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05/21/87 Marjorie Barbour, v. South Chicago Community

May 21, 1987

MARJORIE BARBOUR, PLAINTIFF-APPELLANT

v.

SOUTH CHICAGO COMMUNITY HOSPITAL, DEFENDANT-APPELLEE (LESTER DAVIS ET AL., DEFENDANTS)



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

509 N.E.2d 558, 156 Ill. App. 3d 324, 108 Ill. Dec. 862 1987.IL.653

Appeal from the Circuit Court of Cook County; the Hon. Willard Lassers, the Hon. Thomas J. O'Brien, and the Hon. William R. Quinlan, Judges, presiding.

APPELLATE Judges:

JUSTICE LINN delivered the opinion of the court. McMORROW, P.J., and JIGANTI, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LINN

Plaintiff Marjorie Barbour brings this appeal seeking reversal of a trial court's order dismissing counts VI, VII, IX, and X of her 13-count, fifth amended complaint. Barbour filed her complaint after she discovered that an unauthorized tubal ligation had been performed on her in 1967 while she was a patient at defendant South Chicago Community Hospital (the hospital). Each of the dismissed counts relates to conduct allegedly committed by the hospital. Count VI sounds in battery, count VII asserts the reasons why Barbour discovered her injury on October 30,

1980 (13 years after the alleged battery), count IX is a negligence action combined with an equitable estoppel theory, and count X, like count VII, describes how Barbour came to discover the injury resulting from the hospital's alleged conduct.

Pursuant to the hospital's motion, the trial court dismissed the four counts set forth above. The trial court found that the hospital could not be held responsible for the acts complained of in light of the fact that no agent of the hospital participated in the performance of those alleged acts. The trial court further found that the hospital could not be equitably estopped from raising the statute of limitations (Ill. Rev. Stat. 1981, ch. 110, par. 13-212) as a defense. That being the case, the trial court dismissed counts VI, VII, IX, and X as being barred by the applicable statute of limitations.

Barbour now brings this appeal contending: (1) that the trial court erred in failing to find that her complaint alleges an agency relationship sufficient to bind the hospital, and (2) that an issue of fact exists as to whether the hospital should be equitably estopped from raising the statute of limitations.

We affirm.

Background

This appeal is before us following the trial court's ruling that counts VI, VII, IX, and X of Barbour's fifth amended complaint fail to state a

Count VI of Barbour's complaint reveals that Barbour was a patient at the hospital from July 26, 1967, to August 7, 1967. Barbour entered the hospital to have an abortion performed. At that time, Barbour claims that three physicians, Drs. Harrod, Kolokoff, and Anderson, secretly agreed to not only perform the abortion requested by Barbour, but also to perform a tubal ligation. The physicians did not inform Barbour of their decision to perform the tubal ligation, and Barbour alleges that at no time did she consent to the performance of said tubal ligation.

Count VI specifically sounds in battery and in equitable estoppel. The battery action alleges that the hospital, through its agents, intentionally performed the tubal ligation on Barbour without obtaining her consent. The equitable estoppel theory charges that one of the hospital's student nurses, Eileen August, and the chief of the hospital's obstetrics and gynecology department, Dr. Harrod, intentionally concealed the performance of the tubal ligation from Barbour. Count VI further contends that August and Harrod agreed prior to the tubal ligation to conceal it from Barbour; that subsequent to the tubal ligation, August perpetuated that concealment by assisting Barbour in obtaining a birth control device even though August knew in fact that the device was unnecessary in light ...


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