Appeal from the Appellate Court for the First District; heard
in that court on appeal from the Circuit Court of Cook County,
the Hon. David A. Canel, Judge, presiding.
MR. CHIEF JUSTICE GOLDENHERSH DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 29, 1981.
Plaintiffs in these consolidated cases, Jean Greenberg, Laurel Deane Block Marshall, Joseph Weinberg, Bruce J. Shapin, Howard Dane, and Richard Kevin Ryan, appealed from the judgments of the circuit court of Cook County entered in favor of defendant, Michael Reese Hospital, upon allowance of its motions to dismiss and for summary judgment. The appellate court reversed (78 Ill. App.3d 17), and we allowed defendant's petition for leave to appeal.
Plaintiffs, in their respective complaints, allege that at various times during the years 1941 to 1954 defendant provided each with therapeutic X-radiation treatments in connection with ailments of the tonsils, adenoids and adjacent tissues of the throat. Plaintiffs were children at the time of treatment and had been referred by their personal physicians to defendant for treatment. Subsequently, and by various means, each of the plaintiffs became apprised of the potential hazards attendant to such X-radiation therapy. It is alleged that by reason of the therapy each of the plaintiffs sustained injuries in the form of cancer, tumors or nodules in the tissues of the throat.
The complaints alleged three theories of liability: negligence, res ipsa loquitur, and strict liability in tort. Defendant moved to dismiss the res ipsa loquitur and strict liability in tort counts for failure to state a cause of action based on the facts alleged, and moved for summary judgment on the remaining negligence counts. The circuit court allowed all of defendant's motions. The appellate court reversed as to the strict liability and negligence counts, holding that the strict liability issue was controlled by Dubin v. Michael Reese Hospital (1979), 74 Ill. App.3d 932, and that the circuit court erred in entering summary judgments on the negligence counts.
In deciding the motions for summary judgment, the circuit court considered the affidavits of two expert witnesses and the discovery deposition of defendant's expert. That witness, Dr. Lionel Cohen, was an M.D. specializing in the practice of therapeutic radiology and was then chairman of the Department of Radiation Oncology at Michael Reese Hospital. In the brief affidavits submitted in support of the motions for summary judgment, Dr. Cohen stated that "based on a reasonable degree of medical and radiological certainty, the administration of X-ray therapy for hypertrophic lymphoid tissue in the pharynx was standard and customary and ordinarily used by hospitals and physicians" at the times in question. He also stated that at the times in question the state of medical knowledge did not include the "hazards of alleged resulting tumor developments of the thyroid gland."
In his discovery deposition, Dr. Cohen acknowledged that he presently believes that "radiation delivered to a child could increase the risk of developing thyroid cancer." He stated that the first "hint" of a correlation between thyroid cancer and childhood irradiation of the tonsils came in a 1950 medical journal article which reported on 28 cases of thyroid cancer (9 of which involved childhood irradiation of the thymus). Prior to the introduction of antibiotics, Dr. Cohen indicated, X-ray therapy was used and found to be successful for a number of ailments involving infections. Historically, he noted, free use of antibiotics was a phenomenon of the 1950's. In addition, the risks of surgery were greater at the times in question than at present. As a consequence, despite the unknown possible hazards of radiation, the "weight of the evidence seemed to be in favor of radiation treatment." Dr. Cohen said that the main reason that X-ray treatment is not as "fashionable" now as it was in the past is that there are now "safer and more effective alternatives which didn't exist in the past."
Attached to plaintiffs' responses to defendant's motions for summary judgment were the affidavits of Eli A. Port, a "health physicist." At that time he had received a B.S. in physics and an M.S. in radiological health physics, and had completed work towards a Ph.D. in radiological health physics, including a dissertation on the subject of risks and benefits in pediatric radiology. In addition, Port indicated that he had a number of years' experience in the area of radiation safety, including work in connection with radiation therapy in hospitals. In his affidavits, he described health physics as "the science and profession dedicated to protecting man and his environment from the unwanted or undesirable effects of radiation."
Port said that at the times in question it was well known "that radiation might or could cause cancerous growths in the human body" and that "such knowledge was readily available to the radiological and medical community." He stated that this information should have been known to the defendant. Port also said that at the times in question the technology was available to shield tissue adjacent to areas being treated and that proceeding without such shielding was "an unsafe and hazardous practice." With regard to the hazards inherent in X-radiation therapy, plaintiffs' expert concluded that "based upon a reasonable degree of radiological and physical certainty" defendant should have known that the use of radiation included the hazard of tumor development in tissues adjacent to the tonsils, including the thyroid gland. Finally, Port concluded that at the times in question there were techniques available, including animal studies, which would have enabled defendant to ascertain the long term effects of irradiation and thereby determine the benefit and risk associated with radiation of the tonsils. He said that the failure to do so created a practice which was "unnecessarily hazardous."
Defendant first contends that the doctrine of strict liability in tort "should not be extended to the professional, medical decision to use X-ray therapy as an alternative course of patient treatment." We note that a similar argument has been presented by the defendant in Dubin v. Michael Reese Hospital and Medical Center (1980), 83 Ill.2d 277. In determining that the doctrine of strict liability was applicable to the facts alleged here, the appellate court relied on the appellate decision in Dubin (74 Ill. App.3d 932). There the appellate court, after analogizing to cases involving electricity, held that X-radiation was a "product" within the ambit of section 402A of the Restatement (Second) of Torts. It further held that hospitals which charge for X-radiation treatments were in the "business of selling" such treatments so as to render them strictly liable for injuries resulting from unreasonably dangerous defects in the product.
In support of its contention that strict liability should not apply to X-radiation therapy, defendant argues that "the public policy which generated the imposition of strict liability upon those who manufacture, sell and distribute consumer goods for commercial transactions and profit does not justify extension of the doctrine to those who render professional services, particularly medical services."
In Cunningham v. MacNeal Memorial Hospital (1970), 47 Ill.2d 443, this court was required to decide the question whether a hospital was in the "business of selling" whole blood as that terminology is used in section 402A, or whether the transfusion of blood was a service so as to render inapplicable the doctrine of strict liability in tort. (47 Ill.2d 443, 447.) In the context of that decision, quoting Russell v. Community Blood Bank, Inc. (Fla. App. 1966), 185 So.2d 749, aff'd as modified (Fla. 1967), 196 So.2d 115, the court said:
"`"It seems to us a distortion to take what is, at least arguably, a sale, twist it into the shape of a service, and then employ this transformed material in erecting the framework of a major policy decision."'" (47 Ill.2d 443, 450.)
Holding that the sale by a hospital of whole blood contaminated with serum hepatitis was not sufficiently different from the sale of other defective products to justify a departure ...