                                                                              Digitally signed by
                                                                              Reporter of
                                                                              Decisions
                                                                              Reason: I attest to
                            Illinois Official Reports                         the accuracy and
                                                                              integrity of this
                                                                              document
                                    Appellate Court                           Date: 2019.02.05
                                                                              14:54:43 -06'00'




           Osten v. Northwestern Memorial Hospital, 2018 IL App (1st) 172072



Appellate Court        JOSEPH M. OSTEN, as Special Administrator of the Estate of Gail
Caption                M. Osten, Deceased, Plaintiff-Appellant, v. NORTHWESTERN
                       MEMORIAL      HOSPITAL;       NORTHWESTERN         MEDICAL
                       FACULTY FOUNDATION; ELIZABETH NYE, M.D.; NYE
                       PARTNERS IN WOMEN’S HEALTH; JUDITH WOLFMAN, M.D.;
                       and JACQUELINE BYERLY, Defendants-Appellees.



District & No.         First District, First Division
                       Docket No. 1-17-2072



Filed                  September 10, 2018



Decision Under         Appeal from the Circuit Court of Cook County, No. 17-L-709; the
Review                 Hon. William E. Gomolinski, Judge, presiding.



Judgment               Affirmed.


Counsel on             Motherway & Napleton, LLP, of Chicago (Robert J. Napleton and
Appeal                 Bradley Z. Schulman, of counsel), and Law Offices of Lynn D. Dowd,
                       of Naperville (Lynn D. Dowd and Jennifer L. Barron, of counsel), for
                       appellant.

                       Cunningham, Meyer & Vedrine, P.C., of Chicago (Robert L. Larsen,
                       Charles F. Redden, and Amy J. Thompson, of counsel), for appellees
                       Elizabeth Nye, M.D., and Nye Partners in Women’s Health.
                                 Anderson, Rasor & Partners, LLP, of Chicago (Sandra G. Iorio and
                                 Christopher C. Heery, of counsel), for other appellees.



     Panel                       PRESIDING JUSTICE PIERCE delivered the judgment of the court,
                                 with opinion.
                                 Justices Harris and Mikva concurred in the judgment and opinion.


                                                  OPINION

¶1         Plaintiff Joseph M. Osten, as special administrator of the estate of Gail M. Osten, filed
       wrongful death claims in the circuit court of Cook County against defendants based on
       defendants’ alleged failure to timely diagnose Gail’s breast cancer. Defendants moved to
       dismiss plaintiff’s complaint as time-barred by both the statute of limitations and the statute of
       repose. The circuit court granted defendants’ motions, and plaintiff appeals. For the reasons
       that follow, we affirm the judgment of the circuit court.

¶2                                             BACKGROUND
¶3         For the purposes of this appeal, we accept as true all the well-pleaded facts in plaintiff’s
       complaint and draw all reasonable inference in his favor (Edelman, Combs & Latturner v.
       Hinshaw & Culbertson, 338 Ill. App. 3d 156, 164 (2003)), but we will disregard any facts in
       plaintiff’s appellate brief that were not advanced in the circuit court, as those facts are dehors
       the record.
¶4         Plaintiff initiated this action by filing his complaint on January 20, 2017. Plaintiff alleged
       that defendant Elizabeth Nye, M.D., was one of decedent Gail Osten’s treating physicians. On
       Nye’s order, Gail underwent a screening mammogram on April 21, 2011. Defendant Judith
       Wolfman, M.D., was the radiologist who interpreted Gail’s mammogram, and defendant
       Jacqueline Byerly was a radiologist technician who “provided care to Gail.” According to the
       complaint, “the technologist[1] noticed a slightly inverted left nipple, with a brown discharge,
       which [Gail] specifically noted she had never seen before.” The mammogram revealed a
       bilateral benign calcification with no masses or other findings suggestive of malignancy. The
       results of the mammogram were not transmitted to Nye. The screening mammogram was not
       converted to a diagnostic mammography and no ultrasound tests were ordered. In December
       2011, Gail was diagnosed with breast cancer. The complaint does not allege who made the
       breast cancer diagnosis or any facts as to Gail’s treatment after December 2011. The complaint
       does not allege any facts regarding the circumstances of Gail’s death on March 19, 2015.
¶5         Plaintiff’s complaint asserted five counts of professional negligence and wrongful death
       against defendants. Plaintiff alleged that on April 21, 2011, Nye, Wolfman, and Byerly were
       “agents, servants and employees, including but not limited to actual and apparent [agents] of”



