FOURTH DIVISION

									FEBRUARY 7, 2002

1-01-0754

BARBARA K. HOFFMAN,					)	Appeal from the

								)	Circuit Court of

		Plaintiff-Appellant,		)	Cook County.

								)

	v.							)

								)

ORTHOPEDIC SYSTEMS, INC.,			)	Honorable

								)	Sophia H. Hall,

		Defendant-Appellee. 		)	Judge Presiding.

	JUSTICE HARTMAN delivered the opinion of the court:

	Plaintiff, Barbara K. Hoffman, brought this action against

defendants, Dr. F. Todd Wetzel, Louis A. Weiss Memorial Hospital

(Weiss Hospital), an Illinois not-for-profit corporation, and

Orthopedic Systems, Inc. (OSI), a Delaware corporation

manufacturing medical products, for injuries she sustained during

the performance of back surgery.  Plaintiff's amended complaint

alleged two counts against OSI for strict liability and negligence. 

Her actions against Weiss Hospital and Dr. Wetzel were voluntarily

dismissed.  

	Following plaintiff's deposition, OSI moved for summary

judgment under Code of Civil Procedure (Code) sections 2-1005 (735

ILCS 5/2-1005 (West 2000)), 13-202 (735 ILCS 5/13-202 (West 2000))

and 13-213 (735 ILCS 5/13-213 (West 2000)), asserting that

plaintiff's complaint was time-barred by the two-year statute of

limitations, which motion the circuit court granted.  Plaintiff

appeals, raising the issue of whether the court erred by granting

OSI's summary judgment motion by construing the discovery rule

improperly.

	On September 27, 1995, plaintiff underwent back surgery, which

included a decompression of the L4-5 and L3-4 discs in her spine,

reexploration of a prior spinal decompression, a laminectomy at the

L3-4 vertebrae, a bilateral facetectomy at the L4-5 vertebrae and

a bilateral foraminotomy at the L3-4 and L4-5 vertebrae.1  Dr. Wetzel, who performed the surgery at Weiss Hospital, first

explained to plaintiff that the procedure was to be fairly simple,

would last for one and one-half hours and would relieve pressure on

the L3, L4 and L5 areas of the spine.    

	Prior to the surgery, plaintiff was positioned on an Andrews

Spinal Surgery Table (Andrews Table), Model SST-3000TM, a table designed, manufactured and sold by OSI, which is used to position

patients for spinal surgery with their hips flexed and in a kneeling position at a 90-degree angle.

	By deposition, plaintiff testified that after being prepared

for back surgery, she next remembered waking up in the intensive

care unit, where nurses told her that she had hepatitis, causing

her nausea.  Doctors informed plaintiff that she had liver failure,

kidney failure, gastrointestinal bleeding, pneumonia, a heart

arrhythmia and septicemia.  Dr. Michael Berger, an internist, and

Dr. Nelson Kanter, a pulmonary specialist, told plaintiff that

"everything that could go wrong went wrong."  Plaintiff's renal

physician told her that she was "very, very sick," and that she was

"never going to be the same again, ever."  According to plaintiff,

following her surgery, "nobody expected me not to die."  Dr. Wetzel

repeatedly stated in front of plaintiff that he was glad she did

not die.   

	During her recovery, plaintiff underwent temporary kidney

dialysis, from which she suffered hallucinations, and had seven

blood transfusions within two weeks.  When plaintiff asked for an

explanation for her near-death experience, she was given "a

different story from everybody," and was told, "shit happens."  Dr.

Wetzel told plaintiff that her complications were due to the

anesthesia she was given prior to surgery.  Nurses, residents or

whomever came into her hospital room told plaintiff that a monitor

alarm went off during surgery, her blood pressure dropped and

doctors had trouble "getting a vein or artery in order to give

[plaintiff] the stuff to push it back up."  She was told the monitor was broken.  Plaintiff was discharged from the hospital on

October 19, 1995.   

	After release from the hospital, plaintiff could not leave her

home for two or three months.  Thereafter, she underwent continued

physical therapy and rehabilitation.  

	Prior to the surgery, plaintiff had retained a law firm,

Harvey L. Walner and Associates, to handle the accident claim

against the CTA, resulting in a back pain claim, precipitating the

September 27, 1995 surgery.  On October 28, 1995, as part of the

investigation into the accident, plaintiff's attorney sent a letter

requesting Weiss Hospital to forward her medical records in order

to determine the nature and extent of her injuries.  Plaintiff

recovered a $2,500 settlement from the CTA.  According to

plaintiff, about four to six months after the surgery, she asked

her attorney "to look into whether or not there was any doctor

malpractice relating to what had happened" with respect to the 1995

surgery. 

