Kolar v. Ray

492 N.E.2d 899, 142 Ill. App. 3d 912, 97 Ill. Dec. 240, 1986 Ill. App. LEXIS 2132
CourtAppellate Court of Illinois
DecidedMarch 31, 1986
Docket85-1918
StatusPublished
Cited by7 cases

This text of 492 N.E.2d 899 (Kolar v. Ray) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kolar v. Ray, 492 N.E.2d 899, 142 Ill. App. 3d 912, 97 Ill. Dec. 240, 1986 Ill. App. LEXIS 2132 (Ill. Ct. App. 1986).

Opinion

JUSTICE McNAMARA

delivered the opinion of the court:

After plaintiff, Margaret Kolar, fell on ice and was injured, she brought a negligence action against the property owner and an action for subsequent medical malpractice against defendants, Dr. Asok K. Ray, Dr. Robert S. Kaminski and Berwyn Orthopedic Surgeons, Inc. As a result of plaintiff’s settlement with the property owner releasing it from any liability, the trial court dismissed the medical malpractice suit against defendants. Plaintiff appeals.

On December 15, 1978, plaintiff slipped and fell on ice and was treated by defendants for a fractured leg and arm. Plaintiff filed suit against the property owner, and sued defendants for medical malpractice alleging that they negligently set her fractured leg.

On October 29, 1982, plaintiff released the property owner under a settlement agreement. The agreement also released “all other persons, firms, corporations, associations or partnerships of and from any and all claims, actions [and] causes of action *** which the [plaintiff] now has/have or which may hereafter accrue on account of or in any way growing out of any and all known and unknown, foreseen and unforeseen, bodily and personal injuries and *** the consequences thereof resulting or to result from the accident ***.”

The trial court initially denied defendant’s section 2 — 619 motion to dismiss (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 619) on the basis that a question of fact remained as to whether the injuries caused by the property owner and by defendants were separate injuries. The trial court granted defendants’ request for a rehearing and, on the basis of Trexler v. Hubbard (1983), 118 Ill. App. 3d 697, 455 N.E.2d 274, rev’d on other grounds (1984), 104 Ill. 2d 26, 470 N.E.2d 300, granted defendants’ motion to dismiss. The court found that the original tortfeasor property owner was potentially liable for defendants’ acts and thus its release also released the defendants. The issue before us is whether plaintiff’s release of the property owner from liability for negligence operated as a release of defendants from liability for subsequent medical malpractice.

Under Illinois law, an original tortfeasor is liable for both the original injury and for any aggravation of that injury caused by a physician’s negligent treatment, absent the want of ordinary care in selecting the physician. (Gertz v. Campbell (1973), 55 Ill. 2d 84, 302 N.E.2d 40.) The release of the original tortfeasor would also release the physician. (Tidwell v. Smith (1960), 27 Ill. App. 2d 63, 169 N.E.2d 157.) The release, however, is not an obstacle if the physician’s negligent treatment did not merely aggravate the original injury, but instead resulted in a new, separate injury. (Gertz v. Campbell (1973), 55 Ill. 2d 84, 302 N.E.2d 40; Anderson v. Martzke (1970), 131 Ill. App. 2d 61, 266 N.E.2d 137. See generally 76 C.J.S. Release sec. 50, at 691 (1952); Hansen v. Collett (1963), 79 Nev. 159, 380 P.2d 301 (extensively discussing split in authority on this question). See also Hartley v. St. Francis Hospital (1964), 24 Wis. 2d 396, 129 N.W.2d 235 (conclusive presumption exists that general release covers compensation for injuries caused by subsequent medical malpractice prior to execution of release unless plaintiff expresses otherwise in language of release).) We must first determine whether plaintiff’s complaint charged that defendants’ acts merely aggravated the original injury or created a new injury.

Cases finding that doctors created new injuries often involve either injuries to different parts of the body or gross negligence on the part of the doctors. (See, e.g., Anderson v. Martzke (1970), 131 Ill. App. 2d 61, 266 N.E.2d 137 (original injury to foot; negligently administered shot in plaintiff’s arm caused separate new injury to arm; Fletcher v. Hand (D.C. Cir. 1966), 358 F.2d 549 (applying Virginia law) (liability of original tortfeasor does not extend to cover doctor’s misconduct which was extraordinary and not normally inherent in medical care); see generally Annot., 39 A.L.R.2d 260, sec. 3(b), at 270-73 (1971).) In the-present case, the same fractured leg bone was affected by both defendants’ alleged negligence and the original tortfeasor’s act. The relevant allegation in plaintiff’s complaint reads: “[Defendants carelessly negligently and unskillfully set and reduced the fracture of Plaintiff’s injured leg, and so negligently, carelessly, and unskillfully attended Plaintiff’s fractured upper leg (femur) that it healed improperly and became displaced and out of its natural position and condition, and Plaintiff’s said leg became malaligned.” The complaint did not even suggest gross negligence, nor did it allege an injury to a different part of the body. The trial court properly found that defendants’ alleged negligence aggravated the original injury and did not create a new and separate injury.

Plaintiff cites Gertz v. Campbell (1973), 55 Ill. 2d 84, 302 N.E.2d 40, and Borowski v. Von Solbrig (1975), 60 Ill. 2d 418, 328 N.E.2d 301, to support her contention that defendants here inflicted a new and separate injury to the leg. We find that these cases stand for a different proposition. Gertz and Borowski each involved a plaintiff whose leg was injured in an automobile crash, a doctor's delay in treating the leg, and subsequent amputation of the leg. Both cases revolved around the issue of whether the original tortfeasors and the subsequent treating doctors were joint tortfeasors, which is not an issue here.

In Gertz, the court found that the original tortfeasor and the treating doctor were not joint tortfeasors because they did not act in concert to bring about the amputation of plaintiff’s leg. Thus, the original tortfeasor was permitted to turn to the doctor for contribution, notwithstanding the rule prohibiting contribution between joint tortfeasors. In the present case, contribution between joint tortfeasors is not an issue.

In Borowski, the court found that the original tortfeasor and the doctor were not joint tortfeasors. Thus, a jury instruction defining proximate cause, implying the doctor could be liable for both the original injury and the subsequent aggravation, was improperly given in the action against the doctor. The question whether the doctor is liable for all damages sustained is not an issue here. The courts in Gertz and Borowski, therefore, did not decide the issue before us, i.e., whether the release of an original tortfeasor also releases the doctor.

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Bluebook (online)
492 N.E.2d 899, 142 Ill. App. 3d 912, 97 Ill. Dec. 240, 1986 Ill. App. LEXIS 2132, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kolar-v-ray-illappct-1986.