340 F.Supp. 125 (N.D.Ill. 1972), 71 C 2284, Holmes v. Silver Cross Hospital of Joliet, Illinois

Docket Nº71 C 2284.
Citation340 F.Supp. 125
Party NameKathleen HOLMES, Administrator of the Estate of Ernest J. Holmes, Deceased, Plaintiff, v. SILVER CROSS HOSPITAL OF JOLIET, ILLINOIS, a Body Corporate, et al., Defendants.
Case DateJanuary 17, 1972
CourtUnited States District Courts, 7th Circuit, Northern District of Illinois

Page 125

340 F.Supp. 125 (N.D.Ill. 1972)

Kathleen HOLMES, Administrator of the Estate of Ernest J. Holmes, Deceased, Plaintiff,

v.

SILVER CROSS HOSPITAL OF JOLIET, ILLINOIS, a Body Corporate, et al., Defendants.

No. 71 C 2284.

United States District Court, N.D. Illinois, Eastern Division.

Jan. 17, 1972

Page 126

[Copyrighted Material Omitted]

Page 127

Ken Jacobs, Villa Park, Ill., for plaintiff.

Tom L. Yates, Chicago, Ill., for defendant Baron.

Howard & French, Chicago, Ill., for defendant Silver Cross Hospital.

Thomas D. Allen, Wildman, Harrold, Allen & Dixon, Chicago Ill., for defendants Klafta and Bates.

MEMORANDUM OPINION

WILL, District Judge.

This action under the Civil Rights Act, 42 U.S.C. § 1983, charges the defendants

Page 128

with violating the civil rights of Ernest J. Holmes, deceased, by medically treating the decedent in a manner inconsistent with his religious beliefs while acting under color of State law. All defendants have moved to dismiss the complaint on various grounds.

The allegations of the complaint, which we must presume true for purposes of this motion to dismiss, present the following factual background. The decedent, a twenty year old married male, was involved in an accident on August 12, 1969 and was taken by ambulance to the defendant hospital. While he was fully conscious and competent, he informed the doctors of his religious convictions which precluded his following their medical advice that he accept blood transfusions. The doctors then attempted to persuade other members of his family, including his wife, brother, sister and parents, that such a transfusion was medically necessary. All the relatives refused on religious grounds and the plaintiff and decedent both signed a form releasing the defendants from liability if they were to perform corrective surgery and operations without any blood transfusions.

About four hours after his arrival at the hospital, the decedent lost consciousness and the defendants, for the purpose of forcing the unwanted blood transfusion upon the decedent in contravention of his religious beliefs, conspired to get the Will County, Illinois, probate court to declare the decedent incompetent as a minor and to appoint the defendant Baron as conservator for the decedent for the purpose of authorizing a blood transfusion. Baron was so appointed and authorized the blood transfusion and the doctors, at the express direction of the hospital, effected the transfusion knowing that their acts violated the decedent's religious convictions. In addition to the charged First Amendment violation, the plaintiff further asserts that the defendants conspired to deny the decedent and his family the statutorily required notice and hearing to determine whether he was a "neglected minor" or whether the blood transfusion was a medical necessity, thereby depriving the decedent of due process of law. No claim is asserted that the deprivation of any of these allegedly protected rights caused the death of the decedent. As each of the defendants moves to dismiss on a variety of grounds which overlap to some degree, we shall discuss each theory individually for the sake of clarity.

