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12/22/97 MICHAEL JACKSON v. MICHAEL REESE HOSPITAL

December 22, 1997

MICHAEL JACKSON, A MINOR, BY HIS MOTHER AND NEXT FRIEND, JEANNE JACKSON, AND JEANNE JACKSON, INDIVIDUALLY, PLAINTIFFS-APPELLANTS,
v.
MICHAEL REESE HOSPITAL AND MEDICAL CENTER, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County. No. 94 L 14720. Honorable Patrick McGann, Judge Presiding.

The Honorable Justice O'mara Frossard delivered the opinion of the court. Mcnulty, P.j., and Rakowski, J., concur.

The opinion of the court was delivered by: Frossard

The Honorable Justice O'MARA FROSSARD delivered the opinion of the court:

This case is on appeal from a motion to dismiss plaintiffs Michael Jackson (a minor) and Jeanne Jackson's (his mother) complaint against defendant Michael Reese Hospital and Medical Center for failure to state a cause of action for negligent spoliation of evidence.

This appeal presents a question of first impression regarding whether a plaintiff in an action for negligent spoliation of evidence arising from a medical malpractice claim is required to file an affidavit and medical report by the Illinois Code of Civil Procedure. 735 ILCS 5/2-622 (West 1994).

The question was raised by defendant as the basis for its section 2-619 (735 ILCS 5/2-619 (West 1994)) motion to dismiss plaintiffs' cause of action. Defendant also attacked plaintiffs' complaint for negligent spoliation of evidence on two other grounds: (1) failure to state a cause of action under the X-Ray Retention Act (210 ILCS 90/0.01 et seq. (West 1994)), and (2) failure to sufficiently plead facts that state a cause of action for negligent spoliation of evidence under section 2-615. (735 ILCS 5/2-615 (West 1994)).

We reverse the trial court's order granting the defendant's section 2-619 motion to dismiss for plaintiffs' failure to attach a section 2-622 "certificate of merit" in a cause of action for spoliation of evidence. We affirm the trial court's finding that plaintiffs failed to state a cause of action under the X-Ray Retention Act, and we affirm the trial court's finding that plaintiffs failed to sufficiently plead a cause of action for negligent spoliation under section 2-615 standards. However, we remand to the trial court to allow plaintiffs to replead the negligent spoliation of evidence claim.

FACTS

Plaintiffs originally filed a medical malpractice action against several defendants on August 14, 1985. This action alleged negligence based on injuries suffered by the minor plaintiff in the course of treatment for serious medical problems, including the absence of an anus. Plaintiffs voluntarily dismissed their medical malpractice claim against all defendants and filed an amended complaint on February 21, 1991, alleging negligent spoliation of evidence against defendant Michael Reese Hospital and Medical Center. The claim alleged that defendant's loss or destruction of certain X rays taken of the child caused plaintiffs to be unable to prove their original medical malpractice claim.

Plaintiffs' first complaint was dismissed, and the trial court granted leave to file an amended complaint. Plaintiffs' first amended complaint asserted a claim under the X-Ray Retention Act, which was dismissed by the trial court on October 23, 1995. In their second amended complaint, plaintiffs alleged a cause of action for spoliation of evidence under Boyd v. Travelers Insurance Co., 166 Ill. 2d 188, 652 N.E.2d 267, 209 Ill. Dec. 727 (1995). Plaintiffs also filed an emergency motion to reconsider the dismissal of the first amended complaint.

In its June 3, 1996, order, the trial court denied plaintiffs' motion to reconsider the dismissal of the first amended complaint, which asserted a claim under the X-Ray Retention Act. The court granted defendant's section 2-619 motion to dismiss for failure to attach a certificate of merit under section 2-622, and granted defendant's section 2-615 motion to dismiss for failure to state a cause of action for negligent spoliation of evidence.

I Plaintiffs first contend that the trial court erred in its order of October 23, 1995, dismissing with prejudice the claim under the X-Ray Retention Act (Act) (210 ILCS 90/1 (West 1994)) against defendant Michael Reese Hospital.

Plaintiffs argue that Michael Reese Hospital was responsible for the maintenance of certain X rays, which were lost or destroyed in a warehouse flood. Plaintiffs allege that the loss of these X rays was a violation of the hospital's duty to preserve the X rays under the X-Ray Retention Act.

The X-Ray Retention Act provides in pertinent part:

"Hospitals which produce photographs of human anatomy by the X-ray or roentgen process on the request of licensed physicians for use by them in the diagnosis or treatment of a patient's illness or condition shall retain such photographs or films as part of their regularly maintained records for a period of 5 years." (Emphasis added.) 210 ILCS 90/1 (West 1994).

