July 20, 2001

The following allegations are contained in the plaintiff'scomplaint. On June 2, 1993, at the direction of the defendant, theplaintiff underwent a prostate specific antigen test (PSA test). The defendant received the results of the PSA test on June 8, 1993. The test results indicated that the plaintiff had an abnormallyhigh PSA level. The defendant failed to inform the plaintiff ofthe test results.

On October 31, 1995, again at the direction of the defendant,the plaintiff underwent a second PSA test. After receiving theresults of this second test, the defendant informed the plaintiffthat his PSA level was abnormally high. It was also at this timethat the plaintiff first learned of the abnormal results of hisJune 1993 PSA test.

On November 6, 1995, the plaintiff sought treatment from adifferent physician and was diagnosed with prostate cancer. InDecember 1995, the plaintiff underwent a radical retropubicprostatectomy.

On June 1, 1998, the plaintiff filed suit against thedefendant alleging medical malpractice. The suit was voluntarilydismissed on December 22, 1998, and refiled on December 22, 1999. The refiled suit consisted of one count and alleged that thedefendant had breached his duty to timely inform the plaintiff ofthe results of his June 1993 PSA test and failed to provide theappropriate medical care in response to those test results. Theplaintiff alleged that, as a result of these omissions, he wasdeprived of the opportunity to seek immediate medical treatment forhis medical condition.

On January 12, 2000, the defendant filed a motion to dismisspursuant to section 2--619(a)(5) of the Code. 735 ILCS 5/2--619(a)(5) (West 2000). The defendant argued that the plaintiff'soriginal June 1, 1998, complaint was time-barred under both thestatute of limitations and statute of repose for medicalmalpractice actions. 735 ILCS 5/13--212(a) (West 1998). Thedefendant argued that the statute of repose required that theplaintiff's complaint be filed by June 8, 1997, which was fouryears after the defendant received the plaintiff's June 1993 PSAtest results. The defendant also argued that the statute oflimitations required that the plaintiff's complaint be filed byJune 8, 1995.

On May 25, 2000, the trial court granted the motion todismiss. The record does not indicate whether the trial courtfound that the plaintiff's complaint was time-barred by the statuteof limitations, the statute of repose, or both. Following thedenial of his motion to reconsider and for leave to file an amendedcomplaint, the plaintiff filed a timely notice of appeal.

We first consider a motion that has been taken with the case. The defendant requests that we strike certain statements in theplaintiff's reply brief that the defendant asserts are unsupportedby the record. However, our review of the plaintiff's reply briefreveals no violation of Supreme Court Rule 341 (177 Ill. 2d R.341). Accordingly, we deny the motion to strike.

Turning to the merits, the plaintiff argues that his complaintwas not time-barred under either the limitations or repose periodcontained in section 13--212(a) of the Code. In reliance uponCunningham v. Huffman, 154 Ill. 2d 398 (1993), the plaintiff arguesthat the defendant's failure to notify him of his abnormal PSA testresults constituted an ongoing course of negligent medicaltreatment and that the repose period did not begin to run untilOctober 31, 1995, when the defendant finally informed the plaintiffof the test results. The plaintiff further argues that hiscomplaint was not barred by the two-year statute of limitationsbecause the defendant's insurance carrier induced him to delayfiling his complaint.

Section 2--619(a)(5) of the Code allows for dismissal of acause of action if "the action was not commenced within the timelimited by law." 735 ILCS 5/2--619(a)(5) (West 2000). A motion to dismiss pursuant to section 2--619 of the Code admits all well-pleaded facts and reasonable inferences drawn therefrom. HermitageCorp. v. Contractors Adjustment Co., 166 Ill. 2d 72, 85 (1995). Additionally, a section 2--619 motion admits the legal sufficiencyof the complaint but asserts an affirmative matter to avoid ordefeat the claim. 735 ILCS 5/2--619(a) (West 2000). Our standardof review governing dismissals pursuant to section 2--619 is denovo. Doe v. Montessori School, 287 Ill. App. 3d 289, 297 (1997).

