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BLAZ v. GALEN HOSP. ILLINOIS

September 22, 1997

JOEL BLAZ and FRANCES LAUER, Plaintiffs,
v.
GALEN HOSPITAL ILLINOIS, INC. d/b/a MICHAEL REESE HOSPITAL and MEDICAL CENTER, and ARTHUR B. SCHNEIDER, M.D., Defendants.



The opinion of the court was delivered by: BUCKLO

 Defendant, Michael Reese Hospital and Medical Center ("Michael Reese"), used X-ray therapy to treat approximately 5,000 patients for certain benign conditions of the head and neck during a thirty year period from 1930 to early 1960. Plaintiff, Joel Blaz, received such treatment at Michael Reese for infected tonsils and adenoids during a three week period in late 1947 and early 1948 while Mr. Blaz was a young child. Based on that treatment, Mr. Blaz has brought various claims alleging medical malpractice, absence of informed consent, negligence, failure to warn, fraud, and loss of consortium. The defendants seek summary judgment based on the statute of limitations. The motion is denied.

 Background

 In 1974, Michael Reese embarked on the Thyroid Follow-Up Project (the "Project") in an effort to gather scientific data and conduct research involving those individuals who were subjected to the X-ray therapy. Defendant Arthur Schneider became the director of the Project in 1977. As part of the Project, Michael Reese sent a letter to Mr. Blaz on February 3, 1975. That letter informed Mr. Blaz of the type of treatment he received and that he was at an increased risk of developing tumors of the thyroid gland. Def. Ex. A-20. The letter offered the use of diagnostic facilities at Michael Reese at no charge or suggested that individuals take the letter to their own physician for any possible treatment.

 At the time this letter was sent to Mr. Blaz, *fn1" he was residing in Florida and unable to return to Michael Reese for treatment. He did visit Dr. Gerald Levey, a physician at the University Of Miami Hospital, on February 19, 1975. Dr. Levey conducted a thyroid examination and found it to be normal. Dr. Levey forwarded the results of his examination to the Project.

 Mr. Blaz claims that his next contact from Michael Reese came from a woman associated with the Project. She called him sometime between February and July, 1976. Mr. Blaz cannot recall the name or job title of this woman, although he speculates that her name might have been Margaret Arnold. *fn2" He says that this woman told him that he had received radiation as a baby or a child in the neck area near his thyroid and that she was calling to alert him to the possibility of problems in his thyroid due to this radiation. She suggested that he have his thyroid evaluated and asked him if he wanted to be treated at Michael Reese. Mr. Blaz testified at his deposition that she assured him that it was only his thyroid that could become a problem as a result of the radiation treatment. Mr. Blaz declined to be treated at Michael Reese after the woman informed him that he would have to pay the costs of his travel and treatment.

 Mr. Blaz had no further contact with anybody affiliated with Michael Reese until April, 1981. At that time he received a questionnaire along with a letter from Dr. Schneider explaining that the Project was seeking to collect information regarding the long-term effects of childhood irradiation. The questionnaire principally contained questions pertaining to treatment and examination of the thyroid gland, although one question asked about the existence of any other tumors. Mr. Blaz did not complete the questionnaire or return it to the Project, nor did he have any contact with anyone at Michael Reese or with Dr. Schneider concerning these materials.

 Prior to any contact Michael Reese had with Mr. Blaz regarding his radiation exposure, he developed a tumor of his parotid gland. *fn3" In 1974 he underwent surgery to remove this benign tumor. Mr. Blaz suffered a recurrence of this tumor in 1987, and, in the same year, other tumors developed in nearby physical areas. *fn4" Despite his long history of tumors, Mr. Blaz did not file suit alleging a link between his radiation exposure and his medical problems until January 4, 1996, within two years after his dentist concluded that the fact that a non-decayed tooth crumbled was attributable to his childhood radiation treatment.

 Based on Mr. Blaz' delay in filing suit, the defendants contend that his action is time barred. Mr. Blaz argues that his case falls within one of the two exceptions to the statute of repose, *fn5" fraudulent concealment or equitable estoppel.

 The first issue concerns the appropriate statute of limitations. The parties agree that in 1948, the time when plaintiff received his last treatment from Michael Reese Hospital, Illinois recognized no discovery rule, nor did it have a statute of repose. If that statute were applicable, Mr. Blaz' claims for injuries were barred two years after he became 21, that is, in March, 1970. In June, 1970, after this period expired, the Illinois Supreme Court adopted a discovery rule in medical malpractice cases, deciding that a cause of action accrues only when the person knows or reasonably should know of his injury. Lipsey v. Michael Reese Hospital, 46 Ill. 2d 32, 38, 262 N.E.2d 450, 454 (1970). Under this rule, Mr. Blaz' action was not extinguished because it had not yet accrued.

 Although defendants argue that Mr. Blaz' action had been previously extinguished, the Illinois Supreme Court has held otherwise in a case involving an action against the same hospital for injuries also alleged to have been inflicted by the hospital's practice during the 1940's of treating tonsilitis with radiation. Moore v. Jackson Park Hospital, 95 Ill. 2d 223, 447 N.E.2d 408, 69 Ill. Dec. 191 (1983) (consolidating, for decision, actions against Michael Reese Hospital with one against another hospital). In that case, the court found permissible actions brought in 1980 and 1978 for injuries resulting from X-ray treatments in the early 1940's.

 Although Lipsey did not place an outside limit on discovery, the Illinois legislature subsequently enacted a statute of repose, which placed a limit on the time a plaintiff could sue after "the act or omission or occurrence alleged in such action to have been the cause of such injury." 735 ILCS 5/13-212(a) (1993). The original time limit was five years, which was shortened to four years in 1976. Ill. Rev. Stat. ch. 83, P 22.1 (1976). The four-year time limit remains in effect. 735 ILCS 5/13-212(a) (1993). In Moore v. Jackson Park Hospital, the Illinois Supreme Court held that the four-year repose bar imposed by the 1976 act could not bar instantaniously actions that were filed within two years of discovery. In Mega v. Holy Cross Hospital, 111 Ill. 2d 416, 490 N.E.2d 665, 95 Ill. Dec. 812 (1986), the court held that the reasonable period allowed for filing beyond the 1976 act could not exceed four years.

 Based on the 1976 legislation and Mega, defendants argue that Mr. Blaz' action was barred at least in 1980, four years after the enactment of the statute of repose. Mr. Blaz argues that his action is still timely because of two exceptions to the four-year time limit: where there has been fraudulent concealment or based on principles of equitable estoppel.


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