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Neuberg v. Michael Reese Hospital

OPINION FILED MAY 22, 1978.

LEROY NEUBERG ET AL., PLAINTIFFS-APPELLANTS,

v.

MICHAEL REESE HOSPITAL AND MEDICAL CENTER ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. JACQUES F. HEILINGOETTER, Judge, presiding.

MR. JUSTICE BUCKLEY DELIVERED THE OPINION OF THE COURT:

LeRoy and Sari Neuberg appeal from the trial court's dismissal of their two-count complaint against defendants, Michael Reese Hospital and Medical Center, Michael Reese Research Foundation, Doctor Arthur H. Rosenblum and Doctor Samuel J. Pearlman.

The sole issue on review is whether the plaintiffs' complaint states a cause of action for intentional infliction of severe emotional distress on behalf of the plaintiffs against any of the named defendants.

This action was orginally filed on November 12, 1975, by the Neubergs and their two sons, Leland and Joel. On April 30, 1976, pursuant to leave of court, the Neuberg parents alone filed a first amended complaint, their sons having elected to maintain an action in Federal court. In a two-count complaint, the Neubergs sought compensatory and punitive damages for the intentional and/or negligent infliction of emotional distress.

The complaint alleged that in July 1947, Michael Reese Medical Center accepted both Leland and Joel Neuberg as patients for treatment of inflamed tonsils and tonsilitis. Doctor Philip Rosenblum, a member of Michael Reese's Pediatrics Department, was the boys' treating physician. He recommended the use of X-ray treatments to shrink the inflammation of the Neubergs' enlarged tonsils. Doctor Erich M. Uhlmann, chairman of the department of radiology at Michael Reese, was the radiologist in charge of the treatment the Neuberg boys received and directed the X-ray treatments in question. Plaintiffs contend that Rosenblum and Uhlmann employed a purely experimental X-ray treatment procedure to the neck area of both boys while failing to warn plaintiffs that that treatment could produce harmful and dangerous side effects, including cancer. Plaintiffs further contend that the Neuberg boys were improperly treated with excessive amounts of radiation which was permitted to scatter from its proper target, resulting in harmful and dangerous side effects.

Both Doctor Philip Rosenblum and Doctor Uhlmann died prior to the filing of the Neuberg's complaint. Their respective estate's representatives were joined in the Neubergs' original action. On July 9, 1976, the summons served upon the executor of the estate of Doctor Erich Uhlmann was quashed and the estate of Doctor Uhlmann was dismissed from the case. On July 12, 1976, the summons served upon the former executors of the estate of Doctor Philip Rosenblum were quashed and the estate of Doctor Rosenblum was dismissed from the case. Neither estate's representatives were subsequently served with summons, and their respective dismissals are not before the court.

The complaint further alleged that Doctor Arthur Rosenblum, a member of the pediatrics department at Michael Reese, and an associate of Doctor Philip Rosenblum, negligently and willfully and wantonly concurred in the decision to advise the X-ray treatment of the Neuberg boys. However, Doctor Arthur Rosenblum never actually treated the Neuberg children.

Doctor Samuel J. Pearlman, a member of the Ear, Nose and Throat Department at Michael Reese, was likewise named a defendant. Doctor Pearlman was alleged to have recommended the use of X-ray treatment in young patients inflicted with enlarged and inflamed tonsils. Doctor Pearlman was the author of medical publications and pediatric society addresses which advocated the use of X-ray treatment in such cases. Similarly, Doctor Pearlman never actually treated the Neubergs.

Defendant, Michael Reese Hospital, Medical Center and Research Foundation, allegedly failed to use reasonable diligence in its selection of the other named defendants, negligently employed X-ray radiation as a product, and committed assaults on the Neuberg children by use of such product.

Sometime between 1947 and 1951, Michael Reese Medical Center discontinued or reduced the tonsil X-ray treatment, due to increased scientific evidence connecting thyroid cancer with tonsil radiation. On February 12, 1956, Doctor Erich Uhlmann, then chairman of the Michael Reese Tumor Clinic, published a scientific paper at the winter meeting of the Central Society of Nuclear Medicine denying any connection between Michael Reese's tonsil radiation treatment and thyroid cancer.

In 1962, Leland Neuberg developed cancer of the thyroid gland and the adjoining area. In September 1962, a thyroidectomy and radical neck resection were performed followed by 28 deep X-ray treatments to the neck area.

In 1966, Doctors Philip and Arthur Rosenblum, in conjunction with Michael Reese Medical Center, published a scientific medical article which acknowledged the possible causal connection between the tonsil X-ray treatment employed by Michael Reese and thyroid cancer.

In 1974, Joel Neuberg developed a nodule on his thyroid gland. In November 1974, the growth was first suspected of being cancerous. Both Neuberg children are alleged to have been permanently disfigured, suffer impaired health, require medication for the remainder of their lives, have a shorter life expectancy, continue to experience pain and suffering and expend large sums for medical treatment.

In 1974, Michael Reese Medical Center circulated an announcement to local radio stations, television stations and newspapers. The announcement acknowledged the proximate causal connection between tonsil X-ray treatment and thyroid cancer, and ...


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