The Act further provides "if the hospital has been notified in writing by an attorney at law before the expiration of the 5[-]year period that there is a litigation pending in court involving a particular X-ray" then the hospital shall retain the X ray "for a period of 12 years from the date that the X[-]ray photograph film was produced." 210 ILCS 90/1 (West 1994).

The plain language of the X-Ray Retention Act only requires a hospital to maintain X rays for a period of five years. A duty to retain the records for a longer period of time is only triggered by the receipt of written notice from an attorney before the expiration of the five-year retention period that litigation involving the X ray in question is pending. 210 ILCS 90/1 (West 1994).

A private cause of action is implicit in the X-Ray Retention Act. Rodgers v. St. Mary's Hospital, 149 Ill. 2d 302, 309, 597 N.E.2d 616, 173 Ill. Dec. 642 (1992). According to plaintiffs, defendant violated the Act by not preserving certain X rays beyond the five-year statutory period. Plaintiffs allege that notice, as required by the X-Ray Retention Act, was given to defendant hospital on December 10, 1984, when plaintiffs' attorney requested records which pertained to plaintiff Michael Jackson. The last missing X ray was taken in June of 1980, and under the Act, the hospital's statutory duty to retain this X ray expired in June of 1985. The record request made by plaintiffs in December of 1984 did not constitute notice as contemplated in the Act, as there was no litigation pending until August 14, 1985, when the initial lawsuit was filed.

Plaintiffs argue that this interpretation of "notice" circumvents the purpose of the Act by requiring attorneys to file medical malpractice actions before they have had the opportunity to have an expert review all the medical evidence to determine if a valid claim exists. This argument does not change the fact that the plain language of the statute requires that litigation be pending before a statutory duty to retain the records is imposed. The plaintiffs' concerns about the statute's effects on the filing of medical malpractice actions are more appropriately addressed by the General Assembly than this court. We can give no other interpretation to this statute than its plain language requires.

Accordingly, we hold that plaintiffs failed to establish a cause of action under the X-Ray Retention Act, and find that the trial court was correct in denying plaintiffs' motion for reconsideration of the order dismissing this cause of action.

II

We next turn to whether a plaintiff in a negligent spoliation of evidence claim arising from a medical malpractice action is required to file a certificate of merit with the complaint.

Defendant based its section 2-619 motion to dismiss on the failure of plaintiffs' spoliation of evidence complaint to include a certificate of merit under section 2-622 of the Code of Civil Procedure. 735 ILCS 5/2-622 (West 1994). Under section 2-622, a plaintiff in a medical malpractice claim is required to file a certificate of merit along with the initial complaint. The statute requires a certificate of merit "in any action, whether in tort, contract or otherwise, in which the plaintiff seeks damages for injuries or death by reason of medical, hospital, or other healing art malpractice." 735 ILCS 5/2-622(a) (West 1994). The statute indicates that a plaintiff's attorney is to attach an affidavit stating that he has conferred with a knowledgeable physician before filing the complaint. Section 2-622 also requires a written report from the physician indicating that upon a review of the records, there is a reasonable and meritorious cause of action. 735 ILCS 5/2-622(a)(1)(West 1994).

The legislature may properly impose requirements governing matters of procedure and the presentation of legal claims, and section 2-622 merely requires a litigant to submit certification declaring a meritorious basis for a medical malpractice claim. DeLuna v. St. Elizabeth's Hospital, 147 Ill. 2d 57, 66, 588 N.E.2d 1139, 167 Ill. Dec. 1009 (1992). Though the supreme court in the DeLuna decision has resolved the issue of the constitutionality of section 2-622, the scope of the statute is still a developing area of law. We do not interpret the language in the statute to require a certificate of merit for a negligent spoliation of evidence claim arising from a medical malpractice action. The Supreme Court case of Miller v. Gupta, 174 Ill. 2d 120, 672 N.E.2d 1229, 220 Ill. Dec. 217 (1996), is instructive here.

The Miller case involved a cause of action for medical malpractice, not spoliation of evidence as in the present case. In Miller, the plaintiff was unable to file a section 2-622 certificate of merit in support of her medical malpractice claim as the defendant physician had inadvertently disposed of X rays necessary to prove the claim, and her claim was dismissed on this basis by the trial court.

The appellate court reversed, holding that the plaintiff should not be held to the "technical requirements" of section 2-622 as it was impossible for a reviewing physician to make a determination under section 2-622 due to the missing X rays. Miller v. Gupta, 275 Ill. App. 3d 539, 543-544, 656 N.E.2d 461, 212 Ill. Dec. 138 (1995). However, the appellate court required the plaintiff to attach a report from a physician in place of the certificate confirming that the missing X rays ...


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