Hild v. Lakeshore Infectious Disease Associates Ltd.

2024 IL App (1st) 230417-U

• Court: Appellate Court of Illinois
• Decided: March 22, 2024
• Docket: 1-23-0417
• Status: Unpublished

Opinion

2024 IL App (1st) 230417-U

No. 1-23-0417

Order filed March 22, 2024

FIFTH DIVISION

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT

KIRK HILD, as Special Administrator of the ) Appeal from the ESTATE OF DEAN HILD, deceased, ) Circuit Court of ) Cook County. Plaintiff-Appellant, ) ) 2022 L 006190 v. ) ) Honorable LAKESHORE INFECTIOUS DISEASE ) Kathy M. Flanagan, ASSOCIATES, LTD., and JAMES SULLIVAN, ) Judge presiding. M.D., )

Defendant-Appellant.

PRESIDING JUSTICE MITCHELL delivered the judgment of the court. Justice Mikva and Justice Lyle concurred in the judgment.

ORDER

¶1 Held: The statute of repose for malpractice lawsuits against medical professionals barred Dean Hild from bringing his July 12, 2022 suit against defendants.

¶2 Plaintiff Kirk Hild, as administrator of Dean Hild’s estate, appeals the dismissal of Dean

Hild’s complaint against defendants Lakeshore Infectious Disease Associates, LTD., and James

Sullivan, M.D. Plaintiff alleged that defendants were negligent in treating his Cushing syndrome.

The issue on appeal is whether the trial court erred in dismissing the case as time-barred. For the

reasons below, we affirm. No. 1-23-0417

¶3 BACKGROUND

¶4 In 1988, Dean Hild was diagnosed as HIV-positive. As part of his treatment for his HIV

infection, Hild was prescribed Norvir. Nearly 30 years later, in October 2017, Hild visited Head

& Neck and Cosmetic Surgery Associates, Ltd., also known as Chicago ENT. Chicago ENT

required Hild to fill out several documents, including a form asking about current medications.

Hild left this section blank but provided an after-visit summary that listed his current medications.

Dr. Adam Levy, an otolaryngologist with Chicago ENT, prescribed Hild fluticasone, a

corticosteroid nasal spray used to treat asthma and allergy symptoms. Three weeks later, in early

November, Hild was seen by another physician at Chicago ENT, Dr. Payal Patel. Dr. Patel

prescribed Breo Ellipta, another fluticasone aerosol powder inhalation medication, in addition to

the fluticasone that Hild was already taking. Fluticasone, when taken with Norvir, is known to

cause Exogenous Cushing syndrome.

¶5 At the same time, Hild was being seen by defendants Lakeshore Infectious Disease

Associates Ltd. and Dr. James Sullivan. As early as November or December 2017, Dr. Sullivan

was aware that Hild was taking both Breo Ellipta and Norvir. Then, on May 1, 2018, Hild presented

to Dr. Sullivan with “Cushingoid face,” a symptom of Cushing syndrome. In June of 2018, Hild

stopped taking the inhalants he had been prescribed by Chicago ENT. From May until December

of that year, Dr. Sullivan treated Hild’s adverse reaction to the drugs by monitoring his cortisol

levels until they returned to normal.

¶6 On July 12, 2022, Hild brought suit against defendants, alleging that they provided him

with negligent treatment. The circuit court dismissed the claims as untimely. See 735 ILCS 5/2-

619(a)(5) (West 2022). On November 16, 2022, Hild died and his brother Kirk Hild was appointed

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as special administrator of his estate and became the plaintiff in this case. This timely appeal

followed. Ill. S. Ct. R. 303(a) (eff. July 1, 2017).

¶7 ANALYSIS

¶8 Plaintiff argues that the trial court erred in dismissing the complaint as time-barred because

Dr. Sullivan continued to see plaintiff until December of 2018. Plaintiff contends that this means

that there is an open factual question regarding when the statute of repose began to run. See Jones

v. Dettro, 308 Ill. App. 3d 494, 498 (1999) (“Generally, the questions of the timeliness of plaintiffs’

complaint *** are questions of fact, but they may become questions of law if the crucial facts are

undisputed and only one conclusion can be drawn from the undisputed facts.”). The trial court’s

dismissal of a suit as untimely is reviewed de novo. Sauer v. Chicago Transit Authority, 2023 IL

App (1st) 220791, ¶ 17.

¶9 The Code of Civil Procedure requires litigants to bring malpractice actions against

physicians within “4 years after the date on which occurred the act or omission ***” giving rise to

the suit. 735 ILCS 5/13-212(a) (West 2022). This statute of repose bars suits even if a plaintiff has

not yet discovered that he has been injured. Kollross v. Goldstein, 2021 IL App (1st) 200008, ¶27.

However, a plaintiff may pursue a cause of action even if the suit comes more than four years after

the inciting negligent act “if she can demonstrate that there was an ongoing course of continuous

negligent medical treatment.” (Emphasis in original.) Cunningham v. Huffman, 154 Ill. 2d 398,

416 (1993). This requires a plaintiff to demonstrate; “(1) that there was a continuous and unbroken

course of negligent treatment, and (2) that the treatment was so related as to constitute one

continuing wrong.” (Emphasis in original.) Id. Plaintiff cannot do so here.

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¶ 10 Plaintiff’s complaint alleges four acts or omissions giving rise to liability in this case: the

defendants (i) “[f]ailed to test Mr. Hild’s Cortisol levels, in a timely manner,” (ii) “[f]ailed to test

Mr. Hild’s ACTH levels, in a timely manner,” (iii) “[f]ailed to direct Mr. Hild to stop taking Breo

Ellipta, in a timely manner,” and (iv) “[f]ailed to direct Mr. Hild to take an alternative medication

other than Breo Ellipta, when one was available, Beclomethasone, in a timely manner.” However,

plaintiff’s complaint failed to allege that any of these acts or omissions occurred on or after July

12, 2018. Instead, at best, the complaint alleges that defendants acted negligently from November

or December 2017 until June 2018, when plaintiff stopped taking Breo Ellipta. The fact that

plaintiff stopped taking the medication of his own volition does not affect the statute of repose

analysis because, from June 2018 on, the complaint alleges no negligent act or omission by

defendants.

¶ 11 Additionally, while it may have been negligent for defendants to fail to monitor plaintiff’s

cortisol and ACTH levels, once defendants started monitoring these levels in May of 2018, their

treatment was no longer negligent. And a physician’s nonnegligent treatment of an injured patient

after providing negligent treatment does not toll the statute of repose. Cunningham, 154 Ill. 2d at

407 (“We also emphasize that there must be a continuous course of negligent treatment as opposed

to a mere continuous course of treatment.” (Emphasis in original.)); see also Kollross, 2021 IL

App (1st) 200008, ¶ 31 (“the statute of repose[] *** begins to run from the date of the last negligent

act or omission, regardless of future nonnegligent care or when the patient becomes aware of the

negligence.” (Emphasis in original.)). Therefore, the statute of repose began to run in May 2018,

and plaintiff’s July 2022 complaint is beyond the four-year repose period. Accordingly, the trial

court did not err in dismissing the complaint as time-barred.

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¶ 12 CONCLUSION

¶ 13 The judgment of the circuit court of Cook County is affirmed.

¶ 14 Affirmed.

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