Eason v. Garfield Park Community Hospital , 55 Ill. App. 3d 483 ( 1977 )

Miss JUSTICE McGILLICUDDY

delivered the opinion of the court:

The plaintiff, Roger Eason, entered the Garfield Park Community Hospital on October 22,1971, for treatment of a comminuted fracture of the left distal tibia. An unpadded metal splint was applied to Eason’s leg. Because Eason did not have medical insurance, lacked financial resources and was not on welfare, he was transferred to the Cook County Hospital on the same day. The Cook County Hospital is owned and operated by the Health and Hospitals Governing Commission of Cook County, a local public entity under the laws of the State of Illinois. At the Cook County Hospital Eason was placed in a hallway and left there untreated until October 24, 1971. On this date, Eason’s left leg was blistering and beginning to ulcerate. The condition of the leg steadily worsened. The leg was amputated on August 9, 1972. Cook County Hospital employees treated Eason almost daily either in the hospital or at his home from October 24, 1971, to the date of his final discharge from the hospital on August 29, 1972.

After the expiration of six months following his discharge from the Cook County Hospital, Eason filed this malpractice action against the Garfield Park Community Hospital, several of its employees or contracting services, the Health and Hospitals Governing Commission of Cook County (hereinafter Commission) and four physicians employed by the Commission at the Cook County Hospital. The suit alleged negligence in failing to attend to the fracture properly and in allowing the metal splint to remain on Eason’s leg for such time as to cause the condition which ultimately resulted in the amputation.

A six-count third amended complaint was filed on November 19,1974. On January 10, 1975, the Commission and its four employees moved to dismiss counts IV, V and VI of the third amended complaint, which contain the allegations of malpractice as to them. The motion to dismiss cited Eason’s failure to serve upon the Commission the notice required by section 8—102 of the Local Governmental and Governmental Employees Tort Immunity Act (hereinafter Act) (Ill. Rev. Stat. 1971, ch. 85, par. 8—102) and that section 8—103 of the Act (Ill. Rev. Stat. 1971, ch. 85, par. 8—103) provides for the dismissal of any action for the failure to serve notice. The specified sections of the Act are as follows:

“Section 8—102. Within 6 months from the date that the injury or cause of action, referred to in Sections 8—102 and 8—103, was received or accrued, any person who is about to commence any civil action for damages on account of such injury against a local public entity, or against any of its employees whose act or omission committed while acting in the scope of his employment as such employee caused the injury, must personally serve in the office of the Secretary or Clerk, as the case may be, for the entity against whom or against whose employee the action is contemplated a written statement, signed by himself, his agent or attorney, giving the name of the person to whom the cause of action has accrued, the name and residence of the place or location where the accident occurred, the general nature of the accident, the name and address of the attending physician, if any, and the name and address of the treating hospital or hospitals, if any.”

“Section 8—103. If the notice under Section 8—102 is not served as provided therein, any such civil action commenced against a local public entity, or against any of its employees whose act or omission committed while acting in the scope of his employment as such employee caused the injury, shall be dismissed and the person to whom such cause of injury accrued shall be forever barred from further suing.” Ill. Rev. Stat. 1971, ch. 85, pars. 8—102 and 8—103.¹

The Circuit Court of Cook County granted the motion to dismiss counts IV, V and VI as they pertain to the Commission and Doctors Edward Lambert, Hatem Galal and Arsen Pankovich. However, because Dr. Rocco A. Marrese had privately purchased malpractice liability insurance, the Circuit Court did not dismiss the counts as they pertain to him. The order disposing of the motion was dated March 24, 1975, and, pursuant to Supreme Court Rule 304(a) (Ill. Rev. Stat. 1975, ch. 110A, par. 304(a)), it provided that there was no just reason to delay enforcement or appeal. The private defendants are not involved in this appeal.

While admitting noncompliance with the terms of the notice requirement of the Act, Eason appeals from the dismissal of the Commission and the three physician employees. Eason raises the following issues on appeal:

1. The constitutionality of section 8—102 and 8—103 of the Act, as to due process, equal protection, special privileges and classifications, as to the application to a person who is physically or mentally incapable of complying by reason of the injury being sued upon, and as to the application to a patient while he is still under treatment by the defendants being sued, and,

2. Whether the purchase of malpractice liability insurance by an employee of a local governmental entity waives the notice requirement under the Act.