I

The initial issue presented is whether the applicable statute of limitations bars this action. We believe that this question is capable of easy resolution as the Seventh Circuit has specifically ruled that the limitations period for an action brought under 42 U.S.C. § 1983 in a district court in Illinois is five years. Wakat v. Harlib, 253 F.2d 59 (7th Cir. 1958). The Seventh Circuit there concluded that the limitations period for a Section 1983 action must be determined from state law, that such a suit was "a civil action not otherwise provided for" as relates to the Illinois statute of limitations, Ch. 83, Sec. 16, Ill.Rev.Stat., and that suit must, therefore, be brought within five years of accrual of the cause of action. See also, Contract Buyers League v. F. & F. Investment, 300 F.Supp. 210 (N.D.Ill.1969), aff'd sub nom, Baker v. F. & F. Investment, 420 F.2d 1191 (7th Cir. 1970), cert. denied 400 U.S. 821, 91 S.Ct. 40, 27 L.Ed.2d 49 (1970). Since this action was brought well within the five-year limitations period, the statute of limitations is no bar.

II

The second preliminary defense raised by several of the defendants is that the death of Ernest Holmes extinguishes whatever right to redress for the deprivation of his civil rights he may have possessed. Stated in other terms, this defense is that whatever right of action he had does not survive his death.

The question of whether a federal civil rights claim survives the death of the deprived individual, absent a clear Congressional enactment to that effect, was resolved by the Fifth Circuit more

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than a decade ago. In Brazier v. Cherry, 293 F.2d 401 (5th Cir. 1961), cert. denied, 368 U.S. 921, 82 S.Ct. 243, 7 L.Ed.2d 136 (1961), Judge John R. Brown in an excellent and thoughtful opinion held that, as a matter of statutory construction of 42 U.S.C. §§ 1983 and 1988, state law in relation to survival of actions must be ascertained and adopted as the law governing the issue of survival of a federal civil rights action in the absence of any specific Congressional enactment on the subject. We agree with his reading of the law and consider his opinion as controlling. See also, Pritchard v. Smith, 289 F.2d 153 (8th Cir. 1961); Galindo v. Brownall, 255 F.Supp. 930 (S.D.Cal.1966); Davis v. Johnson, 138 F.Supp. 572 (N.D.Ill.1955); Antieu, Federal Civil Rights Act, § 91, n. 5 and authorities cited therein.

We must, therefore, look to Illinois law concerning survival of actions. We note initially that if the action survives under state law, then the personal representative of the decedent may properly bring this suit, Ch. 83, Sec. 20, Ill.Rev.Stat. Section 339 of the Illinois Probate Act, Ch. 3, Sec. 339, Ill.Rev.Stat., provides that, in addition to the actions which survive by the common law, actions against officers for misfeasance, malfeasance, or nonfeasance also survive. While we can find no case law defining "state officers," we conclude that if the defendants were acting under color of state law as concerns the federal Civil Rights Act (discussed infra, Part V), then they were also acting as officers of the state as concerns Section 339 of the Probate Act. If, of course, they were not acting under color of state law, then they may not be deemed state officers and any action against them abated when the decedent died. This distinction is academic, however, because if the defendants were not acting under color of state law, the plaintiff has failed to state a valid cause of action under the federal Civil Rights Act. We conclude, therefore, that resolution of the issue of whether the action survives the death of the decedent is dependent upon resolution of the issue of whether the defendants acted under color of state law and that both issues must be answered in an identical manner.

III

The next issue presented is whether the decedent's right to the free exercise of his religion guaranteed by the First Amendment has been infringed as a result of the defendants' forcing him to undergo a blood transfusion which they knew was against his religious principles. This issue has not been definitively settled by the Supreme Court of the United States or by our Court of Appeals. We must, therefore, review the leading cases on this subject from state and other federal courts as well as the decisions which relate generally to the free exercise clause of the First Amendment.

