Rodgers v. St. Mary's Hosp. of Decatur

• Decision Date: 29 June 1990
• Docket Number: No. 4-89-0721,4-89-0721
• Citation: Rodgers v. St. Mary's Hosp. of Decatur, 556 N.E.2d 913, 198 Ill.App.3d 871, 145 Ill.Dec. 295 (Ill. App. 1990)
• Parties: , 145 Ill.Dec. 295 Kalan D. RODGERS, Sr., Administrator of the Estate of Brenda Marie Rodgers, Deceased, Plaintiff-Appellant, v. ST. MARY'S HOSPITAL OF DECATUR, a corporation, Defendant-Appellee.
• Court: Appellate Court of Illinois

Page 913

556 N.E.2d 913

198 Ill.App.3d 871, 145 Ill.Dec. 295

Kalan D. RODGERS, Sr., Administrator of the Estate of Brenda Marie Rodgers, Deceased, Plaintiff-Appellant, v. ST. MARY'S HOSPITAL OF DECATUR, a corporation, Defendant-Appellee.

No. 4-89-0721.

Appellate Court of Illinois Fourth District.

June 29, 1990.

Rehearing Denied July 27, 1990.

Robert M. Owen, Popkin, Stern & Owen, Decatur, Charles H. Fendell, Popkin & Stern, St. Louis, Mo., for plaintiff-appellant.

Graham & Graham, Springfield (Richard J. Wilderson, of counsel), for defendant-appellee.

Presiding Justice KNECHT delivered the opinion of the court:

The plaintiff, Kalan D. Rodgers, Sr. (Rodgers), appeals the dismissal with prejudice of his amended complaint directed to defendant St. Mary's Hospital (St. Mary's), in which he requested damages on the basis of St. Mary's alleged failure to preserve X rays relevant to a medical malpractice suit. The principal issues which we must resolve in this appeal are whether there is a cause of action for loss or destruction of X rays which results in prejudice to litigation rights and, if so, the effect of post-judgment settlements and failures to pursue all rights of appeal with respect to adverse verdicts on a party's right to maintain an action for failure to preserve X rays.

The origin of this litigation was a medical malpractice suit which Rodgers filed on May 27, 1986, in his capacity as administrator of the estate of his late wife, Brenda Marie Rodgers (Brenda), against St. Mary's, and the obstetricians and radiologists responsible for the care of Brenda during the days immediately prior to her death. Rodgers alleged and the evidence presented at trial established, Brenda died on June 14, 1984, as a result of complications which developed after the cesarean section delivery of her and Rodgers' son on June 12, 1984. The circuit court entered summary judgment in favor of St. Mary's on September 10, 1987, subsequently vacated this judgment, and entered a second summary judgment in favor of St. Mary's on May 13, 1988. On June 10, 1988, a jury returned a verdict in favor of the radiologists and against Rodgers. However, the jury found in favor of Rodgers on his claims against the obstetricians and assessed his damages at $1,200,000. Judgment was entered on this verdict, and the obstetricians' post-trial motion was denied.

On August 29, 1988, the obstetricians filed a notice of appeal from the judgment in Rodgers' favor. During the pendency of this appeal, Rodgers, acting against the advice of his attorneys, settled Brenda's estate's claims against the obstetricians for $800,000, after obtaining permission of the probate division of the circuit court to do so. The obstetricians' appeal was dismissed per stipulation of the parties on May 24, 1989. Rodgers did not appeal the judgments in favor of St. Mary's and the radiologists.

In the meantime, Rodgers had filed the present action against St. Mary's Hospital on September 27, 1987. He requested damages based on the hospital's alleged loss of all abdominal X rays of Brenda within five years after they were taken. Rodgers alleged (1) this breached a statutory duty (Ill.Rev.Stat.1987, ch. 111 1/2, par. 157-11) which the hospital owed to Brenda and her successors in interest and (2) the X rays were crucial to his proving his case against the physicians responsible for treating Brenda during the days immediately before her death. On April 12, 1988, the circuit court dismissed this complaint without prejudice and with leave to amend.

In an amended complaint filed May 25, 1989, Rodgers alleged the salient facts pertaining to Brenda's hospitalization and death at St. Mary's, including the taking of X rays of various portions of Brenda's body during her hospitalization. Rodgers alleged a sigmoid colonic volvulus was or should have been depicted on certain of the X rays, and St. Mary's owed Brenda and her successors in interest a statutory duty (Ill.Rev.Stat.1987, ch. 111 1/2, par. 157-11), as well as a duty pursuant to its internal regulations, to retain the X rays or diagnostic-quality minified versions thereof for a period of five years. Rodgers alleged St. Mary's breached this duty by destroying the X rays and failing to retain diagnostic-quality minified versions of them.

