1.		NO. 4-00-0933

	IN THE APPELLATE COURT

	OF ILLINOIS

	FOURTH DISTRICT

DAVID WARREN and JANET WARREN,

          Plaintiffs-Appellants,

          v.

STANLEY A. BURRIS, M.D.,

          Defendant-Appellee.	)

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)	  Appeal from

  Circuit Court of 

  Sangamon County

  No. 94L553

  Honorable

  Donald M. Cadagin,

  Judge Presiding.

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		JUSTICE COOK delivered the opinion of the court:

		In October 1994, plaintiffs, David and Janet Warren,

filed a two-count complaint against defendant, Stanley A. Burris,

M.D.  Plaintiffs' complaint alleges that on May 20, 1991, defen

dant performed surgery on David, consisting of a cholecystectomy

(surgical excision of the gallbladder), operative cholangiography

(X ray of the bile ducts), and an appendectomy; that the

cholecystectomy was unnecessary; and that during the surgery,

defendant severed the right hepatic duct and allowed a surgical

clip to remain on the duct, thereby obstructing it and preventing

the drainage of bile.  In February 1998, defendant filed a motion

for summary judgment.  In June 2000, the trial court granted

defendant's motion.  Plaintiffs appeal, arguing that (1) when

David knew or should have known he was wrongfully injured is a

genuine issue of material fact; (2) defendant's concealment of

David's injury delayed discovery of the injury and should toll

the statute of limitations; and (3) the trial court's finding as

to fraudulent concealment precluded amendment of plaintiffs' complaint within the statute of limitations.  We reverse and

remand.

	I. BACKGROUND

		In May 1991, David went to Memorial Medical Center with

the following symptoms:  vomiting, abdominal pain, and dehydra

tion, and he had lost about 25 pounds in the past three to four

weeks.  He also had difficulty eating greasy or fatty foods and

suffered abdominal pain that worsened after eating.  Before May

1991, David had been to the emergency room three times.  Also at

that time, David had been disabled since a fall in November 1989

in which he injured his middle and lower back and his heel. 

According to defendant, the back injuries themselves produced

gas, bloating, and indigestion.

		Dr. Raymond Pearson, David's original doctor, admitted

David to the hospital.  Pearson suggested that David see a

psychiatrist for depression.  Pearson informed David that depres

sion could cause most or all of his symptoms.  In his deposition,

David stated that he now believed many of the symptoms that he

was suffering in May 1991 were caused by depression.  However, at

the time, David believed that his illness was physical and that

was part of the reason he asked to see another physician.    

		David asked Dr. Alfred Harney, an internist, to examine

him.  Based upon an ultrasound of David's abdomen, Harney diag

nosed David with gallstones and asked defendant to examine David

because he believed David had a surgical problem.  According to

David, the woman who had performed the ultrasound on him told him that she did not see any gallstones.  Before the May 20, 1991, surgery, Jimmy Warren, David's brother--who is not a physician--

was the only person that told David that he should not have the

surgery.  Defendant told David that he would feel much better

after the surgery, and David believed that he would have a fast,

speedy recovery.  David chose to go through with the surgery, and

defendant performed the surgery on May 20, 1991. 

		After the surgery, David's symptoms did not improve.  One of the doctors at the hospital told David that he did not see

anything in David's report that would suggest the removal of the

gallbladder.  

		In fall 1991, David had the same complaints that he had

prior to surgery.  David went to Dr. Mark Harrison, a

gastroenterologist, who performed a liver biopsy on David.  Dr.

William Drake, the pathologist who reviewed the biopsy, found

that David was suffering chronic active hepatitis.  Harrison had

another pathologist, Dr. Jordan Mann, review the biopsy.  Mann

found that David had a mechanical large-duct obstruction.  Drake

then issued a memorandum maintaining his position that David

suffered from hepatitis, not a duct obstruction.  Harrison

informed David of the two opinions and suggested that he undergo

an endoscopic retrograde cholangiopancreatography (ERCP).  

		In November 1991, Harrison performed the ERCP on David. 

Harrison noticed the right side of the liver was not functioning

normally, but he was unsure of the condition's causation. 

Harrison told David that he suspected that David had a blockage of the biliary system.  In his deposition, Harrison stated that

he believed he told David that defendant's surgery could have

caused the blockage.  However, in his deposition David claimed

that Harrison did not make that statement.  Harrison also sus

pected that David was suffering from depression because many of

the symptoms that he was experiencing were consistent with

depression.  Harrison referred David to a psychiatrist. 		

