Fure v. Sherman Hospital

• Citation: 21 Ill.Dec. 50,64 Ill.App.3d 259,380 N.E.2d 1376
• Decision Date: 25 September 1978
• Docket Number: No. 77-177,77-177
• Parties: , 21 Ill.Dec. 50 Lynda FURE, Administrator of the Estate of Duane Fure, Deceased, Plaintiff- Appellant, v. SHERMAN HOSPITAL, Myron Elliot, and Walter E. Gassar, Defendants-Appellees (Two Cases).
• Court: United States Appellate Court of Illinois

Page 1376

380 N.E.2d 1376

64 Ill.App.3d 259, 21 Ill.Dec. 50

Lynda FURE, Administrator of the Estate of Duane Fure Deceased, Plaintiff- Appellant, v. SHERMAN HOSPITAL, Myron Elliot, and Walter E. Gassar Defendants-Appellees (Two Cases).

No. 77-177.

Appellate Court of Illinois, Second District.

Sept. 25, 1978.

Rehearing Denied Oct. 20, 1978.

A. J. Hardiman, Chicago, for plaintiff-appellant.

McKenna, Storer, Rowe, White & Farrug, Robert S. Soderstrom, Hinshaw, Culbertson, Moelmann, Hoban & Fuller, Chicago, Mountcastle & DaRosa, Wheaton, for defendants-appellees.

RECHENMACHER, Justice.

This appeal arises out of the dismissal of a complaint brought by the surviving widow and Administrator of the Estate of Duane Fure, deceased, under the Wrongful Death Statute (Ill.Rev.Stat.1975, ch. 70, pars. 1 and 2).

Duane Fure, the plaintiff's decedent, suddenly became ill and was admitted to the defendant hospital January 13, 1973. He was given emergency treatment and his illness was diagnosed as pertaining to an ulcer. An exploratory laparotomy (excision of part of the abdominal wall) was performed and X-rays were taken of areas related to the possibility of an ulcer. The decedent continued to grow worse, experienced difficulty in breathing and expired January 15, 1973.

The original complaint in this case was filed November, 1975, more than two years after Duane Fure's death. It contained three counts, Count I being for pecuniary damages for loss of support, etc. suffered by the next of kin; Count II being for pain and suffering of the decedent before his death, and Count III being for medical and funeral expenses. Subsequently, May 18, 1976, a second suit was filed by the same plaintiff, identical to the first, except that it added as a defendant a corporation with whom two of the defendant doctors were associated, General & Vascular Surgery, Ltd. On motion of the defendants the two cases were consolidated and transferred from Cook County, where the original suit had been brought, to Kane County. The motion to dismiss one of the defendants, Dr. Feldman, was granted. This ruling was appealed and according to the appellant's brief is pending in the First District as a separate appeal.

The plaintiff later amended her complaint by expanding Count I as to certain facts and by adding another count, Count IV, which alleged that certain committee meetings or review panels attended by the defendant doctors made findings to the effect that the treatment of the decedent was either negligent or sub-standard, that the defendants were aware of such findings and that "it then and there became the duty of each of the defendants to notify the decedent's next of kin of such findings," and their failure to do so was a breach of said duty.

The defendants moved to dismiss the complaint on the ground that the action was not brought within two years of the date of the decedent's death as required by section 2(c) of the Wrongful Death Act (Ill.Rev.Stat.1975, ch. 70, par. 2(c)) which states:

"Every such action shall be commenced within 2 years after the death of such person."

The plaintiff then filed her "Affidavit, Argument and Brief" in opposition to the motion to dismiss in which she invoked section 21.1 of the Limitations Act (Ill.Rev.Stat.1975, ch. 83, par. 22.1) which reads in part as follows:

"No action for damages for injury or death against any physician 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, but in no event shall such action be brought more than 5 years after the date on which occurred the act or omission or occurrence alleged in such action to have been the cause of such injury or death."

The plaintiff argues that since the medical records made it abundantly clear that there had been an erroneous diagnosis and the decedent was treated and operated on for a perforated ulcer when he actually was dying of a perforated esophagus, and since she was never advised of the actual cause of death and did not know the actual cause of death of the decedent until the fall of 1975, she had, by filing suit in November of 1975, acted within the time limitation set out in section 21.1 of the Limitations Act regarding wrongful death arising from patient care.

