Kubian v. Alexian Bros. Medical Center

• Decision Date: 04 May 1995
• Docket Number: No. 2-94-0997,2-94-0997
• Citation: 651 N.E.2d 231,272 Ill.App.3d 246
• Parties: , 209 Ill.Dec. 303 Cecelia KUBIAN, Indiv., and as next of kin of Frank Kubian, Deceased, Plaintiff-Appellant, v. ALEXIAN BROTHERS MEDICAL CENTER, Hospice Care, Inc. et al., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 231

651 N.E.2d 231

272 Ill.App.3d 246, 209 Ill.Dec. 303

Cecelia KUBIAN, Indiv., and as next of kin of Frank Kubian,

Deceased, Plaintiff-Appellant, v. ALEXIAN BROTHERS MEDICAL CENTER, Hospice Care, Inc. et al.,

Defendants-Appellees.

No. 2-94-0997.

Appellate Court of Illinois,

Second District.

May 4, 1995.

Allan J. Marco, Frank A. Marco, Marco & Stefanos, Downers Grove, for Cecelia Kubian.

John E. Norton, Denis K. Sheehan, O'Reilly, Cunningham, Norton & Mancini, Wheaton, for Alexian Brothers Medical Ctr.

Joyce E. Zupancic, Broderick, Steiger & Zupancic, Chicago, for Hospice Care, Inc.

James T. Ferrini, Edward M. Kay, Clausen, Miller, Gorman, Caffrey & Witous, Chicago, for Herbert J. Reisel MD.

Presiding Justice McLAREN delivered the opinion of the court:

The plaintiff, Cecelia Kubian, filed a complaint against the defendants, Alexian Brothers Medical Center (Alexian Center), Hospice Care, Inc. (Hospice Care), and Dr. Herbert Reisel, which included counts for wrongful death and for loss of consortium. The trial court granted the defendants' section 2-615 motion (735 ILCS 5/2-615 (West 1992)) to dismiss some of the plaintiff's counts, including the loss of consortium count, on February 24, 1992. Subsequently, the plaintiff amended her complaint, and the defendants, for the second time, filed motions to dismiss the remaining counts. As a consequence, the plaintiff filed her second amended complaint. Subsequently, the defendants, for the third time, filed motions to dismiss, this time pursuant to section 2-619(a)(2) (735 ILCS 5/2-619(a)(2) (West 1992)), though defendant Reisel filed a motion for summary judgment (735 ILCS 5/2-1005 (West 1992)), not a section 2-619 motion (735 ILCS 5/2-619 (West 1992)). The trial court granted the defendants' motion to dismiss the wrongful death count pursuant to section 2-619. 735 ILCS 5/2-619 (West 1992).

The issues on appeal are whether the trial court erred in dismissing the plaintiff's wrongful death count pursuant to section 2-619 (735 ILCS 5/2-619 (West 1992)) and whether the plaintiff's loss of consortium count, dismissed pursuant to section 2-615 (735 ILCS 5/2-615 (West 1992)), should be reinstated. We affirm in part, reverse in part, and remand.

The facts in this case are undisputed. The plaintiff's spouse, Frank Kubian, was transported to the Alexian Center on March 7, 1991, where Kubian was under the care of Dr. Reisel. Kubian remained under Reisel's care in an intensive care unit until Reisel signed a "do not resuscitate" order (DNR) on March 12, 1991, at which time Reisel also authorized a transfer of Kubian to the Hospice Care Unit, located within the Alexian Center facility. On March 13, 1991, a few hours after being transferred to the Hospice Care Unit, Frank Kubian died.

The DNR order and the transfer of Frank Kubian to the Hospice Care Unit were made with the written consent of Priscilla Pisarski, the deceased's daughter from a marriage previous to his union with the plaintiff. No informed consent declaration was given, however, from either Frank Kubian or the plaintiff, who had been married to Kubian for 12 years and was present at the hospital when Pisarski signed the consent forms. The plaintiff alleges that hostile feelings existed between the plaintiff and Pisarski.

On March 13, 1991, Rose Hutchison, a registered nurse, stated in an "Inpatient Unit Interdisciplinary note":

"FRANK KUBIAN was unable to sign all papers due to deterioration and weakness and the daughter signed all of the papers, because:

i. The daughter signed instead of the wife because they have a marriage agreement that they will be responsible for their own medical expenses.

ii. This is a second marriage."

The "marriage agreement" to which the nurse referred is an antenuptial agreement between Frank Kubian and the plaintiff, entered into on May 16, 1979. The agreement provides that the plaintiff would not make a claim as to any part of her spouse's estate and that she waives:

"[A]ll right of courtesy [sic ], dower, statutory fee, homestead, surviving spouse's award, right to renounce the will of the husband, or other right in and to the property real or personal, which the Husband[ ] now owns."

The agreement did not specifically mention consortium or loss thereof.

Frank Kubian's will, dated May 29, 1981, with an attached codicil dated December 16, 1988, ratified the antenuptial agreement and appointed Priscilla Pisarski as executor of the estate. The will provided that the administrator of the estate had the power to "compromise, contest, prosecute or abandon" claims of Frank Kubian's estate.

