{ "id": 2978403, "name": "CAROLYN DURHAM, Special Adm'r of the Estate of Mack Durham, Plaintiff-Appellant, v. MICHAEL REESE HOSPITAL FOUNDATION, f/k/a Michael Reese Hospital and Medical Center, et al., Defendants-Appellees (Shiley, Inc., Defendant)", "name_abbreviation": "Durham v. Michael Reese Hospital Foundation", "decision_date": "1993-09-15", "docket_number": "No. 1\u201491\u20144099", "first_page": "492", "last_page": "497", "citations": [ { "type": "official", "cite": "254 Ill. App. 3d 492" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "205 Ill. App. 3d 200", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2568762 ], "pin_cites": [ { "page": "204" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/205/0200-01" ] }, { "cite": "223 Ill. App. 3d 1037", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5255489 ], "weight": 3, "pin_cites": [ { "page": "1041" }, { "page": "1040" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/223/1037-01" ] }, { "cite": "220 Ill. App. 3d 1036", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5276189 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/220/1036-01" ] }, { "cite": "173 Ill. App. 3d 608", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3477238 ], "weight": 2, "pin_cites": [ { "page": "612" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/173/0608-01" ] }, { "cite": "112 Ill. App. 3d 427", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5431201 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/112/0427-01" ] }, { "cite": "136 Ill. 2d 450", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3255119 ], "weight": 4, "pin_cites": [ { "page": "456" }, { "page": "459" }, { "page": "456" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/136/0450-01" ] }, { "cite": "238 Ill. App. 3d 921", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5155388 ], "pin_cites": [ { "page": "924" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/238/0921-01" ] } ], "analysis": { "cardinality": 542, "char_count": 11252, "ocr_confidence": 0.756, "pagerank": { "raw": 7.427254189765559e-08, "percentile": 0.4436606149624939 }, "sha256": "a673a5a636543e27ec56df80a5d7c270b3bc12bbffbac893fee9c2d534c28ace", "simhash": "1:d9e071004d7619bd", "word_count": 1874 }, "last_updated": "2023-07-14T16:17:01.484927+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "CAROLYN DURHAM, Special Adm\u2019r of the Estate of Mack Durham, Plaintiff-Appellant, v. MICHAEL REESE HOSPITAL FOUNDATION, f/k/a Michael Reese Hospital and Medical Center, et al., Defendants-Appellees (Shiley, Inc., Defendant)." ], "opinions": [ { "text": "PRESIDING JUSTICE TULLY\ndelivered the opinion of the court:\nThis is an appeal from an order of the circuit court of Cook County, the Honorable Thomas E. Hoffman, judge presiding, dismissing the action of plaintiff Carolyn Durham, as special administrator of the estate of Mack Durham, pursuant to section 2 \u2014 619 of the Code of Civil Procedure (section 2 \u2014 619) (Ill. Rev. Stat. 1991, ch. 110, par. 2-619 (now 735 ILCS 5/2-619 (West 1992))). Jurisdiction is vested in this court pursuant to Supreme Court Rule 304. 134 Ill. 2d R. 304.\nFor the reasons which follow, we affirm.\nFACTUAL BACKGROUND\nThe following facts are uncontroverted by the parties: On March 16, 1986, plaintiff\u2019s decedent, Mack Durham, received a heart valve implant while a patient at defendant Michael Reese Hospital Foundation (Michael Reese). Subsequently, on June 18, 1989, decedent died. Plaintiff attributes decedent\u2019s death to the valve\u2019s having allegedly malfunctioned.\nOn July 10, 1990, plaintiff filed a complaint in the circuit court of Cook County against Michael Reese. Plaintiff later amended her complaint twice; first adding Shiley, Inc., as a defendant under a product liability claim and then later adding' defendants Dr. C.D. Campbell (Campbell) and Dr. G. Piano (Piano), the physicians who inserted the valve into decedent at Michael Reese, under a medical malpractice theory.\nOn July 8, 1991, Michael Reese moved to dismiss plaintiff\u2019s second amended complaint pursuant to section 2 \u2014 619 arguing, inter alia, that plaintiff\u2019s claim was time barred pursuant to the four-year repose provision contained in section 13 \u2014 212(a) of the Code of Civil Procedure (section 13 \u2014 212(a)) (Ill. Rev. Stat. 1989, ch. 110, par. 13 \u2014 212(a) (now 735 ILCS 5/13-212(a) (West 1992))). Plaintiff filed a response asserting that her claim was timely in that it was governed by the limitations provision contained in section 2 of the Wrongful Death Act (Ill. Rev. Stat. 1989, ch. 70, par. 2 (now 740 ILCS 180/2 (West 1992))) rather than section 13 \u2014 212(a). Subsequently, Piano and Campbell filed similar motions to dismiss to which plaintiff responded in a like manner.