2011 IL App (1st) 101088
Ill. App. Ct.2011Background
- Hanks sought treatment for hepatitis C–related symptoms in 2002; ERCP aborted causing pancreatitis; subsequent biopsies showed progression to stage III hepatitis C with fibrosis and a liver mass.
- The 2003 complaint alleged negligence by Cotler, Zaidi, and Rush; 2008 dismissal led to a second amended complaint naming additional defendants.
- The second amended complaint contained 24 counts alleging various theories of liability; circuit court dismissed several counts as time-barred or for other reasons.
- Hanks argued the dismissal was incorrect and urged recognition of a loss-of-society claim for his children.
- The appellate court affirmed, holding most time-barred counts proper under the statute of limitations/repose and dismissing the loss-of-society claims for his children as unsupported by precedent.
- The court treated the case as a defendant-by-defendant analysis to determine timeliness and continuity of treatment for repose and limitations issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether counts are time-barred and/or saved by tolling | Hanks contends limitations/repose should not bar the claims | Defendants assert timely filing and repose periods bar the claims | Counts dismissed as time-barred and/or time-barred by repose |
| Whether fraudulent concealment tolls the limitations period | Hanks asserts concealment extended limitations period | No valid concealment; silence not enough; no affirmative concealment | Fraudulent concealment not established to toll the period |
| Whether there can be a loss of parental society claim for a surviving parent | Children's loss-of-society claims exist | No such claims exist under Illinois law when parent survives | Loss-of-society claims for minor children dismissed for lack of legal basis |
| Whether a continuing course of negligent treatment tolled the repose period | Possibility to toll repose due to continued treatment | Ferrara/Turner show such failures do not toll repose unless continuing treatment proven | No tolling of repose for the alleged 2004–2005 actions; counts time-barred |
| Whether particular counts against specific doctors were timely | Some counts could survive based on later discovery | Last treatment dates and last contacts show repose ran earlier | Each defendant analyzed; most counts dismissed as time-barred by limitation or repose |
Key Cases Cited
- Golla v. General Motors Corp., 167 Ill.2d 353 (1995) (accrual of claims for sudden injuries; discovery rules applicable to medical malpractice)
- Turner v. Nama, 294 Ill.App.3d 19 (1997) (failure to notify of abnormal test results not a continuing course of treatment)
- Ferrara v. Wall, 323 Ill.App.3d 751 (2001) (failure to notify patient of abnormal results does not toll the four-year repose)
- Orlak v. Loyola University Health System, 228 Ill.2d 1 (2007) (affirmative concealment required; mere silence insufficient)
- Vitro v. Mihelcic, 209 Ill.2d 76 (2004) (parent cannot recover for loss of society of a child; limits on parental claims)
- Kheirkhahvash v. Baniassadi, 407 Ill.App.3d 171 (2011) (extension of limitations not permitted when action timely discoverable)