             1
              The complaint does not specify who the “technologist” was.

                                                      -2-
       defendants Northwestern Memorial Hospital and Northwestern Medical Faculty Foundation.2
       Plaintiff alleged that defendants were negligent in (1) failing to convert the screening
       mammogram to a diagnostic mammography, (2) failing to perform an ultrasound, and
       (3) failing to recognize the risk factors for breast cancer of an inverted nipple and brownish
       discharge. The complaint alleged that defendants’ negligence on April 21, 2011, caused or
       contributed to Gail’s death and does not state that defendants had any contact with Gail after
       that date.
¶6         Defendants filed motions to dismiss plaintiff’s complaint pursuant to section 2-619(a)(5)
       of the Code of Civil Procedure (Code) (735 ILCS 5/2-619(a)(5) (West 2016)). Defendants
       asserted that plaintiff’s claims were time-barred by both the two-year statute of limitations and
       the four-year statute of repose in section 13-212 of the Code (id. § 13-212) applicable to
       medical negligence claims. Defendants contended that the statute of limitations began running
       on Gail’s medical negligence claims in April 2011, when the screening mammogram was
       performed or, at the latest, in December 2011, when Gail was diagnosed with breast cancer.
       Defendants argued that, under either date, the statute of limitations expired on Gail’s medical
       negligence claims no later than December 2013. Defendants also asserted that the four-year
       repose period on Gail’s medical negligence claims began running on the date of the alleged
       negligence, and therefore the repose period lapsed on April 21, 2015. Defendants further
       argued that plaintiff could not bring a wrongful death claim premised on defendants’ alleged
       medical negligence because the statute of limitations on those claims expired before Gail’s
       death in March 2015. 3 Defendants’ section 2-619 motion to dismiss was based on the
       allegations set forth in plaintiff’s complaint, and at no point did plaintiff seek leave to amend
       his complaint to allege any additional facts to defeat the motion to dismiss.
¶7         In response, plaintiff argued that his complaint was timely because it was filed within two
       years of Gail’s death, which plaintiff contended was the date that the statute of limitations and
       statute of repose began to run on his wrongful death claims. Plaintiff argued that defendants
       advanced no facts to show that Gail knew or reasonably should have known in December 2011
       of defendants’ alleged negligence and that the only relevant date for measuring the timeliness
       of his claims was the date of Gail’s death.
¶8         The circuit court granted defendants’ section 2-619 motions to dismiss plaintiff’s
       complaint with prejudice. Plaintiff filed a timely notice of appeal.

¶9                                               ANALYSIS
¶ 10      On appeal, plaintiff argues that his complaint was timely. He contends that the complaint
       was filed within two years of discovering defendants’ negligence and was therefore filed
       within the statute of limitations set forth in section 13-212 of the Code. Furthermore, he argues

           2
              Nye Partners in Women’s Health is identified as a defendant in the caption of plaintiff’s
       complaint, and plaintiff alleged that Nye was an employee of Nye Partners. The complaint does not
       contain any claims directed at Nye Partners.
            3
              Defendants also filed motions to dismiss plaintiff’s complaint based on alleged defects in the
       medical report attached to the complaint pursuant to section 2-622 of the Code (735 ILCS 5/2-622
       (West 2016)). The circuit court, however, did not rule on those motions, and defendants do not advance
       any alternative arguments on appeal that the merits of those motions constitute an alternative basis for
       affirming the circuit court’s judgment.

