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04/12/89 William Lissner, v. Michael Reese Hospital and

April 12, 1989





537 N.E.2d 1002, 182 Ill. App. 3d 196, 130 Ill. Dec. 673 1989.IL.510

Appeal from the Circuit Court of Cook County; the Hon. Odas Nicholson, Judge, presiding.


PRESIDING JUSTICE FREEMAN delivered the opinion of the court. RIZZI and WHITE, JJ., concur.


Plaintiff, William Lissner, appeals from an order of the trial court granting the motion of defendant, Michael Reese Hospital and Medical Center (Michael Reese), to dismiss plaintiff's first amended complaint as being barred by the four-year statute of repose set forth in section 13-212 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 13-212). Plaintiff's action sounds in medical negligence arising out of defendant's administering irradiation treatments to plaintiff in 1946. The complaint also alleges, among other things, that defendant negligently made false representations and omissions of material fact during a medical recall program of irradiated patients in 1978. As a result of the irradiation treatment, plaintiff developed thyroid cancer and parathyroid disease, which condition was discovered in 1982.

On appeal plaintiff contends that the trial court erred in dismissing the action as untimely as a matter of law, since the amended complaint sufficiently alleged facts to indicate that equitable estoppel should apply to preclude defendant from invoking the statute of repose. Plaintiff contends that the applicability of the equitable estoppel exception to the application of the statute of repose, at a minimum, raised a question of fact for the jury. Further, plaintiff contends that public policy considerations and the decision in Mega v. Holy Cross Hospital (1986), 111 Ill. 2d 416, 490 N.E.2d 665, require a trial in the instant matter.

For the reasons stated below, we affirm the judgment of the circuit court.

The record indicates that in July 1946, when plaintiff was three years old, the defendant hospital administered X-radiation treatments to his tonsils, thyroid, and parathyroid glands for treatment of a tonsil ailment. In 1973, the results of a University of Chicago study were published, indicating that "thyroid abnormalities" may develop in patients who had received such x-ray exposure, and that the abnormalities may develop two or more decades after exposure (Degroot & Paloyan, Thyroid Carcinoma & Radiation: A Chicago Endemic, 225 J. Am. Med. A. 487 (1973)). In 1974 Michael Reese began a "recall program" for adult patients who had received the X-ray treatments during the 1940's and 1950's.

On June 21, 1974, as part of its recall program, Michael Reese wrote a letter to plaintiff, indicating that he had received irradiation therapy in 1946. The letter states that "it is now well recognized that patients who received x-ray treatment to the head and neck regions during childhood have an increased risk of developing thyroid neoplasms, both benign and malignant." The letter recommends examination of plaintiff's thyroid glands. The letter also states that patients with "equivocal abnormalities" should be reexamined every six months, and that patients who "are apparently normal" should be examined "probably every year as they may develop nodules." In response to the letter, plaintiff underwent a thyroid examination at Michael Reese in 1974. Defendant advised plaintiff that the examination showed plaintiff's thyroid to be normal.

On March 22, 1978, Michael Reese again wrote to plaintiff, indicating a desire to re-examine him and other patients who previously were examined under the recall program. The letter was written by Dr. Arthur B. Schneider. The letter indicates that a blood sample of plaintiff was obtained in 1974. The letter states that Dr. Schneider and others "recently completed and analyzed . . . measurements" of the plasma thyroglobulin level in the blood of patients. The results of the analysis indicated that the thyroglobulin level in plaintiff's blood "was higher than that of most of the people we saw who had normal thyroid examinations. We also found that the majority of patients who had thyroid nodules also had high thyroglobulin levels." The letter further states that "[at] the present time it is not known with certainty how often a thyroid scan is necessary, but, through these examinations, we expect to find out." Plaintiff underwent the additional examination and was told orally that his thyroid was normal.

Michael Reese sent another letter to plaintiff on June 27, 1978, indicating the results of defendant's June 22, 1978 examination of plaintiff. The letter, written by Dr. Schneider, indicates that the examination failed to detect "any thyroid or salivary gland nodules or any other abnormalities." In addition, the letter states, "At this point we are still uncertain as to how often, if ever, thyroid scans should be repeated in all irradiated patients. For patients who have had nodules, however, it is our opinion that periodic scintigraphy is clearly indicated."

On June 16, 1982, plaintiff learned that he had a malignant papillary-follicular thyroid tumor and advanced parathyroid disease. Plaintiff learned of the condition in the course of surgery for an apparently unrelated condition at a hospital other than Michael Reese. On June 8, 1984, plaintiff filed the instant suit. In 1986, the supreme court handed down its decision in Mega v. Holy Cross Hospital (1986), 111 Ill. 2d 416, 490 N.E.2d 665, which held that the applicable four-year statute of repose (Ill. Rev. Stat. 1987, ch. 110, par. 13-212) barred that plaintiff's action based on X-radiation therapy he had received as a child in 1949. In Mega, the plaintiff was notified by the defendant hospital in 1973 that there was a possible link between radiation therapy and thyroid cancer. The plaintiff was examined in 1973 and found to be normal. In 1981, the plaintiff first learned of malignant lumps in his thyroid.

The court in Mega held that the statute of repose required that an action arising out of X-ray therapy treatments must be brought within four years of September 19, 1976, the effective date of the statute, or be forever barred. (Mega, 111 Ill. 2d at 422, 434-35.) Mega also, however, provided for an exception to the application of the statute of repose as a bar to an action where equitable estoppel is shown. (Mega, 111 Ill. 2d at 424-25.) While the court in Mega indicated that such an exception would be available under appropriate ...

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