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Castello v. Kalis9/14/2004
t the trial court did not err in granting the manufacturer's motion for summary judgment.
In the instant case, the injury complained of was "a significant delay in the diagnosis cervical cancer," which resulted in Vivianne having a four-centimeter lesion on her cervix, necessitated a radical hysterectomy and ultimately resulted in Vivianne's death. The undisputed facts show that Vivianne received several pap smears during the course of her treatment at Women's Health Specialists and that each of the pap smear slides were reported as within normal limits, even though Vivianne began experiencing bleeding in July 1996. By late 1996, Vivianne was experiencing severe bleeding, complained regularly to her doctors and repeatedly expressed her fears that the bleeding was indicative of cervical cancer, yet Vivianne's doctors and pap smear results continued to contradict her symptoms and fears. The record further shows that, as late as the beginning of 1997, Vivianne had another pap smear taken, which was reported again as within the normal limits. Then, after her February 1997 biopsy, Vivianne was told on March 3, 1997, that she had cervical cancer, and, on the following day, she was told that she had a four-centimeter lesion on "basically the entire cervix" and that, due to her advanced state of cervical cancer, her life expectancy could be as little as 30 months. There can be little doubt that, at this time, Vivianne knew, or reasonably should have known, that she had suffered an injury and that this injury was wrongfully caused. Moreover, Vivianne's interrogatories reveal that Vivianne knew, subjectively, on March 3 that she had suffered an injury and that the injury was wrongfully caused because Vivianne stated that March 3 was the date that she "became aware of the alleged malpractice stated in the complaint."
Further, a review of the record reveals that, by November 9, 1997 (the agreed last date for when the statute of limitations could have begun to run regarding plaintiff's claims), Vivianne had requested her entire medical file from Women's Health Specialists. Additionally, Vivianne contended that plaintiff had spoken to Dr. Turner over the telephone during which Turner admitted that the "previous pap's showed cancer." Thereafter, Vivianne and plaintiff retained an attorney, and plaintiff, when asked in a deposition why he and Vivianne sought an attorney, responded that "it [went] back to the slides, that we were told that they were fine and [later] learned that they had cancer on them." Also, Vivianne's attorney had requested and received all of the pap smear slides from Cytology; Vivianne had written an eight-page statement criticizing the conduct of Drs. Capezio and Turner and acknowledging "the controversy about the reliability of pap smears"; and Vivianne had spoken to Dr. Cruikshank, during which Cruikshank criticized the medical care she had received leading up to her diagnosis of cancer.
Like the plaintiff in Wells, the essence of plaintiff's position here is that Vivianne should not have been charged with knowledge sufficient to trigger the running of the limitations period as to any particular defendant until she knew or reasonably should have known that her injury was wrongfully caused by that defendant. As stated in Wells, our supreme court has expressly disavowed any such interpretation of the discovery rule. Similar to the plaintiff in Wells, plaintiff here cannot be heard to argue that Vivianne did not possess sufficient knowledge by November 9, 1997, concerning her injury and its cause to put a reasonable person on inquiry to determine whether actionable conduct was involved in light of the fact that it is undisputed as to how the above events unfolded. Such knowledg
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