                                                      -3-
       that the repose period did not begin to run until Gail’s death, which he contends is when
       defendants’ treatment of Gail ended, although the complaint failed to allege any facts as to
       when defendants’ treatment of Gail ended. He additionally argues that the date on which he
       should have known of defendants’ negligence is a question of fact that would defeat a motion
       to dismiss. We disagree with all of plaintiff’s arguments and conclude that, based on the facts
       alleged in his complaint, all of plaintiff’s medical negligence claims were time-barred under
       the applicable statutes of limitations and repose.
¶ 11        Under section 2-619(a)(5) of the Code, dismissal is warranted if the “action was not
       commenced within the time limited by law.” 735 ILCS 5/2-619(a)(5) (West 2016). A motion
       to dismiss under section 2-619 of the Code admits the legal sufficiency of the complaint and
       asserts an affirmative matter outside the pleading that avoids the legal effect of or defeats the
       claim. Relf v. Shatayeva, 2013 IL 114925, ¶ 20. In ruling on a section 2-619 motion, we accept
       as true all well-pleaded facts in plaintiff’s complaint and draw all reasonable inferences in
       plaintiff’s favor. Hermitage Corp. v. Contractors Adjustment Co., 166 Ill. 2d 72, 85 (1995).
       We review de novo a circuit court’s ruling on a motion to dismiss. Moon v. Rhode, 2016 IL
       119572, ¶ 15.
¶ 12        Section 1 of the Wrongful Death Act provides:
                “Whenever the death of a person shall be caused by wrongful act, neglect or default,
                and the act, neglect or default is such as would, if death had not ensued, have entitled
                the party injured to maintain an action and recover damages in respect thereof, then and
                in every such case the person who or company or corporation which would have been
                liable if death had not ensued, shall be liable to an action for damages, notwithstanding
                the death of the person injured, and although the death shall have been caused under
                such circumstances as amount in law to felony. No action may be brought under this
                Act if the decedent had brought a cause of action with respect to the same underlying
                incident or occurrence which was settled or on which judgment was rendered.” 740
                ILCS 180/1 (West 2016).
¶ 13        In a wrongful death action, the cause of action is the wrongful act, neglect, or default
       causing death and not the death itself. Wyness v. Armstrong World Industries, Inc., 131 Ill. 2d
       403, 411 (1989). Claims under the Wrongful Death Act must be commenced within two years
       of the person’s death. 740 ILCS 180/2 (West 2016). Under the Wrongful Death Act, there can
       be no recovery “where the decedent once had a cause of action, but was not entitled to maintain
       that action and recover damages at the time of [her] death.” Lambert v. Village of Summit, 104
       Ill. App. 3d 1034, 1037-38 (1982).
¶ 14        In Moon, our supreme court explained that while section 2(c) of the Wrongful Death Act
       provides that a wrongful death action must be commenced within two years of a person’s death
       (740 ILCS 180/2(c) (West 2012)), where a wrongful death claim is premised on alleged
       medical negligence, section 13-212(a) of the Code controls the timing of the claim. Moon,
       2016 IL 119572, ¶ 29. The court explained,
                “If the legislature had intended for the statute of limitations period contained in section
                2(c) of the [Wrongful Death] Act to control plaintiff’s cause of action, the language in
                section 13-212(a) of the Code would be superfluous, as all wrongful death claims
                alleging medical malpractice would have to be brought no later than two years after the
                decedent’s death.” Id. ¶ 30.


