Kanne v. Bulkley Modification of June 30, 1999

715 N.E.2d 784, 306 Ill. App. 3d 1036
CourtAppellate Court of Illinois
DecidedAugust 6, 1999
Docket1-98-0597
StatusPublished
Cited by8 cases

This text of 715 N.E.2d 784 (Kanne v. Bulkley Modification of June 30, 1999) 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
Kanne v. Bulkley Modification of June 30, 1999, 715 N.E.2d 784, 306 Ill. App. 3d 1036 (Ill. Ct. App. 1999).

Opinion

JUSTICE BUCKLEY

delivered the opinion of the court:

Plaintiff, Jeffrey Kanne, filed this action against three physicians, including defendant, Dr. Edward Winslow, alleging negligence in failing to diagnose prostate cancer. Defendant moved for summary judgment pursuant to section 2 — 1005(c) of the Illinois Code of Civil Procedure (the Code) (735 ILCS 5/2 — 1005(c) (West 1996)), stating that plaintiff filed his lawsuit after both the applicable statute of limitations and statute of repose expired (735 ILCS 5/13 — 212(a) (West 1996)). The circuit court of Cook County granted defendant’s motion for summary judgment on December 9, 1997, and this timely appeal followed. On appeal, plaintiff maintains that: (1) he brought this action before the statute of repose expired; and (2) if the limitations period started running before the plaintiff was aware of his claim, the statute violated his state and federal constitutional rights. For the reasons set forth below, we affirm the decision of the circuit court.

FACTS

The pleadings, affidavits and depositions reveal the following facts relevant to this appeal: Plaintiff began seeing defendant in January of 1989 and continued to receive medical treatment from defendant until June of 1992. Plaintiff stated that when he became dissatisfied with defendant in 1992, he went to see another physician for treatment. In July of 1992, plaintiffs new physician determined that he had prostate cancer, and, as a result, plaintiff underwent a radical prostatectomy on August 27, 1992. Plaintiffs dissatisfaction with the care he received from defendant led him to retain legal counsel, who requested plaintiffs medical records from defendant in October of 1993.

After his prostatectomy, plaintiff remained cancer free until 1996, when his prostate specific antigen (PSA) tests indicated that the cancer might recur. On August 26, 1996, plaintiff filed a three-count complaint against defendant and two other physicians, claiming negligent treatment. Specifically, in count III, plaintiff alleged that defendant was negligent in one or more of the following respects:

“(a) Failed to adequately treat and care for Kanne;
(b) Failed to diagnose the existence of prostate cancer in Kanne;
(c) Failed to undertake adequate examination of Kanne’s prostate gland;
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(e) Failed to order a PSA test for Kanne;
(f) Failed to order ultrasound or other diagnostic techniques regarding the condition of Kanne’s prostate; and
(g) Failed to advised Kanne of a need to have regular prostate examinations.”

On December 3, 1996, plaintiff voluntarily dismissed his claims against the two other physicians. Defendant then answered the complaint and moved for summary judgment pursuant to section 2 — 1005(c) of the Code (735 ILCS 5/2 — 1005(c) (West 1996)). Defendant’s motion argued that plaintiffs claim was time-barred by both the two-year statute of limitations and the four-year statute of repose for medical malpractice actions (735 ILCS 5/13 — 212(a) (West 1996)), because defendant last treated plaintiff in June 1992 and plaintiff did not file his complaint until August 1996. The circuit court granted defendant’s motion for summary judgment and subsequently denied plaintiffs motion for reconsideration.

I. STANDARD OF REVIEW

Summary judgment is appropriate where the pleadings, affidavits, depositions, admissions and exhibits in the record, when viewed in the light most favorable to the nonmovant, reveal that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. 735 ILCS 5/2 — 1005(c) (West 1996); Busch v. Graphic Color Corp., 169 Ill. 2d 325, 333 (1996). We review the circuit court’s decision granting defendant’s motion for summary judgment de novo. Best v. Taylor Machine Works, 179 Ill. 2d 367, 389 (1997).

II. SECTION 13 — 212(a)

Plaintiff first contends that the circuit court erred in granting defendant’s motion for summary judgment, because the four-year statute of limitations for medical malpractice actions does not start running until an injury is manifested in the plaintiff. We disagree with this contention.

Section 13 — 212(a) of the Code provides as follows:

“[N]o 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.” (Emphasis added.) 735 ILCS 5/13 — 212(a) (West 1996).

When interpreting a statute, the court’s only role is to ascertain and give effect to the true intent and meaning of the legislature. Cunningham v. Huffman, 154 Ill. 2d 398, 405 (1993), citing People ex rel. Hanrahan v. White, 52 Ill. 2d 70, 73 (1972). To determine the legislative intent, we first consider the statutory language. Cunningham, 154 Ill. 2d at 405. Section 13—212(a) is bifurcated, providing both a statute of limitations and a statute of repose. Turner v. Nama, 294 Ill. App. 3d 19, 24 (1997). The limitations period incorporates the “discovery rule” and clearly provides that a plaintiff has two years to bring an action from the date he/she knows or should know of the injury at issue. 735 ILCS 5/13—212(a) (West 1996); Turner, 294 Ill. App. 3d at 24.

The second part of the statute, the period of repose, places a legislatively mandated limit on when a lawsuit may be filed after the occurrence alleged to' have caused the injury. 735 ILCS 5/13 — 212(a) (West 1996); Turner, 294 Ill. App. 3d at 25. The repose period starts to run on the last date of negligent treatment (Cunningham, 154 Ill. 2d at 405) and “is intended to terminate the possibility of liability after a defined period of time, regardless of a potential plaintiffs lack of knowledge of his cause of action.” (Emphasis added.) Mega v. Holy Cross Hospital, 111 Ill. 2d 416, 422 (1986).

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Bluebook (online)
715 N.E.2d 784, 306 Ill. App. 3d 1036, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kanne-v-bulkley-modification-of-june-30-1999-illappct-1999.