The few cases that have directly confronted the issue of the right of a Jehovah's Witness or a Christian Scientist to refuse state ordered medical treatment on religious principles are conflicting in result. See, In Re Brooks, 32 Ill.2d 361, 205 N.E.2d 435 (1965); John F. Kennedy Memorial Hospital v. Heston, 58 N.J. 576, 279 A.2d 670 (1971); Application of President and Directors of Georgetown College, Inc., 118 U.S.App.D.C. 80, 331 F.2d 1000 (1964), cert. denied, Jones v. President and Directors of Georgetown College, 377 U.S. 978, 84 S.Ct. 1883, 12 L.Ed.2d 746 (1964); Winters v. Miller, 446 F.2d 65 (2d Cir. 1971), cert. denied, 404 U.S. 985, 92 S.Ct. 450, 30 L.Ed.2d 369 (1971). We believe, however, that all these cases plus the leading case outlining the contours of the free exercise clause of the First Amendment, West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943), agree that before the state may restrict a person's religious beliefs, it must proffer some substantial interest it claims to possess which must be protected even at the cost of restriction of the free exercise of religion by its citizens, i. e., the state must show that it is acting "to prevent grave and immediate danger to interests

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which the state may lawfully protect." Barnette, supra, 319 U.S. at 639, 63 S.Ct. at 1186. A state's restriction on the free exercise of religion may not be upheld merely because some rational basis exists therefor; First Amendment rights do not rest on such slender grounds. Winter v. Miller, supra, 446 F.2d at 70. The cases make it clear that the test for determining whether a state-imposed restriction upon religious freedoms is valid is an ad hoc balancing test which examines the facts of each particular case, focusing upon the interests of the state and its citizens.

In Brooks, supra, the Illinois Supreme Court ruled that even when approaching death has so weakened the mental and physical faculties of a theretofore competent adult without minor children that she may properly be said to be legally incompetent, she may not be compelled by a state appointed conservator to accept treatment of a nature which will probably save her life, but which is forbidden by her religious convictions and which she has steadfastly held even though aware that death may result...

