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02/03/88 Le Roy Kelman, v. the University of Chicago

February 3, 1988

LE ROY KELMAN, PLAINTIFF-APPELLANT

v.

THE UNIVERSITY OF CHICAGO ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

519 N.E.2d 708, 166 Ill. App. 3d 137, 116 Ill. Dec. 640 1988.IL.126

Appeal from the Circuit Court of Du Page County; the Hon. William E. Black, Judge, presiding.

APPELLATE Judges:

JUSTICE REINHARD delivered the opinion of the court. NASH and DUNN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE REINHARD

Plaintiff, LeRoy Kelman, filed a multicount amended complaint in the circuit court of Du Page County seeking compensatory and punitive damages for injuries allegedly arising out of the diagnosis and treatment of his work-related illness. Following the circuit court's granting of summary judgment in favor of the various defendants, plaintiff appealed.

Plaintiff's amended complaint named as defendants the University of Chicago, the University of Chicago Hospitals and Clinics, Northwestern University, the McGaw Medical Center of Northwestern University, Dr. William Barclay, Dr. Asher Finkel, Dr. Francis Strehl, Dr. Maurice Bogdonoff, and Dr. David Cugell. Dr. Bogdonoff was dismissed with prejudice pursuant to plaintiff's motion. Subsequent to the filing of this appeal, Northwestern University, McGaw Medical Center, and Dr. Cugell settled with plaintiff and are no longer parties to the appeal.

The remaining counts of the amended complaint relevant to this appeal allege the following: (1) fraud on the part of defendants University of Chicago, University of Chicago Hospitals and Clinics, and Drs. Barclay, Finkel and Strehl; (2) conspiracy to defraud on the part of those same five defendants; (3) medical malpractice on the part of University of Chicago Hospitals and Clinics and Dr. Barclay; and (4) wilful and wanton conduct by University of Chicago Hospitals and Clinics and Dr. Barclay. Plaintiff's suit does not seek to recover for the alleged contraction of berylliosis. Any such remedy would be provided by provisions of the Illinois Workers' Compensation Act (Ill. Rev. Stat. 1985, ch. 48, par. 138.1 et seq.) and the Illinois Workers' Occupational Diseases Act (Ill. Rev. Stat. 1985, ch. 48, par. 172.36 et seq.).

The only issue on appeal is whether the trial court properly granted summary judgment in this case.

Plaintiff is a metallurgist employed by the University of Chicago (University) and currently assigned to the Argonne National Laboratories (Argonne). He was first employed by the University in 1944. He worked at the "Manhattan Project" until 1948, when he was assigned to Argonne. While plaintiff worked at the "Manhattan Project," he was exposed to a toxic substance, beryllium dust.

During his employment, plaintiff was periodically given physical examinations which included chest X rays. In 1957, plaintiff was referred to Dr. Barclay at the University of Chicago Hospitals and Clinics. Following his examination, plaintiff was advised he had a non-work-related lung condition known as histoplasmosis. Dr. Barclay advised the University, however, that the diagnosis of histoplasmosis was highly improbable and that plaintiff had lesions on his lungs.

During the late 1950s and all of the 1960s, the University continued to provide physical examinations and chest X rays to plaintiff. Apparently, several radiologists reported that the X rays indicated an active and developing granulomatous disease in plaintiff's lungs.

Sometime in 1970, Dr. Finkel, who was then the health division director of Argonne, advised plaintiff to seek an independent lung specialist. Dr. Finkel referred plaintiff to Dr. Cugell at the McGaw Medical Center of Northwestern. Apparently, Dr. Cugell was a consultant to the University during the time he treated plaintiff.

During most of the 1970s, Dr. Cugell continued periodic clinical and X-ray examinations of plaintiff. After a ...


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