{ "id": 1172434, "name": "THERESE NEADE, as Independent Adm'r of the Estate of Anthony Robert Neade, Deceased, Plaintiff-Appellant, v. THOMAS ENGEL, DefendantAppellee", "name_abbreviation": "Neade v. Engel", "decision_date": "1996-02-21", "docket_number": "No. 2-95-0625", "first_page": "1004", "last_page": "1009", "citations": [ { "type": "official", "cite": "277 Ill. App. 3d 1004" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "163 Ill. App. 3d 209", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3547883 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "213" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/163/0209-01" ] }, { "cite": "85 Ill. 2d 146", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5469943 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "156" }, { "page": "156" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/85/0146-01" ] }, { "cite": "88 Ill. 2d 407", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3083558 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "415" }, { "page": "416" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/88/0407-01" ] }, { "cite": "245 Ill. App. 3d 580", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5385376 ], "year": 1993, "pin_cites": [ { "page": "583" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/245/0580-01" ] }, { "cite": "242 Ill. App. 3d 96", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5119013 ], "year": 1993, "pin_cites": [ { "page": "99" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/242/0096-01" ] }, { "cite": "265 Ill. App. 3d 739", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 872517 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "742" }, { "page": "742" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/265/0739-01" ] }, { "cite": "254 Ill. App. 3d 56", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2981297 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "61" }, { "page": "61" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/254/0056-01" ] } ], "analysis": { "cardinality": 626, "char_count": 13534, "ocr_confidence": 0.741, "pagerank": { "raw": 6.845588183173641e-08, "percentile": 0.41732954315097137 }, "sha256": "75d03d579c34264595fdec99d8b1e3d4346dba9e955776d6a86763dace062585", "simhash": "1:9817df2ebd4ca4fe", "word_count": 2141 }, "last_updated": "2023-07-14T16:03:41.906832+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THERESE NEADE, as Independent Adm\u2019r of the Estate of Anthony Robert Neade, Deceased, Plaintiff-Appellant, v. THOMAS ENGEL, Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE COLWELL\ndelivered the opinion of the court:\nPlaintiff, Therese Neade, as administrator of the estate of Anthony Robert Neade, appeals the dismissal of her medical malpractice complaint against defendant, Dr. Thomas Engel. The trial court dismissed the complaint pursuant to section 2 \u2014 619(a)(5) of the Code of Civil Procedure (735 ILCS 5/2 \u2014 619(a)(5) (West 1994)) because it was filed more than two years after the decedent\u2019s death. Plaintiff raises three issues for review: (1) whether plaintiff was not on notice, at the time of decedent\u2019s death, of defendant\u2019s negligence, so that the complaint was timely filed; (2) whether plaintiff raised an issue of fact concerning fraudulent concealment; and (3) whether defendant was equitably estopped to assert the statute of limitations.\nPlaintiff filed suit August 10, 1994. She alleged the following facts in her amended complaint. On August 10, 1990, decedent was admitted to Condell Memorial Hospital (Condell) complaining of chest pain and showing other classic symptoms of coronary deficiency. Defendant, a cardiologist at Condell, assumed responsibility for decedent\u2019s care. Defendant ordered a thallium stress test to be administered to decedent. During the test, on August 13, 1990, decedent exhibited or complained of chest pain, which is an abnormal symptom and requires further testing. However, defendant misstated and concealed that decedent exhibited that symptom. Defendant also failed to interpret and read properly the EKG administered during the thallium stress test, finding that the EKG was normal. Defendant advised decedent\u2019s primary physician, Dr. Steven Portes, that decedent\u2019s condition was not cardiac related. As a result of the misstatement, concealment, and misdiagnosis, an angiogram was not ordered. An angiogram would have shown an occlusion of the coronary artery.\nThe complaint further alleged that, following decedent\u2019s discharge from Condell, he continued to rely on defendant\u2019s representations that his symptoms were not cardiac related. In June 1991, after decedent experienced chest pain because of physical exertion, he returned to Dr. Portes. Dr. Portes requested his associate, Dr. Schlager, to examine decedent, provide treatment, and render a second opinion. Dr. Portes advised Dr. Schlager of the normal result of the thallium stress test. However, Dr. Schlager recommended an angiogram, which required hospitalization. Dr. Schlager was aware that a negative EKG and a normal thallium stress test could not rule out a life-threatening coronary occlusion. Dr. Portes refused to allow the angiogram.