Following Frank Kubian's death, Pisarski opened an estate in the probate division of the eighteenth judicial circuit. During the pendency of the estate of Frank Kubian, the plaintiff signed an agreement waiving her rights in the estate, waiving any right "she had, now has, or may hereafter acquire against the Estate," and ratifying the antenuptial agreement. Pisarski did not file a wrongful death claim on behalf of the estate before the estate was closed in the probate court on January 29, 1992.

When the estate was still open, however, the plaintiff filed the lawsuit at issue in the present case in an individual capacity on October 17, 1991. The gravamen of the plaintiff's suit is that the defendants improperly obtained consent to relinquish life support from Frank Kubian's daughter, Priscilla Pisarski, rather than his wife, the plaintiff, and thereby failed to obtain proper consent.

The standards guiding our review of the trial court's decision to grant the defendant's section 2-619 motion (735 ILCS 5/2-619 (West 1992)) to dismiss the plaintiff's wrongful death count are clear. Generally, section 2-619 (735 ILCS 5/2-619 (West 1992)) affords a means of obtaining a summary disposition of issues of law or easily proved issues of fact. (Kedzie & 103rd Currency Exchange, Inc. v. Hodge (1993), 156 Ill.2d 112, 115, 189 Ill.Dec. 31, 619 N.E.2d 732; Johnson v. Du Page Airport Authority (1994), 268 Ill.App.3d 409, 414, 206 Ill.Dec. 34, 644 N.E.2d 802.) Section 2-619(a)(2) of the Code of Civil Procedure provides for dismissal if "the plaintiff does not have the legal capacity to sue." (735 ILCS 5/2-619(a)(2) (West 1992).) For purposes of a section 2-619 motion (735 ILCS 5/2-619 (West 1992)), all well-pleaded facts in the complaint are deemed admitted and only the legal sufficiency of the complaint is at issue. (American National Bank & Trust Co. v. Village of Libertyville (1995), 269 Ill.App.3d 400, 403, 206 Ill.Dec. 761, 645 N.E.2d 1013.) The granting of a section 2-619 motion to dismiss (735 ILCS 5/2-619 (West 1992)) is given de novo review on appeal. Kedzie & 103rd Currency Exchange, Inc., 156 Ill.2d at 116, 189 Ill.Dec. 31, 619 N.E.2d 732; Johnson, 268 Ill.App.3d at 414, 206 Ill.Dec. 34, 644 N.E.2d 802.

With these concepts in mind, we determine that the trial court's decision to grant dismissal of the plaintiff's wrongful death count pursuant to section 2-619 (735 ILCS 5/2-619 (West 1992)) was not an abuse of discretion. During proceedings before the trial court, the plaintiff sought to be appointed as a special administrator of Frank Kubian's estate. The Wrongful Death Act, in regard to the appointment of a special administrator, reads:

"In the event that the only asset of the deceased estate is a cause of action arising under this Act, and no petition for letters of office for his or her estate has been filed, the court * * * may appoint a special administrator for the deceased party for the purpose of prosecuting or defending the action." (Emphasis added.) (740 ILCS 180/2.1 (West 1992).)

Thus, by the very terms of the statute upon which she seeks appointment, the trial court was not authorized to appoint the plaintiff as a special administrator because letters of office for Frank Kubian's estate had already been filed as of March 21, 1991, and the estate contained approximately $33,000 worth of assets as of October 17, 1991, the date the plaintiff filed her suit.

Analysis of the case law regarding estates and the appointment of special administrators also leads us to determine that the dismissal of the wrongful death count and the denial to appoint the plaintiff special administrator were not abuses of discretion. In In re Estate of Faught (1983), 111 Ill.App.3d 1043, 1045, 67 Ill.Dec. 762, 445 N.E.2d 54, the appellate court noted that nothing in section 2.1 of the Wrongful Death Act (Ill.Rev.Stat.1981, ch. 70, par. 2.1 (now codified, as amended, at 740 ILCS 180/2.1 (West 1992))) serves to abrogate the provisions of the Probate Act of 1975 (Ill.Rev.Stat.1981 ch. 110 1/2, par. 10-5 (now 755 ILCS 5/10-5 (West 1992))) concerning the temporary status of an administrator to collect. Therefore, the powers and the duties of a special administrator are strictly limited to those prescribed by the wrongful death statute (Ill.Rev.Stat.1981, ch. 70, par. 2.1 (now codified, as amended, at 740 ILCS 180/2.1 (West 1992))), and the special administrator's authority ceases upon issuance of the letters testamentary. (Estate of Faught, 111 Ill.App.3d at 1045, 67 Ill.Dec. 762, 445 N.E.2d 54.) Likewise, in In re Estate of Redeker (1991), 210 Ill.App.3d 769, 772, 155 Ill.Dec. 199, 569 N.E.2d 199, the court also concluded that, once a petition for issuance of letters of administration had been filed, the trial court no longer had the authority to appoint a special administrator for the purpose of prosecuting a wrongful death action.

The plaintiff relies upon Johnson v. Village of Libertyville (1986), 150 Ill.App.3d 971, 104 Ill.Dec. 211, 502 N.E.2d 474, for her argument that she should have been appointed a special administrator. In Johnson, the court appointed the parents of the deceased as special administrators and allowed the parents to intervene in a wrongful death action to pursue their loss of society claim where it was shown that "the administrator [had] acted in a manner...