Can the Discovery Rule Rescue a Complaint from the Limitation Period Time Bar ?
In Licka v. William A. Sales, Ltd., 70 Ill. App. 3d 929, 388 N.E.2d 1261, 27 Ill. Dec. 212 (1979), the plaintiff underwent a spinal-disc fusion operation in October 1973.
His back pain continued after surgery, and his surgeon explained back pain was normal after back surgery. the plaintiff continued to receive treatment from his surgeon until mid-1974.
In May 1975, he learned he would need further treatment because his surgeon had performed the operation at the wrong location on his spine. He filed a medical malpractice complaint on February 11, 1976, more than two years after his surgery.
The court held the discovery rule rescued the plaintiff's complaint from the limitations period time bar. Licka, 70 Ill. App. 3d at 935.
"Although plaintiff continued to feel pain from the time of the operation in October of 1973 " said the court, "the pain could have been consistent with a non-negligent failure of the operation or with normal post-operative pain." Licka, 70 Ill. App. 3d at 935.
The court noted the surgeon could not explain the plaintiff's continued pain, and concluded, "it would hardly be reasonable to attribute knowledge of his injury to plaintiff during a time when a specialist in such matters was unable to discover it." Licka, 70 Ill. App. 3d at 935.