch. 110, par. 13 — 212). On August 21, 1989, the trial court dismissed the complaint, without prejudice, and allowed plaintiff leave to file an amended complaint.

On January 23, 1990, plaintiff filed an amended complaint which asserted 11 counts in 4,463 paragraphs and consisted of 168 pages. In counts I through V of his amended complaint, plaintiff alleged medical malpractice claims against each of the eight defendants. Specifically, plaintiff asserted that he first sought and received psychiatric care at North Park for depression on February 22, 1973, and he was treated at North Park by Plaut, a registered nurse, and by Esau, a psychiatrist, from February 22, 1973, to May 1974. Plaintiff alleged that Plaut, Esau, and North Park negligently misdiagnosed his physical condition (the healing of a compression fracture of the T-7 and T-8 vertebrae) as schizophrenia and rendered improper psychiatric treatment.

The amended complaint asserted further that, at the recommendation of Plaut, he sought treatment from defendant Boxer, an allergist, and he was treated for food allergies by Boxer from August 3, 1973, to May 16, 1975. Plaintiff alleged that Boxer negligently misdiagnosed his physical symptoms and improperly treated those symptoms as an allergy.

Plaintiff also asserted that during a telephone conversation on November 1, 1976, defendant Barglow told him that a warrant had been issued for his arrest, and Barglow suggested that he seek voluntary hospitalization. Plaintiff alleged that Barglow negligently failed to diagnose or treat plaintiffs condition “which included both physical and psychiatric illnesses.”

The amended complaint asserted further that defendant Visotsky, who was Barglow’s immediate supervisor, failed to return two telephone calls from plaintiff on December 28, 1976, and in January 1977. Plaintiff alleged that by not returning plaintiff’s telephone calls, Visotsky negligently failed to take proper supervisory action after receiving plaintiff’s calls and failed to properly discipline Barglow for his conduct.

Plaintiff also asserted that he sought treatment from the University Health Service and was treated there by defendant Hammond between 1974 and 1977. Plaintiff alleged that Hammond characterized plaintiff’s condition as “delusional” in June 1977 and negligently failed to diagnose or treat plaintiff’s condition, “which included both physical and psychiatric illnesses.”

In counts VI and VII plaintiff claimed that defendants Esau and North Park had improperly released his psychiatric records and failed to modify those records in accordance with a written statement submitted by him.

In counts VIII through XI, plaintiff asserted violations of his civil rights by all of the defendants except the University Health Service and alleged that the defendants had conspired to and threatened to have plaintiff involuntarily hospitalized in a psychiatric treatment center in violation of his fourteenth amendment right to due process.

According to the amended complaint, plaintiff was involved in an automobile accident on March 15, 1984. Plaintiff asserted that during the course of treatment for injuries sustained in this accident, he was diagnosed as having suffered a compression fracture of the T-7 and T-8 vertebrae of the spine. The amended complaint alleged that during an office visit with a doctor on April 25, 1984, plaintiff began to realize that he had suffered a compression fracture long before this accident. Plaintiff asserted that he had suffered a compression fracture as a result of his avoidance of a head-on collision on January 7, 1973, and that the healing of this compression fracture caused physical symptoms which were diagnosed as schizophrenia in February 1973. Plaintiff claimed that the defendants had negligently failed to diagnose his physical symptoms as the healing of a compression fracture.

Plaintiff’s amended complaint also alleged that each of the defendants had fraudulently concealed his claims and that he did not discover these causes of action until April 25, 1984, when his compression fracture of the spine was diagnosed. Plaintiff asserted that although he knew in April 1984 of the numerous causes of action he had against the defendants, he did not file suit at that time because he felt that the limitations period had expired. Plaintiff claimed that he learned of his causes of action while doing legal research in December 1988 when he read section 13 — 215 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 13 — 215), which states that the limitations period is tolled where the cause of action has been fraudulently concealed. Plaintiff contended that his claims were timely brought within the five-year limitations period set forth in section 13-215.

Defendants moved to dismiss the amended complaint, asserting that plaintiff’s claims were barred by the applicable statutes of limitations and that he had failed to plead sufficient facts to support his claim of fraudulent concealment.

On November 19, 1990, the trial court dismissed with prejudice all of plaintiff’s claims except the medical malpractice claim directed against defendant Esau.

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Bluebook (online)
625 N.E.2d 198, 252 Ill. App. 3d 692, 192 Ill. Dec. 238, Counsel Stack Legal Research, https://law.counselstack.com/opinion/foster-v-plaut-illappct-1993.