author: JUSTICE GORDON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARK DEVEAUX, Defendant-Appellant.
    First District (5th Division)
    No. 1 — 88—2443
    Opinion filed September 28, 1990.
    Rehearing denied November 5, 1990.

      Joel W. Ostrander, of Chicago, and James M. Murphy, of Dallas, Texas, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund and James E. Fitzgerald, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE GORDON

delivered the opinion of the court:

After a bench trial, defendant, Mark Deveaux, was convicted of possession with intent to deliver more than 30 grams of a controlled substance (Ill. Rev. Stat. 1985, ch. 56V2, par. 1401(a)(2)) and possession with intent to deliver more than 500 grams of cannabis (Ill. Rev. Stat. 1985, ch. 56V2, par. 705(e)) and sentenced to concurrent terms of seven and five years in prison. On appeal, he contends: (1) he was denied effective assistance by his privately retained counsel; (2) the search warrant used to seize the controlled substance and cannabis was invalid; (3) his confession was improperly admitted because he did not receive his full Miranda warnings; and (4) his jury waiver was ineffective because it was not in writing. We affirm.

Officer Calvin Holliday, testifying for the State, stated that on November 3, 1986, he obtained a warrant to search apartment No. 705 at 7636 South Shore Drive in Chicago (hereinafter apartment No. 705). The warrant was obtained on Officer Holliday’s sworn “Complaint for Search Warrant” which stated that on November 2, 1986, a confidential informant had told him that he had gone to apartment No. 705 with a person named “Mark” who gave him a substance which he knew to be cocaine. The warrant authorized the search of Mark and apartment No. 705 and the seizure of drugs, proof of residence, records of drug transactions, and commingled United States currency. Though the lefthand margin of the warrant contained a notation of an assistant State’s Attorney’s approval of the warrant at “3 Nov 86 1045 hrs,” the handwritten time and date of issuance appearing on the warrant was “11:23 p.m. on Nov. 3, 1986.”

Officer Holliday stated that he and a number of other police officers went to apartment No. 705 at approximately 12:45 p.m. on November 3, 1986, to execute the search warrant. Holliday knocked on the apartment door, and it was eventually opened by a woman whom he later learned was Monique King. When he told King that he had a search warrant for the apartment, she allowed him and his fellow officers to enter. They then secured the apartment and began searching the bedroom for the items listed in the warrant. During the search, Holliday found two clear plastic bags containing a white powder, later identified as cocaine, on top of a dresser and $2,000 in United States currency in its drawer. He also found 20 clear plastic bags — four containing a white powder, later identified as cocaine, and 16 containing a crushed green plant, later identified as cannabis — in a foot locker in the bedroom.

Holliday seized the drugs and the currency and prepared to leave the apartment. When he opened the front door, he saw a person, whom he later identified as the defendant, holding a handbag while leaning “at” the door. When defendant identified himself as Mark Deveaux, Holliday took his handbag and placed him under arrest. One of Holliday’s partners, Officer Robert Montgomery, then read defendant his Miranda rights from a police procedures handbook. As he was reading these rights, Holliday searched through defendant’s handbag and found $2,102 in United States currency. After Montgomery had completed reading the rights, Holliday asked defendant why he had not used his key to enter the apartment, and defendant responded that he had broken the key in the lock. Upon Holliday’s request, however, defendant did give him a key to the building’s elevator which, Holliday discovered, fit the elevator door. Also, Holliday asked defendant if the bags of white powder and crushed green plant found in the apartment were his, and defendant responded that they were.

On cross-examination, Holliday stated that when he searched defendant and found the money in his handbag he found no contraband on his person. He also attested that when Montgomery read defendant’s Miranda rights from the police procedures handbook, he read those rights in their entirety. Holliday stated that he always used that handbook when “Mirandizing” a defendant because he did not memorize those rights by rote. Holliday also verified that his partner asked defendant if he understood his rights after they were read to him and defendant said he did.

In addition, Holliday confirmed that he personally noticed a broken key in the lock after defendant had pointed it out to him. After he questioned defendant at the apartment, he took him to the police station. There, defendant told him that he lived in apartment No. 705. Holliday denied, however, that he had signed an arrest sheet which had defendant’s address typed “7636 South Shore” directly above a crossed out notation that his address was “1758 East 74th Street.”

The parties stipulated to the chain of custody regarding the elevator key and the seized narcotics and as to the quantity and identity of those narcotics. Thereafter, Cloda Robinson, the superintendent of the 7636 South Shore Drive building, testified on behalf of defendant. He stated that Monique King had an oral lease and paid the rent for apartment No. 705 and, to the best of his knowledge, only she and her children occupied that apartment. He further stated that he had seen defendant around the building but could not say how often he was there.

Defendant testified that he lived at 1758 East 74th Street, had lived there for 16 years, and never had lived at or paid rent for any apartment at the 7636 South Shore Drive building. He stated that he was at the 7636 South Shore Drive building on November 3 to visit his friend, Monique King. He had been to her apartment on only two previous occasions. When he arrived at the building, he first rang the bell to her apartment but, when there was no answer, he walked onto an elevator with other people and then rode the elevator to the seventh floor. When he arrived at King’s apartment, a police officer opened the door and told him to come in. When he responded affirmatively to that officer’s question whether his name was Mark, he was then handcuffed and read his rights. The police then searched him and took his keys. He denied that any of his keys fit the apartment door and further stated that he never had a key to that door. He further denied ever telling the police that the contraband found in the apartment was his or that he lived at that address.

