Pickle v. Curns

• Decision Date: 12 May 1982
• Docket Number: No. 81-472,81-472
• Citation: 62 Ill.Dec. 79,435 N.E.2d 877,106 Ill.App.3d 734
• Parties: , 62 Ill.Dec. 79 Dewey J. PICKLE, Plaintiff-Appellant, v. Dr. John R. CURNS, Dr. Barry Storter, Defendants, and St. Therese Hospital, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 877

435 N.E.2d 877

106 Ill.App.3d 734, 62 Ill.Dec. 79

Dewey J. PICKLE, Plaintiff-Appellant, v. Dr. John R. CURNS, Dr. Barry Storter, Defendants and St. Therese Hospital, Defendant-Appellee.

No. 81-472.

Appellate Court of Illinois, Second District.

May 12, 1982.

Michael S. Danian, Waukegan, for plaintiff-appellant.

Hinshaw, Culbertson, Moelmann, Hoban & Fuller, Stephen R. Swofford, Michael F. Henrick, Chicago, for defendant-appellee.

HOPF, Justice:

This is an appeal from an order which refused to reconsider the dismissal with prejudice of that part of plaintiff's complaint seeking recovery from defendant St. Therese Hospital for personal injuries and which refused to allow plaintiff to amend his complaint after the dismissal. That part of plaintiff's complaint seeking recovery from defendants John R. Curns and Barry Storter was not dismissed and they are not involved in this appeal.

Plaintiff allegedly suffered injuries as a result of electroconvulsive therapy he received at St. Therese Hospital on September 9, 1979. He brought suit against Dr. Storter, who administered the therapy, Dr. Curns, who apparently was a consulting physician, and defendant hospital, which provided the facilities for the treatment along with nursing personnel.

Plaintiff's first complaint, filed August 19, 1980, was dismissed in favor of the hospital on October 9, 1980. He was given leave to amend the complaint, which he did on December 31, 1980. The amended complaint was stricken on the hospital's motion and leave was again given to file an amended complaint. He did so on February 20, 1981, and the hospital moved to dismiss this complaint. The record does not reflect the disposition of this motion to dismiss, but on March 24, 1981, the court granted plaintiff leave to file another amended complaint. This third-amended complaint was dismissed on the hospital's motion on April 7, 1981, this time with prejudice.

On April 29, 1981, plaintiff filed a "Motion for Reconsideration and Leave to Plead Over." In it plaintiff requested the court to reconsider its order dismissing plaintiff's last-amended complaint against the hospital and to allow plaintiff to plead over his amended complaint. Attached to this motion was a complaint amending the last dismissed complaint. On June 10, 1981, the court denied plaintiff's motion for reconsideration and leave to plead over with the amended complaint he had tendered on April 29. Plaintiff then appealed.

We first must resolve what matters are before us for review. Plaintiff's notice of appeal stated that plaintiff appealed the June 10, 1981, order denying his motion to reconsider the dismissal of his third-amended complaint and denying leave to plead over. The notice further stated plaintiff sought reversal of the order in favor of the hospital, or in the alternative, judgment in his favor notwithstanding the order or reversal of the order and an opportunity to plead over.

Plaintiff's appellate brief alludes to allegations in the original and various amended complaints. With the filing of each amended complaint, however, plaintiff waived his right to attack the dismissal of each earlier filed complaint. (Henkhaus v. Barton (1977), 56 Ill.App.3d 767, 14 Ill.Dec. 113, 371 N.E.2d 1166.) Therefore the allegations in the original and two subsequent amended complaints are not matters for our review.

The hospital argues that although for the most part plaintiff structures his appellate argument into a defense of his third-amended complaint, plaintiff had not specified in his notice of appeal the dismissal of that order as a matter about which he was appealing. Therefore, the hospital contends, plaintiff cannot argue the merits of his third-amended complaint.

