Surgeon Laurance Monckton must defend himself at a single trial against separate claims over what he didn't do one day and what he did the next day.
Madison County Circuit Judge Barbara Crowder ruled July 3 that Rex Carr of East St. Louis, attorney for Edward Hoekstra of Godfrey, properly amended a complaint to assert both claims against Monckton.
Carr alleges that Monckton failed to operate on Hoekstra Aug. 20, 2002, and that when he operated the next day he botched the surgery.
Monckton's attorney, Ann Marie Piana of Clayton, Mo., argued that the statute of limitations ran out on the second claim, but Crowder disagreed.
Crowder wrote, "Here, the occurrence is the entire hospitalization and one surgical proceeding."
"Once plaintiff has identified that occurrence in a timely filed complaint, the court must liberally construe the amendments to the complaint…," she wrote.
"The amendments relate back to the original date of filing."
Hoekstra seeks damages not only from Monckton but also from physician Aamir Javaid, the clinics that employed the doctors, and Alton Memorial Hospital.
According to Carr, the hospital admitted Hoekstra Aug. 18, 2002, Javaid saw him Aug. 19, and Monckton operated Aug. 21.
Hoekstra sued the doctors, the hospital and the clinics in 2004, claiming they failed to respond to his deteriorating condition.
He also sued an answering service, Answer Midwest, claiming it failed to convey a message from Javaid to Monckton.
At first Hoekstra did not allege that Monckton operated negligently. In an amended complaint this March, Carr claimed Monckton removed more of Hoekstra's small bowel than necessary.
Monckton moved to dismiss the claim of negligent surgery. Piana argued that the statute of limitations barred a 2007 claim from a 2002 operation.
Carr opposed the motion.
"The original complaint charges him with not appearing on the 20th of August and if he did appear on the 20th of August, most of Mr. Hoekstra's bowel would not have had to be removed," Carr wrote.
"The amended complaint charges Dr. Monckton appearing on the 21st of August and removing bowel which should not have been removed.
"The only difference between the two charges is that bowel even if part of it had been necrotic would not have had to be removed if Dr. Monckton had got there on the 20th.
"The amended complaint, alternatively, charges him with removing bowel that should not have been removed at all.
"The end result is exactly the same.
"If Dr. Monckton had operated on the 20th of August in a timely fashion, there is no question but that he would have removed
exactly the same bowel on that day as he did on August 21st.
"He knew he removed healthy bowel, or should have known. What difference did the operation date make?"
Crowder heard arguments June 15 and decided in Carr's favor July 3.
She has set trial Oct. 1.
Answer Midwest won't participate. It settled with Hoekstra July 5.