		In late 1991, Harrison recommended that David go back

to defendant.  Defendant told David that he had an extra acces

sory duct that defendant had removed.  Defendant suggested that

David needed exploratory surgery because a chance existed that he

had cancer.  David refused to undergo surgery again.

		In July 1992, David saw Dr. Phillip Johnson because

David was having problems with elevated liver enzymes.  At that

time, David did not feel his surgery was successful and suspected

that defendant's surgery could have caused his liver problems. 

In his notes, Johnson remarked that David told him that defendant

had wanted to reopen his abdomen to look for surgical problems. 

In his deposition, David denied saying that.  Johnson also

discussed with David the fact that his liver enzymes had become

elevated after defendant's surgery.  Johnson found no clear

diagnosis and suggested that cancer or an anatomic variant could

be the cause of the elevated enzymes.  

		In September 1992, Harrison again examined David and

diagnosed him with irritable bowel syndrome.  That same month,

David also went to see Dr. Barbara Mulch, who referred him to Dr. Aliperti at Barnes Hospital in St. Louis.  At that time, David

was still suffering the same symptoms that he had experienced

before the surgery.  On October 21, 1992, David received a

cholangiogram at Barnes Hospital.  The findings of the

cholangiogram showed a "[c]omplete obstruction of the right

hepatic lobe biliary system at the right level of the right

hepatic duct, with adjacent surgical clips."  Aliperti told David

that he needed to have surgery to remove the obstruction. 

Because of anxiety over the surgery, David chose not to undergo

the surgery.  In May 1993, David developed a bacterial infection

in the liver and underwent a hepaticojejunostomy, which consisted

of the creation of a permanent bypass around the right hepatic

duct so that bile would be properly drained.  

		On October 14, 1994, almost two years after the October

21, 1991, cholangiogram, plaintiffs filed their complaint against

defendant.  In December 1998, defendant filed his motion for

summary judgment, alleging that plaintiffs' cause of action is

time-barred.  In February 1999, the trial court denied defen

dant's motion, finding a genuine issue about when David knew or

reasonably should have known that his injury was wrongfully

caused.  In April 2000, defendant filed a motion to reconsider

the motion for summary judgment, relying on this court's decision

in Wilson v. Devonshire Realtyo of Danville, 307 Ill. App. 3d 801, 718 N.E.2d 700 (1999).  In June 2000, the trial court granted

defendant's motion, finding that David should have known his

injury may have been wrongfully caused no later than July 1992 (when David saw Dr. Johnson) and that plaintiffs failed to plead

a prima facie case of fraudulent concealment.  Plaintiffs filed a motion to reconsider, and in September 2000 the trial court

denied plaintiffs' motion.  This appeal followed.

	II. ANALYSIS

		Summary judgment is appropriate when the pleadings, depositions, admissions, and affidavits demonstrate no genuine

issue of material fact exists and the movant is entitled to

judgment as a matter of law.  735 ILCS 5/2-1005(c) (West 1998);

Rotzoll v. Overhead Door Corp., 289 Ill. App. 3d 410, 413, 681 N.E.2d 156, 158 (1997).  In ruling on a motion for summary judgment, the trial court must view all evidence in the light

most favorable to the nonmovant.  Malone v. American Cyanamid Co., 271 Ill. App. 3d 843, 845, 649 N.E.2d 493, 495 (1995).  We review grants of summary judgment de novo.  Malone, 271 Ill. App. 3d at 845, 649 N.E.2d at 495.

		Plaintiffs argue that a genuine issue of material fact

exists about when David knew or reasonably should have known that

his injury was wrongfully caused.  Specifically, plaintiffs

assert that David knew the injury was wrongfully caused on

October 21, 1992, when the cholangiogram showed the surgical

clips had completely obstructed the right hepatic duct.  Defen

dant argues that David knew or should have known as a matter of

law that the injury was wrongfully caused in July 1992 when David

suspected that the surgery may have caused his continued symp

toms.

