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12/21/89 Phoebe Carol Stewart Et Al v. the County of Cook Et Al.

December 21, 1989

PHOEBE CAROL STEWART ET AL., PLAINTIFFS-APPELLANTS

v.

THE COUNTY OF COOK ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

549 N.E.2d 674, 192 Ill. App. 3d 848, 140 Ill. Dec. 23 1989.IL.1998

Appeal from the Circuit Court of Cook County; the Hon. Willard J. Lassers, Judge, presiding.

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCMORROW

Plaintiff Phoebe Stewart (Stewart) and her husband (hereinafter collectively the plaintiffs) filed suit against defendants Cook County Hospital (the Hospital) and certain physicians employed by the Hospital (hereinafter collectively the defendants) to recover for injuries allegedly sustained as a consequence of medical malpractice committed by defendants in 1983. Defendants motioned to dismiss the complaint on the grounds that (1) plaintiffs' notice to defendants was given more than one year after plaintiffs knew or should have known of the injuries and of their wrongful cause; (2) plaintiffs' notice to defendants was factually deficient; and (3) plaintiffs' exclusive remedy against the defendants was under the Illinois Workers' Compensation Act (Ill. Rev. Stat. 1985, ch. 48, par. 138.5(a)). The trial court allowed the motion to dismiss, dismissed plaintiffs' complaint with prejudice, and found no just reason to delay enforcement or appeal. Plaintiffs appeal from this ruling.

Upon review, we conclude that the record does not establish, as a matter of law, that plaintiffs knew or should have known of their cause of action against defendants more than a year prior to notice to the defendants. We further determine that the notice given to the defendants was not fatally defective. We also conclude that the record does not demonstrate, as a matter of law, that plaintiffs' exclusive remedy falls under the Workers' Compensation Act. Accordingly, we reverse and remand.

According to the record, Phoebe Stewart was working as a nurse at Cook County Hospital on September 18, 1983, when she experienced blurred vision in her right eye. She went to the Hospital's emergency room and was thereafter admitted to the Hospital as an inpatient, where she was treated by physicians employed by the Hospital. Stewart underwent surgery at the Hospital on September 30, 1983, for innominate artery occlusive disease. She alleged in her complaint that during the surgery, the defendants negligently compromised her cerebral circulation for an excessive amount of time, causing her to suffer left hemiparesis (paralysis) and other injuries. Stewart and her husband filed suit against defendants on May 24, 1985, alleging medical malpractice and loss of consortium.

A few months before the complaint was filed, on March 19, 1985, plaintiffs served notice of injury upon the Hospital. In this notice, plaintiffs recited inter alia that Stewart's surgery was performed on September 24, 1983, rather than the correct date of September 30, 1983.

Defendants answered plaintiffs' complaint and thereafter filed a motion to dismiss the pleading based on section 2-619 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2-619). Defendants attached to this motion excerpts of Stewart's deposition testimony which, according to defendants, indicated that Stewart knew of her injury and its wrongful cause in February 1984 or April 1984. On this basis, defendants asserted that plaintiffs had not timely notified them within one year of discovery of their causes of action, as required under the Local Governmental and Governmental Employees Tort Immunity Act (hereinafter Tort Immunity Act) (Ill. Rev. Stat. 1985, ch. 85, par. 8-102). Defendants also claimed that plaintiffs' notice was defective because it misstated the date of surgery as September 24, 1983, rather than September 30, 1983. Lastly, defendants argued that plaintiffs' exclusive remedy was under the Workers' Compensation Act, because Stewart was an employee of the Hospital, developed symptoms of her illness while working at the Hospital, and was treated by Hospital physicians. The trial court granted defendants' motion to dismiss, and plaintiffs appeal.

Defendants argue that plaintiffs' suit was barred because plaintiffs did not notify defendants of their claims within the one-year time limitation set forth in the Tort Immunity Act. (Ill. Rev. Stat. 1985, ch. 85, par. 8-102.) It has been held that the discovery rule applies to this one-year notice requirement in medical malpractice suits against local public entities. (Rio v. Edward Hospital (1984), 104 Ill. 2d 354, 472 N.E.2d 421.) Under the discovery rule, "a cause of action accrues when a plaintiff knows or reasonably should know of an injury and also knows or reasonably should know that it was wrongfully caused. [Citations.]" (Rio, 104 Ill. 2d at 361.) A plaintiff "reasonably should know that [the injury] was wrongfully caused" when the plaintiff "possesse[s] . . . sufficient information concerning [the] injury and its cause to put a reasonable person on inquiry to determine whether actionable conduct is involved." (Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 416, 430 N.E.2d 976.) By adopting this rule, "an injured person is not held to a standard of knowing the inherently unknowable, [citation] yet once it reasonably appears that an injury was wrongfully caused, the party may not slumber on his rights." Nolan v. Johns-Manville Asbestos (1981), 85 Ill. 2d 161, 171, 421 N.E.2d 864.

The defendants argue that Stewart reasonably knew, in February 1984, that she had sustained an injury that was wrongfully caused during her surgery at the Hospital in September 1983. The defendants claim that in her deposition testimony, Stewart said that it was in February 1984 that she first thought her care at the Hospital might have been improper. Stewart's deposition testimony does not contain such a blanket admission, however. The record reveals the following colloquy between plaintiff and defendant's counsel:

"Q. [Defendant's attorney]: Has anyone ever told you that there was any negligence in the care rendered to you at Cook County Hospital?

A. [Plaintiff]: I think Dr. Jensen [plaintiff's subsequent treating physician] mentioned there could be after . . . [he] did that CAT scan, he did mention that this . . ..

Q. [Defendant's attorney]: After he did the CAT scan, he did mention it?

A. Yes.

Q. All right. When did he ...


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