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Fox v. Cohen





APPEAL from the Circuit Court of Cook County; the Hon. MYRON T. GOMBERG, Judge, presiding.


Plaintiff, Mary Lou Fox, appeals the dismissal of her second amended complaint. Plaintiff, as administrator of the estate of Donald R. Fox, filed a wrongful death action in the circuit court of Cook County. Count I of her second amended complaint alleged that certain acts of medical malpractice by defendant, Dr. Sheldon Cohen, caused the death of her decedent and prayed for $500,000 in damages. Count II of this complaint alleged, hypothetically and in the alternative, that Alexian Brothers Medical Center and its employees, Helen Lottman and Linda Lukaski, had negligently lost, destroyed, or misplaced EKG tracings and reports relating to the decedent, and that the medical center and its named employees had a duty to exercise reasonable care in the custody, safekeeping, and maintenance of records relative to patient care. Count III alleged, hypothetically and in the alternative, that William Shields, an administrator, and nurses Lottman and Lukaski, all employees of Alexian Brothers Medical Center, conspired with defendant Cohen, a staff member of the medical center, to and did hide, lose or secrete EKG tracings relative to the decedent. Both counts II and III alleged that the actions of the defendants deprived plaintiff of vital evidence necessary to sustain her burden of proof against defendant Cohen under count I, resulting in the loss of plaintiff's cause of action, and prayed for damages in the amount of $500,000.

Prior to the filing of the second amended complaint and pursuant to court order, defendant Cohen filed an affidavit in which he stated that "no records [were] in his possession or control, including, inter alia, EKG tracings or analysis, emergency room records, notes or other written documents."

Defendants, Alexian Brothers Medical Center, Helen Lottman, and William Shields, *fn1 filed a motion to dismiss counts II and III on the grounds that they failed to state a cause of action; failed to allege grounds upon which tort relief could be granted; were barred by the two-year statute of limitations; and, in the alternative, were improperly joined with count I. Defendant Cohen filed a motion to dismiss count III on these same grounds.

The trial court granted defendants' motions and dismissed counts II and III of plaintiff's second amended complaint. As to count II the court stated that defendants owed no duty to the plaintiff to maintain certain medical records pertaining to the decedent. Absent such a duty, the trial court stated that the conspiracy as alleged in count III could not be proven; that joinder of counts II and III was therefore improper; and that because of these findings plaintiff's request for leave to amend was denied. The court found no reason to delay enforcement or appeal of this order. Plaintiff filed a timely notice of appeal from this order.



• 1 On appeal, we are concerned only with whether counts II and III stated a valid cause of action in negligence. In order to state a cause of action founded upon negligence, plaintiff must plead the existence of a duty owed by the defendant to plaintiff, a breach of that duty, and an injury proximately resulting from the breach. (Cunis v. Brennan (1974), 56 Ill.2d 372, 374, 308 N.E.2d 617.) The trial court dismissed count II on the basis that plaintiff failed to allege a duty. Count II was directed only against the hospital and its employees and not against the defendant doctor. The basis of the trial court's order requires this court to initially consider whether a hospital has a duty to maintain medical records on its patients.

Defendants argue that there is no common law or statutory authority for imposing such a duty on a hospital. Plaintiff cites Cannell v. Medical and Surgical Clinic (1974), 21 Ill. App.3d 383, 315 N.E.2d 278, and Rabens v. Jackson Park Hospital Foundation (1976), 40 Ill. App.3d 113, 351 N.E.2d 276, as authority for imposing such a duty.

In Cannell, a case of first impression, this court was presented with the issue of whether a physician had a duty to disclose medical information to a patient on request. Relying on Emmett v. Eastern Dispensary & Casualty Hospital (D.C. Cir. 1967), 396 F.2d 931, which held that both the hospital and the doctor had a duty to disclose medical records, this court found that such a duty did exist. This court stated that the fiducial qualities of the physician-patient relationship required the disclosure of medical data to a patient or his agent on request, and that the patient need not engage in legal proceedings to attain a loftier status in his quest for such information. 21 Ill. App.3d 383, 385.

In Rabens, the plaintiff in counts III and IV of his complaint alleged that he made a demand upon the defendant hospital and its supervising personnel to produce for examination and copying his hospital records, and that the defendants' failure to do so caused him damages. Counts V and VI alleged a violation of a statutory duty under section 1 of "An Act relating to the inspection of hospital records" (Ill. Rev. Stat. 1973, ch. 51, par. 71), which provided that a hospital, upon the demand of any patient treated in that hospital, permit the patient's physician or his authorized attorney to examine and copy records kept in connection with the treatment of that patient. This court, in reversing the trial court's dismissal of counts III and IV, relied upon Cannell as authority for establishing the common law duty of a hospital to disclose upon request, medical data to a patient or his agent. In reversing the dismissal of counts V and VI, this court found that plaintiff adequately alleged the breach of a statutory duty.

Defendants distinguish these cases on the basis that they were concerned with the production of existing and available records, whereas, in the present case, there is no assertion that the hospital failed to produce an existing record. However, plaintiff argues that the common law duty to disclose patient records as established by Cannell and Rabens and by statute would be meaningless without a corresponding duty to maintain records in the first instance. Plaintiff cites the case of Quinones v. United States (3d Cir. 1974), 492 F.2d 1269, as analogous to the present case.

In Quinones, plaintiff, a former Government employee, brought an action against the Government alleging its failure to use due care in maintaining complete and accurate records of his employment history resulting in damage to his reputation. There was no precedent on whether such a claim stated a cause of action in negligence under Pennsylvania law, which law the court found governed. Citing section 281(a) of the Restatement (Second) of Torts (1965), *fn2 the court began by asking whether the plaintiff's employer owed a legal duty to the plaintiff. The court acknowledged statements from various commentators to the effect that there is no universal test for determining the existence of a ...

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