		The applicable statute of limitations is found in

section 13-212(a) of the Code of Civil Procedure (735 ILCS 5/13-

212(a) (West 1994)), which requires an action for medical mal

practice to be brought within two years from the date when the

plaintiff knew, or reasonably should have known, of both the

physical problem and that it was wrongfully caused.  Pruitt v. Schultz, 235 Ill. App. 3d 934, 936, 601 N.E.2d 1372, 1374 (1992).  A person knows, or reasonably should know, an injury was wrong

fully caused when he possesses "sufficient information concerning

his injury and its cause to put a reasonable person on inquiry to

determine whether actionable conduct is involved."  Knox College v. Celotex Corp., 88 Ill. 2d 407, 416, 430 N.E.2d 976, 980-81 (1981).  Whether a person possesses sufficient information is

usually a question of fact.  Knox College, 88 Ill. 2d at 416, 430 N.E.2d at 981.  If only one conclusion can be drawn from the undisputed facts, then the question becomes one of law.  Wilson, 307 Ill. App. 3d at 805, 718 N.E.2d at 704.  Close questions on

this issue should not be decided as a matter of law, but are best

left for juries.  Pruitt, 235 Ill. App. 3d at 936-37, 601 N.E.2d at 1375.		

		Plaintiffs begin by arguing that Wilson, 307 Ill. App. 3d 801, 718 N.E.2d 700, is distinguishable.  We agree.	 There, the plaintiff began experiencing respiratory problems in January

1995.  The plaintiff also knew then that several other coworkers

were suffering similar symptoms.  Wilson, 307 Ill. App. 3d at 803, 718 N.E.2d at 702.  In August 1995, she questioned one of the defendants and a physician as to whether her ailments were

related to the condition of the building in which she worked. 

Wilson, 307 Ill. App. 3d at 803, 718 N.E.2d at 703.  In April 1997, the plaintiff experienced a loss of consciousness, and a

pulmonary specialist diagnosed her with a pulmonary illness,

which the specialist suggested could have been caused by irri

tants in the workplace.  Wilson, 307 Ill. App. 3d at 803-04, 718 N.E.2d at 703.  

		In February 1998, the plaintiff filed a complaint

against the defendants.  Wilson, 307 Ill. App. 3d at 804, 718 N.E.2d at 703.  The trial court granted the defendants' motion

for summary judgment, finding the cause of action was time-

barred.  Wilson, 307 Ill. App. 3d at 802, 718 N.E.2d at 702.  On appeal, the plaintiff argued that until her diagnosis in April

1997 she was unaware of both her injury and its causal connection

to the defendants' actions.  Wilson, 307 Ill. App. 3d at 805, 718 N.E.2d at 704.  This court affirmed the trial court's judgment. 

Wilson, 307 Ill. App. 3d at 808, 718 N.E.2d at 706.

		As to the knowledge of the injury, this court held

that, while the plaintiff did not know the full extent of her

injuries until April 1997, the plaintiff knew she had suffered

some injury in January 1995.  Wilson, 307 Ill. App. 3d at 806, 718 N.E.2d at 705.  The court further found that the plaintiff had sufficient knowledge that her injury was wrongfully caused no

later than August 1995.  Wilson, 307 Ill. App. 3d at 807, 718 N.E.2d at 705.  In support of the latter conclusion, the court cited the plaintiff's knowledge of coworkers with similar prob

lems, the plaintiff's lengthy discussion with the one of the

defendants in which she questioned whether the condition of her

workplace caused her illness, and the plaintiff's discussion with her physician regarding the possible connection between her

workplace and her illness.  Wilson, 307 Ill. App. 3d at 806-07, 718 N.E.2d at 705. 

		First, in deciding whether the discovery rule has been

triggered, courts must look to the specific type of injury at

issue.  Bradtke v. Reotutar, 214 Ill. App. 3d 611, 615, 574 N.E.2d 110, 113 (1991).  If an injury is traumatic, that is, immediate and caused by external force or violence, the plaintiff

knows or should know of his right to sue when injured.  However,

if an injury is an aggravation of a physical problem that may

develop naturally, absent negligent causes, a plaintiff is not

expected to immediately know of either its existence or potential

wrongful cause.  Saunders v. Klungboonkrong, 150 Ill. App. 3d 56, 60, 501 N.E.2d 882, 885 (1986).     

		In Wilson, the plaintiff suffered an injury that was traumatic in nature.  There, the irritants in the building caused

the plaintiff's injury and the injury was immediate.  Wilson, 307 Ill. App. 3d at 803, 718 N.E.2d at 702.  Further, the plaintiff failed to present any evidence that her ailments could have been

the result of natural causes.