                                                    -4-
       The court concluded that because section 13-212(a) controls the timing of a wrongful death
       claim premised on medical negligence, the discovery rule applies to such claims. Id. ¶ 31.
¶ 15       Section 13-212(a) of the Code provides:
                “Except as provided in Section 13-215 of this Act, no action for damages for injury or
                death against any physician, dentist, registered nurse or hospital duly licensed under
                the laws of this State, whether based upon tort, or breach of contract, or otherwise,
                arising out of patient care shall be brought more than 2 years after the date on which the
                claimant knew, or through the use of reasonable diligence should have known, or
                received notice in writing of the existence of the injury or death for which damages are
                sought in the action, whichever of such date occurs first, but in no event shall such
                action be brought more than 4 years after the date on which occurred the act or
                omission or occurrence alleged in such action to have been the cause of such injury or
                death.” 735 ILCS 5/13-212(a) (West 2016).
¶ 16       Furthermore, our supreme court has observed that “the statute of repose is triggered by the
       ‘act or omission or occurrence’ causing an injury, rather than by the patient’s discovery of the
       injury,” and that “the statute of repose cannot start to run until the last date of negligent
       treatment.” Cunningham v. Huffman, 154 Ill. 2d 398, 405-06 (1993); see also Kanne v. Bulkley,
       306 Ill. App. 3d 1036, 1040 (1999) (“In failure-to-diagnose cases *** where a plaintiff blames
       a defendant’s omission for his injury, the omission at issue is deemed to have occurred on the
       date defendant rendered his final treatment.”).
¶ 17       We find that based on the allegations in plaintiff’s complaint, both the statutes of
       limitations and repose began to run either in April 2011 or no later than December 2011. The
       statutes of limitations and repose begin to run on the last date of negligent treatment.
       Cunningham, 154 Ill. 2d at 405-06; Kanne, 306 Ill. App. 3d at 1040. Here, plaintiff’s complaint
       alleged that on April 21, 2011, defendants “noticed a slightly inverted left nipple, with a brown
       discharge, which [Gail] specifically noted she had never seen before,” that defendants
       performed a screening mammogram that “revealed bilateral benign calcifications with no
       masses or other findings of malignancy,” that the screening mammogram was not converted to
       a diagnostic mammogram, and that no ultrasounds were ordered. Plaintiff alleged that
       defendants were negligent on April 21, 2011, for (1) failing to convert the screening
       mammogram to a diagnostic mammography, (2) failing to perform an ultrasound, and
       (3) failing to recognize the risk factors for breast cancer of an inverted nipple and brownish
       discharge. Plaintiff’s complaint alleged no other negligent acts or omissions or that defendants
       provided Gail with any treatment after April 21, 2011. The complaint alleged that Gail was
       diagnosed with breast cancer in December 2011, but the complaint alleged no facts tending to
       show that any defendant made that diagnosis or that any defendant continued to provide Gail
       with any treatment after December 2011. Finally, the complaint alleged that Gail died on
       March 19, 2015.
¶ 18       Plaintiff failed to allege a single fact that might allow an inference that defendants provided
       Gail with any treatment—negligent or otherwise—after April 21, 2011. Instead, plaintiff
       merely alleged that Gail was diagnosed with breast cancer in December 2011 and that she died
       on March 19, 2015. Even if we were to infer that any defendant diagnosed Gail with breast
       cancer in December 2011 and that Gail died as a result of her breast cancer, plaintiff failed to
       allege or advance any facts in the circuit court to show that defendants had any involvement in
       Gail’s treatment after the breast cancer diagnosis in December 2011. Therefore, based on the