On cross-examination, defendant stated that he had known Monique King for three months but did not recall the dates of his prior visits to her apartment. Upon further questioning, however, he stated that the visits must have been in October. He further stated that in November of 1986 he worked for his grandmother, doing maintenance work and collecting rents at her apartment buildings. He admitted having approximately $2,100 in the handbag he was carrying when arrested and explained that all but $100 of that money was rent money he had collected for his grandmother. He denied ever telling Officer Holliday that he had broken the key to the apartment door and acknowledged receiving all his keys back from the police officers.

After hearing closing arguments, the trial judge found defendant guilty of possession with intent to deliver a controlled substance and cannabis, stating:

“I believe the key to the case is whether or not the defendant said what the officer has testified that the defendant said. All the officer said — so it is a matter of credibility. And the court considers that if the defendant did say this, then it is a confession as such, and together with the substances that were found and other circumstances is sufficient.”

Thereafter, prior to sentencing, defense counsel made an oral motion to examine the key to the elevator which Officer Holliday had said he obtained from defendant. He claimed that an examination of that key to determine if it actually fit the elevator was important in assessing the credibility of the two main witnesses, Officer Holliday and the defendant. The trial judge denied that motion, commenting:

“The Court considered the totality of evidence and the testimony relative to the entire circumstances and relative to all of the acts and actions of the parties.
The Court does not consider the key to be the key to the case as such. It is one of the matters which is in evidence.
The Court does not consider that it would be appropriate procedure, and the Court does not consider such a procedure would result in a different decision in the case.”

Opinion

Although defendant raises four separate issues on appeal, two of the issues, those dealing with the validity of the search warrant and the admissibility of the confession, are intertwined with his ineffective assistance of counsel issue and we will therefore address these two issues in our discussion of the ineffective assistance issue.

Defendant claims ineffective assistance of counsel based on his privately retained attorney’s failure to file: (1) any motion for discovery; (2) a motion to quash the search warrant; or (3) a motion to suppress his confession. Ineffective assistance of counsel claims are measured by the standards which were set forth in the United States Supreme Court’s opinion in Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052. (People v. Albanese (1984), 104 Ill. 2d 504, 473 N.E.2d 1246.) Under these standards, a defendant claiming ineffective assistance must show that counsel has failed to perform in a reasonably effective manner and there is a reasonable probability that, but for this ineffective performance, the proceeding’s outcome would have been different. (Strickland, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052.) There is a strong presumption that counsel has performed effectively, and it is a defendant’s burden to prove otherwise. See People v. Whittaker (1990), 199 Ill. App. 3d 621, 627, 557 N.E.2d 468, 471.

Defendant claims ineffective assistance based on his counsel’s failure to file any motions for discovery prior to trial. Specifically, he argues that had his counsel conducted discovery, he would have learned of the existence of the elevator key and the name of the confidential informant, both of which were important in establishing defendant’s connection to apartment No. 705, a point which he deems “the very issue on which the trial court based its finding of guilt.” As proof of the significance of the key, defendant points to the fact that his trial counsel did seek an examination of that key after trial, because of his recognition that it was important in assessing the credibility of witnesses, but was denied such a request.

We find that counsel’s failure to conduct discovery did not constitute ineffective assistance of counsel under the circumstances of this case. Without considering the question whether a decision to forego the filing of a motion for discovery is under all circumstances a deficient performance by counsel, we note that defendant has failed to demonstrate how the trial outcome would have been different had a motion for discovery been filed. There is no evidence in the record that counsel’s decision resulted in any unpreparedness on his part. To the contrary, the record demonstrates that counsel did provide effective representation for defendant. Furthermore, though the key and the informant both do “connect” defendant to apartment No. 705 or, at least, the building where it is located, defendant’s connection to the apartment or the building was not, as defendant suggests, “the very issue on which the trial court based its finding of guilt.” As is evident from the remarks made by the trial judge when he made his finding of guilt, his finding was based on defendant’s ownership of the drugs found in apartment No. 705. Ownership was established by defendant’s admission that the drugs were his as well as the various other incriminating circumstances, such as the drugs themselves and defendant’s presence at the apartment door with an unusually large sum of money. Moreover, even if defendant’s connection to the building were as significant as claimed, there was other evidence to establish that point. Defendant himself testified that he had visited his friend, Monique King, at her apartment on two previous occasions, and Cloda Robinson, the superintendent of the 7636 South Shore Drive building, testified that he had seen defendant at the building on previous occasions. Thus, it cannot be reasonably said that a failure to discover the existence of the key or the name of the confidential informant in any way harmed defendant.