		Here, the symptoms that David was experiencing could

have been the result of natural causes absent a negligent cause.  Until the cholangiogram, none of the doctors that examined David could determine the cause of his symptoms.  The doctors told

David that he could have depression, hepatitis, irritable bowel

syndrome, cancer, or a blockage of the hepatic duct caused by

stones or tumors.  Further, the facts are disputed whether any of

David's doctors told him that defendant's surgery could have

caused his symptoms.  

		David's injury is not as readily apparent as those

resulting from traumatic events.  See Golla v. General Motors Corp., 167 Ill. 2d 353, 363, 657 N.E.2d 894, 899 (1995) (plain tiff immediately aware of some injury after an automobile acci

dent); Hutson v. Hartke, 292 Ill. App. 3d 411, 414, 686 N.E.2d 734, 737 (1997) (plaintiff almost blacked out when she noticed a

strong odor).  The more obvious the injury, the more easily a

plaintiff can determine its cause.  Saunders, 150 Ill. App. 3d at 60, 501 N.E.2d at 885.  David's injury was not as obvious as the

one sustained in Wilson, and thus its cause could not have been as easily determined.  It is difficult to fault a patient who is

being treated by a skilled medical professional for not recogniz

ing the occurrence of any injury, when the professional has not

told him of the injury.  In hindsight, almost everything is foreseeable, but that is not the test we should employ.  It does

not appear that David ignored the evidence presented to him,;

butrather, that David consistently sought medical assistance to learn the

cause of the problems that he was experiencing.

		Second, we do not find that only one conclusion can be drawn from the facts of this case about when David knew he had

suffered a wrongfully caused injury.  Wilson did not create a per se rule that any suspicion by the plaintiff is, as a matter of law, reasonable knowledge under the discovery rule.  Courts apply

the discovery rule on a case-by-case basis.  Hermitage Corp. v. Contractors Adjustment Co., 166 Ill. 2d 72, 78, 651 N.E.2d 1132, 1135 (1995).   

		Unlike Wilson, the facts here are disputed about whether David had conversations with defendant or any other

doctor in which he questioned whether defendant's surgery caused his symptoms.  Further, David did not develop new symptoms, nor did his symptoms worsen after the surgery.  In addition, no

supporting evidence such as coworkers with the same symptoms has

been asserted in this case. 

		Here, several doctors told David that depression or another illness could have caused his symptoms.  Even when some

doctors agreed that David had a blockage, the doctors gave David

several possible causes or etiologies for the blockage.  In this

case, different inferences could reasonably be drawn from these

facts about when a reasonable person would have known David

suffered a wrongfully caused injury.

		In cases involving the aggravation of a problem that may arise absent negligent causes, the time when the plaintiff

knew or reasonably should have known the injury was wrongfully

caused generally presents a question of fact rather than law. 

Bradtke, 214 Ill. App. 3d at 618, 574 N.E.2d at 115.  Here, at what point David knew or should have known of the injury and its

possible cause is not certain.  David was aware of a physical

problem, but when he became aware of the true nature of his

ailment is disputed.  Thus, we find a genuine issue of material

fact exists. 

		In light of our holding, we need not address plain tiffs' arguments that (1) defendant's concealment of David's injury delayed discovery of the injury and should toll the

statute of limitations, and (2) the trial court's finding as to

fraudulent concealment precluded amendment of plaintiffs' com

plaint within the statute of limitations. 

 	III. CONCLUSION

		Accordingly, we reverse the trial court's judgment and remand for further proceedings consistent with this orderpinion.

		Reversed and remanded.

			McCULLOUGH and MYERSCOUGH, JJ., concur.

							COOK, McCullough, Myerscough 							April 25, 2001, 9:45 a.m.   

DISPOSITION IN LIEU OF			Stephanie Anders

RESEARCH MEMORANDUM				April 16, 2001

Case No. 4-00-0933

DAVID WARREN and JANET WARREN,

          Plaintiffs-Appellants,

          v.

STANLEY A. BURRIS, M.D.,

          Defendant-Appellee.

Sangamon County Judge Donald M. Cadagin

APPELLANTS:	David K. Harris

			Harris & Barewin

APPELLEE:		Karen L. Kendall

			Adrian E. Harless

			Michael T. Kokal

			Heyl, Royster, Voelker & Allen

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