Rogala v. Silva

• Decision Date: 28 November 1973
• Docket Number: No. 57498,57498
• Citation: 305 N.E.2d 571,16 Ill.App.3d 63
• Parties: Susan ROGALA and Robert Rogala, Plaintiffs-Appellants, v. Albert SILVA et al., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 571

305 N.E.2d 571

16 Ill.App.3d 63

Susan ROGALA and Robert Rogala, Plaintiffs-Appellants, v. Albert SILVA et al., Defendants-Appellees.

No. 57498.

Appellate Court of Illinois, First District, Fourth Division.

Nov. 28, 1973.

David Alswang, Chicago, for plaintiffs-appellants.

Blumenthal & Schwartz, Chicago, for Alberto Silva, defendant-appellee (Milton M. Blumenthal, Arthur F. Schwartz, Richard Lee Stavins, Chicago, of counsel).

Clausen, Hirsh, Miller & Gorman, Chicago, for Augustana Hospital, defendant-appellee (John R. Caffrey, James T. Ferrini, Chicago, of counsel).

BURMAN, Presiding Justice.

The plaintiffs, Susan and Robert Rogala, commenced this action by filing a two-count complaint in the Circuit Court of Cook County. Named as defendants were Dr. Albert Silva, a physician, and the Augustana Hospital. In Count I of their complaint the Rogalas alleged the breach of an express warranty by both defendants that a sterilization operation performed upon Mrs. Rogala by Dr. Silva would result in Mrs. Rogala's inability to have further children and sought damages resulting from the birth of a child after the operation had been performed. In Count II Mrs. Rogala sought damages from Dr. Silva alone on the grounds of mental distress resulting from Dr. Silva's alleged attempts to induce her to undergo an illegal abortion.

On the day of trial, the Augustana Hospital made an oral motion to sever Counts I and II. The court granted this over the objection of the plaintiffs. At the close of the plaintiffs' evidence with respect to Count I, both defendant moved for directed verdicts, and the court granted their motions. The court then ordered the plaintiffs to proceed with the trial of Count II. Plaintiffs' counsel stated that he was unable to go to trial on Count II and requested a continuance. The court denied this motion and after ascertaining that the defendant was ready for trial, dismissed Count II for want of prosecution. The plaintiffs bring the present appeal from the order granting the directed verdicts as to Count I, the order severing Counts I and II for trial and the order dismissing Count II of their cause for want of prosecution.

We consider first whether the trial court erred in directing verdicts for the defendants at the close of the plaintiffs' evidence with respect to Count I. In that Count the plaintiffs alleged that, prior to the sterilization operation being performed, both Augustana and Dr. Silva represented, undertook, expressly warranted, contracted and agreed with the plaintiffs that if Dr. Silva were permitted to perform such surgery the plaintiff, Susan Rogala, could not become pregnant and could not bear any children and that the plaintiffs could enjoy sexual relations without any fear of the plaintiff, Susan Rogala, becoming pregnant. There was no allegation of negligence on the part of either defendant in performing the operation or that either had failed to use the degree of care and skill which would ordinarily be exercised by surgeons and hospitals under such conditions. Thus the action is different from the typical complaint sounding in malpractice in that it rests solely upon the breach of a contract to effect a specific result, the sterilization of Mrs. Rogala.

Our research indicates that heretofore no court of review in Illinois has been required to consider whether an action based upon the contract of a physician to effect a particular cure will lie, although it appears that such an action has been recognized in other jurisdictions. (See, for example, Giambozi v. Peters (1940), 127 Conn. 380, 16 A.2d 833; Stewart v. Rudner (1957), 349 Mich. 459, 84 N.W.2d 816; McQuaid v. Michou (1932), 85 N.H. 299, 157 A. 881; Robins v. Finestone (1955), 308 N.Y. 543, 127 N.E.2d 330.) These jurisdictions have insisted that the contract be set forth explicitly in the complaint, proved by clear and convincing evidence and supported by some consideration separate from the plaintiff's agreement to pay the physician for his services. (Annot., 43 A.L.R.3d 1221 (1972).) After reviewing these authorities we are inclined to agree with our statement in Gault v. Sideman (1963), 42 Ill.App.2d 96, 191 N.E.2d 436, that if the Illinois courts would consider enforceable such a warranty by a physician, it would be necessary to allege and prove the making of the warranty, the plaintiff's reliance thereon and a separate consideration.

The question to be resolved by this court, then, is whether the evidence presented by the plaintiffs, taken in its most favorable light (Pedrick v. peoria & E. R.R. (1967), 37 Ill.2d 494, 229 N.E.2d 504) established the foregoing elements, particularly the existence of an express warranty. After reviewing the record in detail, it is our conclusion that it did not.

The plaintiffs' evidence consisted almost entirely of the testimony of Mrs. Rogala. She testified that in July, 1965, she became pregnant with her fifth child and was referred to the obstetrical clinic at Augustana Hospital by the Illinois Lutheran Welfare League. Following her second visit to the clinic she had a conversation with a Miss Hines, the director, in which she stated that she would like to have a sterilization operation because she already had four children, was expecting a fifth and could not afford any more. Miss Hines said that she would check into the matter and let her know at the next visit, which was scheduled for January 5, 1966.

On January 5, Miss Hines stated that the sterilization operation would be possible and that it would be performed by whichever doctor was on duty for the delivery of her baby. Miss Hines asked her if she was certain that she wanted such an operation and cautioned that it would be irreversible and that she would never be able to have any more children if she consented to it. Miss Hines also stated that the doctor's fee for the operation would be $150 and that the hospital would require an additional fee as well.

Mrs. Rogala first met Dr. Silva in the delivery room at the clinic on February 13, 1966, when he delivered her baby. Later that day she saw Miss Hines and inquired about the sterilization. Miss Hines said that it would probably be done the next morning. The next afternoon she saw Dr. Silva in the hall outside her room and inquired about the operation again. He stated that he did remember Miss Hines saying something about a clinic patient wanting a sterilization and asked her why she wanted the operation. She reiterated that she already had five children and did not feel that she could afford to raise any more, that she husband was not working regularly and that she had had difficulties with her pregnancies. Dr. Silva told her that if he were to perform the operation it would be irreversible and that she would not be able to have any more children. She stated that this was what she wanted, and Dr. Silva told her that after undergoing the operation she would be able to have sexual intercourse with her husband without becoming pregnant. He also said that if she and her husband would sign the necessary consent forms he would perform the operation. Mr. and Mrs. Rogala signed the consent forms that evening, and Dr. Silva performed the operation the next day. Two days later she was discharged from the...