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58 practice notes
  • 391 F.Supp. 1 (N.D.Ill. 1975), 72 C 2018, Dear v. Rathje
    • United States
    • Federal Cases United States District Courts 7th Circuit Northern District of Illinois
    • March 17, 1975
    ...will have to be determined by Illinois law. See Davis v. Johnson, 138 F.Supp. 572 (N.D.Ill.1955); Holmes v. Silver Cross Hospital, 340 F.Supp. 125 The Illinois legislature has specifically excepted slander and libel from actions which survive. The Probate Act, Ch. 3, § 339, IllRev.Stat.1967......
  • 399 F.Supp. 553 (N.D.Ind. 1975), H 74-49, Doe v. Lake County, Indiana
    • United States
    • Federal Cases United States District Courts 7th Circuit Northern District of Indiana
    • August 20, 1975
    ...F.2d 734, 736 (7th Cir. 1965); Ehn v. Price, 372 F.Supp. 151, 152 (N.D.Ill.1974); Holmes v. Silver Cross Hospital of Joliet, Illinois, 340 F.Supp. 125, 135 (N.D.Ill.1972); Weise v. Reisner, 318 F.Supp. 580, 582 See also Littleton v. Berbling, 468 F.2d 389 (7th Cir. 1972), where the named de......
  • 6 Mass.App.Ct. 466 (1978), Matter of Dinnerstein
    • United States
    • Massachusetts Appeals Court of Massachusetts
    • June 30, 1978
    ...80, 331 F.2d 1000 cert. denied, 377 U.S. 978, 84 S.Ct. 1883, 12 L.Ed.2d 746 (1964), Holmes v. Silver Cross Hosp. of Joliet, Ill., 340 F.Supp. 125 (N.D.Ill.1972), State v. Perricone, 37 N.J. 463, 181 A.2d 751, cert. denied, 371 U.S. 890, 83 S.Ct. 189, 9 L.Ed.2d 124 (1962), Raleigh Fitkin-Pau......
  • 510 A.2d 562 (Md. 1986), 88, Mercy Hosp., Inc. v. Jackson
    • United States
    • Maryland Court of Appeals of Maryland
    • June 30, 1986
    ...27, 252 N.Y.S.2d 705 (Sup.Ct.1962) (elderly adult refused consent, son concurred); Holmes v. Silver Cross Hospital of Joliet, Illinois, 340 F.Supp. 125 (N.D.Ill.1972) (motion to dismiss wrongful transfusion suit denied); United States v. George, 239 F.Supp. 752 (D.Conn.1965) (patient acquie......
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55 cases
  • 391 F.Supp. 1 (N.D.Ill. 1975), 72 C 2018, Dear v. Rathje
    • United States
    • Federal Cases United States District Courts 7th Circuit Northern District of Illinois
    • March 17, 1975
    ...will have to be determined by Illinois law. See Davis v. Johnson, 138 F.Supp. 572 (N.D.Ill.1955); Holmes v. Silver Cross Hospital, 340 F.Supp. 125 The Illinois legislature has specifically excepted slander and libel from actions which survive. The Probate Act, Ch. 3, § 339, IllRev.Stat.1967......
  • 399 F.Supp. 553 (N.D.Ind. 1975), H 74-49, Doe v. Lake County, Indiana
    • United States
    • Federal Cases United States District Courts 7th Circuit Northern District of Indiana
    • August 20, 1975
    ...F.2d 734, 736 (7th Cir. 1965); Ehn v. Price, 372 F.Supp. 151, 152 (N.D.Ill.1974); Holmes v. Silver Cross Hospital of Joliet, Illinois, 340 F.Supp. 125, 135 (N.D.Ill.1972); Weise v. Reisner, 318 F.Supp. 580, 582 See also Littleton v. Berbling, 468 F.2d 389 (7th Cir. 1972), where the named de......
  • 6 Mass.App.Ct. 466 (1978), Matter of Dinnerstein
    • United States
    • Massachusetts Appeals Court of Massachusetts
    • June 30, 1978
    ...80, 331 F.2d 1000 cert. denied, 377 U.S. 978, 84 S.Ct. 1883, 12 L.Ed.2d 746 (1964), Holmes v. Silver Cross Hosp. of Joliet, Ill., 340 F.Supp. 125 (N.D.Ill.1972), State v. Perricone, 37 N.J. 463, 181 A.2d 751, cert. denied, 371 U.S. 890, 83 S.Ct. 189, 9 L.Ed.2d 124 (1962), Raleigh Fitkin-Pau......
  • 510 A.2d 562 (Md. 1986), 88, Mercy Hosp., Inc. v. Jackson
    • United States
    • Maryland Court of Appeals of Maryland
    • June 30, 1986
    ...27, 252 N.Y.S.2d 705 (Sup.Ct.1962) (elderly adult refused consent, son concurred); Holmes v. Silver Cross Hospital of Joliet, Illinois, 340 F.Supp. 125 (N.D.Ill.1972) (motion to dismiss wrongful transfusion suit denied); United States v. George, 239 F.Supp. 752 (D.Conn.1965) (patient acquie......
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2 books & journal articles
  • When love and abuse are not mutually exclusive: the need for government intervention.
    • United States
    • Issues in Law & Medicine Vol. 12 Nbr. 4, March 1997
    • March 22, 1997
    ...the Pres. and Dirs. of Georgetown College, 331 F.2d 1000, 100809 (D.C. Cir. 1964); but see Holmes v. Silver Cross Hosp. of Joliet, Ill., 340 F. Supp. 125 (D. Ill. 1972); In re Osborne, 294 A.2d 372 (D.C. App. 1972). (19) Quinlan, 355 A.2d at 664. (20) For a full treatment of the "best ......
  • BIRTH DIRECTIVES: A MODEL TO ADDRESS FORCED AND COERCED CESAREANS.
    • United States
    • Case Western Reserve Law Review Vol. 69 Nbr. 2, December 2018
    • December 22, 2018
    ...blood transfusion because it is her "responsibility to the community to care for her infant"); Holmes v. Silver Cross Hosp., 340 F.Supp. 125 (N.D. 111. 1972). But see In re Farrell, 108 N.J. 335, 413 (1987) (refusing to compel a mother to stay on respirator because she "did n......