Additionally, with respect to the confidential informant, we note that even if defendant’s counsel had requested his name, disclosure is not automatic (107 Ill. 2d R. 412(j)(ii)) and need not be made if the informant is not a material witness to the crime charged. (People v. Saldana (1986), 146 Ill. App. 3d 328, 333-34, 496 N.E.2d 757, 762.) In the present case, the confidential informant was not a material witness to anything that transpired on November 3, 1986. He merely provided information regarding an illegal incident occurring on November 2, 1986, for which defendant had not been charged. Though that information formed the basis for the search warrant executed on November 3, that fact does not make the informant a material witness to the crimes committed on that date.

Defendant next claims that he received ineffective assistance as a result of his counsel’s failure to move to quash the search warrant where the face of the search warrant demonstrates that it was issued after the search of apartment No. 705 and his arrest. As indicated above, the warrant shows an issuance time of 11:23 p.m. on November 3, 1986, which, according to the evidence, was approximately 10 hours after the search and arrest. Relying upon People v. Stokes (1977), 49 Ill. App. 3d 296, 364 N.E.2d 300, defendant argues that based on these facts counsel should have known that the search warrant was invalid and his failure to move to quash it constituted a deficient performance of such a magnitude as to prejudice his defense.

There is a presumption that the item indicated on a search warrant by the issuing judge controls its validity, but extrinsic evidence is permitted to show and correct an obvious clerical error. (People v. Young (1978), 60 Ill. App. 3d 49, 55, 476 N.E.2d 712, 717.) Furthermore, “[n]o warrant shall be quashed *** because of technical irregularities not affecting the substantial rights of the accused.” (Ill. Rev. Stat. 1985, ch. 38, par. 108 — 14; People v. Lozada (1977), 55 Ill. App. 3d 366, 368, 371 N.E.2d 50, 51.) We find that the record in this case supports a conclusion that the time of issuance was a technical irregularity which did not affect defendant’s substantial rights.

Officer Holliday’s uncontroverted testimony shows that he had the search warrant in his possession when he arrived at apartment No. 705 at approximately 12:45 p.m. on November 3, 1986. He testified, and was not contradicted, that his purpose for being at the apartment was to execute the warrant. He also stated, again without contradiction, that he gained admission to the apartment only after telling Monique King that he had a search warrant. Furthermore, defendant’s trial counsel did question Holliday as to whether he had the warrant with him when he was at the apartment, both during a preliminary hearing and at trial, and Holliday affirmatively responded to all questions asked on the subject. Based on this evidence, it is apparent that the search warrant could not have been issued after the search of the apartment and arrest of defendant and, thus, the time of issuance stated on the warrant can properly be characterized as a technical irregularity, and not violative of any of defendant’s substantial rights. See People v. Young (1978), 60 Ill. App. 3d 49, 55, 376 N.E.2d 712, 717.

The requirement of a search warrant is designed to protect the right of a person to be secure in his possessions from unreasonable searches and seizures. (Ill. Const. 1970, art. I, §6.) That right was not violated or disturbed in this case. Officer Holliday’s complaint for search warrant was supported by an affidavit which described the place to be searched and the person and things to be seized. Defendant has made no claim that the warrant was issued without probable cause. After obtaining the warrant, Holliday executed it at the apartment and there seized the drugs which defendant admitted were his. Defendant has made no claim that the search or the seizure was in any way unreasonable. Thus, there was no violation of his substantial rights, notwithstanding the erroneous transcription of the issuance time.

This case is similar to People v. Lozada (1977), 55 Ill. App. 3d 366, 371 N.E.2d 50, where the court found that the omission of the issuance date on the face of a search warrant, which included a notation of an assistant State’s Attorney’s approval of the warrant on the date of execution, constituted a technical irregularity which did not affect the accused’s substantial rights. The court held that uncontroverted testimony of a police officer as to the sequence of the approval of the assistant State’s Attorney, the issuance of the warrant and its execution cured this irregularity. Similarly, in the present case, Officer Holliday’s uncontroverted testimony as to the time of execution of the search warrant together with the notation of the assistant State’s Attorney’s approval on the warrant cured the technical irregularity of the wrong issuance time. Accord People v. Gonzalez (1974), 24 Ill. App. 3d 259, 263, 320 N.E.2d 197, 201.

People v. Stokes (1977), 49 Ill. App. 3d 296, 364 N.E.2d 300, cited by defendant, is distinguishable from the present case. Stokes did involve the question whether a search warrant was properly quashed where the issuing date on the face of the warrant was later than the date of the actual search and seizure. However, in that case, the State had failed to make an offer of proof which explained that the date on the warrant was a mere irregularity. Moreover, the court there noted, albeit in dictum, that there was nothing in the record to indicate that the trial judge had intended to issue the warrant prior to the search and seizure. In the present case, Holliday’s uncontroverted testimony that he had the warrant before he entered the apartment at approximately 12:45 p.m. on November 3, 1986, was proof that the trial judge had, in fact, issued the warrant prior to the search and seizure.

Defendant last claims that he received ineffective assistance based on his counsel’s failure to file a motion to suppress his confession in light of evidence in the record that he did not receive his full Miranda warning before he gave his confession. He further claims ineffective assistance because under the “fruit of the poisonous tree” doctrine (Wong Sun v. United States (1963), 371 U.S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407) his confession would have been suppressed as the product of his illegal arrest based on an illegal search warrant. Having already concluded that the warrant was valid, we need consider only his first claim.

