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Smith v. Silver Cross Hospital

March 10, 2000

DEANNE SMITH, INDIVIDUALLY, AND, AS ADMINISTRATRIX OF THE ESTATE OF THOMAS HARRY SMITH, DECEDENT, THOMAS HARRY SMITH, III, AND LINDSEY JOSEPHINE SMITH, PLAINTIFFS-APPELLEES,
V.
SILVER CROSS HOSPITAL, DEFENDANT-APPELLANT,
AND
HABIB ABBASI, M.D., AND FISCHER MANGOLD GROUP, AN ILLINOIS CORPORATION, DEFENDANTS.



The opinion of the court was delivered by: Justice Hartman

Appeal from the Circuit Court of Cook County. Honorable Michael J. Hogan, Judge Presiding.

Defendant Silver Cross Hospital (SCH) appeals from the order of the circuit court of Cook County denying its motions for change of venue and forum non conveniens in a medical malpractice suit filed by plaintiffs Deanne Smith, Thomas Harry Smith, III, and Lindsey Josephine Smith, individually, and Deanne Smith, as administratrix of the estate of Thomas Harry Smith, decedent, against SCH and defendants Habib Abbasi, M.D., and Fischer Mangold Group. Plaintiffs invoke provisions of the Wrongful Death Act (740 ILCS 180/0.01 et seq. (West 1998)), the Survival Act (755 ILCS 5/27-6 (West 1998)), and the Family Expense Act (750 ILCS 65/15 (West 1998)). After having been treated at SCH by defendants, decedent was discharged; however, a second hospitalization was required and decedent was admitted to Palos Community Hospital the next day. Decedent died that day.

The complaint is articulated in five counts: counts I, II and III are medical malpractice actions brought against SCH, the Fischer Mangold Group and Dr. Abbasi, respectively, on behalf of the Estate; count IV, (misnumbered in the complaint as count III), involves a loss of consortium and support, sounding in negligence, brought on behalf of the individual plaintiffs against Dr. Abbasi; and count V seeks reimbursement for family expenses against Dr. Abbasi by all individual plaintiffs. No action is taken against Palos Community Hospital.

SCH presents as issues on appeal whether the circuit court abused its discretion in denying its motions where defendant alleged (a) the Wrongful Death Act and the Probate Act should be interpreted in pari materia to establish uniform provisions with respect to venue; and (b) the policy considerations inherent in the doctrine of forum non conveniens should be considered in wrongful death actions. The relevant facts follow.

As earlier noted, decedent had been treated at SCH, located in Will County. At all relevant times, Deanne Smith, decedent's widow and administratrix of his estate, and her decedent were residents of Will County; Dr. Abbasi resided in DuPage County; and Palos Community Hospital was and is located in Cook County.

On April 1, 1998, plaintiffs filed their complaint against defendants in Cook County, where decedent died. The complaint alleges negligence in decedent's treatment when he was under SCH's and Dr. Abbasi's care, namely, failure to diagnose and treat decedent's condition, meningitis, which allegedly worsened, causing him pain and mental anguish, eventuating in his death, and resulting in economic and pecuniary damages.

SCH timely moved for change of venue from Cook County to Will County, citing provisions of the Code of Civil Procedure (Code)(735 ILCS 5/2-101 (West 1998)). That statute provides that venue is appropriate in the county in which the transaction or some part thereof occurred or in the county of residence of any defendant joined in good faith. The motion, supported by affidavits, stated that SCH is located in Will County, where all the alleged acts of negligence in decedent's treatment occurred. As part of its motion, SCH argued that the Wrongful Death Act makes no specific provisions for venue of wrongful death actions and must be construed in pari materia with the provisions of the Probate Act, which does. The circuit court expressed no opinion on this issue. SCH filed an additional motion to transfer venue of the cause from Cook County to Will County, based upon the doctrine of forum non conveniens.

On September 23, 1998, after a hearing, the circuit court denied both SCH motions, without explanation. This appeal follows. No questions are raised on the pleadings.

SCH first contends that the circuit court abused its discretion in denying the change of venue motion by failing to construe the Wrongful Death Act (740 ILCS 180/0.01 et seq. (West 1998)) and the Probate Act in pari materia, because sections 2 and 2.1 of the Wrongful Death Act (740 ILCS 180/2, 2.1 (West 1998)) expressly provide for the distribution of the proceeds of a claim as an asset of an estate; and the Probate Act (755 ILCS 5/5-1 (West 1998)) provides, where circumstances require, for appointment of an executor or administratrix as the personal representative who will prosecute any wrongful death claim, where the decedent had a known place of residence or owned real estate, or located the greater part of his or her personal estate.

SCH asserts that the holding in Bradbury v. St. Mary's Hospital of Kankakee, 273 Ill. App. 3d 555, 652 N.E.2d 1228 (1995) (Bradbury), the case upon which the circuit court based its decision in this case, should have been limited to its particular set of facts based on the record in that case, where the Bradbury court was never asked to address the issue presented by the venue provisions of the Probate Act. SCH claims that because the place where a decedent finally encounters death may have no relationship to the other issues in the case, the venue provisions of the Probate Act dictate that proceedings such as those involved here take place in the county of the decedent's last residence.

Plaintiffs maintain that Bradbury controls, since this court found there that venue is in the county in which the decedent died. Plaintiffs claim the application of the venue provisions of the Wrongful Death Act is not inconsistent with the Probate Act, because they are not diametrically opposed and a workable test for determining venue in a wrongful death lawsuit has been established in Bradbury. In addition, they argue, the Wrongful Death Act requires reference to the Probate Act for determination as to who may bring the action and who will benefit therefrom. Plaintiffs suggest that SCH's argument, although novel, does not present this court with "a dichotomy in need of a solution," particularly where opening an estate in Will County would have no effect on prosecuting a wrongful death act in Cook County or vice versa. Plaintiffs also observe that the Bradbury court did not give consideration to the issue created by the presence of the Probate Act because it was of no relevance for purposes of determining which venue was proper under the Wrongful Death Act.

The doctrine of construction in pari materia requires that where two statutory provisions address the same subject matter, an interpretation which gives effect to both provisions must be adopted. Johnson v. St. Therese Medical Center, 296 Ill. App. 3d 341, 348, 694 N.E.2d 1088 (1998). If both specific and general statutory provisions may be applied to a given set of circumstances, the specific statute controls. Johnson v. Washington, 294 Ill. App. 3d 472, 474-75, 690 N.E.2d 660 (1998).

In Bradbury, plaintiff filed a wrongful death action in the circuit court of Cook County against defendants for alleged medical negligence resulting in her son Joseph's death. Defendant St. Mary's Hospital of Kankakee moved to transfer venue to the circuit court of Kankakee County, alleging venue was improperly fixed in Cook County. Bradbury, 273 Ill. App. 3d at 556-57. The other defendants filed a similar venue motion and, alternatively, a motion to transfer the action to Kankakee County pursuant to the doctrine of forum non conveniens. Defendants' motions were denied. Bradbury, 273 Ill. App. 3d at 557.

Plaintiff in Bradbury had been admitted to St. Mary's Hospital where she was treated by defendants, among others. After being diagnosed as presenting a condition of abruptio placenta, she gave birth to her son, Joseph, by caesarean delivery. Upon his birth, Joseph was in respiratory distress, suffering from intraventricular hemorrhaging. He was transferred to the University of ...


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