A notice of appeal must "specify the judgment or part thereof appealed from." (Supreme Court Rule 303(c)(2), 73 Ill.2d R. 303(c)(2).) An appellate court may not review a matter not raised as an issue in the notice of appeal unless the deficiency is one of form and not of substance. (In re Estate of Malloy (1981), 96 Ill.App.3d 1020, 52 Ill.Dec. 395, 422 N.E.2d 76.) We think that, while plaintiff's notice of appeal should have specified the April 7, 1981, order dismissing his third-amended complaint with prejudice, the error was merely one of form. The hospital was not prejudiced by the error. It was informed from the notice that plaintiff was appealing the denial of the motion for reconsideration which clearly implied a request for reversal of the dismissal of his third-amended complaint. Plaintiff's appellate brief focuses upon the dismissal of that complaint. We will consider plaintiff's argument opposing the dismissal of his third-amended complaint.

Counts III and IV of plaintiff's third-amended complaint are addressed to the alleged negligence of the hospital. Count III alleged in pertinent part:

"4. That at the time and place aforesaid, the employee, NADINE CASEY, of the Defendant ST. THERESE HOSPITAL, in the course of her employment was guilty of the following negligent and careless acts:

A. Undertook to obtain the consent of Plaintiff for ECT treatment without fully informing him of the probability of side effects and significant risks common to such therapy.

B. Undertook to obtain the consent of Plaintiff for ECT without clearly and in an explicit manner informing the Plaintiff of the reason for such treatment, that is, the nature and seriousness of his illness.

C. Undertook to obtain the consent of Plaintiff for ECT therapy without clearly and fully informing the Plaintiff of the risks of memory impairment and fracture of the spine from such therapy.

D. Undertook to obtain the consent of Plaintiff of the risks of brain damage and fear and panic from such therapy."

This Count alleges that it was the duty of the hospital to inform plaintiff of the risks that attend the administration of electroconvulsive therapy in order to obtain his consent to it. It is true, as plaintiff argues, that a hospital has a duty of care to the patient independent and apart from the duty of the physician to the patient. (Darling v. Charleston Community Memorial Hospital (1965), 33 Ill.2d 326, 211 N.E.2d 253, cert. denied, (1966), 383 U.S. 946, 86 S.Ct. 1204, 16 L.Ed.2d 209; Brown v. St. John's Hospital (1977), 51 Ill.App.3d 1044, 9 Ill.Dec. 721, 367 N.E.2d 155.) It has been recognized, however, that informing a patient of a procedure in order that he might make a decision to give or withhold his consent to it is the duty of the patient's physician. The special relationship between a doctor and his patient "vests the doctor with the responsibility of disclosure (of risks, and) requires the doctor to exercise discretion in prudently disclosing information in accordance with his patient's best interests." (Miceikis v. Field (1976), 37 Ill.App.3d 763, 768, 347 N.E.2d 320.) Count III was thus properly dismissed for failing to allege a duty owed him by the hospital.

Count IV of the third-amended complaint alleges that it permitted electroconvulsive therapy to be performed on plaintiff in violation of its policies, and specifies the omission of certain steps in the administration of the therapy. Count IV in pertinent part states:

"3. That at the time and place aforesaid, the Defendant, ST. THERESE HOSPITAL, allowed DR. BARRY STORTER to administer electroconvulsive treatment in a manner which did not fully comply with the policy of the hospital on providing such treatment so as to constitute negligence on the part of the hospital * * *."

4. That at the time and place aforesaid, ST. THERESE HOSPITAL was guilty of the following negligent and careless acts:

A. Failure to administer a muscle relaxant.

B. Failure to physically examine the plaintiff before the administration of such treatment."

It is recognized that absent a principal-agent relationship the misconduct of a treating physician may not be imputed to a hospital. (Johnson v. St. Bernard Hospital (1979), 79 Ill.App.3d 709, 35 Ill.Dec. 364, 399 N.E.2d 198; Hundt v. Proctor Community Hospital (1972), 5 Ill.App.3d 987, 284 N.E.2d 676.) Plaintiff's complaint does not allege a principal-agent relationship exists here, and he does not base this count on that theory.

Plaintiff relies upon Holton v. Resurrection Hospital (1980), 88 Ill. App.3d 655, 43...