Dr. Marrese appeals from the denial of the motion to dismiss the counts as they pertain to him. He contends that the waiver provisions of section 9—103 of the Act apply only to local governmental entities and not to their employees.

Section 9—103 of the Act reads:

“Section 9—103. (a) A local public entity may contract for insurance against any loss or liability which may be imposed upon it under this Act. Such insurance shall be carried with a company authorized by the Department of Insurance to write such coverage in Illinois. The expenditure of funds of the local public entity to purchase such insurance is proper for any local public entity.

(b) Every policy for insurance coverage issued to a local public entity shall provide or be endorsed to provide that the company issuing such policy waives any right to refuse payment or to deny liability thereto within the limits of said policy by reason of the non-liability of the insured public entity for the wrongful or negligent acts of itself or its employees and its immunity from suit by reason of the defenses and immunities provided in this Act.” Ill. Rev. Stat. 1971, ch. 85, par. 9—103.

The constitutional issues raised by Eason have already been decided by the supreme court with the result that the notice requirement has been held to be a constitutional means of limiting local governmental liability. Saragusa v. City of Chicago (1976), 63 Ill. 2d 288, 348 N.E.2d 176 (special classification of local governmental entities constitutional); Housewright v. City of LaHarpe (1972), 51 Ill. 2d 357, 282 N.E.2d 437 (notice requirement does not deny equal protection of the law); King v. Johnson (1970), 47 Ill. 2d 247, 265 N.E.2d 874 (notice requirement is result of valid legislative classification, does not violate constitutional ban on special legislation or the granting of special privileges and immunities, and is reasonably related to imposing liability on all local governmental entities on a fair and orderly basis). See also Zavala v. City of Chicago (1977), 66 Ill. 2d 573, 363 N.E.2d 848.

With regard to Eason’s contention that an exception to the notice requirement should be allowed in his case, strict compliance with the terms of the Act has been mandated in all cases except those which have come within two carefully limited categories: those in which the lawsuit itself was filed within the notice period (Dunbar v. Reiser (1976), 64 Ill. 2d 230, 356 N.E.2d 89. See also Saragusa v. City of Chicago), and those in which a young child is unable to give notice due to physical and mental incompetence (McDonald v. City of Spring Valley (1918), 285 Ill. 52, 120 N.E. 476). Eason fits neither of these exceptions and presents no persuasive argument for this court to enunciate others. After his final discharge from the hospital on August 29, 1972, Eason was no longer under the treatment by the defendants.

We interpret section 9—103(b) of the Act in such a manner as to reject Eason’s argument that the purchase of malpractice insurance by one of the physician employees operates to bar the defenses and immunities of the Act as to the Commission itself and the other employees. The Circuit Court of Cook County correctly viewed the limits of the statutory exception. We hold that the Circuit Court properly dismissed the counts of the third amended complaint as they pertain to the Commission and Doctors Edward Lambert, Hatem Galal and Arsen Pankovich.

However, section 9—103(b) of the Act cannot be used to sanction the trial court’s failure to dismiss Dr. Marrese. This section relates to the purchase of insurance by the public entity itself, and it operates to bar statutory defenses and immunities only under the circumstances it describes. (See also Housewright v. City of LaHarpe; Sullivan v. Midlothian Park District (1972), 51 Ill. 2d 274, 281 N.E.2d 659.) Dr. Marrese’s prudence in procuring individual malpractice insurance to protect himself from suits arising primarily from work done outside his employment at the Cook County Hospital cannot be looked to in order to penetrate the limited protection afforded him as a local governmental employee. He is entitled to the same treatment enjoyed by the other physician employees who have been dismissed as defendants in this cause.

Accordingly, for the foregoing reasons the judgment of the Circuit Court of Cook County dismissing counts IV, V and VI of the third amended complaint as they pertain to the Commission and Doctors Lamberg, Galal and Pankovich is affirmed, and the judgment denying the motion to dismiss the counts as they pertain to Dr. Marrese is reversed.

Affirmed in part; reversed in part.

McNAMARA, J., concurs.

1 P.A. 78-201, §1, effective October 1, 1973, extended the period within which one must serve the required notice to one year. (Ill. Rev. Stat., 1975, ch. 85, par. 8—102.) This extension does not apply to the. instant cause of action which accrued no later than August 29, 1972.