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MURRY v. SHEAHAN

January 23, 1998

WALTER REE MURRY, as Independent Administrator of the Estate of CARL HILL, et al., Plaintiffs,
v.
MICHAEL F. SHEAHAN, Cook County Sheriff, in his official capacity, et al., Defendants.



The opinion of the court was delivered by: LEVIN

 Pending is certain Defendants' Second Motion to Dismiss. *fn1" For the reasons set forth below, this court denies the motion.

 THE ORIGINAL MOTION TO DISMISS

 Carl Hill, an asthmatic, was an inmate at Cook County Jail awaiting trial. The claims involved here are for medical malpractice, alleging inadequate care culminating in Mr. Hill's death.

 On June 18, 1996, Plaintiffs filed this lawsuit stemming from Mr. Hill's death on July 2, 1994. On October 9, 1996, certain Defendants filed a Motion to Dismiss before the then-presiding district court judge, arguing that Plaintiffs' pendent state law medical malpractice claims brought against Cook County and its agents were time-barred by the one-year statute of limitations contained in the Local Government Tort Immunity Act ("Tort Immunity Act"), 745 ILCS 10/8-101. That statute states that:

 
No civil action may be commenced in any court against a local entity or any of its employees for any injury unless it is commenced within one year from the date that the injury was received or the cause of action accrued.

 In response to Defendant's motion to dismiss, Plaintiffs asserted that the controlling statute of limitations was the two-year statute of limitations contained in the Illinois Code of Civil Procedure section entitled "Physician or Hospital," 735 ILCS 5/13-212(a). That statute states that:

 
No action for damages for injury or death against any physician, dentist, registered nurse or hospital duly licensed under the laws of this State, whether based upon tort or breach of contract, or otherwise, arising out of patient care shall be brought more than 2 years after the date on which the claimant knew, or through the use of reasonable diligence should have known, or received notice in writing of the existence of the injury or death for which damages are sought in the action, whichever of such date occurs first[.]

 On October 29, 1996, the then-presiding district court judge denied Defendants' motion in part, holding that the two-year "Physician or Hospital" statute of limitations applied to the instant action with respect to the named physicians and nurses.

 THE MOTION TO RECONSIDER

 Defendants move to reconsider the prior motion to dismiss ruling. Motions for reconsideration serve a limited function. The Seventh Circuit has stated that:

 
a motion for reconsideration can perform a valuable function where the Court has patently misunderstood a party, or has made a decision outside the adversarial issues presented to the Court by the parties, or has made an error not of reasoning but of apprehension. A further basis for a motion for reconsideration would be a controlling or significant change in the law or facts since the submission of the issue to the Court.

 Bank of Waunakee v. Rochester Cheese Sales, Inc., 906 F.2d 1185, 1191 (7th Cir. 1990) (quoting Above the Belt, Inc. v. Mel Bohannan Roofing, Inc., 99 F.R.D. 99, 101 (E.D. Va. 1983)).

 Here, Defendants essentially argue that a significant change in the controlling law requires this court to revisit the original motion to dismiss ruling. Defendants assert that, in ruling on the motion to dismiss, the then-presiding judge relied on Cleaver v. Marrese, 253 Ill. App. 3d 778, 625 N.E.2d 1129, 193 Ill. Dec. 8 (5th Dist. 1993) for the proposition that the two-year statute of limitations period in the Physician or Hospital statute -- not the one-year statute of limitations period in the Tort Immunity Act -- applied to medical malpractice claims brought against local municipalities or their agents. Defendants note that, after the motion to dismiss ruling, the First District Illinois appellate court, in Tosado v. Miller, et al., 293 Ill. App. 3d 544, 688 N.E.2d 774, 228 Ill. Dec. 76, 1997 WL 741371 (Ill. Ct. App. First Dist. 1997), dealt ...


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