{ "id": 3437253, "name": "RAMONA PUMALA, Plaintiff-Appellant, v. STEPHEN SIPOS, M.D., Defendant-Appellee", "name_abbreviation": "Pumala v. Sipos", "decision_date": "1985-03-26", "docket_number": "No. 84\u2014239", "first_page": "845", "last_page": "848", "citations": [ { "type": "official", "cite": "131 Ill. App. 3d 845" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "366 N.E.2d 930", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "51 Ill. App. 3d 229", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3386522 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/51/0229-01" ] }, { "cite": "51 N.E.2d 598", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "320 Ill. App. 457", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 4980577 ], "opinion_index": 0, "case_paths": [ "/ill-app/320/0457-01" ] }, { "cite": "31 N.E.2d 776", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "375 Ill. 402", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2534921 ], "opinion_index": 0, "case_paths": [ "/ill/375/0402-01" ] }, { "cite": "454 N.E.2d 1089", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "118 Ill. App. 3d 268", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5660765 ], "pin_cites": [ { "page": "270" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/118/0268-01" ] }, { "cite": "342 N.E.2d 329", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "35 Ill. App. 3d 735", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5307181 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/35/0735-01" ] }, { "cite": "427 N.E.2d 1015", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "101 Ill. App. 3d 121", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3082469 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/101/0121-01" ] } ], "analysis": { "cardinality": 400, "char_count": 6025, "ocr_confidence": 0.762, "pagerank": { "raw": 6.679677357637079e-08, "percentile": 0.40649821669139785 }, "sha256": "e01d8e950be472957034d244d09fc83cf0362b0813195ebb355d38d178c593ff", "simhash": "1:2d12bc05a94a3cb8", "word_count": 989 }, "last_updated": "2023-07-14T21:36:35.805575+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "RAMONA PUMALA, Plaintiff-Appellant, v. STEPHEN SIPOS, M.D., Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE SCHNAKE\ndelivered the opinion of the court:\nThe plaintiff appeals from an order of the trial court denying her motion to reconsider an order granting the defendant\u2019s motion to dismiss. Defendant\u2019s motion raised the statute of limitations against plaintiff\u2019s amended complaint, which sounded in medical malpractice. The complaint named 11 defendants, but this appeal involves only the claim against Dr. Stephen Sipos.\nThe issue on appeal is this: Where a complaint designates a date when the alleged cause of action accrued, is dismissal proper where the defendant affirmatively raises a different date and supports this contention by affidavit, no counteraffidavit being filed, nor any motion otherwise attacking the motion to dismiss.\nThe plaintiff\u2019s complaint was filed on July 29, 1983, and her amended complaint alleged that between September 1973 and May 1981 she was a patient of Dr. Sipos and that as a result of his negligence (failure to diagnose) her leg had to be amputated because of cancer. There was a further allegation that plaintiff did not learn of her condition until August 1981. The complaint contains the standard and usual allegations found in a medical malpractice cause of action, and the separate allegations that defendant \u201cfailed to see plaintiff when she called requesting an appointment for the condition of her right leg when defendants knew that periodic examinations were necessary\u201d; and \u201cnegligently abandoned the plaintiff during the course of treatment ***.\u201d A separate count of the amended complaint asserts that the defendant is estopped from raising the statute of limitations as a bar to plaintiff\u2019s claim. This allegation is not germane to this appeal.\nThe applicable statute provides that:\n\u201cPhysician or hospital. 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 except as provided in Section 13 \u2014 215 of this Act.\u201d Ill. Rev. Stat. 1983, ch. 110, par. 13 \u2014 212.\nDefendant\u2019s motion to dismiss, laid under section 2 \u2014 619 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2\u2014 619) raised the limitations defense and filed in support thereof the defendant\u2019s affidavit, stating \u201che last had professional contact of any nature with the plaintiff *** on June 19, 1978.\u201d No counteraffidavit was filed by the plaintiff, nor any motion to strike the motion or affidavit of the defendant.\nWe are called upon to decide whether the motion procedure followed by defendant was proper.\nThe amended complaint alleges treatment of plaintiff by defendant up to May 1981. We hold that this constitutes a proper and sufficient designation of time and can be considered a well-pleaded fact. Only where a bar to the statute of limitations affirmatively appears from the face of the complaint may the issue be raised by a 2\u2014 619 motion. Conway v. Conners (1981), 101 Ill. App. 3d 121, 427 N.E.2d 1015.\nThe cases cited by defendant do not support his position. In Millsaps v. Bankers Life Co. (1976), 35 Ill. App. 3d 735, 342 N.E.2d 329, although a motion to dismiss and supporting affidavit were there filed, the limitations issue could there be determined by the court from consideration of the date on which an amended complaint was filed and from the factual allegations contained therein. No controverted issue of fact existed. And in Cundiff v. Unsicker (1983), 118 Ill. App. 3d 268, 270, 454 N.E.2d 1089, where a motion to dismiss had been granted by the trial court, the dismissal was reversed on appeal, the court saying: \u201cThe statute of limitations cannot be raised by a motion to dismiss unless it affirmatively appears from the complaint that the action is barred. (Burnett v. West Madison State Bank (1940), 375 Ill. 402, 31 N.E.2d 776.)\u201d\nAlthough the sufficiency of Dr. Sipos\u2019 affidavit was not challenged by motion, it appears doubtful that his affidavit sets forth with sufficient particularity the facts upon which the defense is based, nor does it avoid conclusions, and thus does not comply with Supreme Court Rule 191(a) (87 Ill. 2d R. 191(a)). Nevertheless, defendant urges us to hold that because plaintiff did not move to strike defendant\u2019s motion the impropriety of the procedure has been waived. (Keeran v. Wahl Co. (1943), 320 Ill. App. 457, 51 N.E.2d 598.) We do not so hold. While defendant\u2019s motion was not challenged by a motion to strike, the point was contested by way of argument in response to the motion.\nLastly, we would note that the case at bar, unlike Anguiano v. St. James Hospital (1977), 51 Ill. App. 3d 229, 366 N.E.2d 930, in no way involves a summary judgment motion. In that case, the limitations defense was successfully and properly presented upon a motion for summary judgment together with supporting affidavits and depositions. In short, defendant\u2019s use here of a 2 \u2014 619 motion to dismiss was improper, and the court below erred in granting it.\nThe order of the trial court dismissing plaintiff\u2019s complaint is reversed, and the cause is remanded for further appropriate proceedings.\nReversed and remanded.\nLINDBERG and UNVERZAGT, JJ., concur.", "type": "majority", "author": "JUSTICE SCHNAKE" } ], "attorneys": [ "Margaret A. McGuire, of Leonard M. Ring & Associates, of Chicago, for appellant.", "Robert Marc Chemers, of Pretzel & Stouffer, Chartered, of Chicago, for appellee." ], "corrections": "", "head_matter": "RAMONA PUMALA, Plaintiff-Appellant, v. STEPHEN SIPOS, M.D., Defendant-Appellee.\nSecond District\nNo. 84\u2014239\nOpinion filed March 26, 1985.\nMargaret A. McGuire, of Leonard M. Ring & Associates, of Chicago, for appellant.\nRobert Marc Chemers, of Pretzel & Stouffer, Chartered, of Chicago, for appellee." }, "file_name": "0845-01", "first_page_order": 867, "last_page_order": 870 }