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Rio v. Edward Hospital

OPINION FILED NOVEMBER 30, 1984.

DOUGLAS RIO, APPELLEE,

v.

EDWARD HOSPITAL ET AL., APPELLANTS.



Appeal from the Appellate Court for the Second District; heard in that court on appeal from the Circuit Court of Du Page County, the Hon. Carl F.J. Henninger, Judge, presiding.

JUSTICE MORAN DELIVERED THE OPINION OF THE COURT:

Plaintiff, Douglas Rio, brought this medical malpractice action against Edward Hospital, a municipal corporation, Dr. Afzal Hussain, a hospital employee, and Dr. K.A. Hurst for personal injuries allegedly caused by defendants' negligence. (Dr. K.A. Hurst is not a party to this appeal.) Edward Hospital and Dr. Hussain (defendants) filed a motion to dismiss pursuant to section 48 of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 48), recodified as section 2-619 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2-619). The motion alleged that the plaintiff had not complied with the notice provision found in section 8-102 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (Ill. Rev. Stat. 1981, ch. 85, par. 8-102). The circuit court of Du Page County granted defendants' motion. On appeal, the appellate court reversed, holding that the discovery rule applicable to medical malpractice suits, generally, also applies to medical malpractice suits against governmental entities and their employees. The court also determined that the one-year time period for giving notice under the Tort Immunity Act commences from the time a plaintiff knows or reasonably should know of his injury and also knows or reasonably should know that it was wrongfully caused. (120 Ill. App.3d 699, 704.) We granted defendants leave to appeal (87 Ill.2d R. 315).

Two issues are raised on appeal: (1) whether the discovery rule applicable to medical malpractice claims also applies to such claims against governmental entities and their employees; and (2) whether the information contained in plaintiff's complaint is sufficient to satisfy the notice requirement of the Tort Immunity Act.

The record reveals that the plaintiff originally filed a two-count complaint in the circuit court of Cook County on August 14, 1981, against the three defendants. The complaint alleged that on or about August 14, 1979, the plaintiff was treated by the named doctors at Edward Hospital for an injury to his wrist. The complaint further alleged that the defendant physicians negligently diagnosed and treated the injury, and, as a result, the plaintiff suffered personal injury. The defendants were served with summons on September 16, 1981. On October 16, 1981, Edward Hospital and Dr. Hussain filed a motion to dismiss alleging improper venue and, in the alternative, requested the court to transfer the cause to Du Page County. The court on November 17, 1981, granted the alternative motion, and the cause was transferred to the circuit court of Du Page County.

On February 16, 1982, the record of proceedings in the circuit court of Cook County was filed in the circuit court of Du Page County. Defendants, on June 17, 1982, filed a motion to dismiss, supported by affidavits, alleging that the plaintiff had not given defendants written notice of his claim within one year from the date that the injury was received or the cause of action accrued, as required by the Tort Immunity Act. Thereafter, on August 27, 1982, the plaintiff filed an amended complaint alleging, in relevant part, that he had not discovered that he had a cause of action against defendants until May 19, 1981, and that such date was the first time he could have reasonably known that the defendants were responsible for his injury. Plaintiff filed an affidavit in opposition to defendants' motion to dismiss. The affidavit stated that plaintiff injured his wrist and hand on August 14, 1979; that he sought treatment for his injury the next day at Edward Hospital; that his hand and wrist were examined by Dr. Hussain and his X rays were analyzed by Dr. Hurst; that Dr. Hussain allegedly told him that his wrist was sprained; that he was subsequently examined on May 19, 1981, by Dr. Barry Lewis; and that he was informed by Dr. Lewis that his wrist had in fact been fractured in August 1979, not sprained.

Subsequently, defendants filed an affidavit by one of their attorneys, stating that they were first notified of the transfer of the cause from Cook County to Du Page County in a letter from plaintiff's attorney dated May 24, 1982. Based on this information, the trial court granted defendants' motion to dismiss, concluding that the plaintiff had failed to comply with the one-year notice requirement found in section 8-102 of the Tort Immunity Act.

The plaintiff argues that the discovery rule applicable to medical malpractice suits also applies to the notice provision of the Tort Immunity Act. He contends that once the discovery rule is applied to the facts of the instant case, his complaint, filed August 14, 1981, satisfies the one-year notice requirement of the Act. Defendants maintain, on the other hand, that the General Assembly never intended the discovery rule to govern medical malpractice suits involving local governmental entities and their employees.

