Winger v. Franciscan Medical Center

• Decision Date: 24 September 1998
• Docket Number: No. 3-97-0680,3-97-0680
• Citation: 299 Ill.App.3d 364,701 N.E.2d 813
• Parties: , 233 Ill.Dec. 748 Herbert WINGER and Joyce Winger, Indiv., and as Co-adm'rs of the Estate of Nathan A. Winger, Deceased, Plaintiffs-Appellants, v. FRANCISCAN MEDICAL CENTER, and Danilo V. Domingo, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 813

701 N.E.2d 813

299 Ill.App.3d 364, 233 Ill.Dec. 748

Herbert WINGER and Joyce Winger, Indiv., and as Co-adm'rs of

the Estate of Nathan A. Winger, Deceased, Plaintiffs-Appellants, v. FRANCISCAN MEDICAL CENTER, and Danilo V. Domingo,

Defendants-Appellees.

No. 3-97-0680.

Appellate Court of Illinois,

Third District.

Sept. 24, 1998.

Rehearing Denied Nov. 18, 1998.

Paul O'Malley (argued), Beth A. Miller, Paul R. O'Malley, Ltd., Chicago, for Herbert Winger and Joyce Winger.

Richard M. Batcher (argued), Jeffrey C. Kull, Bozeman, Neighbour, Patton & Noe, Moline, for Franciscan Medical Center.

Paul C. Estes, Hinshaw & Culbertson, Peoria, Bruce L. Carmen (argued), Robert M. Bennett, Hinshaw, Culbertson, Moelmann, Hoban & Fuller, Chicago, for Danilo V. Domingo.

Justice BRESLIN delivered the opinion of the court:

May a psychiatrist and hospital be held liable under the Wrongful Death Act (740 ILCS 180/0.01 et seq. (West 1996)) for the death of a patient when the patient committed suicide while in their care and custody but was not bereft of reason or insane at the time he took his own life? We believe the answer is yes, so long as the act of suicide is reasonably foreseeable and the defendants have breached the applicable standard of care.

I. FACTS

Plaintiffs Herbert Winger and Joyce Winger filed a wrongful death action against the defendants, Franciscan Medical Center

(hospital) and Dr. Danilo Domingo, a psychiatrist, after their son Nathan committed suicide while in the defendants' care for severe depression. Nathan was admitted to the hospital's psychiatric ward on January 27, 1990, under the care of Dr. Domingo. He voluntarily admitted himself after taking extra Elavil, which had been prescribed by Dr. Domingo to treat his depression.

Nathan had a history of suicide attempts. Prior to his death he had been admitted to the defendants' facility five times for suicide attempts in the five previous months. At the time he entered the hospital on the 27th, Nathan informed a nurse that he took extra Elavil to help with his depression and that he was going to let himself "sink so low again that [he would] get suicidal." The nurse's notes stated "Plan, monitor patient, prevent from self-harm." Nathan was placed on "close supervision," which allowed a psychiatric patient unmonitored access to bathroom facilities, as well as belts, shoelaces, telephone cords and other objects that might assist an individual to inflict self-harm. Patients on "suicide precautions," however, did not have access to such objects. The hospital's policy defined potentially suicidal patients as patients who discuss death and the uselessness of life. If the admission was due to a suicide attempt, that fact was to be reported to the patient's physician immediately.

After his admission, Dr. Domingo recommended an aggressive treatment of electroconvulsive therapy (ECT) for Nathan. Later, Nathan expressed doubt to a nurse regarding ECT therapy and stated that he "felt like a loser" and a "fool." He said he was scared of death and that he was scared that he would feel as he did the rest of his life, but that he could not live that way. He felt "bad all the time." At 10 p.m. on January 29 a nurse quoted Nathan as saying "It's hopeless. I feel hopeless. I keep trying, but I can't do anything with my life. I worry about the ECT. I worry about whether it will help or not. I wish I was manic depressive instead of this. My life is hopeless." Close supervision was maintained. Shortly after midnight, Nathan stuffed clothing under his bed sheets to make it appear as if he were in bed. He entered his bathroom and locked the door behind him. He then committed suicide by hanging himself with his shoelaces from a showerhead.

II. PROCEDURAL HISTORY

Plaintiffs filed a wrongful death action on June 3, 1991, alleging that the hospital was negligent because it failed to provide a nonlocking door and a breakaway showerhead. The complaint also alleged that Dr. Domingo was negligent for failing to order "one-to-one" supervision, failing to properly treat Nathan, and failing to properly use psychiatric therapy. Plaintiffs voluntarily dismissed the action on April 27, 1994. They refiled on December 6, 1994, alleging that the hospital's staff failed to place Nathan under proper supervision, failed to prohibit him from having access to the bathroom, and failed to restrict his access to shoelaces. The new complaint alleged that Dr. Domingo was negligent because he failed to place Nathan under closer supervision and allowed him access to bathrooms, belts, shoelaces and other instruments that were potentially harmful. Plaintiffs filed an amended complaint on July 23, 1996, which included the previous allegations that the hospital was negligent for failing to provide breakaway showerheads.

