NOTICE 2026 IL App (5th) 241177-U NOTICE Decision filed 04/23/26. The This order was filed under text of this decision may be NO. 5-24-1177 Supreme Court Rule 23 and is changed or corrected prior to the filing of a Petition for not precedent except in the
Rehearing or the disposition of IN THE limited circumstances allowed the same. under Rule 23(e)(1). APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT ______________________________________________________________________________
HEATHER L. ROBERTS and CHAT ROBERTS, ) Appeal from the ) Circuit Court of Plaintiffs-Appellants, ) Madison County. ) v. ) No. 22-LA-1242 ) DR. RICHARD NICOL, INFINITY-MEDS, LLP, and ) PANDURANGA KINI, M.D., Defendants, ) Honorable ) Christopher P. Threlkeld, (Panduranga Kini, M.D., Defendant-Appellee). ) Judge, presiding. ______________________________________________________________________________
PRESIDING JUSTICE CATES delivered the judgment of the court. Justices Vaughan and Sholar concurred in the judgment.
ORDER
¶1 Held: The trial court did not err in entering summary judgment for defendant-appellee where the plaintiffs’ claims against him were barred by the statute of limitations.
¶2 The plaintiffs, Heather L. Roberts and Chat Roberts, appeal from the trial court’s order
granting summary judgment in favor of the defendant, Panduranga Kini, M.D. On appeal, the
plaintiffs contend that the trial court misapplied the discovery rule and the statute of limitations in
finding their cause of action against Dr. Kini was time barred and that there is a question of fact
as to when their cause of action against Dr. Kini accrued. We affirm.
¶3 I. BACKGROUND
¶4 The pertinent background facts are taken from the pleadings, deposition excerpts, and
exhibits in the record on appeal. On July 21, 2017, at approximately 12:21 p.m., Heather Roberts 1 went to the emergency department at St. Joseph’s Hospital in Highland, Illinois, with complaints
of numbness, weakness, and tingling on the left side of her body. She reported that she had received
a chiropractic adjustment at 11:30 that morning and that her symptoms began about 15 minutes
later. She denied headaches, visual changes, chest pain, shortness of breath, or difficulties with
speech or walking.
¶5 Heather was evaluated by a Dr. Richard Nicol, a physician who worked in the emergency
department at St. Joseph’s Hospital. Dr. Nicol conducted a physical examination and then began a
stroke workup, including CT scans of the cervical spine and the brain. When Dr. Nicol received
the results of Heather’s CT scans, he called Dr. Kini to consult about Heather’s condition. At that
time, Dr. Kini was neurologist on staff at St. Elizabeth’s Hospital. Pursuant to an agreement with
St. Elizabeth’s, he also acted as an “on call” neurology consultant for emergency department
physicians at four “sister” hospitals, including St. Joseph’s Hospital. Dr. Kini was not on staff at
St. Joseph’s Hospital, and he did not have admitting privileges there. Consequently, he could not
order medical tests or manage treatment for patients receiving care at St. Joseph’s Hospital.
¶6 During the initial telephone consultation, Dr. Nicol informed Dr. Kini about Heather’s
history of left-sided numbness, weakness, and tingling following a chiropractic manipulation of
the cervical spine. Dr. Nicol also related his findings from Heather’s physical examination along
with the results of the CT scans. After considering the information, Dr. Kini recommended that
Dr. Nicol obtain an MRI of Heather’s brain. Due to the requirements in Heather’s health insurance
plan, Dr. Nicol asked Heather’s acute care nurse practitioner, Dori Duckworth, to obtain prior
authorization for the MRI. After Duckworth’s staff determined that prior authorization was not
required, Duckworth ordered a “stat” MRI scan. The emergency department records indicate the
MRI was ordered at 3:16 p.m., “per recommendation of Neurologist at Belleville after evaluation
2 of head CT trying to rule out a stroke.” When Dr. Nicol received the MRI report, he notified Dr.
Kini of the results. He also informed Dr. Kini that Heather’s condition had improved. Dr. Kini
suggested that the patient could be discharged with instructions to call him the next morning for
an appointment and to take aspirin daily.
