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03/27/96 THOMAS GERAGHTY v. CONTINENTAL WESTERN

March 27, 1996

THOMAS GERAGHTY, PLAINTIFF-APPELLANT,
v.
CONTINENTAL WESTERN LIFE INSURANCE COMPANY, M.S. LINDERMAN AND ASSOCIATES, INC. AND MICHAEL GERATY, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. Honorable Kenneth Gillis, Judge Presiding.

The Honorable Justice Greiman delivered the opinion of the court: Tully, J., and Cerda, J., concur.

The opinion of the court was delivered by: Greiman

The Honorable Justice GREIMAN delivered the opinion of the court:

Plaintiff Thomas Geraghty and his now-deceased wife Noreen Geraghty applied for life insurance with defendant Continental Western Life Insurance Company (Continental). After Noreen's death, plaintiff requested the death benefit for which they had applied, i.e., $250,000. Continental advised plaintiff that Noreen had been denied coverage due to pre-existing medical conditions.

Plaintiff filed a complaint against the life insurance company (Continental), the insurance agent (Michael Geraty) and the agency employing the insurance agent (M.S. Linderman and Associates, Inc.). Plaintiff alleged that defendants negligently failed to take action on the life insurance application within a reasonable length of time and failed to give notice of the action taken, if any, on the application.

Plaintiff now appeals the trial court's entry of summary judgment in favor of all defendants and argues that a material question of fact exists regarding whether he was notified of defendant's decision to deny coverage to Noreen prior to her death.

We affirm.

On June 29, 1992, plaintiff and Noreen applied for life insurance with defendants. The defendant insurance agent, Michael Geraty (Michael), is plaintiff's nephew. In August 1992, Continental advised Michael by written memorandum and an amendment to the application that Noreen was excluded from the life insurance policy. On November 7, 1992, Noreen died.

About one year before applying for life insurance in June 1992, Noreen had been diagnosed with and extensively treated for a disease which essentially involves the destruction of red blood cells. From August 1991 until her death in November 1992 Noreen underwent several hospital admissions, numerous tests, an operation to remove her spleen, and virtually continuous monitoring of her blood.

On August 17, 1991, Noreen went to the emergency room at St. Francis Hospital with complaints of weakness for three days, anorexia for four days, nausea and sweating. In the emergency room, Noreen was diagnosed as suffering from severe anemia based on a blood test which showed Noreen's hemoglobin level at 5.4 in contrast to a normal hemoglobin level of 12 to 14. Noreen was admitted to the hospital from the emergency room on August 17 and remained as in inpatient until August 27, 1991.

During her hospitalization in St. Francis, Noreen was examined by Dr. Thomas Gynn, a hematologist and an oncologist, who ordered numerous tests, including a bone marrow biopsy, and who diagnosed a cold auto agglutinin disease which affects the red blood cells. Six hours after admission, Noreen's hemoglobin level dropped to 4.6 which can be fatal. Noreen was given a blood transfusion and other medications. In addition, Noreen underwent a plasmapheresis, a procedure where plasma is taken out of the patient and normal plasma is infused into the patient, replacing half of the blood volume with normal plasma. Noreen's condition indicated that she may have had an underlying disease like lymphoma and thus a surgery, i.e., a staging laparotomy, was recommended. In a staging laparotomy, the patient's spleen, a portion of the liver and any lymph nodes which can be obtained are removed to determine the existence of lymphoma.

Dr. Gynn informed Noreen of her condition and further explained it "in great detail on multiple occasions" to Noreen's two daughters, Denise and Sandra, who were nurses at the hospital. In addition, Dr. Cliff Ireland, who had treated Noreen prior to August 1991 and was listed as her attending physician when she came to the emergency room, discussed Noreen's condition with her husband and with Noreen's daughters.

On September 3, 1991, Noreen was again admitted to St. Francis Hospital. On September 5, 1991, Noreen had a splenectomy in which her spleen was removed and lymph nodes were biopsied. The biopsy revealed no evidence of lymphoma. The underlying cause of Noreen's disease was not determined during her treatment at St. Francis. Dr. Gynn testified that for a person of Noreen's age (43) and gender, the disease was "aggressive" and "potentially fatal."

On September 23, 1991, Noreen was again admitted to St. Francis Hospital for severe anemia and with complaints of weakness, fever and headache. Dr. Gynn's notes written in the hospital chart for this admission state

"43-year-old female with relapse of cold agglutinin disease. *** It has been explained to the patient and family that this is a serious disease, that there is no cure and that a lymphoma may underlie the disease. *** Patient and daughter understand that this is a potentially fatal disease."

Dr. Gynn's notes further state and Dr. Ireland's testimony concurs that Noreen wanted to get a second opinion at Northwestern Hospital. Noreen transferred to Northwestern and neither Dr. Gynn nor Dr. Ireland saw her as a patient again.

Dr. Ireland testified that he spoke with plaintiff about Noreen's disease on at least two occasions, i.e., during the August hospitalization and in September regarding Noreen's transfer to Northwestern. In addition, Dr. Ireland spoke to plaintiff on the telephone. Noreen and her family were told that the underlying reason for her cold agglutinin disease could be cancer.

Dr. Gynn testified that he explained to Noreen that she was suffering from a relatively rare disease and recalled explaining Noreen's condition to her daughters "multiple times."

On September 24, 1991, Noreen was admitted to Northwestern Hospital with the previous diagnosis of autoimmune hemolytic anemia and cold agglutinin disease. Upon her admission, Dr. Leo Gordon, a hematologist and oncologist, agreed with the diagnosis presented from St. Francis. Dr. Gordon testified that although hemolytic anemia theoretically could be fatal, he viewed it as a serious, chronic disorder. Dr. Gordon further testified that it is unusual to have both disorders together.

Following her initial admission into Northwestern Hospital in September 1991, Dr. Gordon treated Noreen on an outpatient basis from October 1991 until her death on November 7, 1992. Dr. Gordon treated Noreen by testing her blood counts on a weekly basis, prescribing prednisone (a steroid) and seeing her as an outpatient on a monthly basis.

On November 6, 1992, Noreen was hospitalized for shortness of breath, chest tightness and low hemoglobin level and died in the hospital on the following day. Although he did not attend to Noreen when she was admitted to the hospital on November 6, Dr. Gordon testified that the cause of Noreen's death was reported as "respiratory failure likely related to an overwhelming infection."

Dr. Gordon testified that Noreen's condition never changed during the time he saw her and she was never cured of her hemolytic anemia. Dr. Gordon did not believe he ever told Noreen or anyone in her family that her condition had been cured. Due to her disease, Noreen would have to monitor her blood for the rest of her life. Dr. Gordon did not think Noreen thought of her condition as life-threatening but realized it was a serious ...


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