McCormick v. Uppuluri

621 N.E.2d 57, 250 Ill. App. 3d 386, 190 Ill. Dec. 188
CourtAppellate Court of Illinois
DecidedJuly 12, 1993
Docket1-92-1489
StatusPublished
Cited by21 cases

This text of 621 N.E.2d 57 (McCormick v. Uppuluri) 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
McCormick v. Uppuluri, 621 N.E.2d 57, 250 Ill. App. 3d 386, 190 Ill. Dec. 188 (Ill. Ct. App. 1993).

Opinion

JUSTICE O’CONNOR

delivered the opinion of the court:

Plaintiff James McCormick appeals from a final order of the circuit court of Cook County which granted defendant V.S. Uppuluri’s motion for summary judgment. The sole issue on appeal is whether the circuit court properly found that plaintiff’s suit was untimely as a matter of law under the two-year medical malpractice limitation provision of the Illinois Code of Civil Procedure (the Code) (see Ill. Rev. Stat. 1989, ch. 110, par. 13 — 212). We affirm.

On September 20, 1988, plaintiff filed the instant action against defendant. Plaintiff alleged negligence in defendant’s treatment of a kidney obstruction during plaintiff’s September 30 through October 13, 1984, admittance at Ingalls Memorial Hospital (Ingalls). Plaintiff alleged that defendant’s negligence proximately caused his right kidney to become nonfunctional, which plaintiff had removed in March 1985.

Defendant denied the material allegations of plaintiff’s complaint and asserted section 13 — 212 of the Code as an affirmative defense. Defendant subsequently moved for summary judgment based on this section of the Code. Defendant predicated his motion on the fact that plaintiff had filed on August 1, 1985, a similar medical malpractice action against Northwestern Memorial Hospital; nine doctors who practiced there; Ingalls; and Drs. Shaw and Lipschutz, who treated plaintiff while at Ingalls. Defendant was not named in this prior suit.

Like plaintiff’s 1988 lawsuit, the 1985 action against Ingalls and Drs. Shaw and Lipschutz was predicated on plaintiff’s September 30 through October 13, 1984, stay at Ingalls. Both actions alleged negligence and the loss of the same right kidney. Plaintiff voluntarily dismissed the 1985 action on May 14, 1987. It has not been refiled.

Defendant argued in his motion that plaintiff, at the latest, knew of his injury and that it was wrongfully caused on August 1, 1985, the date he filed the earlier lawsuit. Accordingly, plaintiff had two years from this date in which to sue defendant. Having not so instituted suit, plaintiff’s 1988 action against defendant was time barred as a matter of law.

Defendant in his motion made the additional argument that the limitations clock began ticking against plaintiff even before he filed the 1985 action. Defendant asserted that shortly after having lost his kidney in March 1985, plaintiff knew or should have known that this loss was wrongfully caused. In his deposition, plaintiff testified that, following the loss of his kidney, he believed that something had gone wrong with his treatment at Ingalls. Plaintiff testified that he made inquiries about this prior treatment to the doctor who removed his kidney. In the summer of 1985, plaintiff even consulted with an attorney and received his medical records from Ingalls. Defendant’s name was included in these records. Plaintiff thereafter filed the 1985 action. Based on these facts, defendant asserted that the limitations clock began ticking on the date plaintiff’s kidney was removed or shortly thereafter.

In his memorandum in opposition to defendant’s motion for summary judgment, plaintiff asserted that a genuine issue of material fact existed on the issue of when he first learned, for limitation purposes, the fact that he had a cause of action against defendant. Plaintiff related the following facts in support of his claim.

In 1975, plaintiff became a quadriplegic and lost control of his bladder as a result of an automobile accident. Plaintiff is required to use a catheter at all times.

Following the accident, plaintiff received ongoing care at Northwestern Memorial Hospital. Plaintiff would submit a urine sample every six months. In 1981 and 1983, he was hospitalized at Northwestern to have bladder stones crushed. In December 1983, plaintiff was admitted a third time to Northwestern to have right kidney stones removed. Plaintiff testified that his kidneys functioned properly after his release. He was feeling pretty good.

On September 30, 1984, plaintiff was rushed to Ingalls and admitted there. A diagnosis of septic shock was made. He was released October 13,1984.

On February 14, 1985, plaintiff was admitted to University of Chicago Hospitals, where it was determined that his right kidney was nonfunctioning. The kidney was removed during this hospitalization. In his deposition, plaintiff testified that his treating physician told him, in response to plaintiff’s inquiry as to why he lost his kidney, that the kidney loss was from “a calcium build-up and these things occur.” Plaintiff still believed, however, that something perhaps had gone wrong at Ingalls which he did not know about. Plaintiff thereafter filed the earlier suit on August 2, 1985.

Plaintiff was represented by at least two different attorneys in the 1985 lawsuit: Michael McArdle and Thomas Trinley. In November 1985, McArdle wrote plaintiff, informing him that he would have to withdraw. McArdle explained in this letter that, in his opinion, “there was no clear evidence of malpractice involved in the handling of Mr. McCormick’s case, including acts or omissions at In-galls Memorial Hospital by agents of that hospital or by staff physicians.”

On February 16, 1987, Trinley filed his appearance in the 1985 lawsuit. Trinley thereafter filed a motion for a continuance or in the alternative a motion for voluntary dismissal. In this motion, Trinley explained that he was awaiting an expert medical evaluation of plaintiff’s case. On May 14, 1987, the 1985 lawsuit was voluntarily dismissed without prejudice.

On June 26, 1987, Dr. Michael Floyd opined in a written opinion that defendant “departed from good and accepted practice by failing to deal with the obstruction of [plaintiff’s] right kidney or make specific and urgent plans to do so.” Trinley attached this opinion to the September 20, 1988, lawsuit he filed on plaintiff’s behalf against defendant. In an affidavit, plaintiff asserted that “[t]his was the first time that he came into possession of the knowledge that his injuries had been wrongfully caused by the aforesaid defendant.”

Based on the facts stated above, plaintiff asserted that he did not discover the existence of an action against defendant until he received the June 26, 1987, opinion of Dr. Floyd. Thus, asserts plaintiff, he had two years from this date to file his action against defendant. Plaintiff contends that the September 20, 1988, lawsuit complied with this time requirement, as well as section 13 — 212’s requirement that his action be instituted within four years of the occurrence (plaintiff was discharged from Ingalls on October 13, 1984).

Defendant filed a reply to plaintiff’s memorandum in opposition. In this reply, defendant attached as an exhibit McArdle’s January 16, 1986, motion to withdraw from the 1985 lawsuit. In this motion, McArdle asserted that “[p]laintiff has a viable cause of action against the within named defendants and this matter should be continued to afford him an opportunity to prepare his case by appropriate representation.” Defendant argued that this statement to the court directly contradicted McArdle’s affidavit in which McArdle asserts he told plaintiff in November 1985 that “there was no clear evidence of malpractice.”

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Cite This Page — Counsel Stack

Bluebook (online)
621 N.E.2d 57, 250 Ill. App. 3d 386, 190 Ill. Dec. 188, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mccormick-v-uppuluri-illappct-1993.