¶7 According to the emergency department records, Heather was discharged in stable
condition at 5:04 p.m. on July 21, 2017. She received several pages of general instructions and the
following additional instructions: “Take ASA 81 mg daily[.] Follow up Dr. Kini, [c]all him in a.m.
for appointment[.] Return as needed.” Upon discharge, Heather and her husband, Chat Roberts,
received verbal and written instructions to follow up with Dr. Kini and to call him for an
appointment the next morning.
¶8 Heather awoke at approximately 9:30 a.m. the next day complaining of a headache. Chat
noticed that Heather was not steady as she walked to the bathroom. She was able to speak to him,
but it was like she misplaced some of her words. Chat called 911. At Chat’s request, Heather was
transported by ambulance to Barnes Jewish Hospital in St. Louis, Missouri. Heather was evaluated
in the emergency department and admitted to the intensive care unit. A CT scan and CT
angiography of Heather’s head showed a complete thrombotic occlusion of the mid-basilar artery.
Heather underwent an aspiration thrombectomy and stenting of the cervical left vertebral artery.
She was discharged on August 2, 2017. She required additional medical care and treatment after
discharge.
¶9 On September 18, 2018, the plaintiffs filed a medical negligence action against Dr. Nicol
in the circuit court of Madison County. Count I was filed on behalf of Heather and alleged that Dr.
Nicol deviated from the standard of care in that he failed to timely and appropriately evaluate,
treat, and monitor Heather’s neurological condition, failed to timely order appropriate tests and
3 studies to assess Heather’s neurological condition, and failed to take timely and appropriate action
in response to Heather’s neurological condition. It was further alleged that as a direct and
proximate result of one or more of Dr. Nicol’s negligent acts or omissions, Heather’s condition
went undiagnosed and untreated for a substantial period of time resulting in severe and permanent
injuries. Count II was a derivative loss of consortium claim filed on behalf of Chat Roberts.
¶ 10 An affidavit by plaintiffs’ counsel dated September 18, 2018, and a report by a reviewing
physician were appended to the complaint pursuant to section 2-622(a) of the Code of Civil
Procedure (Code) (735 ILCS 5/2-622(a) (West 2016)). In the report, the reviewing physician stated
that based upon a review and consideration of the pertinent medical documents concerning the
care and treatment of Heather Roberts on July 21, 2017, there was a reasonable and meritorious
basis for an action against Dr. Nicol. The reviewing physician opined that Dr. Nicol deviated from
the acceptable standards of medical practice in that he failed to “include and/or document
consideration for vertebral artery dissection/thrombosis or basilar artery thrombosis.” The
reviewing physician noted there was “no documentation that Dr. Nicol ordered a CT angiogram to
rule out vascular insufficiency of the cerebral posterior circulation” and concluded that the failure
to do so caused in a delay in diagnosis and treatment which resulted in a “worsening of Heather
Roberts[’] cerebral vasculopathy with a left thalamic stroke and bilateral pons infarction on July
22, 2017.”
¶ 11 On May 26, 2020, the plaintiffs filed a second amended complaint. Counts I and II of the
second amended complaint were brought against Dr. Nicol and contained the same allegations of
negligence as in the original complaint. Counts III and IV were directed against Infinity Meds LLP
and alleged that it was liable for the negligence of Dr. Nicol under a theory of agency or apparent
4 agency. 1 Counts V and VI were directed against Dr. Kini. In count V, Heather alleged that Dr.
Kini was a neurologist who consulted with Dr. Nicols about Heather’s condition during her
emergency department visit on July 21, 2017. Heather further alleged that Dr. Kini deviated from
the applicable standard of care in that he failed to timely and appropriately evaluate, treat, and
monitor Heather’s neurological condition; failed to timely order appropriate tests and studies to
assess Heather’s neurological condition; and failed to take timely and appropriate action in
response to Heather’s neurological condition. As a direct and proximate result of one or more of
Dr. Kini’s negligent acts or omissions, Heather’s condition went undiagnosed and untreated for a
substantial period of time resulting in severe and permanent injuries. Heather also alleged that she
did not know or have reason to know of Dr. Kini’s involvement in her medical care until she
received Dr. Nicol’s answers to plaintiffs’ interrogatories in which Dr. Nicol provided details of
the July 21, 2017, consultation with Dr. Kini. Count VI contained a loss of consortium claim by
Chat Roberts.