\nIn its order of November 5, 1991, the trial court granted Michael Reese\u2019s motion to dismiss with prejudice. At the hearing on the motion, the trial court held that plaintiff\u2019s claims were time barred by the repose provision of section 13 \u2014 212(a). Specifically, the trial court found that the General Assembly\u2019s intent was clear in enacting section 13 \u2014 212(a) in that it put an absolute four-year statute of repose on medical negligence actions whether such actions are brought by reason of injury or death. Moreover, the trial court held that the four-year repose period runs from the date of the act alleged to have caused the death, not from the actual date of death. Similarly, Campbell\u2019s and Piano\u2019s motions to dismiss were also granted with prejudice.\nIt is from the orders granting defendants\u2019 motions to dismiss that plaintiff now appeals to this court.\nISSUE ON APPEAL\nThe sole issue to be determined in this appeal is whether the four-year repose provision found in section 13 \u2014 212(a) governing medical malpractice actions or the two-year limitations period provided for in the Wrongful Death Act applies to a medical malpractice case where it is alleged that the purported malpractice caused the decedent\u2019s death.\nOpinion\nWe begin our discussion of this case by noting that \u201c[a] section 2 \u2014 619 motion is designed to provide a summary disposition of issues of law or easily proved issues of fact. [Citation.] Such a motion admits all well-pleaded facts alleged in the complaint and reasonable inferences to be drawn from those facts.\u201d (Chicago Title & Trust Co. v. Weiss (1992), 238 Ill. App. 3d 921, 924.) Thus, as the facts pertinent to this appeal are uncontroverted, we need only determine whether this action was commenced within the time limited by law.\nSection 2(c) of the Wrongful Death Act, which plaintiff contends is controlling in this case, provides that \u201c[e]very such action shall be commenced within 2 years after the death of such person.\u201d (Ill. Rev. Stat. 1989, ch. 70, par. 2(c) (now 740 ILCS 180/2(c) (West 1992)).) However, section 13 \u2014 212(a) provides, in relevant part, as follows:\n\u201cPhysician or hospital, (a) Except as provided in Section 13\u2014 215 of this Act, no action for damages for injury or death against any physician, dentist, registered nurse or hospital duly licensed under the laws of this State, whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought more than 2 years after the date on which the claimant knew, or through the use of reasonable diligence should have known, or received notice in writing of the existence of the injury or death for which damages are sought in the action, whichever of such date occurs first, but in no event shall such action be brought more than k years after the date on which occurred the act or omission or occurrence alleged in such action to have been the cause of such injury or death.\u201d (Emphasis added.) Ill. Rev. Stat. 1989, ch. 110, par. 13 \u2014 212(a) (now 735 ILCS 5/13-212(a) (West 1992)).\nAfter a careful review of plaintiff\u2019s brief and the cases cited therein, we have not found the cited cases to support her argument. Rather, we believe the relevant case law inextricably leads to the conclusion that all actions for injury or death predicated upon the alleged negligence of a physician are governed by section 13 \u2014 212(a).\nOur supreme court in Hayes v. Mercy Hospital & Medical Center (1990), 136 Ill. 2d 450, held that an action for contribution among medical providers in a medical malpractice case must be brought within the four-year period of repose contained in section 13 \u2014 212(a). In Hayes, the court stated in no uncertain terms that it \u201cbelieve[d] that the medical malpractice statute of repose bars any action after the period of repose seeking damages against a physician *** for injury or death arising out of patient care.\u201d (Emphasis added.) (Hayes, 136 Ill. 2d at 456.) Moreover, the Hayes court noted the intent of the General Assembly \u201cto limit a physician\u2019s exposure to liability for damages for injury or death arising out of patient care under all theories of liability, whether then existing or not.\u201d (Hayes, 136 Ill. 2d at 459.) While it is true that the claims barred in Hayes were for contribution, which by necessity cannot be brought until an original action is commenced, rather than a wrongful death itself as is the situation in the case sub judice, we nevertheless believe both the logic and dicta of that case compel the conclusion that section 13 \u2014 212(a) bars plaintiff\u2019s action.