We find that the record does not support this claim of ineffective assistance because it discloses that he did receive his full Miranda warnings. Officer Holliday testified that Officer Montgomery read defendant “his rights” from the police procedures handbook and that he read the whole passage (contained in the handbook) to defendant. He further stated that whenever he read a defendant his rights, he also read from that handbook because he did not know the rights by heart. Additionally, defendant himself testified that he was read his rights.

Defendant, however, points to the following testimony of Officer Holliday, given after he already had testified that he did not know these rights by heart and had to read them from the police procedures handbook, as proof that he was not read his full rights:

“Q. [By Mr. Adam (Defense Counsel)]: You say that you heard Officer Montgomery advise the defendant of his rights, is that right?
A. Yes, sir.
Q. You say that he read those from a book?
A. From an F.O.P. booklet (the police procedures handbook), that is correct.
Q. Are you able to tell the Court any of those rights that you say Montgomery advised the defendant of at that time?
MR. GEANOPOULOS [assistant State’s Attorney]: Objection.
THE COURT: The witness may answer that question yes or no, if he can. Overruled.
THE WITNESS: Yes.
BY MR. ADAM:
Q. All right. Give us your best recollection as to what Montgomery said?
A. He have [sic] advised Mr. Deveaux that he had the right to remain silent. He also advised him that he had the right to have a lawyer present with him during any questioning. I don’t remember anything other than that.”

We find that this portion of Officer Holliday’s testimony, when read together with his other testimony, does not, as defendant claims, establish that he was not given his full Miranda warnings. It merely confirms Holliday’s prior testimony that he did not memorize these rights by rote. The trial court judge, who heard all of the testimony, apparently agreed because he found that defendant was read all of his rights. Under these circumstances, we cannot say that trial counsel’s failure to move to suppress defendant’s confession constituted ineffective assistance.

Defendant’s last claim is that his oral jury waiver, made in open court, was not effective because it was not reduced to writing. He does not claim, however, that his oral waiver was not voluntarily and knowingly made. Instead, he argues that section 115 — 1 of the Code of Criminal Procedure of 1963 (hereinafter Code) (Ill. Rev. Stat. 1987, ch. 38, par. 115 — 1) mandates that a jury waiver be in writing to be effective.

Section 115 — 1 of the Code provides:

“All prosecutions except on a plea of guilty or guilty but mentally ill shall be tried by the court and a jury unless the defendant waives such jury trial in writing or, in a criminal prosecution where the offense charged is first degree murder, a Class X felony, criminal sexual assault or a felony violation of the Cannabis Control Act or the Illinois Controlled Substances Act both the State and the defendant waive such jury trial in writing.” (Ill. Rev. Stat. 1987, ch. 38, par. 115 — 1.)

This statute, however, was declared unconstitutional by our supreme court in People ex rel. Daley v. Joyce (1988), 126 Ill. 2d 209, 533 N.E.2d 873, though on grounds other than the invalidity of the requirement that a jury waiver be in writing. Nonetheless, with this statute having been declared unconstitutional, there is no law in Illinois requiring that a waiver be in writing. Section 103 — 6 of the Code, the section dealing with jury waivers, merely requires that “[ejvery person accused of an offense shall have the right to a trial by jury unless understandingly waived by defendant in open court.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 38, par. 103 — 6.) There is no precise formula for determining whether a waiver has been understandably made, with each case being decided on its facts (People v. Totah (1989), 192 Ill. App. 3d 239, 246, 548 N.E.2d 678, 682), and an effective waiver may either be made orally in court or in writing. (See People v. Brown (1958), 13 Ill. 2d 32, 34, 147 N.E.2d 336, 337; People v. Williams (1977), 47 Ill. App. 3d 798, 802, 365 N.E.2d 415, 418.) There being no dispute that defendant’s oral waiver was made in open court and was understandably made, it was valid under existing law.

For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

Affirmed.

COCCIA, P.J., and LORENZ, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE McMORROW JUSTICE JIGANTI,

license: Public Domain

text:
    MARY CORLETT, Special Adm’r of the Estate of Arthur W. Corlett, Jr., Deceased, Plaintiff-Appellant, v. JOHN A. CASERTA, Defendant-Appellee.
    First District (4th Division)
    No. 1 — 89—0566
    Opinion filed September 28, 1990.
    Rehearing denied October 30, 1990.

