*1 Rowena v. Michael Mosby, Plaintiff-Appellant, Defendant-Appellee.
Reese Hospital, 49,235. No. Gen.
First Third Division. District, 11, 1964. Gomberg, (Samuel Nineberg, Chicago Arthur S. counsel), appellant. for Chicago Lowry, & Barber Peterson, Rail, Ross, (Walter Thomas Loth, Jr., Ross, Jr., W. Herbert C. counsel), appellee. K. for Peterson, opinion DEMPSEY delivered the MR. JUSTICE the court. posed by appeal question this: Is the personal injuries
two-year statute of limitations malpractice unaware case if the in a negligent which caused act through, no fault of her own does not learn of it until more than two after it occurred. question, passed upon which has not been here- *2 by tofore a court review in this from State, arises by these facts, admitted motion defendant’s plaintiff’s complaint: Mosby strike the Eowena was operated by agents on of the defendant on March 25, surgical during A 1956. operation needle used the course of the body.
was left in
30, 1960,
On December
her
during
operation
hospital,
at another
the needle
right
was
in
discovered
the area of her
knee. The
way through
body
needle had worked its
and had
permanent injury.
caused serious and
complaint
January
The
filed on
11, 1962,was
two
charged
carelessly
counts.
I
Count
that the defendant
permitted
placed
body, negli-
the needle to he
in her
gently permitted
negligently
it to remain there and
operation.
failed to remove it at the conclusion of the
plaintiff
further
that she had no means
knowing
about the needle and did not learn of it
performed
until
the second
four
repeated
and nine
allega-
months later.
II
Count
I
charge
tions
the
Count
but added thereto the
negligence
fraudulently
had been
concealed.
complaint
The defendant moved to dismiss the
on
ground
by
that it was barred
the statute of limita-
tions. The motion was sustained as
first count
but denied as to the second. The court certified that
just
delaying
appeal.
there
no reason for
plaintiff
appealed
from the dismissal of
I;
Count
cross-appealed
the defendant has not
from the order
denying its motion to dismiss
II.
Count
applicable
chapter
statute is section 15,
83,
damages
Ill Rev
Stats, 1961:
“Actions
for an
person
. . .
shall he commenced within two
years next after the cause of action accrued.” The
contends that where an
has taken
place
object
foreign
and the incision is closed with a
ganze
patient’s
sponge
snch
or
left in a
needle,
body,
upon discovery
the cause of action accrues
by
malpractice,
the act of
or
the exercise of
when,
patient
reasonable
could have learned of the
care,
negligent
jurisdic
act. There
are cases
other
support
Spath
tions which
contention.
(1962);
Fer
Morrow,
38,
174 Neb
NW2d 581
(1961);
Strully,
nandi v.
A2d
434,
35 NJ
Ayers Morgan,
(1959);
397 Pa
of limitations
by
plain-
the
place
is not
and that
comprising
injury. The cases
ignorance of his
tiff’s
minority
are collected
majority
rules
the
both
80
ALR 209 and
144
1317,
ALR
in 74
annotations
any
is in the
it
trend is discernible
If
368.
ALR2d
opinions
minority
the
Even in
rule.
direction
recently followed the
more
have
which
courts
of those
expression
re-
of
majority
an occasional
there is
rule,
recognized but the
rule
the
gret.
of
harshness
338
compel
followed,
statutes which
rule are
the
albeit
reluctantly. Roybal
NM
383
White,
285,
v.
P2d
(1963);
Szendey (Maine),
Tantish v.