¶ 12 The plaintiffs attached a written report, dated March 27, 2020, by a board-certified
neurologist and vascular neurologist to the second amended complaint. In the report, the reviewing
neurologist indicated that he reviewed Heather’s medical records from St. Joseph’s Hospital along
with Dr. Nicol’s interrogatory answers and determined there was a reasonable and meritorious
basis for an action against Dr. Kini. The reviewing neurologist opined that Dr. Kini was the
neurologist who was consulted about appropriate treatment for Heather on July 21, 2017, and that
Dr. Kini deviated from the acceptable standards of medical practice in that he failed to
appropriately consider “the most common neurovascular complication of chiropracty, vertebral
1 We glean from the record that Infinity-Meds LLP was added as a defendant in a prior amendment to the plaintiffs’ complaint. However, that amended complaint is not included in the record on appeal. Infinity-Meds LLP was subsequently dismissed from the lawsuit and took no part in this appeal. 5 artery dissection,” and thus he did not recommend an urgent CT angiography to screen for that
diagnosis or a transfer of the patient to an appropriate stroke center. The reviewing neurologist
concluded that Dr. Kini’s negligence “resulted in a critical delay in the diagnosis and treatment of
her subsequent stroke in the left thalamus and bilateral pons on July 22, 2017.”
¶ 13 On September 29, 2021, the trial court granted the plaintiffs’ motion for voluntary
dismissal of their complaint, without prejudice and with leave to refile, over the objections of the
defendants. On October 14, 2021, the plaintiff filed a new complaint against the same defendants
in the circuit court of St. Clair County. The allegations of negligence in the new complaint were
more specific than the allegations in the Madison County action. Count I (medical negligence) and
count II (loss of consortium) were directed against Dr. Nicol. The plaintiffs alleged that Dr. Nicol
was negligent and deviated from the applicable standard of care in that he failed to consider the
neurovascular condition of vertebral artery dissection/thrombosis, failed to recommend or order
the appropriate diagnostic testing to adequately screen for the diagnosis of vertebral artery
dissection/thrombosis, and failed to recommend that Heather be transferred to an appropriate
stroke center.
¶ 14 Count V (medical negligence) and VI (loss of consortium) were directed against Dr. Kini.
In those counts, the plaintiffs alleged that Dr. Kini was a neurologist who consulted with Dr. Nicol
about Heather’s condition during her emergency department visit on July 21, 2017. They further
alleged that Dr. Kini was negligent and deviated from the applicable standard of care in that he
failed to consider the neurovascular condition of vertebral artery dissection/thrombosis, failed to
recommend or order the appropriate diagnostic testing to adequately screen for the diagnosis of
vertebral artery dissection/thrombosis, and failed to recommend that Heather be transferred to an
appropriate stroke center. In addition, the plaintiffs asserted that they did not know or have reason
6 to know of the nature and extent of Dr. Kini’s involvement in Heather’s medical care and treatment
or that they may have a cause of action against him until August 16, 2019, when Dr. Nicol provided
interrogatory answers delineating Dr. Kini’s role. Affidavits of merit by plaintiffs’ counsel along
with the respective reports of the reviewing physicians were attached to the complaint filed in St.
Clair County. 2
¶ 15 In response, the defendants filed motions to transfer the case to Madison County under the
doctrine of intrastate forum non conveniens. On June 17, 2022, the St. Clair County circuit court
granted the defendants’ motions to transfer. Following denial of the plaintiffs’ petition for leave to
appeal, the case was transferred to the circuit court in Madison County for further proceedings.
¶ 16 On July 9, 2024, Dr. Kini filed a motion for summary judgment and a supporting
memorandum. Dr. Kini initially claimed he was entitled to summary judgment because the
plaintiffs’ claims against him were barred by the statute of limitations. Citing section 13-212 of
the Code (735 ILCS 5/13-202 (West 2020)), Dr. Kini argued that the plaintiffs did not file their
cause of action against him within the two-year statute of limitations for medical negligence and
that they did not present any evidence to support their contention that they did not know about Dr.