                                                    -5-
       allegations set forth in plaintiff’s complaint, both the statutes of limitations and repose began to
       run on any claim that Gail might have had against defendants no later than December 2011.
¶ 19        Plaintiff argues that it was defendants’ burden “to prove that the discovery rule and the
       statute of repose were triggered prior to [Gail’s death on] March 19, 2015,” and that
       defendants’ motion to dismiss did not advance any facts to establish when Gail knew or
       reasonably should have known that she suffered a wrongful injury caused by defendants.
       Plaintiff’s appellate argument is perplexing since it is plaintiff’s burden to plead sufficient
       facts to avoid dismissal based on the statutes of limitations or repose, and defendants had no
       obligation to plead any facts on plaintiff’s behalf. Plaintiff’s contention with regard to the
       discovery rule is contradicted by our supreme court’s explanations of the rule. “The discovery
       rule delays the commencement of the relevant statute of limitations until the plaintiff knows or
       reasonably should know that he has been injured and that his injury was wrongfully caused.”
       Jackson Jordan, Inc. v. Leydig, Voit & Mayer, 158 Ill. 2d 240, 249 (1994). The effect of the
       discovery rule is to postpone the starting of the period of limitations. Hermitage, 166 Ill. 2d at
       81. When faced with a section 2-619(a)(5) motion, “the plaintiff must provide enough facts to
       avoid application of the statute of limitations.” (Emphasis added.) Id. at 84-85. “When a
       plaintiff uses the discovery rule to delay commencement of the statute of limitations, the
       plaintiff has the burden of proving the date of discovery.” (Emphases added.) Id. at 85.
¶ 20        Here, defendants accepted the factual allegations in plaintiff’s complaint as true and argued
       that, based on plaintiff’s allegations, the claims were time-barred. The complaint alleged in
       part that defendants were negligent on April 21, 2011, by failing to perform additional
       diagnostic testing and by failing recognize the risk factors for breast cancer of an inverted
       nipple and brownish discharge. It is undisputed that Gail was diagnosed with breast cancer in
       December 2011. No acts of professional negligence are alleged between those two dates.
       Plaintiff did not come forward with any facts to show that Gail, prior to her death, did not know
       or could not have known in December 2011 that she was wrongfully injured by defendants’
       alleged failure to diagnose her breast cancer in April 2011. Therefore, based on the complaint
       before us, and assuming that Gail’s treatment continued until the date of her breast cancer
       diagnosis, the two-year statute of limitations on any medical negligence claims that Gail might
       have had against defendants commenced in December 2011 and lapsed in December 2013.
       The four-year statute of repose lapsed in April 2015 or, even assuming that defendants’
       treatment of Gail included the December 2011 breast cancer diagnosis, in December 2015.
       Plaintiff did not file his complaint until January 2017. Gail’s claims were barred by the statute
       of limitations at the time of her death, and the statute of repose lapsed on those claims nine
       months after her death and nearly two years before plaintiff filed his complaint. Plaintiff’s
       wrongful death claims predicated on defendants’ alleged acts of medical negligence that ended
       at the latest in December 2011 were untimely and barred by both the statutes of limitation and
       repose.
¶ 21        In an attempt to salvage what we view as a straightforward application of the statutes of
       limitation and repose to plaintiff’s claims, plaintiff’s appellate brief contains a section titled
       “Plaintiff Discovers an Actionable Claim.” This section states in full:
                    “The defendants’ treatment of [Gail] was continuous until the date of her death on
                March 19, 2015. Until the time of her death, there was no indication to the decedent or
                to the plaintiff that the defendants’ delayed treatment and diagnosis of [Gail’s] cancer
                constituted professional negligence. But then, after [Gail’s] death, [plaintiff] became

                                                    -6-
                aware that an earlier diagnosis and treatment would have prevented his wife’s death,
                and that the defendants failed in their professional duties to his wife which was a
                proximate cause of her death.”
       Plaintiff offers no citation to the record to support these assertions, in violation of Illinois
       Supreme Court Rule 341(h)(6) (eff. Nov. 1, 2017).4 The reason that plaintiff fails to cite to the
       record in support of these statements is clear: these “facts” are advanced for the first time on
       appeal and were never advanced in the circuit court in either plaintiff’s complaint or his
       response to defendants’ motions to dismiss. Plaintiff’s complaint alleged that defendants
       performed the screening mammogram in April 2011 but did not allege that Gail sought or
       received additional treatment from defendants thereafter. Plaintiff’s complaint alleged that
       Gail was diagnosed with breast cancer in December 2011 but did not allege who made that
       diagnosis. Similarly, plaintiff’s complaint is devoid of any factual allegations regarding Gail’s
       course of treatment, if any—or that defendants were involved in any treatment—after the
       December 2011 breast cancer diagnosis. Nor did plaintiff allege any facts regarding his
       purported delayed discovery of a potential medical negligence claim against defendants.
¶ 22       We must reject plaintiff’s attempt to introduce new facts on appeal to bolster his claim that
       there is a question of fact with respect to the discovery of Gail’s injury. In his reply brief in this
       court, plaintiff asserts that the unpleaded “facts”—that Gail received continuous treatment
       from defendants until the time of her death, that there was no indication that defendants’
       delayed treatment and diagnosis of Gail’s cancer constituted professional negligence, that
       plaintiff learned after Gail’s death that an earlier diagnosis and treatment would have
       prevented Gail’s death, and that defendants’ failure in their professional duties to Gail was a
       proximate cause of her death—are “reasonable, logical inferences permitted under the
       applicable standard of review which must be taken as true on review.” We disagree. We do not
       accept unpleaded facts as true. We fail to see how these entirely new “factual”
       allegations—advanced for the first time on appeal—can be considered logical inferences
       drawn from the allegations in the complaint. Plaintiff could have sought leave to amend his
       complaint in the circuit court or, at the very least, could have advanced these “facts” in
       response to defendants’ motions to dismiss. He failed to do either. We decline to consider or
       accept as true any new “factual” allegations advanced for the first time on appeal and find that
       these new “factual” allegations are not reasonably drawn inferences from the facts as pleaded
       in plaintiff’s complaint.
¶ 23       Furthermore, at oral argument, plaintiff argued that we should look to the physician’s
       report attached to the section 2-622 affidavit (735 ILCS 5/2-622 (West 2016)), filed in
       connection with his complaint, for facts supporting the notion that Gail’s treatment continued
       until the her date of death. The report asserted that “[t]he radiologist’s recommendation was for
       screening mammography in one year, or as clinically indicated.” Plaintiff argued that this
       amounted to a treatment plan that was never followed, which constituted an omission by
       defendants that continued until Gail’s death. This argument, however, is forfeited because it
       was not advanced either in the circuit court or in plaintiff’s appellate briefs in this court, and
       was raised for the first time at oral argument. Ill. S. Ct. R. 341(h)(7) (eff. Nov. 1, 2017)


