SECOND DIVISION
May 8, 2001

Plaintiff Michael J. Watson appeals from an order of thecircuit court of Cook County dismissing his personal injurycomplaint with prejudice for his failure to list or identify hisattending physician in his notice of claim for personal injuries. Plaintiff contends that his notice of claim sufficiently compliedwith section 41 of the Metropolitan Transit Authority Act (Act) (70ILCS 3605/41 (West 1998)) because it identified the hospital andphysicians' practice groups which had treated him.

On April 13, 2000, plaintiff filed a complaint againstdefendants alleging that on May 11, 1999, defendant Imogene Howardcarelessly and negligently drove a Chicago Transit Authority (CTA)bus so that it collided with his own vehicle. He asserted that asa direct result, he suffered permanent injuries and disabilitiesrequiring hospitalization and medical care, and prayed for judgmentin the amount of $30,000. On June 21, 1999, prior to filing hiscomplaint, plaintiff had served a written notice of claim upon theCTA's general counsel and upon the CTA's president. The noticelisted the medical providers, attending physicians and treatinghospitals as "St. Margaret Mercy Hospital," "Crown EmergencyPhysicians," "Hammond Radiologists" and their addresses. In thesame paragraph, the notice also stated "various physicians,undetermined at this time."

On May 22, 2000, the CTA filed a motion to dismiss plaintiff'scomplaint with prejudice because plaintiff's notice of claims didnot strictly comply with section 41 of the Act. Specifically, theCTA asserted that the notice did not state the name and address ofthe attending physician who treated plaintiff for his injuries.

Plaintiff filed a response asserting that the names andaddresses which he had provided the CTA in his notice hadsufficiently complied with section 41 of the Act. In support ofhis assertion, he cited Margolis v. Chicago Transit Authority, 69Ill. App. 3d 1028, 1033, 388 N.E.2d 190 (1979), where the appellatecourt stated:

"Where some attempt to designate an element isapparent, the notice is deemed sufficient ifthe designation reasonably fulfills therequirements of the statute and does notmislead or prejudice the [CTA]."

Plaintiff contended that the CTA was sufficiently informed of thenature of his injuries and the names of his attending physicians bythe notice.

On July 25, 2000, the trial court dismissed plaintiff'scomplaint with prejudice.

On appeal, plaintiff contends that, pursuant to Margolis, thenames and addresses of the hospital and physicians groups that heprovided in his notice complied with section 41 of the Act becausethey sufficiently advised the CTA of the sources of his treatmentand the resources from which further information was available. Insupport of his argument, plaintiff also cites Yokley v. ChicagoTransit Authority, 307 Ill. App. 3d 132, 717 N.E.2d 451 (1999),appeal denied, 185 Ill. 2d 670, 720 N.E.2d 1107 (1999), for theproposition that the purpose of section 41 was to "allow the [CTA]to make a timely investigation of the facts and circumstancessurrounding the plaintiff's claim." Plaintiff asserts that the CTAhas not indicated that its investigation was somehow delayed,prejudiced, misdirected or hampered because of the information inhis notice. He also asserts that none of the cases cited by theCTA in its motion to dismiss (Dimeo v. Chicago Transit Authority,311 Ill. App. 3d 152, 724 N.E.2d 92 (1999); Segarra v. ChicagoTransit Authority, 265 Ill. App. 3d 480, 637 N.E.2d 572 (1994),appeal denied, 157 Ill. 2d 522, 642 N.E.2d 1303 (1994); Sanders v.Chicago Transit Authority, 220 Ill. App. 3d 505, 581 N.E.2d 211(1991); Patinkin v. Chicago Transit Authority, 214 Ill. App. 3d973, 574 N.E.2d 743 (1991); Frowner v. Chicago Transit Authority,25 Ill. App. 2d 312, 167 N.E.2d 26 (1960)) dealt with the specificissue at bar. That is, whether a notice of claim that lists theattending physician by the name of his physicians' group and itsaddress complies with section 41. He asserts that "in today'senvironment of group practice, [health maintenance organizations]and clinics, the Court should broaden the interpretation [ofsection 41] to include such multi-physician groups."