\nOn September 16, 1991, decedent suffered a massive myocardial infarction caused by a coronary artery occlusion. He was hospitalized at the Mayo Clinic in Jacksonville, Florida, until his death on September 25, 1991. Plaintiff was advised by decedent\u2019s physicians there that they would have ordered and allowed an angiogram. Plaintiff retained counsel to investigate Dr. Portes\u2019 possible negligence in disallowing the angiogram in June 1991. Counsel retained Dr. Norman, an internist, to review decedent\u2019s medical records. In formulating his preliminary opinions, Dr. Norman relied on defendant\u2019s final report, which asserted that decedent had no chest pain, arrhythmias, or ST abnormalities and that the thallium stress test was negative for coronary artery ischemia. It is accepted medical practice to rely on such a report without reviewing the base data. Dr. Norman determined that Dr. Portes deviated from the standard of care in his treatment of decedent by failing to order or allow further tests of decedent when he continued to exhibit cardiac symptoms, even though the thallium stress test and EKG were negative.\nFollowing the filing of suit against Dr. Portes, discovery was conducted, including defendant\u2019s discovery deposition. Defendant was subpoenaed to appear for a deposition on July 13,1993, but he refused to appear until after the statute of limitations had run. Defendant appeared for his deposition on September 28, 1993, three days after the two-year anniversary of decedent\u2019s death. During the discovery deposition, defendant stated that the EKG administered to decedent at Gondell was negative, the thallium stress test was normal, decedent did not have chest pain during the test, the indications of chest pain set forth in handwritten notes were inaccurate, and the notes\u2019 author, \u201dD. Curtis,\u201d was neither a nurse nor a doctor. Defendant\u2019s refusal to appear pursuant to a subpoena, his inaccurate final report and his sworn statements about a negative EKG, a normal stress test with no chest pains, and inaccurate hospital notes prepared by an incompetent person allegedly were calculated to prevent the discovery of a claim against defendant.\nDr. Norman reviewed the complete medical records in preparing for his discovery deposition on June 9, 1994. For the first time he examined the EKG tracings of decedent during the thallium stress test. Dr. Norman determined that the tracings were equivocal, not normal. Dr. Buckingham, another expert, confirmed Dr. Norman\u2019s opinion that the August 1990 EKG was not negative but was equivocal. Dr. Talano, a cardiologist retained by Dr. Portes, was scheduled for a deposition on July 19,1994. Because Doctors Norman and Buckingham were internists, not cardiologists, plaintiff\u2019s counsel did not file suit against defendant until Dr. Talano confirmed that the EKG tracings were equivocal.\nSubsequently, \"D. Curtis\u201d was identified as Diane Curtis. She testified at her discovery deposition that she was a registered nurse and had worked at Condell for 11 years. For two of those years, including the relevant period, she was assigned to the cardiac rehabilitation unit where she had regular contact with defendant. She was present and monitored decedent during the August 1990 thallium stress test and authored the notes contemporaneously with the test. In the notes, she indicated that decedent complained of chest pain for the last three minutes of the test. Defendant normally would have been there at the time of decedent\u2019s complaint, and Curtis reported decedent\u2019s complaint of chest pains to defendant.\nDefendant moved to dismiss, arguing that plaintiff should have known by September 25, 1991, that decedent\u2019s injury was wrongfully caused and she was thereby put on notice to investigate the care and treatment he received from defendant. Therefore, the complaint, which was filed more than two years after that date, was barred by the statute of limitations. Plaintiff attached to her response to the motion the affidavit of her counsel in which he stated that defendant\u2019s attorneys informed him that defendant would not appear for a deposition until after the statute of limitations had run. Also included were the affidavits of Dr. William Buckingham and Dr. Robert Norman, which both stated that it is an accepted practice in medicine to rely on the computer-generated results and the radiologist\u2019s report for a thallium stress test without reviewing the actual tracings and radiological pictures taken during the test. Plaintiff argued that the complaint was timely pursuant to the discovery rule because she did not discover defendant\u2019s wrongful conduct until after the statute of limitations had run and the complaint was filed within two years of that date and within four years of the allegedly wrongful act. In the alternative, plaintiff asserted that defendant fraudulently concealed evidence which precluded plaintiff from filing her case against him. The trial court dismissed the complaint with prejudice, and plaintiff timely appealed.\nA section 2 \u2014 619 motion may be used to dispose of issues of law or easily proved issues of fact. Meyers v. Rockford Systems, Inc., 254 Ill. App. 3d 56, 61 (1993). The motion may be granted when the claim asserted is barred by some affirmative matter defeating the claim. Meyers, 254 Ill. App. 3d at 61. The trial court should grant a section 2 \u2014 619 motion if, after construing the documents in the light most favorable to the nonmovant, it finds no disputed issues of fact. Draper v. Frontier Insurance Co., 265 Ill. App. 3d 739, 742 (1994). The court must take as true all well-pleaded facts alleged in the complaint (Nikolic v. Seidenberg, 242 Ill. App. 3d 96, 99 (1993)), but it may not weigh the evidence or decide controverted material issues of fact (Draper, 265 Ill. App. 3d at 742). Our review of the dismissal is de novo. Toombs v. City of Champaign, 245 Ill. App. 3d 580, 583 (1993).