      JIGANTI, J., specially concurring.
    Stuart W. Opdycke, of Rosenberg, Opdycke, Gildea, Hellner & Kelly, of Chicago ( Steven J. Rosenberg, of counsel), for appellant.
    French, Rogers, Kezelis & Kominiarek, P.C., of Chicago (Dorothy F. French, Russell P. Veldenz, and Michael R. Webber, of counsel), for appellee.
   PRESIDING JUSTICE McMORROW

delivered the opinion of the court:

Plaintiff Mary Corlett (plaintiff), as special administrator of the estate of her late husband, Arthur W. Corlett, Jr. (Corlett) (hereinafter collectively referred to as the Corletts), filed a wrongful death suit against defendant Dr. John A. Caserta (Caserta). Plaintiff alleged that Caserta’s negligence in failing to make an earlier diagnosis of Corlett’s development of gastric bleeding following colon surgery proximately caused Corlett’s death. Caserta filed a motion for summary judgment, arguing that Corlett’s refusal of a blood transfusion, suggested by Caserta upon the discovery of Corlett’s gastric bleeding, barred plaintiff’s wrongful death suit as a matter of law. Caserta also argued that a release signed by the Corletts, which relieved Caserta of liability for respecting their refusal to have a blood transfusion administered to Corlett, justified the entry of summary judgment in his favor.

We conclude that the release signed by the Corletts did not relieve Caserta of liability for Corlett’s wrongful death resulting from Caserta’s alleged negligence. We also determine that Corlett’s refusal of the blood transfusion is an element which may be considered by the fact finder in deciding issues of proximate cause and comparative fault, and that these questions cannot be resolved as a matter of law in the instant appeal. Accordingly, we reverse the trial court’s judgment and remand the matter for further proceedings.

The following facts are presented by the pleadings and the discovery materials filed by the parties with respect to Caserta’s summary judgment motion. On July 5, 1978, Caserta performed surgery to remove polyps from Corlett’s colon. Corlett informed Caserta prior to the operation that no blood should be administered to him during the surgery, because Corlett was one of Jehovah’s Witnesses, whose religious convictions forbid the acceptance of a blood transfusion. On the consent to surgery form provided to him prior to the operation, Corlett again indicated in his own handwriting that he did not consent to the administration of blood during the surgery. Plaintiff, also one of Jehovah’s Witnesses, concurred in Corlett’s instruction that no blood be administered during the surgery. There were no complications during the course of the colon operation.

Three days after the surgery, on July 8, 1978, Corlett developed a fever because of an infection resulting from the surgery. Caserta prescribed aspirin to reduce Corlett’s elevated temperature and directed that the aspirin be administered every four hours whenever Corlett’s temperature exceeded 100 degrees Fahrenheit. Aspirin was administered by hospital personnel in accordance with Caserta’s instructions. On July 16 and July 17, approximately a week after the administration of aspirin had begun, Corlett vomited a dark black liquid and had loose stools. Two days later, on July 19, Corlett’s emesis was bright red. Because of this last development, a hospital staff physician directed that the administration of aspirin be discontinued and that Corlett be given a different drug used to stop gastric bleeding.

According to Casería’s deposition testimony, Casería advised the Corletts on July 19 that a blood transfusion was imperative and was the only remaining treatment available to alleviate Corlett’s internal bleeding. He also advised the Corletts that the failure to administer a blood transfusion would place Corlett’s life in grave peril. Both Corlett and plaintiff refused the transfusion because of their religious convictions.

It appears from the record that the Corletts then signed a release document (hereinafter referred to as the release) containing the following language:

“I *** am a member of the religious [s]ect [sic] known as Jehovah’s Witness and follow their tenets and beliefs, I refuse to allow anyone to give whole blood transfusion or blood derivatives. The risks attendant to my refusal have been fully explained to me, and I fully understand that I will in all probability need whole blood or blood derivatives and if the same is not done, my chances for regaining normal health are seriously reduced, and that, in all probability, my refusal for such treatment or procedure will seriously imperil my life.
I hereby release the Hospital, its nurses and employees, together with all physicians in any way connected with me as a patient, from liability for respecting and following my expressed wishes and direction.”

Corlett died on July 21, 1978, of complications resulting from gastric bleeding caused by ulceration of his stomach lining. He was 55 years old.

In their depositions given during discovery, the medical experts retained by the parties agreed that Casería’s original prescription of aspirin was an acceptable treatment for Corlett’s fever and infection, and that the fever and infection were normal complications of the colon surgery. However, it was the opinion of plaintiff’s expert that Casería should have ordered a test on July 16 or July 17, when Corlett vomitted dark liquid and had loose stools, which would have revealed that Corlett was suffering from gastric bleeding. Plaintiff’s expert held the opinion that Casería, upon making a diagnosis of gastric bleeding on July 16 or July 17, should have discontinued the administration of aspirin on that date, since the aspirin irritated the stomach lining and exacerbated the gastric bleeding. Thus, it was the opinion of the plaintiff’s expert that the treatment given Corlett on July 19, i.e., the discontinuance of aspirin and the administration of a drug that inhibits gastric bleeding, should have begun two or three days earlier, on July 16 or July 17. Plaintiff’s expert stated that, in his opinion, if the proper procedure had been instituted on July 16 or July 17:

“[I]n all medical probability, given the response of the patient from the 19th on to appropriate treatment with [a drug to inhibit gastric bleeding], stopping the aspirin, and antacids, that the patient probably would have survived; that the bleeding would have stopped, and that he would not have bled to a point where he went into irreversible shock and was not able to be resuscitated.”