	On April 23, 1998, plaintiff returned to Weiss Hospital to

undergo knee surgery.  When she expressed reluctance regarding the

general anesthesia she was to receive, citing her previous

experience, Dr. William Conrad, an anesthesiologist, informed her

that an internal hospital investigation of the September 27, 1995

surgery led doctors to conclude that the Andrews Table caused her

complications.  Dr. Conrad explained that during the surgery, she

was placed on the Andrews Table on her knees, bent at the waist, with her sternum area resting on a bar called the Autoglide Torso

LiftTM.  Dr. Conrad told plaintiff that at some point during the surgery, the bar moved to plaintiff's stomach, under her rib cage,

with her body weight slowly pushing down on the bar and crushing

her liver during the surgery, resulting in the complications she

suffered.  The investigation did not determine whether the bar

slipped into the questionable position or originally was placed in

that position prior to surgery.2  

	After learning that the Andrews Table caused her injuries,

plaintiff filed a complaint on May 7, 1998, alleging that the

operating table was not reasonably safe in design or manufacture,

was defective and that its defects caused her injuries.  As

previously noted, plaintiff also named Weiss Hospital and Dr.

Wetzel in her complaint, alleging that they had caused her injuries

by failing to position her properly and to monitor her position on

the Andrews Table. 

	On November 22, 2000, OSI moved for summary judgment, arguing

that plaintiff's action was time-barred by the two-year statute of

limitations, which two-year period OSI contended began on the date

of her surgery.  The circuit court granted OSI's summary judgment

motion on February 21, 2001, finding that the lawsuit was filed

beyond the applicable statute of limitations.  Plaintiff appeals.

	Plaintiff asserts that summary judgment in this case was

improper, because the statute of limitations does not commence

until the claimant is aware of the injury and its source and that

a genuine issue of material fact exists as to when plaintiff knew

or should have known that her injury was wrongfully caused.

	Summary judgment "shall be rendered without delay if the

pleadings, depositions, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to judgment as

a matter of law."  735 ILCS 5/2-1005 (West 2000).  In deciding a summary judgment motion, the circuit court must construe the

pleadings, affidavits, depositions and admissions on file strictly

against the moving party and liberally in favor of the opponent.  In re Estate of Hoover, 155 Ill. 2d 402, 410-11, 615 N.E.2d 736 (1993).  Summary judgment on statute of limitations grounds is

appropriate.  Witherell v. Weimer, 85 Ill. 2d 146, 156, 421 N.E.2d 869 (1981) (Witherell).  The discovery rule for which plaintiff contends applies only where it is apparent from the undisputed

facts that plaintiff knew or reasonably should have known of the

injury and its wrongful causation more than two years prior to

bringing the action.  Witherell, 85 Ill. 2d at 156.  A reviewing court exercises de novo review when determining whether the court below properly granted a motion for summary judgment.  Zoeller v. Augustine, 271 Ill. App. 3d 370, 374, 648 N.E.2d 939 (1995).

	Generally, a statute of limitations begins to run when the party to be barred has a right to invoke the aid of the court to

enforce a remedy.  Benyon Building Corp. v. National Guardian Life Insurance Co., 118 Ill. App. 3d 754, 762, 455 N.E.2d 246 (1983).  The primary purposes of the statute of limitations are to require

prosecution of a right of action within a reasonable time to

prevent loss or impairment of available evidence and to discourage

delay in the initiation of claims.  Tom Olesker's Exciting World of Fashion, Inc. v. Dun & Bradstreet, Inc., 61 Ill. 2d 129, 132, 334 N.E.2d 160 (1975).

	Product liability actions, as in the instant case, must be

filed within two years after "a party knows or reasonably should

know both that an injury has occurred and that it was wrongfully

caused."  See 735 ILCS 5/13-202 (West 2000); Nolan v. Johns- Manville Asbestos, 85 Ill. 2d 161, 171, 421 N.E.2d 864 (1981).  	Here, plaintiff contends that (1) the discovery rule tolled

the statute of limitations; (2) her suspicion of wrongful causation

was not enough to satisfy the "knew or should have known"

threshold; and (3) she had no knowledge of the causal relationship

between her injury and the conduct of the defendant. 

	In Illinois, the discovery rule is applied on a case-by-case

basis, weighing the relative hardships of applying the rule to both

plaintiff and defendant.  Hermitage Corp. v. Contractors Adjustment Co., 166 Ill. 2d 72, 78, 651 N.E.2d 1132 (1995).  The discovery rule was created to alleviate the harsh consequences that flow from

the literal application of the limitations statutes.  Golla v. General Motors Corp., 167 Ill. 2d 353, 360, 657 N.E.2d 894 (1995) (Golla). 

