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Margolis v. Chicago Transit Authority

OPINION FILED MARCH 16, 1979.

STRYA MARGOLIS, PLAINTIFF-APPELLANT,

v.

CHICAGO TRANSIT AUTHORITY ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. PAUL F. ELWARD, Judge, presiding.

MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:

This is an appeal from an order dismissing plaintiff's action for damages because of personal injuries allegedly received while a passenger in a train of the Chicago Transit Authority (CTA). The dismissal was grounded on findings that a statutory notice required of plaintiff was defective and that the operator of the train (sued as John Doe) was not served with summons within the applicable limitations period. The issues presented are whether her notice substantially complied with statutory requirements and whether the limitations period applicable to the motorman should be tolled, and the CTA precluded from raising it as a defense because the CTA had lulled plaintiff into a false sense of security.

Within six months of the occurrence, plaintiff served a notice on the secretary and general counsel of CTA which stated that at approximately 7:40 p.m. on March 28, 1974, she was thrown from her seat when the CTA train in which she was riding lurched while negotiating the last northbound turn before the Kimball station at too high a rate of speed. In addition, the notice listed the name and address of Dr. I. Sobel as her attending physician and the name and address of Weiss Memorial as the treating hospital. A copy of the notice was attached as an exhibit to the complaint filed March 26, 1975, seeking damages against CTA and John Doe, the unknown operator of the train. In its answer, CTA admitted "service of what purports to be a notice * * * but denies any statement of negligence contained in said notice."

On July 12, 1977, plaintiff moved to advance the cause for trial and, in an affidavit supporting the motion, her counsel stated that "plaintiff has a tumor in the left axilla and breast and that it is the theory of the plaintiff that her cancer condition was aggravated as a result of this occurrence and that her life will be greatly shortened." Attached to the motion was a copy of a letter from Dr. Charles B. Clayman, which stated that plaintiff's survival may possibly be decreased by the presence of the tumor. Dr. Clayman's letterhead indicated that he is a gastroenterologist and is associated in the practice of medicine with two cardiologists, Drs. Jerome H. Hirschmann and Paul W. Saltzman.

On August 18, 1977, plaintiff in answers to interrogatories which had been served by CTA on April 25, 1975, described the injuries she sustained as a result of the occurrence in question as "[m]ultiple injuries and right leg." In answer to a question as to persons having knowledge of the occurrence and her injuries, she listed 10 physicians — including Drs. Sobel, Clayman, Hirschmann, and Saltzman.

Shortly thereafter, the CTA moved to dismiss the complaint as to both defendants on grounds that plaintiff's statutory notice was defective in that an attending physician was not listed and because no summons was served on "John Doe" or the operator of the train within the applicable two-year period of limitation. Attached to the motion were copies of Dr. Sobel's records, showing that the only treatment rendered was for corn and callous removal beginning in August 1965, and continuing until January 1975. His last treatment before the occurrence in question (March 28, 1974) was on February 4, 1974, and the first treatment after the occurrence was on April 4, 1974, with subsequent treatments on September 19 and January 18, 1975, all of which were for "corn and callous removal." Also attached was a letter from Dr. Sobel which stated, "I treated her only as a Podiatrist and performed only `corn & callous' removal at fees on charts. I did not order or have any X-rays or lab work done on her." Further, the CTA attached a copy of a Weiss Memorial Hospital record of plaintiff, showing that on May 3, 1974, she was admitted and treated for "cervical disc disease with neuropathy, essential hypertension and acute superficial thrombophlebitis." The doctors listed on the record were P. Saltzman, J. Hirschmann, and C. Clayman. The document did not, however, indicate that any of these conditions were the result of trauma nor was there any reference to the occurrence in question.

In response to the motion to dismiss, plaintiff's counsel filed an affidavit stating that prior to serving the statutory notice upon the CTA, plaintiff appeared at its office and gave a statement to its agent which included the names and addresses of Drs. Sobel, Saltzman, Hirschmann, and Clayman; that the CTA's answer to plaintiff's complaint did not allege that the notice was in any fashion defective; that he requested that the CTA supply the names and addresses of the motormen who passed the location in question at about the time of the alleged occurrence; that he was informed by CTA that no records were kept which would indicate this information; that he unsuccessfully attempted to investigate the matter and thereby ascertain the identity of the motorman; that on numerous occasions he was told the CTA did not have such information; that on May 12, 1977, he received a letter stating that "CTA has no report of the alleged occurrence, therefore, the name of the operator is unknown"; and that by filing its motion to dismiss just 14 days prior to the scheduled date of trial, the CTA "lulled the plaintiff into a sense of security in regard to the notice * * *."