The plaintiff thus took the position that section 21.1, (a) governs the period within which a wrongful death action arising out of medical malpractice may be brought and (b) extends that period to 2 years from the time the decedent's representative knew or through the use of reasonable diligence should have known of the cause of death. The plaintiff cites the case of Lipsey v. Michael Reese Hospital (1970), 46 Ill.2d 32, 262 N.E.2d 450 in arguing that the period of limitations does not begin to run until the Negligence is discovered thus extending the "discovery rule" adopted in Rozny v. Marnul (1969), 43 Ill.2d 54, 250 N.E.2d 656, to malpractice cases generally.

The defendants' position, both in the trial court and in this appeal is that in the first place a wrongful death action is purely statutory and the bringing of the action within 2 years is a condition precedent and not a mere limitation which might be waived or modified by circumstances or by the defendants' conduct. (See, Hartray v. Chicago Railways Co. (1919), 290 Ill. 85, 124 N.E. 849 and Country Mutual Insurance Company v. National Bank of Decatur (1969), 109 Ill.App.2d 133, 248 N.E.2d 299.) But in any event, the defendants say even section 21.1 of the Limitations Act which the plaintiff invokes does not help her even if applicable to a wrongful death action, because it specifically limits such an action, based on patient care, to the same 2 years as does the Wrongful Death Statute by the following language:

"No action for damages for injury or death against any physician or hospital * * * arising out of patient care shall be brought more than 2 years after the date on which the claimant knew * * * of the injury or death for which damages are sought in the action * * *." (Ill.Rev.Stat.1975, ch. 83, par. 22.1).)

Since the plaintiff obviously knew of the decedent's death more than 2 years before she brought the action, the defendants contend she is barred by the Limitations Statute as well as under the general concept of the Wrongful Death Act as requiring suit to be brought within 2 years as a condition precedent.

After hearing argument on various motions of the parties, the trial court issued its final order dated January 31, 1977, dismissing Counts I, II and III of the complaint, which together with a previous order of January 17, dismissing Count I, are the orders here appealed from.

In this appeal, the plaintiff raises 5 issues, which for the sake of convenience, we have combined into 3, as follows:

(1) Whether in an action for wrongful death resulting from patient care the "discovery" rule may be applied as to the time within which the action may be brought;

(2) Whether the court erred in its ruling refusing to require the defendants to produce (a) medical records of the decedent and medical and general by-laws of the defendant hospital and (b) records concerning any medical committee reviews, or in the alternative to allow the court to conduct an in camera inspection of such records or to allow the taking of the depositions of the medical review committees themselves, and

(3) Whether it is an actionable breach of duty for a hospital or a doctor having actual knowledge of medical malpractice as regards a deceased patient to fail to disclose such information to the deceased patient's representative.

At the outset, we note that while counsel and the trial court all assumed Count IV of the amended complaint had been dismissed by a previous judge, we do not find the record to so indicate. The judge merely ruled on certain portions of a discovery motion related to Count IV, but did not dismiss Count IV. Nor is the assumed dismissal of Count IV one of the points raised in the notice of appeal, which does not mention that count. On the other hand, the issue raised in "Point 3" above, as an issue for review on this appeal, contains the very gist of Count IV. Under these circumstances, in order to avoid unnecessary time and effort in the trial court, and since all parties are apparently under the impression that Count IV was dismissed, we exercise our prerogative under Supreme Court Rule 366 (Ill.Rev.Stat.1975, ch. 110A, par. 366) and give the judgment which should have been and was assumed to have been given below as to Count IV. In our opinion, this count fails to state a cause of action. The mere failure to disclose a possibly questionable diagnosis or course of treatment to a third party representing the deceased patient is, we think, a far cry from fraudulent concealment of an actual known fact or circumstance, and while the doctor has a fiduciary relationship to his patient, not to deceive him or withhold vital information from him, we think this fiduciary aspect does not extend to a deceased patient's legal representative to the extent that the doctor is required to charge himself with professional negligence where he is conscious that his treatment was mistaken or incomplete, in order to assist such legal representative in the furtherance of an action against the doctor.

We hold, therefore, that if Count IV was not dismissed as has been assumed by the parties, it would have been proper for the trial court to have done so, for failure to state a cause of action and in order to remove uncertainty we will treat it as having been properly dismissed.

One more preliminary matter should be considered and disposed...