NO. 3--97--0680

September 24, 1998

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 1998

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, 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, 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, 687 N.E.2d 533 (1997). An appellate court performs its review de novo (Container Corp. v. Wagner, 293 Ill. App. 3d 1089, 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, 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, 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, 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, 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 action could not be maintained because the first action did not provide a basis to toll the statute of limitations and the second complaint was a nullity and consequently barred by the statute of limitations. The court disagreed, holding that although the first complaint did not state a cause of action, it was sufficient to constitute a complaint, and therefore the statute of limitations could be tolled through the operation of section 13-217. Gonzalez, 143 Ill. 2d at 35-36, 570 N.E.2d at 312.

The court then sought to determine whether the plaintiff could avail herself of section 13-217 by analyzing whether the defendants had sufficient notice of the litigation arising from the same set of facts and circumstances. Gonzalez, 143 Ill. 2d at 36-37, 570 N.E.2d at 313, citing O'Connell v. St. Francis Hospital, 112 Ill. 2d 273, 492 N.E.2d 1322 (1986). It reviewed the plaintiff's two complaints and noted that the original complaint indicated that an injury occurred in the defendants' hospital on a particular date and that the injury was the result of the defendants' conduct. The court turned to the second complaint and found that it realleged those facts and also charged the defendants with specific acts of negligence. Like the first complaint, the second complaint also asked for a judgment in excess of $15,000. Based on the foregoing, the court concluded that the two complaints were for the same causes of action and thus the plaintiff could refile under section 13-217. Gonzalez, 143 Ill. 2d at 38, 570 N.E.2d at 313.

Similarly, in the instant case, although the plaintiffs did not refile precisely identical allegations in their second complaint, we believe the refiled claims are sufficiently identical to satisfy the requirements of section 13-217. Just like the first complaint, the second complaint is a wrongful death action related to the hospital's failure to anticipate Nathan's conduct and act reasonably to prevent the injury suffered at its facility. The second arises out of the same facts and circumstances and is a wrongful death action against the hospital for its failure to properly provide for its patient. We thus hold that the action was properly refiled.

V. DUTY OF CARE: KNOWLEDGE OF SUICIDAL TENDENCIES

Turning to the merits of the action, and the bases upon which summary judgment was awarded, the defendants argue that this court should affirm because the plaintiffs are improperly attempting to compare the decedent's intentional conduct to their alleged negligence. They insist that Nathan's intentional conduct was an intervening act and that Nathan is solely responsible for his injuries. Relying on Ziarko v. Soo Line R.R. Co., 161 Ill. 2d 267, 641 N.E.2d 402 (1994), and Poole v. City of Rolling Meadows, 167 Ill. 2d 41, 656 N.E.2d 768 (1995), the defendants conclude that Nathan's own intentional conduct absolves the caregivers of liability.

In Ziarko, an employee brought suit against his employer and a railroad for injuries he suffered in an accident involving a train after he stepped from his truck. He sued the railroad for negligence and wilful and wanton conduct and his employer for negligence. The railroad brought a contribution claim against the employer. The employer argued that the railroad was barred from asserting such a claim because it could not seek to compare its wilful and wanton conduct to that of the employer since its conduct was only negligent. The court held that the railroad could seek contribution so long as its conduct was not intentional. Ziarko, 161 Ill. 2d at 280-81, 641 N.E.2d at 408-09; see also Burke v. 12 Rothschild's Liquor Mart, Inc., 148 Ill. 2d 429, 593 N.E.2d 522 (1992). The court subsequently reaffirmed its position in Poole, where it held that a plaintiff's contributory negligence can be compared to a defendant's wilful and wanton misconduct if the conduct was reckless and not intentional. Poole, 167 Ill. 2d at 47-49, 656 N.E.ad at 771.

The defendants point out that this position is consistent with the Restatement (Second) of Torts section 482(2) and section 503 which in relevant part state:

"A plaintiff whose conduct is in reckless disregard of his own safety is barred from recovery against a defendant whose reckless disregard of the plaintiff's safety is a legal cause of the plaintiff's harm." Restatement (Second) of Torts