Section 41 of the Act provides:

"[A]ny person who is about to commence anycivil action in any court against the Authority for damages on account of any injuryto his person shall file in the office of thesecretary of the Board and also in the officeof the General Counsel for the Authority *** astatement, in writing, *** giving the *** nameand address of the attending physician, ifany. If the notice provided for by thissection is not filed as provided, any suchcivil action commenced against the Authorityshall be dismissed and the person to whom anysuch cause of action accrued for any personalinjury shall be forever barred from suing." 70 ILCS 3605/41 (West 1998).

When the word "shall" appears in a legislative provision,courts have generally interpreted the provision to be mandatory. Niziolek v. Chicago Transit Authority, 251Ill. App. 3d 537, 541,620 N.E.2d 1097 (1993). In Dimeo, 311 Ill. App. 3d at 155, theappellate court summarized the applicable law, stating:

"The claimant's notice must strictly complywith each of the elements designated in[section 41]. [Citation.] Generally, the CTA'sactual knowledge about an injury is irrelevantwhen considering the adequacy of a section 41notice [citations], and it is solely theplaintiff's burden to comply with the section41 notice requirements. [Citation.] Noticesmissing even a single element are defective,as well as notices containing an incorrectelement, such as a wrong date or the wrongattending physician."

Here, however, plaintiff did not list the "wrong" attendingphysician in his notice, but designated the physician by the nameand address of his physicians' group, Crown Emergency Physicians. After reviewing all of the cases cited by defendants, we agreewith plaintiff's assessment that most of the cases do not addressthe specific issue at bar. In Dimeo, the plaintiff's notice didnot list the approximate hour of the accident. Dimeo, 311 Ill.App. 3d at 153. The plaintiff in Segarra failed to file any noticewith the CTA (Segarra, 265 Ill. App. 3d at 481), while in Sanders,the plaintiff failed to give notice to the secretary of the board(Sanders, 220 Ill. App. 3d at 507). In Patinkin, the appellatecourt determined that plaintiff's service of notice on the RegionalTransportation Authority (RTA) could not be construed as serviceupon the CTA under section 41, even though the RTA subsequentlytransmitted the notice to the CTA. Patinkin, 214 Ill. App. 3d at978. In Yokley (also cited by defendants) plaintiff's noticefailed to provide accurate information regarding the time andlocation of the accident and in fact listed a nonexistent location. Yokley, 307 Ill. App. 3d at 134-37. However, in Yokley, althoughthe issue before the court was whether the plaintiff had compliedwith the notice requirements of section 41 because he had provideda nonexistent location as the site of his accident, in Yokley theplaintiff listed a medical center and its address as the attendingphysician. The court noted that the plaintiff's failure to namethe attending physician "precluded the CTA from contacting thatindividual." Yokley, 307 Ill. App. 3d at 138. We read Yokley assupport for defendants' position on appeal, not for plaintiff's.

However, in Margolis, the appellate court specifically definedthe term "attending physician" as the "physician who treatsplaintiff for injuries which were allegedly the result of theincident in question." Margolis, 69 Ill. App. 3d at 1033. Thecourt further found that it was apparent from the language ofsection 41 that this was the definition intended by the statute,"that the person named in the notice as attending physician shouldbe one who has treated for injuries received in the occurrence inquestion." Margolis, 69 Ill. App. 3d at 1033.

Although plaintiff cited Margolis in support of his argumentthat this court should expand the definition of "attendingphysician," he has not addressed the definition espoused by theMargolis court, and we are not persuaded by his argument.

Most recently, in Cione v. Chicago Transit Authority, No. 1-00-1299 (April 25, 2001), another division of the First Districtdiscussed Yokley and Margolis and then held "that the legislatureintended, by using the term 'attending physician,' that a claimantis required to list a specific individual, a human being, not apractice group. A practice group is not a physician; it is acorporate entity." Cione v. Chicago Transit Authority, 1-00-1299,slip. op. at 7 (April 25, 2001).

