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Castello v. Kalis9/14/2004
UNPUBLISHED
Plaintiff John Castello appeals from an order of the circuit court granting defendant Olga Kalis' motion for summary judgment in plaintiff's negligence action against defendants. On appeal, plaintiff contends that the trial court erred in holding that the claims against Kalis were time barred as a matter of law under the applicable statute of limitations. For the reasons set forth below, we affirm.
STATEMENT OF FACTS
In 1988, Vivianne Castello began receiving routine gynecologic and obstetrical care from Dr. Joseph Capezio, Dr. Robert Turner and the practice group of Women's Health Specialists. In January and November 1992, Vivianne's pap smear slides were forwarded to Cytology Unlimited (Cytology) and reported as normal. Likewise, in September 1993, Vivianne's pap smear slide was forwarded to Cytology, and defendant, a cytotechnologist employed by Cytology, interpreted and reported the slide to be within normal limits. In April 1996, Vivianne had another pap smear taken and the slide was again reported by Cytology as normal.
In July 1996, Vivianne experienced bleeding following sexual intercourse. In August, she contacted Women's Health Specialists regarding the bleeding, and expressed to Drs. Capezio and Turner her concern that the bleeding was indicative of cervical cancer. Vivianne was repeatedly reassured by her doctors that she was not a candidate for cervical cancer and that cancer was not the source of her irregular bleeding. By January 1997, Vivianne's symptoms were becoming more severe, and she was experiencing bleeding with other activities, such as heavy lifting. Vivianne complained regularly to Capezio and Turner that she was concerned that she might have cervical cancer based on various medical books she had read regarding abnormal bleeding. Vivianne had another pap smear taken in early 1997 and Cytology once again reported that the slide was normal. The physicians repeatedly told Vivianne to stop worrying about the possibility of cervical cancer, noting that she was too young for cervical cancer and that her prior pap smears contained normal results.
Finally, Turner recommended that Vivianne undergo a cervical biopsy on February 27, 1997. On March 3, Turner advised Vivianne that the biopsy showed that she had cervical cancer and he recommended that she see Dr. James Dolan, an oncologist. In response to subsequent interrogatories, Vivianne stated that March 3, 1997, was the date that she "became aware of the alleged malpractice stated in Complaint."
Vivianne followed up with Dr. Dolan the very next day. Dolan told Vivianne that she had a four-centimeter lesion on her cervix, which " s basically the entire cervix." Dolan informed her that she had a very aggressive, fast-growing cancer, estimated that her life expectancy could be as little as 30 months and questioned why the biopsy had not been given sooner. Thereafter, Vivianne had to undergo a radical hysterectomy.
On April 2, 1997, Vivianne requested copies of her entire medical file from Women's Health Specialists. Vivianne also requested that Dr. Turner call her regarding a rereading of her previous pap smears. Vivianne subsequently alleged in an eight-page statement dated May 1997 that, when Turner returned her telephone call on April 2, he told Vivianne's husband, plaintiff John Castello, that another physician, Dr. Taxi, had reviewed one or more of Vivianne's previous pap smear slides and had determined that " previous pap's showed cancer." In a subsequent deposition, plaintiff corroborated Vivianne's statement concerning Turner's telephone call.
When Vivianne called the Women's Health Specialists office on April 8, 1997,
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