Kini’s substantive involvement in Heather’s care until they received Dr. Nicol’s interrogatory
answers on August 16, 2019. Dr. Kini claimed that the plaintiffs had sufficient information on July
21, 2017, to conduct an inquiry to determine whether a cause of action existed against him. In
support, Dr. Kini pointed out that he was named as a consultant in the emergency department
records, that Chat Roberts was advised that Dr. Nicol was consulting with a specialist as part of
the stroke workup, and that Chat Roberts had requested and received a copy of Heather’s
2 We note that the physician’s report that was attached to the original complaint brought against Dr. Nicol in Madison County on September 18, 2018, was undated. The physician’s report attached in support of the cause of action against Dr. Nicol in the St. Clair County action is dated April 25, 2018, and is otherwise substantively identical to the report filed in Madison County. 7 emergency department records prior to her discharge on July 21, 2017, because he was concerned
that Heather’s condition had not been properly diagnosed. In addition, Dr. Kini noted that the
plaintiffs’ reviewing physician had examined the emergency department records and issued a
written report on April 25, 2018, indicating Heather’s injuries may have resulted from negligent
medical care she received on July 21, 2017. Dr. Kini concluded that the cause of action against
him was time barred because it was not filed until May 26, 2020, almost three years after the
incident and more than two years after receiving the report of the reviewing physician. Dr. Kini
also claimed that he was entitled to summary judgment because he had no physician-patient
relationship with Heather and therefore did not owe her a duty of care.
¶ 17 Dr. Kini offered portions of the St. Joseph’s Hospital emergency department records and
excerpts from the depositions of Dr. Nicol, Chat Roberts, and Heather Roberts in support of his
summary judgment motion. Dr. Nicol testified that he consulted with Dr. Kini about Heather’s
condition and her course of treatment on July 21, 2017. Dr. Nicol stated that he made a note of his
consultation with Dr. Kini in Heather’s medical record. He acknowledged that he did not document
the content of his consultations with Dr. Kini in the patient’s record. The emergency department
records contain a reference to Dr. Kini as “Consultant (Kini (Neuro)).” Dr. Nicol recalled that he
talked to Chat Roberts on July 21, 2017. Dr. Nicol advised Chat that Heather was being evaluated
for a stroke and that an MRI was recommended. Dr. Nicol indicated he would be conferring with
a specialist for further guidance and recommendations. Dr. Nicol also recalled that he instructed
Heather to follow up with Dr. Kini the next morning, and that this instruction was included in the
written discharge instructions provided to Heather.
¶ 18 Chat Roberts testified that he arrived at the emergency department at approximately 1 p.m.
on July 21, 2017. At that time, Chat learned that Heather was being evaluated for a stroke, that the
8 results of a CT scan were inconclusive, and that an MRI was needed. Chat spoke with Dr. Nicol
after the MRI was completed. Dr. Nicol indicated that he was consulting with a specialist regarding
the MRI results and the cause of Heather’s condition. Chat testified that he learned the specialist
was a neurologist sometime during the course of Heather’s treatment at St. Joseph’s Hospital or
Barnes Jewish Hospital. Chat could not recall anyone identifying the specialist by name, but he
acknowledged that Dr. Kini’s name was clearly referenced in the discharge instructions. Chat
testified that Dr. Nicol and another staff member reviewed the discharge instructions with Heather
and him. Dr. Nicol instructed them that Heather should follow up with the specialist the next day.
Before leaving the emergency department that evening, Chat requested a complete copy of
Heather’s medical records from the emergency department. At that time, Chat felt that Heather
had suffered a stroke, that the emergency department physician did not diagnose it, and that
something more should have been done. Heather testified that she remembered only bits and pieces
of the emergency room visit. She recognized Dr. Kini’s name from the medical records.
