Chicago Daily Law Bulletin
08/04/2009 No. 151 Volume 155 1CPage 1
MOTHER OF LEGALLY DISABLED PLAINTIFF FACES NO TIME BAR IN FRAUD SUIT: PANEL
By Pat Milhizer, Law Bulletin staff writer
Even though the mother of a mentally disabled man waited many years to pursue a paperwork fraud allegation against a doctor who treated her son shortly after his birth 25 years ago, she isn’t barred by the laches defense from pursuing that claim because her son’s condition amounts to a legal disability, the 1st District Appellate Court held Tuesday.
The case stems from a 1991 medical negligence action that the mother filed against the staff and hospital that handled the birth of her son, who suffers from cerebral palsy and a seizure disorder. She also sued the manufacturer of a drug that she was injected with during the pregnancy, alleging that the injection caused her son’s condition.
After the lawsuit settled in 2005, the mother sued Dr. Tadanori Tomita and Children’s Memorial Hospital, seeking damages for fraud.
The alleged fraud stems from one word in Tomita’s report on the son in1984 that suggests that the injury occurred before the birth. But in a 1997 deposition, the doctor said that the report contained a typographical error regarding that one word, and he said that the CT scans showed that the injury happened during the birth process, according to the opinion.
The mother said that the doctor’s alleged misrepresentation caused her to settle the negligence claims for less money than she could have received, according to the opinion.
The defendants responded that the fraud lawsuit should be barred by the doctrine of res judicata and the defense of laches.
Last year, Circuit Judge Kathy M. Flanagan disagreed with the res judicata claim, but concluded that the fraud claims were barred by laches, noting that the mother waited nearly a decade after discovering the alleged fraud.
In a 14-page opinion, Appellate Court Justice Thomas E. Hoffman reversed the laches ruling and remanded the case for further proceedings. Justices Themis N. Karnezis and Joy V. Cunningham concurred.
The justices agreed with the mother’s argument that laches can’t be asserted against a mentally incompetent person such as her son. In one case supporting its decision, the appeals panel applied Estate of Riha v. Christ Hospital, 187 Ill. App. 3d 752, 756, 544 N.E. 2d 402 (1989).
The justices held that the son could reasonably be found to lack the understanding or capacity to make or communicate decisions regarding himself, his estate and his financial affairs. Thus, the son suffers from a legal disability, the opinion said.
The appeals court acknowledged that the mother could have filed the fraud lawsuit sooner but said that the delay cannot be imputed to an individual under a legal disability, even if the next friend who brings the suit is clearly guilty of laches.
The mother was represented by Robert A. Holstein of Holstein Law Offices LLC and Anthony M. Sciara of Schwartz & Sciara P.C.
Holstein praised the justices for being very alert and very conscious of the facts, especially in this time when the entire health care issue is before the American people.
This case is illustrative of what is wrong with our system and why we can’t allow health care providers to not have liability because the maintenance of this child … who is brain-damaged and who cannot walk or talk, is a huge expense that has to be shouldered by somebody, Holstein said. And it should rightly be shouldered by the responsible parties.
The doctor and the hospital were represented by Pamela L. Gellen, Scott R. Wolfe and Deborah Rusoff O’Brien of Lowis & Gellen LLP. Gellen declined to comment on the pending litigation.
Marta Valdovinos, etc. v. Tadanori Tomita, etc. et al., No 1-08-2401.
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