Plaintiff’s expert also stated that if Corlett had been given a blood transfusion on either July 16, July 17, July 18, or July 19, “in all medical probability” Corlett would have survived, “[assuming that the other measures taken [on July 19] were instituted as well, [i.e.,] *** the institution of [a drug to inhibit gastric bleeding], et cetera.” Plaintiff’s expert stated that “[e]ven as of July 19, the giving of blood to Mr. Corlett would have been lifesaving.”

Defendant’s medical expert stated at his deposition that Caserta’s failure to diagnose Corlett’s gastric bleeding before July 19 did not, in his opinion, fall below a minimum standard of acceptable medical care. It was the opinion of defendant’s expert that Corlett’s symptoms on July 16 and July 17 did not indicate the need for a test to determine the possible presence of gastric bleeding. Defendant’s expert stated that he disagreed with the opinion of plaintiff’s expert, quoted in the previous paragraph, since “[e]rosive gastritis is a condition that in and of itself is highly fatal [and is] usually associated with about a 25 percent mortality rate when all treatment is allowed, including blood transfusion.” Defendant’s expert acknowledged that “[t]he only chance [Corlett] had of surviving once the significant hemorrhage occurred was to have received a transfusion, plus whatever other therapy may have been indicated.” He further noted that “the only other therapy that may have been indicated — at least the surgical therapy— would have been prevented by his refusal to accept a transfusion.”

The trial court granted summary judgment in favor of Caserta, reasoning that Corlett’s refusal of the blood transfusion suggested by Caserta on July 19 barred plaintiff’s wrongful death suit. Plaintiff appeals.

I

We first consider Caserta’s argument that the release executed by the Corletts on July 19, that relieved Caserta from liability for their refusal to accept a blood transfusion, serves as a complete bar to plaintiff’s wrongful death suit.

To support his position, Caserta relies upon Harris v. Walker (1988), 119 Ill. 2d 542, 519 N.E.2d 917. In Harris, the plaintiff filed suit to recover personal injuries sustained while plaintiff was riding a horse owned by defendant. The exculpatory clause at issue in Harris stated in pertinent part that plaintiff released defendant “of any liabilities [plaintiff] may incur while on the premises or for any injury which may result from horseback riding.” (119 Ill. 2d at 549.) In view of the broad language utilized in the exculpatory clause in Harris, and the degree to which the plaintiff was an experienced horseback rider, the Illinois Supreme Court concluded that the release barred plaintiffs suit, even though the exculpatory clause did not anticipate the precise harm which the plaintiff had suffered.

The release at issue in the instant cause is distinctly different from that in Harris. Contrary to Caserta’s argument on appeal, the release executed by the Corletts does not contain broad language that bars any claim for damages as a result of Corlett’s death, for failure to have a blood transfusion. The release at issue here simply relieves Caserta “from liability for respecting and following [Corlett’s] expressed wishes and direction” that Corlett not receive a blood transfusion. Thus, Harris is factually distinguishable from the case at bar.

The Illinois Supreme Court has directed that a release must state with particularity the parties’ intention, and limits only those claims expressly covered by its terms. (Scott & Fetzer Co. v. Montgomery Ward & Co. (1986), 112 Ill. 2d 378, 395, 493 N.E.2d 1022.) The release at issue here bars plaintiff from instituting a wrongful death claim asserting that Caserta is liable for respecting Corlett’s refusal of a blood transfusion. However, plaintiff’s wrongful death suit is not predicated upon Caserta’s respect for Corlett’s refusal of a blood transfusion, nor is plaintiff’s suit founded upon Caserta’s failure to administer a blood transfusion to Corlett. Plaintiff’s wrongful death suit is founded upon Caserta’s alleged negligent failure to timely diagnose and treat Corlett’s gastric bleeding following colon surgery. It is the theory of plaintiff’s wrongful death action that, if Caserta had timely diagnosed and treated Corlett’s gastric bleeding, Corlett’s condition would not have deteriorated and a blood transfusion would have been unnecessary. Neither the consent to surgery form signed by Corlett prior to surgery, nor the release from liability executed by the Corletts upon their refusal to permit the administration of a blood transfusion, specifically relieved Caserta from liability for failure to properly diagnose and treat Corlett’s gastric bleeding. Because the release signed by the Corletts does not explicitly govern Caserta’s liability for an alleged negligent failure to timely diagnose and treat Corlett’s gastric bleeding, we conclude that the documents executed by the Corletts do not bar plaintiff’s wrongful death suit against Caserta.

II

We next consider Caserta’s argument that because a blood transfusion would probably have averted Corlett’s death, Corlett’s refusal of a blood transfusion should preclude plaintiff’s recovery in a wrongful death action as a matter of law. Caserta urges that a physician should be relieved of all wrongful death liability whenever the physician has respected the wishes of a conscious, competent adult patient who, upon the exercise of religious beliefs, voluntarily refused the only medical treatment available to the physician to save the patient’s life.

