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07/21/87 Eva Ruff, Indiv. and As v. Northwestern Memorial

July 21, 1987

EVA RUFF, INDI

v.

AND AS SPECIAL ADM'R OF THE ESTATE OF SHELDON RUFF, DECEASED, PLAINTIFF-APPELLANT,

v.

NORTHWESTERN MEMORIAL HOSPITAL, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

513 N.E.2d 7, 159 Ill. App. 3d 811, 111 Ill. Dec. 761 1987.IL.1025

Appeal from the Circuit Court of Cook County; the Hon. Thomas E. Hoffman, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE SCARIANO delivered the opinion of the court. STAMOS and HARTMAN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SCARIANO

Plaintiff-appellant Eva Ruff filed a complaint charging Dr. Charles Nadler, Dr. George Blumenschein and Northwestern Memorial Hospital, *fn1 with negligence arising from the treatment and subsequent death of her husband, Sheldon Ruff, who had been suffering from Hodgkin's disease. After the plaintiff's filing of two amended complaints, the circuit court granted summary judgment in favor of defendant-appellee Northwestern Memorial Hospital, and when plaintiff's motion for a rehearing seeking to vacate the summary judgment order and to file a third amended complaint was denied, this appeal was taken. We vacate the order.

Sheldon Ruff was one of the two original plaintiffs in this action. He was diagnosed as suffering from Hodgkin's disease in October 1970 and passed away on July 28, 1981. Prior to his death, on March 15, 1981, he and his wife filed their original malpractice complaint, naming Dr. Nadler and the hospital as defendants. Decedent had been treated initially by Dr. Begg, Nadler's partner; he became Nadler's patient following radiation treatment. Nadler had a private general practice in internal medicine, was a faculty member at the university, and rented space at the hospital, where he treated decedent from 1972 through early 1981. The complaint was largely predicated on the propriety of the administration of "MOPP" chemotherapy *fn2 at the hospital under Nadler's supervision.

On September 9, 1981, following Mr. Ruff's demise, Eva, as special administrator of his estate, filed an amended complaint reflecting his death. In four counts, the complaint charged causes of action for survival (count I), wrongful death (count II), loss of society (count III), and family expense (count IV). The allegations therein pertained

The chronology of events giving rise to this litigation is as follows. After decedent was diagnosed as suffering from Hodgkin's disease, either Nadler or Begg approached Blumenschein regarding the appropriate treatment for Mr. Ruff. Nadler, although familiar with MOPP therapy in 1971, consulted with Blumenschein because of the latter's superior knowledge of the regimen associated with that therapy. At that time, Blumenschein was an attending physician at the hospital and worked in the hematology section of the university, with a focus on oncology. Blumenschein was an assistant professor and was paid a salary by the university; the hospital did not pay a salary to its attending physicians. Although he had an office at the university, Blumenschein did not see or treat patients there; rather, he had access to offices at the hospital, as did all physicians with staff privileges. The hospital provided medical supplies and equipment, and nursing staff was available to all physicians. After Blumenschein was consulted, decedent's condition was "restaged" from a "class IIA" to a "class IVB" Hodgkin's disease; the decision to institute MOPP therapy was made in November 1971.

According to Nadler's deposition, Blumenschein "called the shots" on the MOPP therapy, although it was Dr. Nadler who actually administered the regimen to decedent. This treatment was suspended from January 13, 1972, until February 28, 1972, when Mr. Ruff was hospitalized with a viral infection. He was placed on a "maintenance MOPP" regimen again in August 1972, but it was once more interrupted on December 11, 1972, when he was admitted to the hospital with meningitis. After seeing decedent on January 4, 1973, at which time he complained of pain in his right hip, Nadler reinstituted MOPP therapy on Dr. Blumenschein's instructions.

Blumenschein departed the hospital in January 1973. Mr. Ruff was rehospitalized from July through August 1973, when he was afflicted with herpes zoster. Nadler consulted with Dr. Blumenschein, Dr. Kwann (who worked at a V.A. hospital affiliated with the university and where he was chief of hematology; Kwann was also a faculty member of the university) and Dr. DeWys, who succeeded Blumenschein as the university's oncologist. Both Kwann and DeWys concurred in Blumenschein's judgment to continue MOPP maintenance therapy, although they recommended a smaller dosage to reduce the toxicity of the treatment. DeWys also recommended a shift to adriamycin as an alternative to MOPP therapy.

On December 3, 1973, Mr. Ruff was diagnosed as having aseptic necrosis, and on February 3, 1974, he was admitted to the hospital for hip replacement surgery. Nadler consulted with Blumenschein following that hospitalization, at which time Blumenschein recommended continued MOPP therapy. From March 1974 through February 1978, decedent was on a regimen of intermittent MOP therapy (MOPP without prednisone). That treatment was discontinued in 1978 after Nadler spoke to Dr. Grumet, who succeeded DeWys at the university.

In 1980, decedent was referred to a facility in Houston, Texas, for further treatment. While there, he was diagnosed as having a malignant tumor, and a hemipelvectomy (removal of half the pelvis and a leg) was performed in Chicago in March 1981. As noted earlier, decedent passed away on July 28, 1981.

On March 15, 1983, Blumenschein moved to be dismissed from the case based on the statute of limitations, for the reason that the last Discussion he had regarding the case occurred in 1976. Blumenschein was dismissed with prejudice on January 24, 1984, and pursuant to a settlement ...


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