We agree with Cione's reasoning, and accordingly, we rejectplaintiff's assertion that the term "attending physician" should beexpanded to include physicians' groups and health maintenanceorganizations for purposes of strict compliance with section 41.

Plaintiff also cites the early cases of Musser v. City ofChicago, 293 Ill. App. 625, 637 N.E.2d 572 (1938) (abstract ofop.), and McComb v. City of Chicago, 263 Ill. 510, 105 N.E.2d 294(1914), for his assertion that a notice will comply with section 41if it provides sufficient information so that the CTA, through theexercise of reasonable effort, can obtain the information itrequires. However, plaintiff cites no authority to show thatlawsuits against the City of Chicago are governed by section 41 ofthe Metropolitan Transit Authority Act or that section 41 should beconstrued in the same manner as similar language found in othertort immunity acts. See Bonner v. Chicago Transit Authority, 249Ill. App. 3d 210, 213, 618 N.E.2d 871 (1993), appeal denied, 152Ill. 2d 555, 622 N.E.2d 1201 (1993) ("non section 41 cases *** mustbe limited to the statutes which those cases construe").

Citing extensive case law, including Segarra v. ChicagoTransit Authority, 265 Ill. App. 3d 480, 482, 637 N.E.2d 572(1994), appeal denied, 157 Ill. 2d 522, 642 N.E.2d 1303 (1994), andSanders v. Chicago Transit Authority, 220 Ill. App. 3d 505, 508,581 N.E.2d 211 (1991), defendants also assert that plaintiff'snotice was fatally defective because it was not served upon theoffice of the secretary of the board as required by section 41, butwas served instead upon the president of the CTA. In his replybrief, plaintiff asserts that defendants have waived this issuebecause they never raised the issue before the circuit court. However, defendants as appellees can raise any issue of record tosustain a trial court's judgment. Kravis v. Smith Marine, Inc., 60Ill. 2d 141, 147, 324 N.E.2d 417 (1975). Further, it is wellsettled that the waiver rule is a limitation on the parties and noton a reviewing court which has the responsibility of achieving ajust result. See Welch v. Johnson, 147 Ill. 2d 40, 48, 588 N.E.2d1119 (1992). Accordingly, we choose to review the issue.

Plaintiff admits that his notice was not served upon the secretary of the board but asserts that it was of no consequencewhere the CTA received actual notice through its president andgeneral counsel. He distinguishes Segarro from the case at bar bynoting that there the plaintiff failed to give notice to either thegeneral counsel or the secretary of the board, whereas here, thegeneral counsel did receive notice. He asserts that he should notbe deprived of his remedy where he made a good-faith effort toprovide notice and in fact did provide notice to the CTA.

While plaintiff is correct in stating that the plaintiff inthe Segarro case failed to give notice to either of the properparties, the Segarro court clearly stated that a plaintiff wasrequired to strictly comply with each of the elements contained insection 41 or his case would be dismissed. Segarro, 265 Ill. App.3d at 482. Plaintiff, however, ignores the other cases cited bydefendants and fails to distinguish them. For example, in Sanders,as here, the plaintiff asserted that she had substantially compliedwith section 41 by giving notice to the general counsel. Sanders,220 Ill. App. 3d at 507. The appellate court held that theplaintiff did not comply with section 41 because she failed tonotify the secretary of the board and therefore the trial courtproperly granted dismissal in favor of the CTA. Sanders, 220 Ill.App. 3d at 508. Accordingly, we find that the trial court in theinstant case properly dismissed plaintiff's case with prejudice. Although we recognize that permanent dismissal of plaintiff's claimis a harsh result, our determination is mandated by the statute'srequirement of strict compliance.

For these reasons, the order of the circuit court of CookCounty dismissing plaintiff's personal injury complaint withprejudice is affirmed.

Affirmed.

CAHILL, P.J., and COUSINS, J., concur.