dissenting:
I dissent from the decision of the majority because I believe the trial court was correct in granting the defendants’ motion for summary judgment when the undisputed facts presented in this record admit of only one conclusion: that the plaintiffs knew or reasonably should have known both of their injury and its wrongful causation as of May 11, 1984. Therefore, the judgment of the trial court should be affirmed.
Plaintiffs argue Alfonso Dockery reasonably did not know of the wrongful causation of his injury in view of his educational and occupational background, and the fact he was in constant pain which required medication. Although the court in Hayes v. Weyrens (1973), 15 Ill. App. 3d 365, cited by plaintiffs, tested the plaintiff’s ability to reasonably know of her injury’s wrongful causation subjectively (i.e., with reference to her particular capabilities) rather than objectively (the capabilities of any person in general), the language of section 13 — 212 requires the plaintiff use “reasonable diligence” in discovering his injury’s wrongful causation, an objective standard (Ill. Rev. Stat. 1985, ch. 110, par. 13 — 212(a)).
Even assuming arguendo plaintiff should be tested by a subjective standard, Dr. Swanson’s deposition offered by defendants here effectively refuted plaintiff’s inability to know of a link between their treatment of him and his injury. As noted in the excerpts of Dr. Swanson’s deposition testimony, Alfonso Dockery told him “[h]e just couldn’t understand why he laid [sic] in the hospital for four and a half days hurting.” Dr. Swanson also testified he told Alfonso that when you have the kind of problem Alfonso had, “the quicker it’s fixed the better chance you have to do things.” Dr. Swanson was certain he discussed this with Dockery because: “When I [had] to tell him I don’t know if I [sic — presumably “it”] can work or not because this is five days after the fact that it will make things worse, what are you going to say?” Dr. Swanson’s deposition contains this further testimony:
“Q. Did you ever suggest to Mr. Dockery or Mrs. Dockery that the physicians at St. Therese should have transferred him up quicker or done something at that facility?
A. I don’t think I directly addressed that problem, no. I— but — I don’t recall, I really don’t.
Q. But, you did tell him that the quicker he would have been sent out the more likely the problem—
A. (Interrupting) I did tell him the sooner you can fix one of these things the better chance you have of coming out with a successful result. * * *
Q. Were there any further discussions or any discussions, Doctor, at any time that you saw Mr. Dockery during which he either told you again tht [sic] he was dissatisfied with the manner in which he was treated at St. Therese or that you indicated that something else could have happened if he would have been transferred out quicker? * * *
A. I don’t recall discussing anything about the care down there with either one of them other than probably the first day or two when I said, you know, we’re going to have problems because of the length of the ischemia that he had.”
Plaintiffs’ further contention that the pain and medication prevented Alfonso from realizing his injury was refuted by Marian Dockery’s deposition testimony that Alfonso was alert and coherent and understood that he was going to and did lose a leg.
Plaintiffs also contend they could not reasonably have known of the wrongful causation of their injury because the defendants told Alfonso he could lose his leg from diabetes. Marian Dockery stated in her deposition, however, that the defendants discussed with Alfonso that the diabetes was “contributing to his condition.” The “condition” to which Alfonso’s diabetes contributed was, according to Dr. Ortiz’s October 11, 1982, operative report, “occlusive peripheral vascular disease.” Further, Marian Dockery testified her husband did not want to have the first surgery in October 1982 but that the defendants told him “surgery was absolutely necessary or he would eventually lose a leg.” (Emphasis added.) She also testified the first time Alfonso learned he had diabetes was when the defendants recommended surgery to relieve his clogged arteries. Plaintiffs argue that the loss of plaintiff’s legs could reasonably have been viewed by him as the result of the defendants’ previously announced cause of diabetes rather than defendants’ negligence. Although the majority does not discuss it, plaintiffs claim the instant cause is “on all fours” with Watkins v. Health & Hospitals Governing Comm’n (1979), 78 Ill. App. 3d 468.
In Watkins, the plaintiff was being treated at Cook County Hospital for a kidney infection. In connection with one of the tests being performed on her, she was injected with a certain type of dye which caused her to develop blood clots. The clots ultimately necessitated the amputation of her right leg at the knee. The defendant’s motion to dismiss was granted on the ground the suit was time barred under the statute of limitations of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1973, ch. 85, pars. 8 — 101 through 8 — 103). On appeal, the cause was reversed and remanded after the court examined the issue under that statute of limitations as well as section 22.1 of the Limitations Act (Ill. Rev. Stat. 1975, ch. 83, par. 22.1), codified since 1982 as the section presently being considered (Ill. Rev. Stat. 1985, ch. 110, par. 13 — 212).
