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06/29/87 Elaine Penkava, v. Francis Kasbohm

June 29, 1987

ELAINE PENKAVA, APPELLEE

v.

FRANCIS KASBOHM, ADM'R OF THE ESTATE OF DR. GEORGE REZEK, DECEASED, ET AL. (SANDRA HON, APPELLANT)

WHEN CONSIDERING A MOTION TO DISMISS, ALL FACTS PROPERLY PLEADED IN A COMPLAINT WILL BE TAKEN AS TRUE FOR PURPOSES OF PASSING ON THE MOTION. ANDERSON ELECTRIC, INC

v.

LEDBETTER ERECTION CORP. (1986), 115 ILL. 2D 146, 148.

"NO ACTION FOR DAMAGES FOR INJURY OR DEATH AGAINST ANY PHYSICIAN, DENTIST, REGISTERED NURSE OR HOSPITAL . . .." (EMPHASIS ADDED.) ILL. RE

v.

STAT. 1983, CH. 110, PAR. 13-212.



Before addressing these contentions of the plaintiff and Hon, we consider a motion filed by Dr. Rezek's estate to dismiss the portion of the plaintiff's brief which she has entitled "cross-appeal." There the plaintiff argues that the appellate court erred in holding for Northwest and the estate of Dr. Rezek. The plaintiff contends that she has the right to file a cross-appeal in this manner under our Rule 318(a) (87 Ill. 2d R. 318(a)). The rule provides:

SUPREME COURT OF ILLINOIS

510 N.E.2d 883, 117 Ill. 2d 149, 109 Ill. Dec. 815 1987.IL.920

Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. Myron T. Gomberg, Judge, presiding.

APPELLATE Judges:

JUSTICE WARD delivered the opinion of the court. JUSTICE GOLDENHERSH took no part in the consideration or decision of this case. CHIEF JUSTICE CLARK, Dissenting. JUSTICE MILLER joins in this Dissent.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WARD

The plaintiff, Elaine Penkava (Penkava), filed a complaint for medical malpractice in the circuit court of Cook County against the defendants, Francis Kasbohm, administrator of the estate of Dr. George Rezek, deceased (Dr. Rezek's estate); Northwest Hospital (Northwest); and Sandra Hon (Hon), a registered nurse employed by Northwest. The trial court granted the defendants' motions to dismiss the plaintiff's complaint on the ground that her claims were barred by the statute of limitations for medical malpractice (Ill. Rev. Stat. 1981, ch. 83, par. 22.1, now Ill. Rev. Stat. 1985, ch. 110, par. 13-212). On the plaintiff's appeal, the appellate court affirmed the dismissal of the claims against Northwest and Dr. Rezek's estate, but reversed and remanded as to the claim against Hon. (131 Ill. App. 3d 534.) Under our Rule 315 (103 Ill. 2d R. 315), we granted Hon's petition for leave to appeal but denied the petition for leave to appeal filed by Penkava.

On February 10, 1983, the plaintiff filed a four-count complaint: counts I and II named Northwest and Hon, a registered nurse sued as an agent and employee of Northwest; counts III and IV were against Dr. Rezek's estate. Counts I and III were drawn on the theory of negligence; counts II and IV under the doctrine of res ipsa loquitur. These counts set out

As stated, the trial court dismissed the plaintiff's complaint. The appellate court affirmed the dismissal as to Northwest and Dr. Rezek's estate. It reversed as to Hon, holding that as a nurse, she was not within the benefit of the statute of limitations for medical malpractice, which the court said was restricted to actions against physicians and hospitals (Ill. Rev. Stat. 1981, ch. 83, par. 22.1). Section 21.1 of the statute of limitations provided in part:

"No action for damages for injury or death against any physician, dentist or hospital duly licensed under the laws of this State . . . arising out of patient care shall be brought more than 2 years after the date on which the claimant knew, or through the use of reasonable diligence should have known . . . of the existence of the injury or death . . ., but in no event shall such action be brought more than 4 years after the date on which occurred the act or omission or occurrence alleged in such action to have been the cause of such injury or death . . .." (Ill. Rev. Stat. 1981, ch. 83, par. 22.1.)

The appellate court stated that the legislature's having amended section 21.1 to include registered nurses evidenced that registered nurses were not to be "encompassed within the meaning of the term 'hospital'" under the statute. That amendment in part provides:

Hon contends that the appellate court erred in interpreting section 21.1 because hospitals, considering their nature, can provide medical service and treatment only through nurses and other medical personnel. Also, to apply a different statute of limitations to a hospital employee providing patient care than the statute applied to the hospital itself would be an an illogical construction of section 21.1 because the cause of action involved has arisen from the same alleged act or acts of negligence.

The plaintiff's position is that the appellate court correctly interpreted section 21.1; and therefore, her complaint against Nurse Hon should not have been dismissed because it was timely filed within the period of the statute of limitations for personal injury (Ill. Rev. Stat. 1981, ch. 83, par. 15) when the rule relating to the discovery of negligence is applied (Moore v. Jackson Park Hospital (1983), 95 Ill. 2d 223, 232). In any event, the plaintiff argues, equitable considerations require that her action against Nurse Hon not be dismissed, because the result would be that her claim for medical malpractice would have been barred even before she discovered her injury and its cause.

"In all appeals, by whatever method, from the Appellate Court to the Supreme Court, any appellee, respondent, or co-party may seek and obtain any relief warranted by the record on appeal without having filed a separate petition for leave to appeal or ...


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