           4
             We also note that plaintiff’s appellate brief regularly violates Rule 341(h)(6) by failing to provide
       citations to the record on appeal in support of plaintiff’s appellate arguments.

                                                       -7-
       (“Points not argued are [forfeited] and shall not be raised in the reply brief, in oral argument, or
       on petition for rehearing.”).
¶ 24       Forfeiture aside, plaintiff’s contention that the health professional’s report attached to a
       section 2-622 affidavit is to be treated as part of the complaint was rejected in Garrison v.
       Choh, 308 Ill. App. 3d 48 (1999). There, we observed that the purpose of a section 2-622
       affidavit and a health professional report is “not to bolster or enhance [the] complaint but to
       satisfy the requirements of section 2-622 of the Code.” Id. at 56. The health professional’s
       report certifies that the plaintiff’s action has reasonable merit, and the report must provide
       reasons for that determination, but “those reasons cannot be said to be incorporated into the
       complaint for purposes of determining the misconduct of the defendant for which the plaintiff
       seeks recovery.” Id. at 56-57. Therefore, the factual assertions in the physician’s report
       attached to the section 2-622 affidavit are not considered to be a part of plaintiff’s complaint.
¶ 25       But even if we were to find that plaintiff incorporated the facts contained in the section
       2-622 affidavit and attached physician’s report as part of the substantive allegations in his
       complaint, the physician’s report opined “to a reasonable degree of medical certainty that
       [Wolfman] and [Byerly] deviated from the applicable standard of care by: (a) Failing to
       convert to a diagnostic mammography; and/or (b) Failing to perform additional evaluation
       including MRI or ultrasound.” The physician’s report further opined that if Nye “did indeed
       receive [the radiologist’s] report, and was aware of the inverted nipple and brown discharge,
       the standard of care required her to order appropriate diagnostic testing, including but not
       limited to: an ultrasound and a diagnostic mammogram.” These alleged deviations from the
       standard of care were the same allegedly negligent acts performed in April 2011, as set forth in
       plaintiff’s complaint. The physician’s report did not opine that any failure to abide by the
       radiologist’s recommendation for a “screening mammography in one year, or as clinically
       indicated,” constituted a deviation from the standard of care. We therefore find that, even if we
       considered the section 2-622 affidavit and physician’s report as part of the complaint, the
       section 2-622 affidavit and physician’s report submitted in this case provides no basis from
       which we might conclude that plaintiff’s complaint was timely.

¶ 26                                          CONCLUSION
¶ 27       In sum, the circuit court properly dismissed plaintiff’s complaint as time-barred by both the
       two-year statute of limitations and the four-year statute of repose. For the foregoing reasons,
       the judgment of the circuit court is affirmed.

¶ 28      Affirmed.




                                                    -8-