A plaintiff in a medical malpractice action must plead and prove that the defendant physician owed a duty to the plaintiff to exercise a certain standard of care in the defendant’s treatment of the plaintiff, that the defendant’s treatment fell below this standard of care and proximately caused plaintiff to suffer injuries, and that these injuries entitled plaintiff to an award of monetary damages. (See, e.g., Ramos v. Pyati (1989), 179 Ill. App. 3d 214, 534 N.E.2d 472.) However, a plaintiff has a duty to mitigate the damages resulting from a defendant’s negligence. (See, e.g., Rozny v. Marnul (1969), 43 Ill. 2d 54, 250 N.E.2d 656.) Based upon mitigation of damages principles, plaintiff’s award of damages should be reduced to the extent that the injuries were caused by plaintiff’s voluntary refusal of the reasonable medical treatment. (See, e.g., Newell v. Corres (1984), 125 Ill. App. 3d 1087, 466 N.E.2d 1085; Littlejohn v. Arbogast (1900), 95 Ill. App. 605; Haering v. Spicer (1900), 92 Ill. App. 449; see also Casey v. Baseden (1986), 111 Ill. 2d 341, 490 N.E.2d 4; see generally Illinois Pattern Jury Instructions, Civil, No. 33.01 (3d ed. 1989) (hereinafter IPI Civil 3d).) Recent decisions have also analyzed a plaintiff’s failure to follow reasonable medical advice in the context of comparative negligence principles. (See, e.g., Witherell v. Weimer (1987), 118 Ill. 2d 321, 515 N.E.2d 68; Bartimus v. Paxton Community Hospital (1983), 120 Ill. App. 3d 1060, 458 N.E.2d 1072; see also Graze v. Lawless (1979), 71 Ill. App. 3d 669, 389 N.E.2d 957; Seymour v. Victory Memorial Hospital (1978), 60 Ill. App. 3d 366, 376 N.E.2d 754 (analyzing facts under concept of plaintiff’s contributory negligence).) Similarly, under principles of assumption of the risk, a plaintiff’s award is offset by the degree to which the plaintiff assumed the risks of defendant’s negligence, in that plaintiff knew of these risks and nevertheless voluntarily and unreasonably proceeded to encounter them. See, e.g., Varilek v. Mitchell Engineering Co. (1990), 200 Ill. App. 3d 649; Wheeler v. Roselawn Memory Gardens (1989), 188 Ill. App. 3d 193, 543 N.E.2d 1328; Duffy v. Midlothian Country Club (1985), 135 Ill. App. 3d 429, 481 N.E.2d 1037; see generally IPI Civil 3d, chapter 13 (assumption of risk).

This precedent does not support Caserta’s proposed per se rule that the estate of a deceased patient who refused, on religious grounds, a reasonable lifesaving medical treatment should be barred, as a matter of law, from all wrongful death recovery from the physician whose negligence necessitated the lifesaving medical procedure. Whether based upon principles relating to mitigation of damages, comparative fault, or assumption of the risk, we do not believe that a patient’s refusal to accept a reasonable medical treatment, suggested in an effort to alleviate the consequences of the physician’s negligence, should serve to completely defeat the patient’s recovery for those injuries proximately caused by the physician’s negligent acts. Nor do we believe Illinois tort rules regarding mitigation of damages, comparative fault, or assumption of risk dictate the conclusion that a patient who, for religious reasons, refused medical treatment necessitated by a physician’s negligence should be denied compensation for those injuries attributable to the physician’s tortious conduct.

However, we believe that a physician who commits a tortious act should not be totally liable for all subsequent injuries to the patient when the patient’s injuries are attributable, in part, to the patient’s refusal of a proposed reasonable medical treatment. We decline to create, for a patient who refuses a reasonable lifesaving medical treatment because of the patient’s religious convictions, an exemption from tort principles governing mitigation of damages, comparative fault, and assumption of the risk.

Plaintiff emphasizes that Corlett had a constitutional right to refuse the suggested blood transfusion because of his religious beliefs. A patient’s fundamental right to refuse lifesaving medical treatment derives from both the United States Constitution and the Illinois common law. (Cruzan v. Director, Missouri Department of Health (1990), 497 U.S __, 111 L. Ed. 2d 224, 110 S. Ct. 2841; In re Estate of Greenspan (1990), 137 Ill. 2d 1; In re Estate of Longeway (1989), 133 Ill. 2d 33, 549 N.E.2d 292; In re E.G. (1989), 133 Ill. 2d 98, 549 N.E.2d 322; In re Estate of Brooks (1965), 32 Ill. 2d 361, 205 N.E.2d 435.) Nevertheless, there is a marked distinction between a patient’s exercise of his fundamental and religious rights to refuse a lifesaving medical treatment and a patient’s attempt to impose the consequences of his religious decisions upon a physician who has committed a tort against him. The freedom to act upon one’s religious convictions does not encompass the privilege of imposing tort liability on another for injuries resulting, not from another’s tortious conduct, but rather from the voluntary practice of one’s religious convictions. See Munn v. Algee (N.D. Miss. 1990), 730 F. Supp. 21, modifying Munn v. Southern Health Plan, Inc. (N.D. Miss. 1989), 719 F. Supp. 525; Shorter v. Drury (1985), 103 Wash. 2d 645, 695 P.2d 116; Christiansen v. Hollings (1941), 44 Cal. App. 2d 332, 112 P.2d 723; Lange v. Hoyt (1932), 114 Conn. 590, 159 A. 575; see also Walter Nashert & Sons v. McCann (Okla. 1969), 460 P.2d 941 (worker’s compensation); Industrial Comm’n v. Vigil (1962), 150 Colo. 356, 373 P.2d 308 (worker’s compensation); Martin v. Industrial Accident Comm’n (1956), 147 Cal. App. 2d 137, 304 P.2d 828 (worker’s compensation), disapproved in Montgomery v. Board of Retirement (1973), 33 Cal. App. 3d 447, 109 Cal. Rptr. 181 (disability retirement).