During the course of argument in the trial court on the motion, plaintiff contended that the CTA had actual notice of Drs. Clayman, Saltzman, and Hirschmann's roles as attending physicians through plaintiff's oral statement allegedly to CTA shortly after the occurrence in question, and that the corns which Dr. Sobel treated could have been aggravated by the occurrence. She further argued that although the CTA knew she considered it to be the viable defendant, it avoided challenging the listing of Dr. Sobel as the attending physician while at the same time withheld the name of the motorman until such time as the limitations period applicable to him had lapsed and thereby lulled her into a false sense of security in that she otherwise would have conducted a more intensified search for his identity. To the contrary, the CTA contended that it was unable to ascertain the accuracy of plaintiff's notice until she answered its interrogatories, which were served on her in April 1975, but not answered until August 1977; and that, in any event, the information supplied by plaintiff was too scant to enable it to ascertain the identity of the motorman. After noting the failure of plaintiff to timely initiate discovery procedures to learn the motorman's identity, the trial court dismissed the complaint as to both defendants.

OPINION

• 1-3 Plaintiff first contends the dismissal as to CTA was improper because her notice substantially complied with applicable statutory requirements. Under section 41 of the Metropolitan Transit Authority Act (the Act) (Ill. Rev. Stat. 1973, ch. 111 2/3, par. 341), no action seeking damages for personal injury may be brought against the CTA unless a written notice is filed in accordance with its requirements, which includes among other essential elements, "the name and address of the attending physician, if any." As the wording of this section was taken almost verbatim from sections 8-102 and 8-103 of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1977, ch. 85, pars. 8-102, 8-103), the case law concerning that section is applicable. Thus, a suit against the CTA is subject to dismissal where the required statutory notice completely omits an essential element (see Zavala v. City of Chicago (1977), 66 Ill.2d 573, 363 N.E.2d 848), and a notice which incorrectly lists an essential element has been viewed as having entirely omitted it (Thomas v. Chicago Transit Authority (1975), 29 Ill. App.3d 952, 331 N.E.2d 216; Ouimette v. City of Chicago (1909), 242 Ill. 501, 90 N.E. 300). Where some attempt to designate an element is apparent, the notice is deemed sufficient if the designation reasonably fulfills the requirements of the statute and does not mislead or prejudice the municipality. (Bickel v. City of Chicago (1975), 25 Ill. App.3d 684, 323 N.E.2d 832.) Actual knowledge of the municipality or CTA, however, is not a consideration in this regard. Bickel v. City of Chicago; see also Repaskey v. Chicago Transit Authority (1975), 60 Ill.2d 185, 326 N.E.2d 771; Housewright v. City of LaHarpe (1972), 51 Ill.2d 357, 282 N.E.2d 437.

Generally, a physician who treats plaintiff for injuries which were allegedly the result of the incident in question is viewed as the attending physician. (Quirk v. Schramm (1948), 333 Ill. App. 293, 77 N.E.2d 417; Maxey v. City of East St. Louis (1910), 158 Ill. App. 627.) "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. [Citations.]" Bickel v. City of Chicago (1975), 25 Ill. App.3d 684, 687, 323 N.E.2d 832, 835.

Here, the record discloses that for many years prior to the incident in question, Dr. Sobel (a podiatrist) had been removing corns and callouses from plaintiff's feet and continued to render the same treatment after the occurrence. According to his statement, he treated her only as a podiatrist and did not prescribe any X rays or laboratory analysis in so treating her. Plaintiff's present theory is that being thrown from her seat by the lurching of the CTA train aggravated a cancerous tumor located in her left axilla and breast. We do not see, nor has plaintiff pointed out, the relationship between the continual and unchanging procedure of Dr. Sobel in removing her corns and callouses over a number of years and the treatment of any injury she may have received in the occurrence in question.

• 4, 5 On oral argument in this court, plaintiff admitted that an attending physician within the meaning of the statutory notice provision is one who treats an injury received in the occurrence for which damages are sought. This is also apparent from the language of section 41, which we believe intends that the person named in the notice as attending physician should be one who has treated for injuries received in the occurrence in question, and a notice containing the name of a doctor who has treated a plaintiff, but not for injuries so received, is defective.

• 6 In the light of the foregoing, we cannot say that the trial court erred in finding that the listing of Dr. Sobel failed to reasonably satisfy the requirements of disclosing the name of plaintiff's attending physicians. (Thomas v. Chicago Transit Authority; Bickel v. City of Chicago.) Moreover, we note that this result is not changed by any actual knowledge of the role played by Drs. Clayman, Hirschmann, and Saltzman as treating physicians which may ...


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