John T. Thomas v. Illinois;

Order on petition for reconsideration filed May 27,1980.

Order on petition for reconsideration filed August 22,1980.

GOMRIC AND STRELLIS

(JACK A. STRELLIS, of counsel), for Claimant.

PRISONERSA N D INMATEs-Claimant awarded recovery and attorney f e e s for time “unjustly served in prison”. The statutory amendment requiring awards for time “unjustly served in prison” to be granted only when a pardon is issued by the Governor is not to be applied retroactively, and therefore the Claimant was entitled to recovery for time he served in prison as the appellate court reversed his conviction for felony murder and Claimant was also entitled to an award of attorney fees.

HOLDERMAN, J .

Complainant seeks recovery for time “unjustly served in prison” under the provisions of Ill. Rev. Stat. 1969, ch. 37, par. 439.8(c). That section provided as follows: “The Court shall have exclusive jurisdiction to hear and to determine the following matters: (c) A11 claims against the State for time unjustly served in prisons of the State where the persons imprisoned prove their innocence of the crime for which they were imprisoned; provided, the Court shall make no award in excess of any of the following amounts: for imprisonment of five years or less, not more than $15,000.00 ’ ’ ’and provided further, the Court shall fix attorney fees not to exceed twenty-five percent (25%)of the award granted.”

The events in this case were in the following sequence:

On January 4, 1968, Claimant was indicted by a grand jury in Cook County on 3 counts of murder. At the close of the case 2 counts were dismissed and the only count remaining was “felony murder”. The gist of this charge was that one John S. Benson was shot and killed by a companion of Claimant while the two of them were [*9] attempting a robbery. He was found guilty and on February 16, 1968, was sentenced to a term of not less than 20 nor more than 40 years.

The Claimant appealed and on June 26, 1970, the Appellate Court reversed without remand.

On August 14, 1970, after 34 months confinement, Claimant was released.

Thereafter, on May 14, 1971, he filed his claim before this Court and a hearing was held before the Commissioner on May 4, 1972.

The difficulty comes in interpreting the effect of an amendment to Ill. Rev. Stat. 1969, ch. 37, par. 439.8(c) which was effective on October 1,1972, after the hearing herein but before final disposition. The section as amended provides: “(c)All claims against the State for time unjustly served in prison of this State where the persons imprisoned shall receive a pardon from the Governor stating such pardon is issued on the grounds of innocence of the crime for which they were imprisoned.”

In the instant case, no pardon was applied for. The State argues that the amended act should be applied retroactively. We have held to the contrary. Harpstreith v . State, 30 Ill. Ct. C1. 546. There we held that since the statute made no reference to applying retroactively (as was the case in the Court of Claims Act of New York) we would not do so.

The State refers to McCray v . State, 73 Ill. Ct. C1.64, and Dillard v . State, 73 Ill. Ct. C1.65. In these 2 cases, the amendment to section 8(c) of the Court of Claims Act became effective before the claims were filed here. Even so, we did not dismiss the cases but continued them generally to give the Claimants time to ask for a pardon.

Further we have the case of Hammond 0.State, No.

[*1] 5894, June 16, 1977, where the facts were similar to this

case now before us. There we held that the claim wits “to

be decided under provisions of Section 8 of the Court of

Claims Act as in effect prior to its amendment by Public

Act 77-2089 effective October 1, 1972.”

We therefore deny the motion of Respondent to

dismiss and hold that the prior act before amendment

controls here, under the sequence of facts we have listed

above.

The testimony of the witnesses is set forth in People

v . Thomas, 127 Ill. App. 2d 134,262 N.E. 2d 233. Thomas

and Robinson entered a tavern and Robinson fired the

shot that resulted in a murder. However, the Court % pointed out that there was no evidence of an attempt to

commit a robbery and since the underlying crime was

not proved, a conviction of felony murder was not

warranted. The Claimant maintained throughout, and it

was uncontradicted, that no communication of any rob

bery was ever made by the 2 men; that Robinson just

walked up and shot the victim while the Claimant stood

at the doorway. They entered the store solely for the

purpose of purchasing some beer according to Thomas.

