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Bickel v. City of Chicago

JANUARY 23, 1975.

MARTIN BICKEL, PLAINTIFF-APPELLEE,

v.

THE CITY OF CHICAGO, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. WALTER J. KOWALSKI, Judge, presiding.

MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:

Plaintiff, Martin Bickel, brought action against the defendant City of Chicago for personal injuries sustained in a fall on a City sidewalk. Following a trial without a jury, judgment was entered in favor of plaintiff in the amount of $110,000. Defendant appeals, contending that the trial court erred in failing to dismiss the action because of a fatal defect in the written statutory notice of injury served on defendant, that plaintiff failed to prove that he was free from contributory negligence, and that the judgment is excessive.

Plaintiff's injuries were sustained in a fall at the curb of the southeast corner of Franklin and Washington Streets in the City of Chicago, on November 28, 1969, at which time sections 8-102 and 8-103 of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1969, ch. 85, pars. 8-102 and 8-103) provided in pertinent part:

"§ 8-102. Within 6 months from the date that the injury or cause of action, referred to in Sections 8-102 and 8-103, was received or accrued, any person who is about to commence any civil action for damages on account of such injury against a local public entity, * * * must personally serve in the Office of the Secretary or Clerk, * * * a written statement, * * * giving the name of the person to whom the cause of action has accrued, * * * and the name and address of the treating hospital or hospitals, if any.

§ 8-103. If the notice under Section 8-102 is not served as provided therein, any such civil action commenced against a local public entity, * * * shall be dismissed and the person to whom such cause of injury accrued shall be forever barred from further suing."

The requirement of section 8-102 that the notice include the name and address of the treating hospital or hospitals, if any, was added by a 1969 amendment which first became effective on October 10, 1969.

On December 22, 1969, plaintiff's attorney served defendant with a written notice of claim for personal injuries which included "Hospital: Chicago Wesley Memorial, 250 E. Superior St., Chicago, Illinois." Plaintiff had in fact received emergency care at Chicago Wesley Memorial Hospital on the date of the accident. Subsequently, but prior to the service of the statutory notice, plaintiff had received certain medical services for his injuries at Lutheran General Hospital on seven separate occasions. At the opening of trial, defendant moved that the suit be dismissed under section 8-103 because the plaintiff's notice did not list all of the treating hospitals. The trial court denied the motion upon the basis that a "treating hospital" is one which provides hospitalization rather than merely extending out-patient care. The cause then proceeded to trial without a jury.

Plaintiff testified that on the date of the accident he was taken to Wesley Memorial Hospital where his left leg was X-rayed in the emergency room and an intern advised him to keep his leg elevated and to apply ice packs. That evening plaintiff called his personal physician, Dr. Rasmus Harr, who advised him to go to Lutheran General Hospital on the following day. There the plaintiff's leg was again X-rayed; an elastic bandage was applied, he was advised to keep the leg elevated, and Dr. Harr gave him a prescription. He returned to Lutheran General Hospital 2 or 3 days later and was again told to keep his leg elevated. Plaintiff further testified that he began receiving therapy at Lutheran General Hospital in December of 1969, which at first consisted of whirlpool treatments about every other day.

Dr. Rasmus Harr testified that he was associated with Lutheran General Hospital and was plaintiff's family physician. Although he did not recall receiving a telephone call from plaintiff on November 28, 1969, he did receive a call from the emergency room of Lutheran General Hospital on November 29, 1969, advising him that plaintiff was there. He directed that plaintiff's leg be X-rayed, an elastic bandage applied, and that plaintiff be told to elevate his leg and apply ice packs. He saw plaintiff at Lutheran General Hospital on the following day and again at his private office on December 2, 1969. Dr. Harr stated that he prescribed physiotherapy for which he directed plaintiff to the physiotherapy department of Lutheran General Hospital, where he often saw him when he came in for treatment. He further testified that the hospital's records indicate that plaintiff began receiving physiotherapy and massage on December 8, 1969, for which he was charged directly by the hospital. A paid bill from the hospital was received in evidence reflecting that plaintiff had physiotherapy on the 9th, 11th, 12th, 15th, 17th and 19th of December, 1969.

The written notice served on defendant was received in evidence over the renewed objection of defendant that the notice was defective.

I.

Initially, defendant contends that the written notice served upon it was fatally defective in failing to list all of the treating hospitals. The trial court accepted plaintiff's argument that the treating hospital or hospitals, as required by the statute, must be equated with hospitalization, and concluded that out-patient care was not within the scope of those terms. Treatment is defined in Webster's 1966 Third New International Dictionary as "the action or manner of treating a patient medically or surgically." Treatment has been defined as a broad term covering all the steps taken to effect a cure of injury or disease, including examination and diagnosis, as well as the application of remedies. (Pfahler v. Eclipse Pioneer Division of Bendix Aviation Corp. (1956), 21 N.J. 486, 122 A.2d 644; Hester v. Ford (1930), 221 Ala. 592, 130 So. 203.) In the instant case, between the date of the accident and the service of the statutory notice upon defendant, plaintiff received diagnostic service by way of X-ray, as well as remedial care, at the emergency room and Physiotherapy Department of Lutheran General Hospital, albeit at the direction of his personal physician.

The trial court erred in concluding that in this instance Lutheran General Hospital was not a treating hospital within the provisions of section 8-102. However, under the principle that it is the correctness of the ruling which is reviewed and not the reasons expressed by the trial court, the question still arises whether the failure to include said hospital in the statutory notice is fatal to the maintenance of the present action. (Cady v. Hartford Fire Insurance Co. (1965), 56 Ill. App.2d 429, 206 N.E.2d 535.) Defendant maintains that strict compliance is required under the above statute and cites in support of this argument Rapacz v. Township High School Dist. No. 207 (1971), 2 Ill. App.3d 1095, 278 N.E.2d 540; Hoffman v. Evans (1970), 129 Ill. App.2d 439, 263 N.E.2d 140; and Williams v. City of Gibson (1970), 129 Ill. App.2d 431, 263 N.E.2d 138. It is significant that Rapacz and Williams involved erroneous dates of accident and Hoffman involved a complete failure to give notice. Plaintiff responds that substantial compliance rather than strict compliance is the proper standard for determining the sufficiency of the statutory notice, especially where, as here, the omission was inadvertent, plaintiff has not been shown to have acted in bad faith, and defendant was not misled or prejudiced in any way. Plaintiff relies on McComb v. City of Chicago (1914), 263 Ill. 510, 105 N.E. 294; Klein v. City of Chicago (1973), 10 Ill. App.3d 670, 294 N.E.2d 755; Redmond v. City of Chicago (1973), 10 Ill. App.3d 567, 294 N.E.2d 761; Bryant v. City of Chicago (1943), 319 Ill. App. 524, 49 N.E.2d 654; and Lutsch v. City of Chicago (1943), 318 Ill. App. 156, 47 N.E.2d 545.

In Ouimette v. City of Chicago (1909), 242 Ill. 501, 90 N.E. 300, the supreme court held that statutes requiring the giving of notice before the institution of a civil suit against a public entity are to be strictly construed and the notice must follow the requirements of the statute. There, the notice erroneously stated the date of the accident as November 10, 1905, instead of the occurrence date of October 10, 1905. The strict standard compliance has also been applied in Ramos v. Armstrong (1972), 8 Ill. App.3d 503, 289 N.E.2d 709; Fannon v. City of Aurora (1969), 106 Ill. App.2d 408, 245 N.E.2d ...


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