Hanks v. Cotler
2011 IL App (1st) 101088
Ill. App. Ct.2011Background
- Hanks sought treatment in 2002 for symptoms suggesting hepatitis C; ERCP performed by Zaidi; procedure aborted leading to pancreatitis and hospitalization.
- Second amended complaint (2009) added multiple defendants and 24 counts; earlier 2003 suit involved only Cotler, Zaidi, and Rush.
- Courts dismissed several counts as time-barred under 2-year SOL and 4-year repose; trial court affirmed on appeal.
- Hanks alleged ongoing negligent treatment and concealment by several doctors, including O’Neill, Bajaj, Layden, Wiley-Lucas; asserted loss of society claims for his children.
- Division concluded the loss-of-society claims for children have no legal basis; affirmed dismissal of time-barred counts.
- Overall, the court affirmed the circuit court’s judgment dismissing the challenged counts and denying the loss-of-society claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Are counts time-barred under 13-212(a)? | Hanks argues tolling or exceptions save some counts. | O’Neill, Bajaj, Layden, Wiley-Lucas, and others contend repose/limitations bar claims. | Counts dismissed as time-barred under 13-212(a). |
| Does fraudulent concealment toll limitations/repose for these claims? | Hanks relied on 13-215 to extend filing window. | Allegations show mere silence or failure to diagnose, not affirmative concealment; no tolling. | Fraudulent concealment not proven; tolling not available. |
| Can plaintiffs recover loss of society/consortium for minor children due to parent’s nonfatal injury? | Children seek loss of parental society damages. | Illinois law does not recognize such a claim for nonfatal injuries to a parent. | Loss-of-society claims for children are nonexistent; properly dismissed. |
| Does a continuing course of negligent treatment toll the four-year repose for Wiley-Lucas and related defendants? | Ongoing treatment could toll repose. | Ferrara/Turner line of cases rejects continuing-treatment tolling for failing to relay results. | No tolling; repose runs from treatment termination; counts barred. |
Key Cases Cited
- Golla v. General Motors Corp., 167 Ill. 2d 353 (1995) (accrual based on injury; discovery rules for latent injuries in malpractice cases)
- Turner v. Nama, 294 Ill. App. 3d 19 (1997) (failure to notify about adverse results not continuing treatment to toll repose)
- Ferrara v. Wall, 323 Ill. App. 3d 751 (2001) (failure to notify abnormal results not ongoing treatment; repose triggered by receipt of results)
- Vitro v. Mihelcic, 209 Ill. 2d 76 (2004) (parent cannot recover for loss of companionship from nonfatal injuries to child)
- Orlak v. Loyola University Health System, 228 Ill. 2d 1 (2007) (concealment requires affirmative acts to lull delay in filing; mere silence insufficient)
- Kheirkhahvash v. Baniassadi, 407 Ill. App. 3d 171 (2011) (limitations/repose tolling analysis when discovery occurs with time remaining)