He testified that he had no idea that Robinson was going

to fire a shot. The Appellate Court agreed that the

testimony favored his testimony.

The facts are sufficient to warrant an award.

We enter an award of $10,000.00 to Claimant and

allow in addition the sum of $2,000.00 for attorney fees.

ORDER ON PETITION FOR RECONSIDERATION

HCYLDERMAN,

J.

This matter comes before the Court upon Respon[*11]dent’s petition for reconsideration of order granting award and the Claimant’s reply to said petition.

Respondent’s petition states that Claimant, at the time of the hearing, had not secured a pardon from the Governor as was necessary. The file in the possession of the Court contains a copy of the pardon that was issued to Claimant on the 16th day of December 1977. The Court believes, in the interest of justice, it should not order a new hearing to introduce the pardon but should rely upon the pardon and hereby overrules that part of Respondent’s petition for reconsideration dealing with said pardon.

The Respondent’s petition also states that the Court shall fix attorney fees, not award attorney fees, and that said fees shall be fixed as a percentage of the award granted.

It is hereby ordered:

That the Court’s previous order of March 21, 1980, granting Claimant an award in the amount of $10,000.00 is reaffirmed and Claimant’s claim for attorney fees heretofore granted is now denied.

ORDER ON PETITION FOR RECONSIDERATION

HOLDERMAN, J.

This matter comes before the Court upon Claimant’s petition for reconsideration of order of May 27, 1980.

This Court, upon review of the file in this matter, enters an award in the amount of $12,000.00 and fixes attorney fees in the amount of $2,000.00.

[*12] ( No . 6367-Claim denied.)

DENNIS O’DONNELL,

Claimant, 0. THE STATE OF ILLINIDIS,

Respondent.

Order filed May 27,1980”

CORBOY

AND KOTIN, for Claimant.

FRENCH AND ROGERS, for Respondent.

NEGLIGENCE-when res ipsa loquitur is applicable to medical malpractice case. The doctrine of res ipsa loquitur is applicable to a medical malpractice case only upon a showing that the instrument involved was under the exclusive control of a party charged with negligence, the occurrence was such that in the ordinary course of things it would not have happened if the person so charged had used proper care, and the injury was not a result of negligence of the injured party.

SAME-medical testimony failed to establish that x-ray treatments for a brain tumor caused cataracts on Claimant’s eyes. The evidence presented, including expert medical testimony, failed to establish that the cataracts on Claimant’s eyes would not have occurred unless Respondent had deviated from the standard of care in administering x-ray treatment for Claimant’s brain tumor without the use of eye shields.

HOLDERMAN, J.

Claimant filed his claim against the State of Illinois alleging that the negligence of the employees of Illinois Research Hospital in the treatment of Claimant for a malignant brain tumor was responsible for cataracts on his eyes.

Claimant was born on November 29, 1949. He graduated from high school in 1968 and went to Harper Junior College for one year.

Prior to July of 1969, his condition of health was excellent. While he was in college, he noticed he had double vision and in July of 1969 Claimant entered the University of Illinois Research Hospital for treatment of what was eventually diagnosed as a brain tumor. * “On January 16, 1981, the Court denied the petition for rehearing and on March 30, 1981, the Court denied the motion for a new trial and dismissed the cause.”

[*13] While hospitalized, the neurosurgery department of Respondent hospital referred Claimant to the x-ray department of Respondent hospital to treat him for a mass or brain tumor in the third ventricle, which is located in the middle of the head. Claimant was given forty-seven x-ray and cobalt treatments over a ninety-two day period. The treatments were evenly split between four fields or portals of entry: the forehead, the back of the head and each side o i the head.

When Claimant received radiation from the frontal position, he received it two inches above the eyebrow. The field was not to include the two eyes. Claimant, at no other time in his life, received radiation treatments. He received six treatments on the cobalt machine and forty-one treatments on the x-ray machine. Claimant received 300,000 volt x-rays.

During the period of his treatment, no protective shields or other devices were ever put over his eyes nor was his head ever held immobile when he received the radiation or cobalt treatments.