¶ 19 In addition, Dr. Kini offered excerpts from his discovery deposition, his responses to
plaintiffs’ interrogatories, and his affidavit as supporting exhibits. Therein, Dr. Kini stated that he
was on staff at St. Elizabeth’s Hospital in July 2017. At that time, he had an arrangement with St.
Elizabeth’s Hospital to take calls from physicians in the emergency departments of its sister
hospitals, including St. Joseph’s Hospital in Highland. Dr. Kini provided recommendations for
patients with neurological issues, and he received a daily fee from the hospital for this service. Dr.
Kini had no independent recollection of his consultation with Dr. Nicol on July 21, 2017. He did
not keep records of his consultations with emergency department physicians, and he did not have
a patient file on Heather. Dr. Kini testified that he never met or talked with Heather or her husband.
9 ¶ 20 On August 7, 2024, the plaintiffs filed a response to Dr. Kini’s motion for summary
judgment. The plaintiffs claimed that there was a genuine question of fact regarding when they
obtained sufficient information to put them on notice that Dr. Kini may have been a possible source
of their injuries. They asserted that Dr. Nicol did not document Dr. Kini’s involvement in Heather’s
medical record and that they only learned of the extent of Dr. Kini’s role through discovery
responses provided by Dr. Nicol in August 2019 and September 2019. Thus, they concluded that
their claims against Dr. Kini were timely filed on May 26, 2020. In addition, the plaintiffs
addressed Dr. Kini’s contention that he owed no duty to them. The plaintiffs argued that under
Illinois law, Dr. Kini’s active and substantive participation in Heather’s medical care and
management created a professional duty of care. Finally, the plaintiffs argued that if the trial court
found that their cause of action against Dr. Kini was time barred, then they should be granted leave
to amend their complaint to allege that Dr. Kini should be equitably estoppel from asserting a
limitations defense because his own conduct obscured the plaintiffs’ knowledge of his active
involvement in Heather’s care.
¶ 21 On August 14, 2024, the trial court entered an order granting Dr. Kini’s motion for
summary judgment. The court noted that the statute of limitations for medical negligence is two
years from the date the plaintiff knew or should have known of the injury and that it was likely
wrongfully caused, and that the discovery rule delays the start of the limitations period until the
plaintiff is aware of the injury and its likely cause. The court determined that the statute of
limitations in this case began to run no later than April 25, 2018, the date that the plaintiffs’
reviewing physician provided a written report stating that there was a reasonable and meritorious
basis for a medical negligence action. The court found that the written report provided an analysis
of Heather’s medical condition and informed the plaintiffs of Heather’s injury and its potential
10 wrongful cause. The court further found that Dr. Kini was named as the consulting neurologist in
the records and that the plaintiffs had sufficient information to recognize that Dr. Kini’s
involvement could have contributed to Heather’s injury. Given the circumstances and the
applicable case law, the court concluded that the plaintiffs had sufficient information to investigate
a potential action against Dr. Kini by April 25, 2018, and that the failure to file their action against
Dr. Kini within two years of that date rendered the action time barred. The court denied the
plaintiffs’ request to amend the complaint to plead equitable tolling. The court found that the
stringent requirements for equitable tolling were not satisfied because the plaintiffs had ample
opportunity and information to identify Dr. Kini’s involvement and to assert their claims against
him within the statutory period. This appeal followed.
¶ 22 II. ANALYSIS
¶ 23 On appeal, the plaintiffs contend that the trial court erred in granting summary judgment
in favor of Dr. Kini. The plaintiffs claim that the trial court misapplied the discovery rule and the
statute of limitations in finding that their cause of action against Dr. Kini accrued at the same time
as their cause of action against Dr. Nicol. They argue that there is a question of fact as to when
their cause of action against Dr. Kini accrued.
¶ 24 Summary judgment is appropriate if the pleadings, depositions, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue of material fact and that the
moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2022). In
deciding whether a genuine issue of material fact exists, a court must construe the pleadings,
depositions, admissions, and affidavits strictly against the moving party and liberally in favor of
the opponent. Adams v. Northern Illinois Gas Co., 211 Ill. 2d 32, 43 (2004). A triable issue exists
where the material facts are disputed or where the material facts are undisputed but reasonable
11 persons might draw different inferences from the uncontested facts. Adams, 211 Ill. 2d at 43. In
appeals from summary judgment rulings, our review is de novo. Adams, 211 Ill. 2d at 43.
