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Failure to Communicate Cancer Diagnosis to Minor Barred by Two-Year Limitations


A seventeen-year-old boy went to a public hospital to have a lump on his forehead excised. Five days later the boy returned for follow up care. The hospital’s pathology lab found the lesion was cancerous and this diagnosis was confirmed by a conference committee six days after the excision. Twelve days later the boy returned for suture removal. At the suture removal appointment, none of the treating physicians informed the boy of the cancer diagnosis. The treating physician asked the boy to return in two to three months for follow up.

 

The boy did not return to the clinic until four years later, when he went to get a mass on the right side of his head examined. The mass was removed and subsequently found to be cancerous. At this time, he discovered the lesion removed four years earlier was cancerous.

 

The man filed a medical malpractice complaint just under a year after the second mass was removed, about two weeks before his twenty-second birthday. The complaint alleged the county health system, hospital, and three physicians owed him a duty of care to inform him of his cancer diagnosis when it was discovered, which they breached. As a result of the breach, the boy was unable to control, stop, or reverse the tumor’s growth, recurrence and spread until over four years after the diagnosis was confirmed, by which time he was faced with extensive treatment and surgeries.

 

The Circuit Court of Cook County granted the motion to dismiss of the county health system, hospital, and three physicians. The trial court found that the action was not filed within the two-year statute of limitations or the four-year statute of repose contained in the Tort Immunity Act for claims against local public entities. The trial court determined that the two-year limitations period in the Tort Immunity Act took precedence over the eight-year repose for actions where the person entitled to bring the action was, at the time the cause of action accrued, under the age of 18, so long as the action is brought after the person’s twenty-second birthday.

 

The First District Appellate Court of Illinois, First Division, affirmed. The court held that the trial court did not err in applying the two-year limitations period to the claim and in failing to apply the doctrine of equitable estoppel.

 

The trial court did not err in applying the two-year limitations period to the claim. The Tort Immunity Act’s two-year statute of limitations began to run when the minor plaintiff reached 18 years of age. The man filed his complaint almost three years after he turned 18. Therefore, the claim was time-barred.

 

The trial court did not err in failing to apply the doctrine of equitable estoppel. To invoke estoppel against a public body one must show an affirmative act on the part of the public body and the inducement of substantial reliance by the affirmative act. The complaint did not allege any affirmative acts of the county health system, hospital, and three physicians which induced his substantial reliance, only that they should have informed him of the results but failed to do so in a timely manner. The court found that the facts alleged in the complaint did not support the application of estoppel.

 

The First District Appellate Court of Illinois, First Division, affirmed the trial court’s grant of the motion to dismiss of the county health system, hospital, and three physicians.

 

See: Cruz v. Cook County Health & Hosp. System, 2015 WL 7451373 (Ill.App. 1 Dist., November 23, 2015) (not designated for publication).

 

See also Medical Law Perspectives, November 2014 Report: More Than Skin Deep: Skin Cancer Misdiagnosis and Other Liability Issues

 

See also Medical Law Perspectives, October 2012 Report: Mistakes in Diagnosing Cancer: Liability Concerns for Misdiagnosis, Failure to Diagnose, and Delayed Diagnosis

 

See the Medical Law Perspectives June 29, 2015, Blog: Failure to Diagnose Cancer Claims Face Hurdles, Especially in New York 

 

See the Medical Law Perspectives October 24, 2014, Blog: Medical Expert Testimony Not Necessary to Establish Standard of Care for Failure to Communicate Cancer Diagnosis 

 

 

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