\nThe applicable statute of limitations for medical malpractice is within two years of \"the date on which the claimant knew, or through the use of reasonable diligence should have known, *** of the existence of the injury or death for which damages are sought in the action, *** 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.\u201d 735 ILCS 5/13 \u2014 212(a) (West 1994). Therefore, the statute begins to run when the plaintiff knows, or reasonably should know, both of the injury and that it was wrongfully caused. Knox College v. Celotex Corp., 88 Ill. 2d 407, 415 (1981). The plaintiff has the burden to investigate further as to the existence of a cause of action. Witherell v. Weimer, 85 Ill. 2d 146, 156 (1981). Whether the plaintiff had sufficient information to put a reasonable person on inquiry is generally a question of fact. Knox College, 88 Ill. 2d at 416. However, where it is clear from the undisputed facts that only one conclusion can be drawn, the question is then one of law. Witherell, 85 Ill. 2d at 156.\nDefendant argues that the statute of limitations began to run when decedent died. Plaintiff asserts that she did not discover defendant\u2019s negligence until June 1994, when her expert discovered that the test result was not negative. Plaintiff reasons that, pursuant to the discovery rule, the complaint was therefore timely filed.\nArndt v. Resurrection Hospital, 163 Ill. App. 3d 209 (1987), on which plaintiff relies, is most instructive. In January 1983, the decedent died. The plaintiff filed suit against the hospital in December 1984 and named the defendant doctor as a respondent in discovery. In September 1985, the plaintiff filed an amended complaint that added the defendant doctor as a party defendant. The amended complaint alleged-that the plaintiff did not learn of the defendant\u2019s negligence until his discovery deposition was taken in May 1985. The defendant moved to dismiss the complaint as time barred. The appellate court determined that the statute of limitations began to run when the \"plaintiff discovered the fact of the defendant\u2019s negligence which contributed to the death of her husband, and not on the date she discovered the fact of the death of her husband.\u201d (Emphasis in original.) Arndt, 163 Ill. App. 3d at 213. The court concluded that the amended complaint was therefore timely filed.\nLike the plaintiff in Arndt, plaintiff here did not learn of defendant\u2019s negligence until after his discovery deposition. That the defendant in Arndt was made a respondent in discovery and defendant here was not is immaterial. The court in Arndt determined that the naming of the defendant as a respondent in discovery did not shorten the limitations period. Arndt, 163 111. App. 3d at 214-15. Consequently, the failure to name defendant as a respondent in discovery could not shorten the limitations period.\nHere, at the time of decedent\u2019s death, plaintiff was on notice of Dr. Portes\u2019 negligence. She retained an attorney, who hired an expert medical witness to investigate decedent\u2019s treatment. She timely filed a complaint against Dr. Portes. According to the experts\u2019 affidavits, it is generally accepted medical practice to rely on the test results. Because the expert opined that an angiogram should have been performed even in the presence of a negative stress test, it appeared to plaintiff that Dr. Portes\u2019 negligence was responsible for decedent\u2019s death. It would have been unreasonable to require plaintiff to investigate the accuracy of the test results because the medical profession relies on the accuracy of such tests. Defendant presented no affidavit to counter plaintiff\u2019s experts\u2019 affidavits that it is common medical practice to rely on such test results. We conclude that there is no question of fact that plaintiff was unaware of defendant\u2019s negligence until after his deposition. Plaintiff could not have filed suit against defendant until she was certain that there was \"a reasonable and meritorious cause for filing\u201d an action. 735 ILCS 5/2\u2014 622(a)(1) (West 1994). Plaintiff exercised reasonable diligence in pursuing the matter. Thus, the complaint was timely filed.\nBecause we are reversing the dismissal of the amended complaint on this basis, we need not address plaintiff\u2019s remaining contentions.\nThe judgment of the circuit court is reversed, and the cause is remanded for further proceedings.\nReversed and remanded.\nMcLaren, P.J., and INGLIS, J., concur.", "type": "majority", "author": "JUSTICE COLWELL" } ], "attorneys": [ "Robert J. Hauser, of Sullivan, Smith, Hauser & Noonan, Ltd., of Wauke-gan, for appellant.", "Steven L. Larson and Linda E. Spring, both of Wildman, Harrold, Allen & Dixon, of Waukegan, for appellee." ], "corrections": "", "head_matter": "THERESE NEADE, as Independent Adm\u2019r of the Estate of Anthony Robert Neade, Deceased, Plaintiff-Appellant, v. THOMAS ENGEL, Defendant-Appellee.\nSecond District\nNo. 2\u201495\u20140625\nOpinion filed February 21, 1996.\n\u2014 Rehearing denied March 26, 1996.\nRobert J. Hauser, of Sullivan, Smith, Hauser & Noonan, Ltd., of Wauke-gan, for appellant.\nSteven L. Larson and Linda E. Spring, both of Wildman, Harrold, Allen & Dixon, of Waukegan, for appellee." }, "file_name": "1004-01", "first_page_order": 1022, "last_page_order": 1027 }