Appeal from the Circuit Court of Cook County; the Hon. Jacques
F. Heilingoetter, Judge, presiding.
JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:
Rehearing denied October 17, 1983.
Tonsil X-ray treatment was administered to plaintiffs' sons (Leland and Joel Neuberg) in 1947, prior to the discovery that tonsil radiation was linked to thyroid cancer. One son developed thyroid cancer and the other developed a nodule that was thought to be cancerous. The treatment allegedly caused plaintiffs to suffer "great painful mental, psychological and emotional trauma as well as pain and worry over the present and future health of their sons." These consolidated appeals relate to actions filed by plaintiffs (Leroy and Sari Neuberg) in 1975 for intentional infliction of emotional distress and in 1980 for fraud.
In case No. 81-3160, plaintiffs appeal the dismissal of their motion for rehearing whereby plaintiffs sought to vacate the court's prior order dismissing plaintiffs' amended section 72 petition.
In case No. 82-66, plaintiffs appeal from the trial court's order of July 1, 1981, dismissing plaintiffs' action for fraud on res judicata grounds.
We affirm in part, reverse in part and remand.
Michael Reese Hospital and Medical Center (Michael Reese) accepted Leland and Joel Neuberg as patients for treatment of tonsilitis in 1947. At that time, an X-ray treatment involving the application of radiation to the throat and neck areas was extensively used as an alternative to surgery for tonsilitis and lymphadenitis. The Neuberg boys received X-ray treatments to shrink the inflammation of their enlarged tonsils upon the recommendation of Dr. Philip Rosenblum, the boys' treating physician. Dr. Erich M. Uhlmann was the radiologist in charge of the X-ray treatments the boys received. Both doctors died prior to the filing of plaintiffs' complaint. Their respective estate representatives were joined and remain defendants-appellees in case No. 82-66.
Although Drs. Arthur Rosenblum and Samuel J. Pearlman never treated the Neuberg children, they are named as party defendants in both actions. Dr. Rosenblum was a member of the Pediatrics Department at Michael Reese and an associate of Dr. Philip Rosenblum. Dr. Pearlman authored medical publications which advocated the use of X-ray treatments and was a member of the ear, nose, and throat department at Michael Reese. Michael Reese and Michael Reese Research Foundation are also named party defendants in both actions. Allegedly, the hospital and foundation failed to use reasonable diligence in employing the other named defendants, negligently used the X-ray radiation procedure as a treatment, and committed assaults on the Neuberg sons.
Leland Neuberg developed cancer of the thyroid gland in 1962 and had to under a thyroidectomy and radical neck resection. In 1974, Joel Neuberg developed a nodule on his thyroid gland that was suspected of being cancerous.
As scientific evidence linking thyroid cancer to tonsil radiation became available, Michael Reese discontinued or reduced its use of the procedure. The proximate causal connection between radiation and cancer was acknowledged in 1975 when Michael Reese contacted former patients for re-examination.
The procedural history of this litigation is pertinent to the disposition of the issues raised.
On November 12, 1975, plaintiffs filed an action against defendants for intentional infliction of emotional distress. The emotional distress claim was based upon the allegation that plaintiffs suffered great emotional trauma over their sons' conditions. *fn1 Plaintiffs' amended complaint, filed in 1976, included allegations that defendants were guilty of fraudulent concealment. On October 1, 1976, the trial court granted defendants' motion to dismiss plaintiffs' amended complaint on the ground that it failed to state a cause of action under Illinois law. Plaintiffs did not attempt to file a second amended complaint, but chose to appeal the dismissal. This court affirmed the trial court's dismissal of plaintiffs' complaint on May 22, 1978, holding that even given the most favorable inferences from plaintiffs' pleadings their complaint failed to state a cause of action of recovery. Neuberg v. Michael Reese Hospital (1978), 60 Ill. App.3d 679, 377 N.E.2d 215.
Thereafter, plaintiffs did not file a petition for rehearing nor did they move for leave to appeal to the Illinois Supreme Court. Instead, plaintiffs sought leave to file a second amended complaint, which requested the same relief and attempted to allege the same cause of action as was alleged in their previously dismissed complaint on which plaintiffs stood through appeal. Plaintiffs' motion was denied on July 2, 1979.
On November 7, 1980, plaintiffs filed a section 72 petition in the circuit court requesting that the October 1, 1976, judgment of the circuit court and the May 22, 1978, judgment of this court be set aside. Defendants moved to dismiss the section 72 petition, alleging that (1) the trial court lacked jurisdiction to vacate the appellate court's decision; (2) the section 72 petition was filed more than two years after the entry of the relevant orders; and (3) the petition did not show due diligence or ...