Medical malpractice actions in Illinois must be filed withinthe time periods mandated in section 13--212(a) of the Code. 735ILCS 13--212(a) (West 1998). That section provides as follows:

"Except as provided in Section 13--215 of this Act, noaction for damages for injury or death against any physician,dentist, registered nurse or hospital duly licensed under thelaws of this State, whether based upon tort, or breach ofcontract, or otherwise, arising out of patient care shall bebrought more than 2 years after the date on which the claimantknew, or through the use of reasonable diligence should haveknown, or received notice in writing of the existence of theinjury or death for which damages are sought in the action,whichever of such date occurs first, but in no event shallsuch action be brought more than 4 years after the date onwhich occurred the act or omission or occurrence alleged insuch action to have been the cause of such injury or death." 735 ILCS 5/13--212(a) (West 1998).

Section 13--212(a) is bifurcated, providing both a two-yearstatute of limitations and a four-year statute of repose. Thedistinction between the repose period and the limitations period isthat the repose period is triggered by the defendant's wrongful actor omission that causes the injury, whereas the limitations periodis triggered by the patient's discovery of the injury. Turner v.Nama, 294 Ill. App. 3d 19, 24-25 (1997). The purpose of the reposeperiod is to terminate the possibility of liability after a definedperiod of time, regardless of a potential plaintiff's lack ofknowledge of his cause of action. Mega v. Holy Cross Hospital, 111Ill. 2d 416, 422 (1986). Although the statute of repose causesharsh consequences in some cases, the legislature intended tocurtail the increased exposure to malpractice actions brought aboutby the advent of the discovery rule by placing a time limit withinwhich a malpractice action must be commenced. Cunningham, 154 Ill.2d at 406; Anderson v. Wagner, 79 Ill. 2d 295, 312 (1979).

We first consider whether the plaintiff's complaint was filedwithin the four-year repose period mandated by section 13--212(a). Relying on Cunningham v. Huffman, 154 Ill. 2d 398 (1993), theplaintiff argues that the defendant's failure to notify him of theJune 1993 test results constituted an ongoing course of negligentmedical treatment and that the repose period did not begin to rununtil October 31, 1995, when the results were finally disclosed tohim. In Cunningham, the patient received an intrauterine device(IUD) from a doctor at the defendant's hospital in 1977. Cunningham, 154 Ill. 2d at 400. The patient began experiencingabdominal pain, and, in 1980, after probing failed to disclose theIUD, the doctor inserted another IUD. The patient continued toexperience medical problems and received medical treatment at thehospital through 1988. Such treatment included the removal of oneof the IUDs. Cunningham, 154 Ill. 2d at 400. In December 1988,after further problems and abdominal pain, the remaining IUD wasdiscovered and removed by a different doctor not associated withthe hospital. Cunningham, 154 Ill. 2d at 401. On appeal, thehospital argued that, for purposes of the statute of repose, theproximate cause of patient's injury was insertion of the first IUDin 1977 and that the patient's complaint was time-barred. Thepatient argued that the hospital's continuous course of treatmenttolled the repose period until the end of the patient's treatmentat the hospital in 1988. Cunningham, 154 Ill. 2d at 403-05.

The supreme court held that the patient's complaint was nottime-barred and found that the use of the term "occurrence" withinsection 13--212(a) did contemplate that a continuing course ofnegligent treatment would toll the repose period. Cunningham, 154Ill. 2d at 405. The court found it improbable that the legislatureintended the term "occurrence" to be limited to a single event. Cunningham, 154 Ill. 2d at 405. The court observed that, if thishad been the case, the legislature would have simply stated thatthe repose period commences on the happening of a "specific act" ora "specific omission." Instead, the court interpreted "occurrence"to include a string of negligent acts and omissions and, thus,concluded that the statute of repose permits a plaintiff to bringone action for the aggregate injury caused by the compoundingevents of an ongoing course of continuous negligent medicaltreatment for a specific condition. Cunningham, 154 Ill. 2d at405-06.