The discovery rule has been adopted in a wide variety of contexts. (See, e.g., Rozny v. Marnul (1969), 43 Ill.2d 54 (surveyor's error); Williams v. Brown Manufacturing Co. (1970), 45 Ill.2d 418 (products liability); Tom Olesker's Exciting World of Fashion, Inc. v. Dun & Bradstreet, Inc. (1975), 61 Ill.2d 129 (defamation).) In 1965, the General Assembly added section 21.1 to the Limitations Act, which provided for a discovery rule in medical malpractice cases where a foreign object was introduced into a patient's body and negligently allowed to remain there. (Ill. Rev. Stat. 1965, ch. 83, par. 22.1.) The rule was first applied to a medical malpractice action not involving a foreign object in Lipsey v. Michael Reese Hospital (1970), 46 Ill.2d 32. Following the court's decision in Lipsey, the General Assembly, in 1975, amended section 21.1 of the Limitations Act to include a discovery rule governing those medical malpractice suits against physicians and hospitals arising out of general patient care. (Ill. Rev. Stat. 1975, ch. 83, par. 22.1.) Subsequently, the Limitations Act was again amended, and the limitations statute which is relevant to the case here provides in substance that medical malpractice actions shall not be brought more than two years after the plaintiff knew or should have known of the injury but in no event more than four years after the date of the alleged misconduct. (Ill. Rev. Stat. 1981, ch. 110, par. 13-212, recodifying Ill. Rev. Stat. 1979, ch. 83, par. 22.1.) The statute has been interpreted by the court to mean that a cause of action accrues when a plaintiff knows or reasonably should know of an injury and also knows or reasonably should know that it was wrongfully caused. Moore v. Jackson Park Hospital (1983), 95 Ill.2d 223, 232; Witherell v. Weimer (1981), 85 Ill.2d 146, 156.

Section 8-102 of the Tort Immunity Act (Ill. Rev. Stat. 1981, ch. 85, par. 8-102), which is the relevant section of the Act for purposes of the present case, provides:

"Within 1 year from the date that the injury or cause of action, referred to in Sections 8-101, 8-102 and 8-103, was received or accrued, any person who is about to commence any civil action for damages on account of such injury against a local public entity, or against any of its employees whose act or omission committed while acting in the scope of his employment as such employee caused the injury, must serve, either by personal service or by registered or certified mail, return receipt requested, a written notice on the Secretary or Clerk, as the case may be, for the entity against whom or against whose employee the action is contemplated a written statement, signed by himself, his agent or attorney, giving in substance the following information: the name of the person to whom the cause of action has accrued, the name and residence of the person injured, the date and about the hour of the accident, the place or location where the accident occurred, the general nature of the accident, the name and address of the attending physician, if any, and the name and address of the treating hospital or hospitals, if any."

Section 8-103 of the Act then provides that if notice is not served on the local public entity within one year as prescribed by section 8-102, the plaintiff's cause of action is barred. Ill. Rev. Stat. 1981, ch. 85, par. 8-103.

The Tort Immunity Act is in derogation of the common law action against local public entities. Thus, this court has held that the Act must be strictly construed against the public entity involved. (Reynolds v. City of Tuscola (1971), 48 Ill.2d 339, 342.) Whenever provisions of the Tort Immunity Act have conflicted with other legislation, the court has carefully considered the history and policies of each. As a consequence, the court has often determined either that the policies of the Tort Immunity Act are outweighed by competing policies (see, e.g., Stephens v. McBride (1983), 97 Ill.2d 515, 522 (notice provision does not apply to actions for contribution)), or that the purpose of the Act will not be adversely affected by construing it to effectuate the purpose intended by the other legislation (see, e.g., Helle v. Brush (1973), 53 Ill.2d 405, 408-09 (notice requirement is not applicable to counterclaims)).

Moreover, the court has determined that the notice provision found in section 8-102 of the Act is not a condition precedent to the right to bring suit. Rather, section 8-102 is a limitation provision, which can be waived by the local governmental entity. (Dunbar v. Reiser (1976), 64 Ill.2d 230, 235; Helle v. Brush (1973), 53 Ill.2d 405, 410.) Accordingly, section 8-102 and the medical malpractice limitations statute, found in section 13-212 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 13-212), are in pari materia and should be ...


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