¶ 25 Section 13-212 of the Code provides in pertinent part that “no action for damages for injury
or death against any physician, ***, 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.” 735 ILCS 5/13-212 (West 2022). Under this section, a cause of action accrues, and the
limitations period begins to run, when a person knows or reasonably should know of her injury
and that it was wrongfully caused. Clark v. Children’s Memorial Hospital, 2011 IL 108656, ¶ 121;
Witherell v. Weimer, 85 Ill. 2d 146, 156 (1981). At that point the burden is on the injured person
to inquire further as to the existence of a cause of action. Witherell, 85 Ill. 2d at 156.
¶ 26 The phrase “wrongfully caused” does not mean knowledge of a defendant’s negligent
conduct or knowledge of the existence of a cause of action. Knox College v. Celotex Corp., 88 Ill.
2d 407, 415-16 (1981); Nolan v. Johns-Manville Asbestos, 85 Ill. 2d 161, 170-71 (1981). The
statute of limitations begins to run when the aggrieved party becomes possessed of sufficient
information concerning the injury and its cause to put a reasonable person on inquiry to determine
whether actionable conduct is involved. Knox College, 88 Ill. 2d at 416. The question of when a
party knew or reasonably should have known of both the injury and that it was wrongfully caused
is generally one of fact. Witherell, 85 Ill. 2d at 156. However, the question may be determined by
the trial court as a matter of law when it is apparent from the undisputed facts that only one
conclusion can be drawn. Witherell, 85 Ill. 2d at 156.
¶ 27 In this case, an objective analysis of the evidence in the record demonstrates that the
plaintiffs had sufficient information about Heather’s injury and its cause as of April 25, 2018, to
12 apprise a reasonable person of the need to conduct further inquiry into possible negligence of the
specialist with whom Dr. Nicol consulted. According to the record, the plaintiffs’ reviewing
physician provided a written report, dated April 25, 2018, stating that he reviewed the emergency
department records regarding Heather’s care at St. Joseph’s Hospital on July 21, 2017, and found
there was a reasonable and meritorious basis for a medical negligence action against Dr. Nicol.
The reviewing physician opined Dr. Nicol deviated from the standard of care by failing to timely
evaluate Heather’s neurological condition. At that time, the plaintiffs knew that Dr. Nicol had
consulted a specialist for guidance and recommendations regarding Heather’s condition. Dr. Nicol
testified that he told Chat Roberts that he was consulting a specialist about Heather’s condition,
and Chat confirmed this testimony. An entry in the emergency department records documented
the primary care practitioner’s order for an MRI was “per recommendation of Neurologist at
Belleville after evaluation of head CT to rule out stroke.” A separate entry in the emergency
department record identified Dr. Kini as the consultant in neurology. The discharge summary and
written discharge instructions directed Heather to follow up with Dr. Kini. Dr. Nicol and another
staff member reviewed the discharge instructions with the plaintiffs. In addition, the plaintiffs
obtained a copy of Heather’s emergency department records at the time Heather was discharged
from the hospital on July 21, 2017. Chat testified that Dr. Kini’s name was clearly referred to in
the discharge instructions. Heather testified that she recognized Dr. Kini’s name from the medical
records. Thus, this is not a case where a second possible source of a plaintiff’s injury was
undiscoverable. The plaintiffs’ contention that they only learned of the extent of Dr. Kini’s role
through discovery responses provided by Dr. Nicol on August 16, 2019, is not supported by the
record.
13 ¶ 28 Based upon our review of the record, the trial court did not misapply the discovery rule and
the statute of limitations in determining that the plaintiffs’ cause of action against Dr. Kini accrued
no later than April 25, 2018. Because the plaintiffs’ cause of action against Dr. Kini was not filed
within two years of that date, it is time barred. Accordingly, the trial court did not err in granting
summary judgment in favor of Dr. Kini, and that judgment is affirmed.
¶ 29 Affirmed.