Under the doctrine adopted in Cunningham, the negligentmedical treatment continuum begins on the defendant's firstnegligent medical treatment and continues until his last negligentmedical treatment, at which point the repose period begins to run. Cunningham, 154 Ill. 2d at 405. To properly allege an ongoingcourse of continuous negligent medical treatment, plaintiff mustshow (1) that there was a continuous and unbroken course ofnegligent treatment; and (2) that the treatment was so related asto constitute one ongoing wrong. Cunningham, 154 Ill. 2d at 406.

In Turner v. Nama, 294 Ill. App. 3d 19 (1997), the IllinoisAppellate Court, First District, considered whether the continuingcourse of negligent treatment doctrine was applicable in a casewhere the defendant physician failed to notify the patient ofabnormal test results. In Turner, the defendant performed a Papsmear on the patient on September 18, 1990. The defendant receivedthe results seven days later, and the results indicated thepresence of cancer. The defendant did not notify the patient ofthe results. Turner, 294 Ill. App. 3d at 22. Another doctorsubsequently diagnosed the patient with cervical cancer, and shereturned to the defendant for a second opinion on December 14,1993. At this time, the patient first learned of the results ofher 1990 Pap smear. The patient died of cancer in March 1995, andher estate sued the defendant one month later. The trial courtdismissed the action as untimely. Turner, 294 Ill. App. 3d at 22.

The reviewing court held that the defendant's failure toinform the patient of the Pap smear results did not constitute acontinuing course of negligent medical treatment and that thecomplaint was barred by the statute of repose. Turner, 294 Ill.App. 3d at 30-32. After reviewing Cunningham and cases from otherjurisdictions, the court explained that the continuing course ofnegligent treatment doctrine encompasses only those acts andomissions that occur within the affirmative event of continuousmedical treatment. Concluding that the failure to notify a patientof unfavorable medical results did not constitute affirmativemedical treatment, the court held that the continuing course ofnegligent medical treatment doctrine was inapplicable. Turner, 294Ill. App. 3d at 31-32.

The Turner court next focused on when the statute of reposewas triggered. The court explained that a physician has animmediate obligation to notify his patient once he receivesunfavorable test results and that the physician in Turner shouldhave notified his patient within a two-month period after receivingthe results. Turner, 294 Ill. App. 3d at 33. The court thereforeheld that the repose period began to run at the end of the two-month period after the defendant received the test results. Turner, 294 Ill. App. 3d at 33.

We agree with the defendant that Turner is directly on pointwith the instant case. Here, the omission that resulted in theplaintiff's injury was the defendant's failure to communicate theresults of the PSA test results after he received them on June 8,1993. We agree with the Turner court's reasoning that the failureto notify a patient of abnormal test results, without anysubsequent affirmative medical treatment, cannot constitute acontinuing course of negligent medical treatment under Cunningham. We believe that the repose period in the instant case was triggered at the time that the defendant received the abnormal testresults and failed to communicate them to the plaintiff. Thisomission was the act that was the cause of the plaintiff's allegedinjuries. We therefore reject the plaintiff's argument that therepose period did not commence until the defendant finally advisedhim of the test results on October 31, 1995.

In so holding, however, we decline to follow Turner's adoptionof an additional two-month tolling period to account for thephysician's communication of test results. Such a tollingprovision is not contained in the section 13--212(a) and iscontrary to the plain language of that section mandating that therepose period commence upon the date of the act or omission oroccurrence resulting in the plaintiff's injury. Here, the omissionthat caused the plaintiff's alleged injury occurred on June 8,1993. We therefore conclude that the statute of repose requiredthat the plaintiff file his suit by June 8, 1997. Since theplaintiff did not file his original suit until June 1, 1998, thesuit was untimely and the trial court properly dismissed the casepursuant to section 2--619(a)(5) of the Code.

In light of our conclusion that the plaintiff's action wasbarred by the four-year statute of repose, we need not consider theplaintiff's alternative argument that the complaint was timelyunder the two-year statute of limitations.

For the foregoing reasons, the judgment of the circuit courtof McHenry County is affirmed.

Affirmed.

O'MALLEY and GROMETER, JJ., concur.