The hospital and Dr. Domingo subsequently moved for summary judgment. Both relied on the statements of plaintiffs' expert, Dr. Richard Goldberg. In his deposition, Dr. Goldberg opined that Nathan understood and appreciated his acts and that he intended to kill himself. The defendants consequently argued that since Nathan's actions were intentional and not comparable to the defendants' negligence, and he was not bereft of reason at the time he committed suicide, no recovery was possible. The hospital also moved to dismiss the complaint pursuant to section 2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619 (West 1996)), claiming that the complaint was barred by the statute of limitations.

The trial court granted the motions for summary judgment. Relying on Stasiof v. Chicago Hoist & Body Co., 50 Ill.App.2d 115, 200 N.E.2d 88 (1964), aff'd sub nom Little v. Chicago Hoist & Body Co., 32 Ill.2d 156, 203 N.E.2d 902 (1965), and Moss v. Meyer, 117 Ill.App.3d 862, 73 Ill.Dec. 304, 454 N.E.2d 48 (1983), the court concluded that it was essential that the plaintiffs plead and prove that Nathan was insane or bereft of reason at the time he committed suicide, and that his insanity resulted from a negligent act or omission by the defendants. Since the plaintiffs could not prove that Nathan was insane or bereft of reason at the time he killed himself, the court awarded summary judgment to the defendants. The court did not address the hospital's statute of limitations argument.

Plaintiffs' counsel subsequently deposed defense expert, Dr. Morton Silverman, who testified regarding the foreseeability of Nathan's suicide. Dr. Silverman agreed that the mental health care professional should take precautions to prevent a patient from committing acts that are self-destructive, even if the patient is not insane or bereft of reason. With the new deposition in hand, the plaintiffs moved for reconsideration. Although the court considered the new evidence, it denied the motion and this appeal followed.

III. STANDARD OF REVIEW

A motion for summary judgment may only be granted when the right of the moving party is clear and free from doubt. Pedersen v. Joliet Park District, 136 Ill.App.3d 172, 90 Ill.Dec. 874, 483 N.E.2d 21 (1985). It is properly granted when the pleadings, depositions, admissions and affidavits on file show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 1996); Machinery Transports v. Morton Community Bank, 293 Ill.App.3d 207, 227 Ill.Dec. 283, 687 N.E.2d 533 (1997). An appellate court performs its review de novo (Container Corp. v. Wagner, 293 Ill.App.3d 1089, 228 Ill.Dec. 387, 689 N.E.2d 259 (1997)), and in doing so it must construe the evidence most strictly against the movant and liberally in favor of the opponent (Purtill v. Hess, 111 Ill.2d 229, 95 Ill.Dec. 305, 489 N.E.2d 867 (1986)).

IV. STATUTE OF LIMITATIONS

We will first address the hospital's argument that the plaintiffs' claims are barred by the statute of limitations. The hospital claims that the refiled action is barred because it was not preserved by the savings provision in section 13-217 of the Code (735 ILCS 5/13-217 (West 1994)). It asserts that the second suit contains entirely different allegations of medical negligence which cannot be filed more than two years after the claimant knew or should have known of the negligence, and in no event more than four years after the alleged negligence. 735 ILCS 5/13-212(a) (West 1996). It argues that all of the new claims in the second action are clearly barred since they were filed more than four years after the event.

A wrongful death action must be filed within two years after the death of the plaintiffs' decedent. 740 ILCS 180/2 (West 1996). The action may be dismissed after the limitations period and be refiled pursuant to the one-year savings provision in section 13-217. Kristan v. Belmont Community Hospital, 51 Ill.App.3d 523, 9 Ill.Dec. 557, 366 N.E.2d 1068 (1977). Section 13-217, however, only permits refilings when the court can determine, by an inspection of the record in the two suits, that the first was for the identical claim and cause of action averred in the second. Hamilton v. Chrysler Corp., 281 Ill.App.3d 284, 288-89, 217 Ill.Dec. 89, 666 N.E.2d 758, 761 (1996), citing Gibbs v. Crane Elevator Co., 180 Ill. 191, 196, 54 N.E. 200, 202 (1899).

Seizing upon the language of identical claim and cause of action, the hospital maintains that the second complaint involves a different claim which could not be saved under section 13-217. We disagree.

In Gonzalez v. Thorek Hospital & Medical Center, 143 Ill.2d 28, 155 Ill.Dec. 796, 570 N.E.2d 309 (1991), the court reversed the dismissal of the plaintiff's malpractice action. The plaintiff's initial complaint was dismissed for want of prosecution. Pursuant to section 13-217, plaintiff filed a new complaint within one year. The defendants moved to dismiss the second complaint on the basis that the first complaint was insufficient to state a cause of action. According to several of the defendants, the...