\nIn Real v. Kim (1983), 112 Ill. App. 3d 427, the appellate court reviewed a circuit court\u2019s dismissal of a complaint containing wrongful death and survival claims. The alleged medical malpractice complained of in the complaint there occurred more than four years before the decedent died or the suit was filed. The Real court, in affirming the trial court, held that the four-year repose provisions of section 21.1 of the Limitations Act (Ill. Rev. Stat. 1979, ch. 83, par. 22.1), which is now section 13 \u2014 212(a), barred both the survival and wrongful death actions. The court based its conclusions with respect to the survival action on the fact that because the repose provisions would have barred the decedent from bringing suit for his injuries prior to his death, the wrongful death claim was similarly barred since, pursuant to section 1 of the Wrongful Death Act, the decedent had no cause of action at the time of his death.\nIn Wolfe v. Westlake Community Hospital (1988), 173 Ill. App. 3d 608, the appellate court reversed a trial court\u2019s finding that a wrongful death action was barred by the repose provisions of section 13\u2014 212(a). In Wolfe, both the decedent\u2019s four-year repose period and two-year limitations period under the Wrongful Death Act had not expired at the time that the wrongful death action was filed and, thus, the complaint was timely. The Wolfe court then went on to say that \u201cin a case where the negligent acts are alleged to have been caused by a physician, the medical malpractice statute requires that, in any event, the cause of action must be filed within four years from, the date of the negligent acts.\u201d (Emphasis added.) Wolfe, 173 Ill. App. 3d at 612.\nIn Limer v. Lyman (1991), 220 Ill. App. 3d 1036, the decedent\u2019s representative brought suit against the estate of a physician who had allegedly misdiagnosed the decedent alleging claims for wrongful death and for injuries sustained during the decedent\u2019s lifetime. In affirming the trial court\u2019s dismissal of the complaint\u2019s wrongful death count, the Limer court found the wrongful death claim was barred by the four-year repose provisions of section 13 \u2014 212(a), regardless of section 13 \u2014 209(a) of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 13-209(a) (now 735 ILCS 5/13-209(a) (West \u00cd992))), which generally provides for a one-year extension of the time for a decedent\u2019s representative to bring a cause of action that a decedent had during his lifetime if the decedent died before the expiration of time for commencement of the action. The Limer court found the time-extension statute did not apply to the wrongful death action, which was a new claim, rather than an action surviving the death of the decedent.\nRecently, in the case of Malinowski v. Mullangi (1991), 223 Ill. App. 3d 1037, the appellate court affirmed the lower court\u2019s dismissal of a wrongful death action against a radiologist premised on medical malpractice which was filed more than four years from the date of the allegedly negligent treatment. In holding for the defendant radiologist, the Malinowski court \u201crecognize[d] that all actions for injury or death predicated upon the alleged negligence of a physician are governed by section 13 \u2014 212.\u201d Malinowski, 223 Ill. App. 3d at 1041, citing Hayes, 136 Ill. 2d at 456; Pederson v. West (1990), 205 Ill. App. 3d 200, 204.\nThus, in summary, we believe that, as the court in Malinowski stated: \u201cThe law is clear.\u201d (Malinowski, 223 Ill. App. 3d at 1040.) Section 13 \u2014 212(a) is controlling of this case and has barred plaintiff\u2019s action as more than four years have elapsed from the date of the- alleged negligent treatment of plaintiff\u2019s decedent until the complaint\u2019s filing.\nDISPOSITION\nBased upon the foregoing, the judgment of the circuit court of Cook County is affirmed.\nJudgment affirmed.\nCERDA and GREIMAN, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE TULLY" } ], "attorneys": [ "Michael W. Rathsack, of Chicago (Louis S. Goldstein and Cindy G. Flux-gold, of counsel), for appellant.", "Edward B. Ruff III, of Pretzel & Stouffer, Chartered, of Chicago (Robert Marc Chemers and Anne Scheitlin Johnson, of counsel), for appellee C.D. Campbell.", "Lord, Bissell & Brook, of Chicago (Hugh C. Griffin, David C. Hall, and Sandra K. Macauley, of counsel), for other appellees." ], "corrections": "", "head_matter": "CAROLYN DURHAM, Special Adm\u2019r of the Estate of Mack Durham, Plaintiff-Appellant, v. MICHAEL REESE HOSPITAL FOUNDATION, f/k/a Michael Reese Hospital and Medical Center, et al., Defendants-Appellees (Shiley, Inc., Defendant).\nFirst District (3rd Division)\nNo. 1\u201491\u20144099\nOpinion filed September 15, 1993.\nMichael W. Rathsack, of Chicago (Louis S. Goldstein and Cindy G. Flux-gold, of counsel), for appellant.\nEdward B. Ruff III, of Pretzel & Stouffer, Chartered, of Chicago (Robert Marc Chemers and Anne Scheitlin Johnson, of counsel), for appellee C.D. Campbell.\nLord, Bissell & Brook, of Chicago (Hugh C. Griffin, David C. Hall, and Sandra K. Macauley, of counsel), for other appellees." }, "file_name": "0492-01", "first_page_order": 510, "last_page_order": 515 }