The Watkins court subscribed to the view expressed in Kristina v. St. James Hospital (1978), 63 Ill. App. 3d 810, 813, that the classification of an injury as traumatic or nontraumatic, alone, is of no significance. Generally, if an injury is traumatic in nature, that is, immediate and caused by an external force or violence, the plaintiff knows or should know of his right to sue when injured. (Saunders v. Klungboonkrong (1986), 150 Ill. App. 3d 56, 60.) The more obvious an injury is, the more easily a plaintiff should be able to know of its wrongful causation. (Saunders, 150 Ill. App. 3d at 60; Pszenny v. General Electric Co. (1985), 132 Ill. App. 3d 964, 966.) The Watkins court, however, observing that plaintiff’s complaint alleged she was a known diabetic and the defendant should have known that blood clots could present future problems for her, found it was possible for the plaintiff to have her leg amputated and reasonably believe that it was caused by her diabetic condition rather than the hospital’s negligence in administering the dye test to her. (Watkins, 78 Ill. App. 3d at 472.) Referring again to Kristina, the Watkins court acknowledged that the nature and circumstances of an injury may be such that its cause is unknown or apparently innocent at the time it occurs, and that there was nothing in the pleadings to suggest that the plaintiff there reasonably should have become aware of the connection between the dye test and the amputation of her leg. Watkins, 78 Ill. App. 3d at 472.
I note at this point the majority has correctly concluded that Alfonso’s injury was not the type of traumatic injury that has been found to trigger the running of the statute of limitations and that the discovery rule must be applied.
Unlike Watkins, however, the pleadings, depositions, and exhibits here clearly show Alfonso reasonably should have been “on inquiry” as of May 11, 1984. The state of mind in May 1984 which prompted Alfonso to question why defendants left him “hurting” for four days in May 1984, combined with the information from Dr. Swanson that the “quicker” and “sooner” treatment is begun, the better the chance for success, and with Dr. Swanson’s explanation to him that it was “five days after the fact,” indicates there was a concurrence of knowledge of both the physical problem and the possibility that someone was at fault for its existence. Unlike the unrelated kidney infection/dye test and amputation in Watkins, the progression of the pain, darkening and coldness in Alfonso’s legs during the four days in May when he was under the defendants’ care was directly related. to whether Dr. Swanson would be able to restore circulation to his legs and prevent partial or total amputation.
For these same reasons, the majority’s reliance on Saunders v. Klungboonkrong (1986), 150 Ill. App. 3d 56, as dispositive of the instant cause is misplaced. In Saunders, the court considered that when the doctors told plaintiff he would probably lose his arm “in light of the duration of the signs and symptoms,” plaintiff had no way of knowing the doctors were referring to the delay in treating his hand and arm on the morning of April 28, 1981, and he reasonably could have believed the doctors were referring to the length of time he had been having the numbness problem in general.
In contrast here, Dr. Swanson explained to Alfonso that he did not know if his treatment of him would work or not since it was “five days after the fact,” a clear reference to the sudden onset of Alfonso’s pain on May 1 after which time he was under the defendants’ care. Dr. Swanson further indicated to Alfonso that when you have the kind of problem Alfonso had, “the sooner you can fix one of these things the better chance you have of coming out with a successful result.” Dr. Swanson’s reference to “one of these things” refers to what is indicated on his May 6, 1984, operative report (appended to defendants’ motion for summary judgment) as “total aortic occlusion” of Alfonso’s abdominal aorta which occlusion was shown on the arteriogram performed on plaintiff on May 4, 1984. Thus, although Alfonso’s diabetes may indeed have contributed to his vascular disease, he was informed that the sooner his immediate problem was attended to, the greater the chance for a successful outcome. Marian Dockery testified, in fact, that the decision to transfer Alfonso to Marshfield after four days in the defendants’ care in May was made by Dr. Pierre-Jerome because the doctor “felt it was necessary that [Alfonso] get attention as soon as possible.”
I believe there was a concurrence here of both the knowledge of the physical problem and the possibility that someone was at fault for its existence. I emphasize that plaintiffs need not actually have known of the defendants’ negligent conduct or the existence of a cause of action in order to trigger the running of the statute. (People ex rel. Skinner v. Graham (1988), 170 Ill. App. 3d 417, 429-30, referring, inter alia, to Knox, 88 Ill. 2d at 416.) They were, however, under an obligation as of at least May 11, 1984, “to inquire further to determine whether an actionable wrong was committed.” Nolan v. Johns-Manville Asbestos (1981), 85 Ill. 2d 161,171.
For the reasons above, I conclude the court was correct in granting the defendants summary judgment where the undisputed facts presented by the record below admit of only one conclusion: that the plaintiffs knew or reasonably should have known both of their injury and its wrongful causation as of May 11, 1984. The judgment of the circuit court of Lake County should be affirmed. The majority’s decision to reverse for further proceedings — although an understandably empathetic application of the discovery rule in light of Alfonso’s tragic losses — nonetheless injudiciously softens the necessarily rigid perimetry of the statute of limitations, and, therefore, I dissent.