stockholders an issue stock paid which been had not for. The stockholders they were the unaware of issuance of stock corporation of until officers after the statute had run.' court said that this did prevent running personal not In statute. injury it been held that the cause of cases action accrues and statute of limitations starts to run complained place. LeRoy when the took act City Springfield, (1876), 81 Ill 114 the court stated:
“Appellant asks, when shall it he said many arose, as, action cases, extent of injury long cannot he known for a time? principle, “The we understand, is, that the cause of action at arises the time the was done, *4 begins day.” and the statute run to from that App In Calumet Elec. R. St. 66 Ill Mabie, Co. 235 (1896) the court said: injuries resulting negli-
“In actions from the gence or of another, unskillfulness the statute at- begins taches and run to from the time when injury was first and not from inflicted, damages time when the full extent sus- tained has been ascertained.” Gangloff Apfel- rule same was followed in App malpractice Ill bach, 319 49 NE2d a case. plaintiff’s placed in a cast fractured elbow was physician. the defendant the cast was re- When moved the elbow could not be moved. defendant operated upon plaintiff Following in 1936. power fingers lost their brought A second in no movement. per- improvement. January 1938 the defendant operation; formed a a failure. The third it was also plaintiff until March defendant continued to treat the plaintiff unsatisfactory results. In 1941 the with against brought The court his suit the defendant. began if the had to decide statute negligence was committed run when the act of physician to treat in time the ceased 1936 or despite patient court held that 1940. The operation, after the first continuation of treatment of limita- the cause of action accrued and operation. the first at the time of commenced tions Gangloff Although case the opera- immediately the first after aware his persuasive here the court because that case is tion, bearing jurisdictions of other the decisions reviewed having- closely us and after issue now before on the majority which rule, so, done followed today. then as it is same prevent designed
A of limitations is statute repose recovery It is demands. on stale opportunity gives a reasonable a defendant which prepare his defense within investigate claim and to and witnesses are still accessible the facts a time when Although serves a statute such available. are still preventing vexatious de- purpose old and laudable *5 also mands, it arrests claims. meritorious Such situation here. legislature exceptions has made certain to the provided of the statute. It has person bring
statute is if entitled to mentally imprisoned action infant, or is ill or charge. provided on a criminal It has that the statute person departs is tolled if the to an action liable fraudulently and resides out of the state, or conceals provision action. Nowhere is there a knowledge part the effect that mere lack of on the injured party operates delay the commence- period. ment of the limitation legislature exceptions has enacted of this na- occupational radiological ture in injury. cases diseases and Compensation provides The Workmen’s Act application compensation that an for must be filed year with the Industrial Commission one after the radiological date of an accident. for However, period of limitation is extended to 15 after day employee employed the last in an environ- radiological activity. ment of hazardous Also the Act provides given that notice of an accident be must employer days to the not later than 45 after the acci- except involving injuries dent for cases incurred exposure radiological equipment. materials or given days such notice can cases be within 90 after employee suspects the date the knows or that he has received an excessive dose of radiation. Ill Rev Stats §138.6(c)(3). c 1963, 48, Occupational
Under the Workmen’s Diseases Act an employee year has until one from the date of his application compensation. disablement to file an 172.41(c). § Ill Rev occupational Stats c An usually single disease comes about, not from a occur- long exposure rence, but from to conditions which, particular occupation, because of the nature of tbe *6 gradually perhaps imperceptibly cause an illness and peculiar occupation. much the there is However, knowledge of the in common between the lack of occupational inception lack of of and the disease, object knowledge foreign left in a has been that person’s body. In of the disease both, the awareness by the an illness induced or the awareness that object long presence foreign after the comes of a original it occurred. legislature de acted that the
We must assume extending malprac liberately relief to in not same radiological tice cases as it did to cases occupational legis what cannot do diseases. We dismissing the the order failed to do and lature has plaintiff’s complaint are not must be affirmed. We plain pleased barred with result. statute this wronged. had been she knew she tiff’s claim before negligence not ascer admitted defendant’s The tainable to presumably under anesthetic her—she slept certainly place- not she when it took —and equitable if the rights. more It would be on delayed period were limitation commencement but the illness, for her reason until she discovered necessary permit construction does not equitable must come result. Relief obtain legislature from the courts. not Judgment affirmed. J., concurs.
SULLIVAN, concurring. specially J., P. SCHWARTZ, concluding portion not concur I do not commencing are sentence: “We opinion with the effect recommends pleased This this result.” with limita- made to be amendment provide plaintiff in a situa- tions which will relief for a aspects All tion such the one here involved. problem investigated by legisla- should be ture before that is done.
Timber Structures, Inc., Plaintiff-Ap a Corporation, Cor v. Chateau
pellant, Royale Corporation, Association, & Loan poration, Apollo Savings al., et Corporation Defendants-Appellees. 49,248.
Gen. No.
First Third District, Division. *7 11, 1964.