Judge granted. The new filing date was June !2, 2003. Once again, the filing date came and went
without any response or request for an extension of time from plaintiffs. Plaintiffs’ chance to
respond to the motion has now passed. The Court will consider only defendants’ submissions in
ruling on the motion.

According to Illinois law, Preston had to file his medical malpractice claim within two years
“after the date on which [he] knew, or through the use of reasonable diligence should have known,
_. of the existence of the injury . . . for which damages are sought.” 735 ILL. Comp. STAT. 5/13-
212(a). Allison’s loss of consortium claim had to be filed within the same period. See 735 ILL.
Comp. STAT. 5/13-203. The Institute defendants argue that Preston knew or should have known that
he was injured during the June 1999 surgery no later than October 18, 2000. The Court agrees.

According to the physician’s report attached to the complaint, Preston was told on December
7, 1999 that his C7 vertebra was fractured, probably as a result of the June 1999 surgery. (Compl.,
Ex, A, Letter to Moore from Saxton at 2,)' On January 10, 2000, Preston learned that one of the
serews inserted during the Jume 1999 surgery was interfering with his vertebral artery. (Id.)
Moreover, his October 18, 2000 surgery confirmed that one of those screws was impinging on his
vertebral artery and had caused nerve damage. (id, at 3.) Thus, Preston knew no later than October

18, 2000 that he had been injured during the June 1999 operation. Because plaintiffs did not file this

‘Because plaintiffs attached this report to their complaint, the Court can consider it in ruling
onthis motion without converting it to a motion for summary judgment. Beam v. IPCO Corp., 838
F.2d 242, 244 (7" Cir. 1988) (“Beam’s exhibit poses no problem under Rule 12(b) because the
district court is entitled to consider exhibits attached to the complaint as part of the pleadings.”).

-4.



*

“suprclavicular scalenectomy.” (Id. at 3.) During the surgery, it was determined that one of the
screws that had been inserted in Preston’s back during the June 1999 operation was impinging the
vertebral artery and was the likely cause of nerve damage. (1d.)

On January 30, 2003, Preston and Allison filed this two-count complaint seeking to recover

from defendants for medical negligence and loss of consortium.

The Legal Standard
On a Rule 12(b)(6) motion (o dismiss, the Court accepts as true all well-pleaded factual
allegations of the complaint, drawing all reasonable inferences in plaintiff s favor. Forseth v. Village
of Sussex, 199 F.3d 363, 368 (7th Cir. 2000). No claim will be dismissed unless “it is clear that no
relief could be granted under any set of facts that could be proved consistent with the allegations.”

Hishon v. King & Spalding, 467 U.S. 69, 73 (1984).

Discussion

Before addressing the merits of this case, we must say a word about its procedural
background. The Institute defendants filed this motion on April 10,2003. Magistrate Judge Bobrick
ordered plaintiffs to respond to it by May 9, 2003. Plaintiffs did not file a response by that date, On
May 20, 2003, the Magistrate Judge held a status hearing at which plaintiffs failed to appear. Noting
that plaintiffs had yet to file their response, Magistrate Judge Bobrick sua sponte granted them an
extension of time until May 30, 2003 to do so, but warned them that if they failed to file by that date
the Court would decide the motion on defendants’ papers alone. Plaintiffs still failed to respond.

On June 5, 2003, plaintiffs requested an extension oftime to file their response, which the Magistrate

-3-



suit until January 2003, more than two years after they discovered Preston’s injuries, the claims they

assert against all of the defendants are untimely.

Conclusion
For the reasons stated above, the Institute defendants’ Rule 12(b)(6) motion to dismiss is

granted and this case is dismissed with prejudice. This is a final and appealable order.

ENTER: ——
UNITED STATES DISTRICT JUDGE
DATED: 7 L002



B® Minute 08M Form (04/97)

Ss yy United States District Court, Northern District of Illinois
ET ne Hy Sti e if Oth
en Magistrate Judge Paul E. Plunkett than Astaned Jue
CASE NUMBER 03 C 688 DATE 6/27/2003
CASE Preston Dorlig, ct al vs, Chicago Institute of Neurosurgery,
TITLE

{ln the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintif¥, and (b) state briefly the nature
of the motion being presented]

MOTION;

DOCKET ENTRY;

qd) im Filed motion of [ usc listing in “Motion” box above.]

