Nair v. Bloom

890 N.E.2d 1113, 383 Ill. App. 3d 867
CourtAppellate Court of Illinois
DecidedJune 23, 2008
Docket1-06-2448
StatusPublished
Cited by7 cases

This text of 890 N.E.2d 1113 (Nair v. Bloom) 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
Nair v. Bloom, 890 N.E.2d 1113, 383 Ill. App. 3d 867 (Ill. Ct. App. 2008).

Opinion

JUSTICE WOLFSON

delivered the opinion of the court:

The outcome of this case turns on when plaintiffs knew or should have known their injury was wrongfully caused.

Plaintiffs Josetta Nair and Segran Nair filed a complaint for medical malpractice and loss of consortium against defendants Allen Bloom, M.D., Melvin Boule, M.D., and Rush-Copley Memorial Hospital (Rush-Copley) and The Rush System for Health (Rush). The trial court entered summary judgment for defendants, concluding the complaint was filed after the two-year statute of limitations had run. We affirm.

FACTS

According to plaintiffs’ second amended complaint, on September 2, 1998, Josetta Nair went to the Rush-Copley emergency room complaining of abdominal pain. Dr. Alan Bloom examined her and performed a surgical consultation. Dr. Melvin Boule, a radiologist, read her CT scan and ultrasound as normal. Josetta was discharged from the hospital. Josetta returned to the emergency room the next day with complaints of abdominal pain. She was given a shot for pain management and sent home. On September 4, 1998, she arrived at Rush-Copley with complaints of severe abdominal pain and vomiting. She was admitted to the hospital.

On September 5, 1998, Dr. Bloom performed exploratory surgery and removed an “adhesive band” of tissue blocking the bowel. He diagnosed Josetta with a small bowel obstruction. She remained in the hospital for the next 10 days.

On September 15, 1998, Dr. Bloom performed a second surgery. Following the second surgery, Josetta was transferred to Rush-Presbyterian Hospital under the care of Dr. Alexander Doolas. On September 16, 1998, Dr. Doolas performed a third surgery on Josetta. Several days after surgery, Josetta attempted to walk and discovered her legs would not support her weight. She was told by her physicians this was a common side effect of her abdominal surgeries.

In late September 1998, she was transferred to a rehabilitation center where she remained a patient until December 1998. She continued to receive therapy and improved from a wheelchair, to a walker, to a cane. Josetta says she questioned her doctors as to the cause of her continuing abdominal pain and leg weakness. None of the doctors could answer her questions.

In March 1999, the plaintiffs spoke with Dr. Doolas. Segran Nair told Dr. Doolas he was considering using “legal resources” to find out what was wrong with his wife’s legs. Dr. Doolas said he spoke on the telephone with Josetta, who asked him if he would be affected if the Nairs went to a lawyer. Dr. Doolas noted Segran believed Dr. Bloom was responsible for the condition of Josetta’s legs. Dr. Doolas advised Josetta to get a neurologist’s opinion. He told her he did not believe Dr. Bloom caused the neuropathy. In a letter to Dr. Bloom, dated March 18, 1999, Dr. Doolas said Josetta had “bilateral weakness of both her lower legs which is due to some neurologic defect that neurology has not defined yet.” He said he explained to the Nairs that “this was not related to her previous surgery.”

In the spring of 1999, the Nairs consulted with attorney Paul McMahon. Segran Nair testified their purpose was to find out what was wrong with Josetta’s legs. The record contains a letter, dated November 22, 1999, from McMahon to Rush-Copley, indicating he represented Josetta Nair in a cause of action for injuries and requesting a set of complete medical records. Also in the record is an authorization for the release of medical records bearing Josetta Nair’s signature. Segran Nair testified McMahon told him they did not have a case.

In the spring of 2000, the Nairs consulted with another attorney, Kathleen Zelner. They signed a retention agreement with Zelner. Zelner sent the Nairs a letter and a reviewing physician’s report three to six months afterward. The Nairs had no further communication with Zelner. The letter and report are not in the record.

In August 2001, Dr. Patricia Boatwright performed surgeiy on Josetta to remove ovarian cysts. Dr. Boatwright’s discharge summary indicated “the patient has a past medical history significant for multiple abdominal surgeries, secondary to a questionable mesenteric vein thrombosis following a surgery for lysis of adhesions,” and “the patient had also sustained some nerve damage from her previous surgeries, which resulted in bilateral lower extremity paresthesias and neuropathies.” Josetta says it was not until August 17, 2001, when she read Dr. Boatwright’s discharge summary, that she first knew the injuries to her legs and abdominal area were wrongfully caused by the defendants.

On August 29, 2002, plaintiffs filed their complaint against the defendants. On November 13, 2002, plaintiffs submitted two physician’s reports concluding Dr. Bloom and Dr. Boule breached the prevailing standard of care. On September 29, 2003, plaintiffs filed their second amended complaint. Defendants filed motions for summary judgment contending the complaint was untimely filed. The trial court entered summary judgment in favor of the defendants.

DECISION

Section 13 — 212 of the Code of Civil Procedure provides:

“(a) Except as provided in Section 13 — 215 of this Act, no 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.” 735 ILCS 5/13 — 212(a) (West 2004).

The statute of limitations begins to run “when a person knows or reasonably should know of his injury and also knows or reasonably should know that it was wrongfully caused.” Knox College v. Celotex Corp., 88 Ill. 2d 407, 415, 430 N.E.2d 976 (1981). “At that point the burden is upon the injured person to inquire further as to the existence of a cause of action.” Witherell v. Weimer, 85 Ill. 2d 146, 156, 421 N.E.2d 869 (1981). The term “wrongfully caused” is to be regarded as a general or generic term rather than a term of art. Knox College, 88 Ill. 2d at 416. The plaintiff need not have knowledge of a specific defendant’s negligent conduct or of the existence of a cause of action before triggering the statute. Knox College, 88 Ill. 2d at 415, citing Nolan v. Johns-Manville Asbestos, 85 Ill. 2d 161, 170-71, 421 N.E.2d 864 (1981).

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Bluebook (online)
890 N.E.2d 1113, 383 Ill. App. 3d 867, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nair-v-bloom-illappct-2008.