After these treatments and the tumor had been destroyed, Claimant went to see an opthalmologist relative to his eyes. The ophthalmologist, Dr. James McCarthy, informed Claimant that he had cataracts. He described them as “typical irradiation cataracts” which means that they were formed as a result of ionizing radiation.

It was Dr. McCarthy’s opinion that the cataracts were formed as a result of the treatments which destroyed the tumor. Dr. McCarthy, as stated, is an opthalmologist, and is not a specialist in radiology.

Edwin Liebner M. D. was one of the two witnesses who testified for Respondent. His title is head of the [*14] therapeutic radiation division of the Department of Radiology at Respondent’s hospital. He has been employed for the University of Illinois for the past twentyfive years and is board certified in radiology.

According to Dr. Liebner’s testimony, Claimant’s eyes were not anywhere in the direct field of radiatiod when the treatments were being given. He personally gave Claimant some of the treatments but he did not give him the entire treatment. His opinion, in direct contrast to the opinion of Claimant’s opthalmologist, was that the cataracts were caused by the cortisone therapy and not by the radiological treatments.

Dr. Liebner testified that under certain conditions they did use shields to protect the eyes but they did not do so in the present case because they would have performed no useful function.

. Dr. Oscar Sugar was the other witness who testified for Respondent. He testified that he had seen approximately six hundred patients who were treated by radiation and had never witnessed a case of cataracts which were asserted to be related to the radiation therapy given. Dr. Sugar, chief of the Neurosurgery Department of the University of Illinois hospital and board certified since 1950, testified that the tumor of Claimant was attached to the pineal body and located in the very center of the brain. Dr. Sugar further testified that the causes of the cataracts could have been the radiation therapy, muscular dystrophy which had been diagnosed in the Claimant at the age of four, or steriod therapy which was part of the treatment of the brain tumor. He stated he did not know which caused the cataracts.

In Dr. Liebner’s testimony, he stated he was familiar with eye shields and these shields, when used, are slid under the eyelids to cover the cornea and the lens. He [*15] further testified that the use of eye shields was not indicated in the treatments received by Claimant in 1969. He testified that the only time eye shields are used, and only one eye shield is used at a time, is when the tumor is near the eye or growing close to the eye which would place the eye in direct line of radiation. He stated that in Claimant’s case, the eyes were not in the direct field of radiation. He further stated that if eye shields had been used, the Claimant would undoubtedly have developed a corneal ulcer.

The testimony of the two doctors employed by the University of Illinois was in direct conflict with that of Claimant’s opthalmologist. Both of Respondent’s doctors were board certified in radiology.

Claimant alleges that the doctrine of res ipsa loquitur is applicable in this case and under that doctrine, Respondent is responsible for damages alleged to have been caused by the radiation treatments. The doctrine of res ipsa loquitur is applicable in a medical malpractice case only upon a showing that (1)the instrument involved was under the exclusive control of the party charged with the negligence; (2) the occurrence was such that in the ordinary course of things it would not have happened if the person so charged had used proper care; and (3) the injury was not a result of the negligence of the injured party. See Spidle v . Steward (1979), 68 Ill. App. 3d 134. This case lays down the rule that res ipsa loquitur will not be invoked against a surgeon merely because he performed an operation upon a non-negligent patient and

got an unusual result. Claimant cites Johnson v . Marshal, 241 Ill. App. 80, as being right on the point of res ipsa loquitur. In that case, Claimant introduced expert medical

testimony that the injuries suffered by him would not have occurred unless the defendant had deviated from

the applicable standard of care.

[*16] In the instant case, there is no evidence, expert or otherwise, that the cataracts which formed in Claimant’s eyes would not have occurred unless Respondent had deviated from the standard of care.

In 49 Ill. App. 3d 539, the rule was laid down that in medical malpractice action, plaintiff must establish by expert testimony standard of care imposed upon defendant and then show by affirmative evidence unskilled or negligent failure to comply with such professional criterion which resulted to injury to plaintiff.

In the present record, there is not any medical testimony by a board certified radiologist that the acts of Respondent caused the injury complained of. .

It is the opinion of this Court that Claimant, having failed to meet the burden of proof required, is not entitled to an award.

Claim denied.