(2) oO Brief in support of motion due _

(3) Q Answer brief to motion due____. Reply to answer briefdue____

(4) o Ruling/Hearing on ___set for_ at

(5) oO Status hearing[held/continued to] [set for/re-set for|on__— set for__ at

(6) oO Pretrial conference[held/continued to] [set for/re-set for]on__—ssetfor__—at_
(*) Qo Trial[set for/re-sct for]on___—at__.

(8) a (Bench/Jury trial] [Hearing] held/continued to at

(9) a This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

Dercp4(m) OLocal Rule 41.1 OC FRCP4i{a)(1) OO FROP41{a)(2).

(10) Ml [Other docket entry] ~9ENTER MEMORANDUM OPINION AND ORDER: Defendants’ Rule 12(b)
(6) motion to dismiss is granted and this case is dismissed with prejudice. This is a final and appealable
order.

ai @ [For further detail sce order attached to the original minute order.]

No notices required, advised in open court,

No nolic red.
jo notices requi number of notice

N 3.Q 200

fe docketed

Notices mailed by judge's staff. J

Notified counsel by telephone.

oY | Docketing to mail notices,

of | Mail AO 450 form.

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION DOCKET ED

JUN 3 0 2003

PRESTON DORLIG and
ALLISON P. DORLIG

Plaintiffs,

No. 03 C 688
Paul E. Plunkett, Senior Judge

¥.
CHICAGO INSTITUTE OF
NEUROSURGERY and
NEURORESEARCH, et al.,

Defendants.

weer

MEMORANDUM OPINION AND ORDER
Preston and Allison Dorlig have brought this diversity suit against defendants Chicago
Institute of Neurosurgery and Neurorescarch, Columbus Hospital and Drs. Dan Heffez and Mitchell
Gropper for medical malpractice. Chicago Institute of Neurosurgery and Neuroresearch and Drs.
Heffez and Gropper (“‘collectively, the Institute defendants”) have filed a Federal Rule of Civil
Procedure (“Rule”) 12(b)(6) motion to dismiss the complaint as untimely. For the reasons set forth

below, the motion is granted.

Facts

In late 1995, Preston began to suffer from ear pain and ringing, tingling and numbness in his
hands and severe headaches. (Compl., Ex. A, Letter to Moore from Saxton at 1.) Though he

underwent a variety of treatments over the next few years, Preston’s condition did not improve. (Id.)



In 1998, Preston consulted Dr, Heffez about his symptoms, On October 22, 1998, Dr, Heffez
performed back surgery on Preston at Columbus Hospital, which is described as a “suboccipital
craniectomy with partial laminectomy at C1 for presumed Chiari malformation.” (Id.) Preston’s
symptoms did not improve after the surgery. (Id.)

On June 24, 1999, Preston was admitted to Columbus Hospital for a second back surgery
described as “C4-C6 laminectomies and almost total cervical spine (from C3-C5) instrumentation.
and fusions.” (Id. at 2.) Immediately after the operation, Preston had severe arm pain and, within
six hours of his release from the hospital, he was admitted to the cmergency room at St. Joseph’s
Hospital. (Id.) The emergency room doctor gave Preston pain medication and released him. (Id.)

Several days later, Preston fainted and was readmitted to St. Joseph’s. (Id.) He was given
an MRI, but no abnormalities were noted. (Id.)

Subsequently, Preston continued to have pain in his arms, hands and shoulders. ([d.) On
December 7, 1999, Preston consulted Dr. Aaron Filler of the UCLA Medical Center. (Id,) Dr. Filler
determined that there was a fracture at Preston’s C7 vertebra, which he believed was caused by
improper placement of a screw during the June 1999 operation, (Id.) Because Dr. Filler was
concerned that the misplacement of the screw may have injured the vertebral artery, he sent Preston
to Dr, Neil Martin, a neurovascular expert, for an evaluation. (Id.)

On January 10, 2000, Preston saw Dr. Martin. After performing a number of tests, Dr.
Martin concluded that the artery had been damaged and recommended surgery to remove one of the
screws in Preston’s back. (Id.)

For the next several months, Preston tried to manage his condition with medication, but those

efforts failed. (Id. al 2-3.) On October 18, 2000, Preston had a third back surgery, described as

2-