	To determine when a plaintiff reasonably should have

discovered that an injury was caused by defendant's wrongful

conduct, courts look to the nature of the injury itself; the more

obvious the injury, the more easily a plaintiff should be able to

determine its cause.  Hauk v. Reyes, 246 Ill. App. 3d 187, 192, 616 N.E.2d 358 (1993); Pszenny v. General Electric Co., 132 Ill. App. 3d 964, 966, 478 N.E.2d 485 (1985) (Pszenny); Kristina v. St. James Hospital, 63 Ill. App. 3d 810, 813, 380 N.E.2d 816 (1978) (Kristina).  In Golla, the supreme court noted that when an injury is caused by a sudden, traumatic event, the cause of action accrues

and the statute of limitations begins to run on the date the injury

occurs.  167 Ill. 2d at 362.  A "traumatic injury" occurs when "the

damage is caused by external violence."3  Roper v. Markle, 59 Ill. App. 3d 706, 711, 375 N.E.2d 934 (1978) (Roper).  A traumatic event alone puts plaintiff on notice of a reasonable possibility that the

injury was wrongfully caused (Hutson v. Hartke, 292 Ill. App. 3d 411, 413, 686 N.E.2d 734 (1997)), because "the nature and

circumstances surrounding the traumatic event are such that the

injured party is thereby put on notice that actionable conduct

might be involved."  Golla, 167 Ill. 2d at 363.

	There is no requirement that a plaintiff must discover the

full extent of his or her injuries before the statute of

limitations begins to run.  Golla, 167 Ill. 2d at 363, 365-68.  The limitations period begins to run when plaintiff becomes aware that

the cause of the problem stems from another's negligence and not

from natural causes because it would be "manifestly unrealistic and

unfair to bar a negligently injured party's cause of action before

[a plaintiff] has had an opportunity to discover that it exists

***."  Roper, 59 Ill. App. 3d at 715; Kristina, 63 Ill. App. 3d at 813.

	Here, the injuries plaintiff sustained cannot be categorized as another manifestation of a preexisting condition.  See Pszenny, 132 Ill. App. 3d at 967; Watkins v. Health & Hospitals Governing Commission, 78 Ill. App. 3d 468, 472-73, 397 N.E.2d 228 (1979). Plaintiff had two prior back surgeries, one of which resulted in

complications such as paralysis and spinal cord swelling, relating

to the nature of her back problems.  The record shows no evidence

of prior adverse or allergic reactions to anesthesia from any of

plaintiff's previous surgeries.  The injuries plaintiff suffered

from her September 27, 1995 surgery were unrelated to any

preexisting condition.  She was told by Drs. Berger and Kanter, soon after the surgery, that "everything that could go wrong went

wrong."  

	Significantly, plaintiff retained an attorney within six

months of her 1995 operation, demonstrating that she then was on 

inquiry as to whether the injury was wrongfully caused, thereby

commencing the two-year limitations period within which to take

appropriate legal action.  Her own reported conversations with

medical personnel and her retention of an attorney to investigate

demonstrated that she knew she had suffered an injury and that the

injury may have been wrongfully caused.  Golla, 167 Ill. 2d at 363, 365-68.  Other than her attorney's letter to Weiss Hospital

requesting medical records, however, the record does not contain

evidence showing an investigation as to whether any malpractice had

been committed.  Although her suspicion of wrongful causation was

limited to an investigation as to whether medical malpractice was

committed, rather than whether a product liability action existed,

as the cases hold, the term, "wrongfully caused," does not mean

knowledge by plaintiff of a specific defendant's negligent act or

knowledge that an actionable wrong was committed; rather, a person

knows or reasonably should know an injury is "wrongfully caused"

when he or she possesses "sufficient information concerning [an]

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 (1981); Moore v. A.H. Robins Co., 167 Ill. App. 3d 19, 23, 520 N.E.2d 1007 (1988).  At that point, the burden is upon plaintiff to inquire further as

to the existence of a cause of action.  Witherell, 85 Ill. 2d at 156.

	Plaintiff's failure to pursue a more thorough inquiry to find

the cause of her injuries does not excuse her from failing to

comply with the statute of limitations.  Plaintiff could have

attempted to obtain the results of the hospital's investigation of

this incident, with appropriate further investigation by her

attorneys, particularly since Dr. Conrad voluntarily divulged its

conclusions.

	The circuit court did not err by granting summary judgment in

favor of defendant on a statute of limitations ground under the

circumstances presented by this record.  It would be manifestly

unjust to visit a stale claim upon a putative defendant by reason

of inadequate investigative procedures, particularly where the Code

and Supreme Court Rules provides substantial avenues of inquiry to

a plaintiff who knew that the potential for wrongdoing could have

been the cause of her  injuries.  See, e.g., 735 ILCS 5/2-402, 2- 1113 (West 2000); 166 Ill. 2d R. 201, 202; 177 Ill. 2d R. 213.4

	Affirmed.

	HARTMAN, J., with HOFFMAN, P.J., and THEIS, J., concurring.

.

	In the present case, the record evidence supports defendant's

contention that plaintiff's injuries were sudden and traumatic,

given the nature of her injuries sustained during the surgery.  In Golla, the court held that plaintiff's cause of action accrued at the time of her automobile accident because she then knew that she

suffered an injury and that the injury may have been wrongfully

caused.  167 Ill. 2d at 363, 365-68.