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Mathis v. Hejna

APRIL 16, 1969.

FRANK W. MATHIS, PLAINTIFF-APPELLANT,

v.

DR. WILLIAM F. HEJNA AND THE PRESBYTERIAN-ST. LUKE'S HOSPITAL, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County; the Hon. BENJAMIN SCHWARTZ, Judge, presiding. Reversed and remanded.

MR. JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT.

This is an appeal from a judgment dismissing plaintiff's complaint for malpractice. Plaintiff's complaint was in two counts: Count I alleging specific negligence; Count II sounding in res ipsa loquitur.

The complaint was filed on September 8, 1966, alleging that on or about September 19, 1963 the defendants, Dr. Hejna and certain agents, servants and employees of Presbyterian-St. Luke's Hospital, performed a myelogram upon plaintiff while he was a patient at defendant hospital.

Myelography is a diagnostic procedure wherein a dye substance, such as pantopaque (the dye used in this case) is injected into the spinal canal as a contrast medium and the image created by the contrast medium is studied on a fluoroscopic screen, image amplifier or X-ray television screen.

Plaintiff alleged, inter alia, that the defendants were negligent in that they permitted pantopaque, which is a foreign substance other than flesh, blood or bone, to remain in plaintiff's body thereby causing him to contract arachnoiditis. The complaint further alleged that plaintiff was unaware of defendants' negligence until within a period of less than two years preceding the date this suit was commenced.

The defendants moved to dismiss the complaint on the ground that it was barred by Ill Rev Stats, c 83, § 15 (1967), which states in pertinent part that all actions for personal injuries must be brought within two years from the date of the injury.

To avoid the two year bar of section 15, plaintiff urges that Ill Rev Stats, c 83, § 22.1, is controlling in this action. Section 22.1 provides that a cause of action for negligently permitting a foreign substance to remain in the body of a living human being does not accrue until the injured party knew or should have known of the injury. By urging that this action is covered by section 22.1 rather than section 15 plaintiff argues that pantopaque is a foreign substance within the meaning of section 22.1 and thus the statute of limitations was tolled until plaintiff "knew or should have known" of his alleged injury.

The trial court rejected plaintiff's contention and ruled as a matter of law, that pantopaque was not a foreign substance within the meaning of section 22.1 and accordingly plaintiff's complaint was barred by section 15 of the statute of limitations.

Since the judgment which plaintiff is appealing was entered pursuant to defendants' motion to dismiss the complaint, all well pleaded facts must be taken as true. Miller v. Veterans of Foreign Wars of United States, 56 Ill. App.2d 343, 206 N.E.2d 316 (1965). The complaint reveals: Plaintiff was free from contributory negligence; plaintiff was injured and suffered damage as a result of the introduction of pantopaque into his body; that pantopaque was negligently permitted to remain in his body; and plaintiff neither knew nor should have known of the facts of the injury to his body until within a period of less than two years preceding the date of filing his lawsuit.

The issue presented on appeal is whether pantopaque is a foreign substance within the meaning of the following statute; Ill Rev Stats, c 83, § 22.1 (1965) which provides:

Whenever in the course of any medical, dental, surgical or other professional treatment or operation, any foreign substance other than flesh, blood or bone, is is introduced and is negligently permitted to remain within the body of a living human person, causing harm, the period of limitation for filing an action for damages does not begin until the person actually knows or should have known of the facts of hurt and damage to his body. . . .

Defendants contend that the legislative intent in enacting this statute was to extend the period in which an action may be filed only in those instances in which an item is unwittingly mislaid in the body, when it was not anticipated or expected that any object would be left in the body permanently; and that the Legislature did not intend to include well-established medical procedures which require that a foreign substance or some part of it remain in the body.

Statutes of limitation, like other statutes, must be construed in the light of their objectives; they are liberally construed to fulfill the object for which they were enacted. Geneva Const. Co. v. Martin Transfer & Storage Co., 4 Ill.2d 273, 122 N.E.2d 540 (1954); Thornton v. Nome and Sinook Co., 260 Ill. App. 76 (1931). The intention of the Legislature is to be determined more from the consideration of the general object and purpose for which the statute was enacted than from technical definitions. Tidwell v. Smith, 57 Ill. App.2d 271, 205 N.E.2d 484 (1965).

In Mosby v. Michael Reese Hospital, 49 Ill. App.2d 336, 199 N.E.2d 633 (1964), the defendant hospital left a surgical needle in the body of the plaintiff during the course of an operation which was not discovered until after the statute of limitations had run. The court held that the plaintiff's cause of ...


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