Rodgers further alleged the missing X rays were critical and important evidence which, either alone or in combination with other evidence, would have established the radiologists' negligence in treating Brenda, which was a proximate cause of her death. Rodgers alleged that as a result of St. Mary's breach of its duty to preserve the X rays, he lost his case against the radiologists. Rodgers also alleged that if the X rays had been preserved, a verdict would have been returned in his favor against the radiologists and the obstetricians jointly and severally, and the judgment entered on that verdict would have been paid and not appealed. Rodgers asserted the loss of the X rays forced him to forego $400,000 of the verdict which was returned at the conclusion of the trial of his claims against the radiologists and the obstetricians. He requested damages in the amount of $400,000.

In an order entered August 15, 1989, the circuit court allowed St. Mary's motion to dismiss Rodgers' second-amended complaint with prejudice. In this order, the circuit court acknowledged the existence of the tort of spoliation of evidence and held (1) Rodgers' spoliation of evidence suit is not barred by the res judicata effect of the summary judgment in favor of St. Mary's in his medical malpractice action, (2) Rodgers' spoliation of evidence action is not governed or barred by the statute of limitations applicable to his medical malpractice claims against St. Mary's, (3) Rodgers' spoliation of evidence action is not subject to dismissal for want of prosecution, (4) Rodgers' spoliation of evidence action is not subject to dismissal by reason of his failure to attach to his complaint a healing art malpractice action affidavit (Ill.Rev.Stat.1987, ch. 110, par. 2-622), and (5) Rodgers' post-judgment compromise and settlement with the obstetricians and his failure to appeal the judgment in favor of the radiologists defeats and bars his action against St. Mary's for spoliation of evidence. The circuit court denied Rodgers' motion for reconsideration of this order.

The first issue we must decide is whether there is under Illinois law a cause of action for spoliation of evidence. Rodgers contends the circuit court properly concluded the tort of spoliation of evidence is recognized in Illinois, and the tort consists of violation of a duty owed a party entitled to the benefit of unavailable evidence.

St. Mary's argues Illinois has not recognized the existence of such a tort, and at best Illinois cases "merely indicate acknowledgment of the concept." St. Mary's further asserts this tort is not recognized in many States.

Two Illinois decisions--Fox v. Cohen (1980), 84 Ill.App.3d 744, 40 Ill.Dec. 477, 406 N.E.2d 178, and Petrik v. Monarch Printing Corp. (1986), 150 Ill.App.3d 248, 103 Ill.Dec. 774, 501 N.E.2d 1312--have discussed the tort of spoliation of evidence. However, the Fox court held the plaintiff's spoliation of evidence action was premature, while in Petrik the plaintiff abandoned the theory of liability which the missing evidence would have supported. Thus, in neither of these cases was there a need to squarely decide whether the tort of spoliation of evidence should be recognized in Illinois. In the present case, we likewise need not decide whether a wide ranging common law spoliation of evidence tort should be recognized, for we conclude Rodgers' amended complaint properly states a statutory cause of action.

"An Act concerning the retention for use in litigation of X ray or roentgen films of the human anatomy" provides:

"Hospitals which produce photographs of the human anatomy by the X-ray or roentgen process on the request of licensed physicians for use by them in the diagnosis or treatment of a patient's illness or condition shall retain such photographs or films as part of their regularly maintained records for a period of 5 years provided that retention of said photographs or film may be by microfilm or other recognized means of minification that does not adversely affect their use for diagnostic purposes. However, if the hospital has been notified in writing by an attorney at law before the expiration of the 5 year period that there is a litigation pending in court involving a particular X-ray or roentgen photograph in their records as possible evidence, and that the subject person of such photograph is his client, or is the person who has instituted such litigation against his client, then the hospital shall keep such photograph or film or minified copy thereof in its regular records until notified in writing by the plaintiff's attorney with the approval thereon of the defendant's attorney of record that the case in court involving such photograph has been concluded, or for a period of 12 years from the date that the X-ray photograph film was produced, whichever occurs first in time." (Ill.Rev.Stat.1987, ch. 111 1/2, par. 157-11.)

Manifestly, this statute seeks to protect the property rights of persons involved in litigation. Violation of a statute designed for the protection of human life or property is prima facie evidence of negligence. An injured party has a cause of action for a violation of such a statute if he or she is intended to come within the scope of the protection afforded by the statute, and his or her injury was proximately caused by a violation of the statute. (French v. City of Springfield (1976), 65 Ill.2d 74, 2 Ill.Dec. 271, 357 N.E.2d 438; Davis v. Marathon Oil Co. (1976), 64 Ill.2d 380, 1 Ill.Dec. 93, 356 N.E.2d 93.) The determination of the meaning and scope of statutes is ordinarily a question of law for the courts to determine, while the question of proximate...