Allocation of proportionate liability to a patient for the consequences of the patient’s exercise of his religious convictions does not, in our opinion, violate the patient’s religious or fundamental rights. The prerogative to exercise one’s religious beliefs does not permit a person, “by virtue of his beliefs, ‘to become a law unto himself,’ [citation],” and to hold otherwise would “contradictf ] both constitutional tradition and common sense.” (Employment Division, Department of Human Resources v. Smith (1990), 494 U.S. 872, 885, 108 L. Ed. 2d 876, 890, 110 S. Ct. 1595, 1603.) In addition, there is a strong public policy in Illinois to preserve the sanctity of human life. (See Longeway, 133 Ill. 2d at 51; Siemieniec v. Lutheran General Hospital (1987), 117 Ill. 2d 230, 250, 512 N.E.2d 691.) Courts have endeavored to balance the interests of both physician and patient so that the medical profession maintains this public policy in favor of sustaining life, yet respects the wishes of a competent, adult patient to refuse a reasonable, lifesaving medical treatment. Longeway, 133 Ill. 2d at 51.

Based upon these considerations, we conclude that, when a physician’s negligent act causes a patient to suffer life-threatening injuries, and the patient exercises his fundamental and religious right to refuse a reasonable lifesaving medical procedure and subsequently dies, the patient’s estate must bear a proportionate share of tort liability for the patient’s wrongful death, to the extent that the patient’s death was proximately caused by the patient’s refusal of the reasonable lifesaving treatment. See Munn v. Algee (N.D. Miss. 1990), 730 F. Supp. 21, modifying Munn v. Southern Health Plan, Inc. (N.D. Miss. 1989), 719 F. Supp. 525; Shorter v. Drury (1985), 103 Wash. 2d 645, 695 P.2d 116; Christiansen v. Hollings (1941), 44 Cal. App. 2d 332, 112 P.2d 723; Lange v. Hoyt (1932), 114 Conn. 590, 159 A. 575.

We note that, as a general rule, the question of whether a plaintiffs refusal of a proposed medical procedure was reasonable depends on factors such as the gravity of plaintiff’s original injury, the intrusiveness of the proposed medical procedure and its attendant risk of complications, the feasibility of alternative medical procedures, the expense of the proposed medical treatment, the likelihood of increased recovery if the proposed medical procedure had been accepted by the plaintiff, and other relevant circumstances. (See, e.g., Lapidus v. Hahn (1983), 115 Ill. App. 3d 795, 450 N.E.2d 824; Rosenstein v. Chicago Transit Authority (1973), 12 Ill. App. 3d 1089, 299 N.E.2d 396; Howard v. Gulf, Mobile & Ohio R.R. Co. (1957), 13 Ill. App. 2d 482, 142 N.E.2d 825; Morris v. Despain (1902), 104 Ill. App. 452.) Based upon these factors, Illinois courts have generally held that a patient has a duty to accept a reasonable medical treatment, but has no obligation to undergo a serious operation, in order to mitigate damages. See, e.g., Montgomery v. Terminal R.R. Association (1979), 73 Ill. App. 3d 650, 392 N.E.2d 77 (evidence regarding plaintiff’s refusal of serious operation on religious grounds properly excluded, as plaintiff had no obligation to undergo surgery in order to mitigate damages of defendant’s negligence); Littlejohn v. Arbogast (1900), 95 Ill. App. 605; see generally IPI Civil 3d No. 33.01.

Where a patient has refused a medical treatment because of religious beliefs, courts from other jurisdictions have held that the patient’s religious convictions are relevant in determining the reasonableness of the patient’s refusal of the procedure. (See Shorter v. Drury (1985), 103 Wash. 2d 645, 695 P.2d 116; Walter Nashert & Sons v. McCann (Okla. 1969), 460 P.2d 941; Industrial Comm’n v. Vigil (1962), 150 Colo. 356, 373 P.2d 308; Martin v. Industrial Accident Comm’n (1956), 147 Cal. App. 2d 137, 304 P.2d 828; Christiansen v. Hollings (1941), 44 Cal. App. 2d 332, 112 P.2d 723; Lange v. Hoyt (1932), 114 Conn. 590, 159 A. 575.) It has been noted in legal commentary that the admission of such evidence may put in issue the reasonableness of a person’s exercise of his religious convictions, and may also place at issue the validity of the religious belief or doctrine, in contravention of first amendment proscriptions. (See Comment, Medical Care, Freedom of Religion, & Mitigation of Damages, 87 Yale L.J. 1466 (1978), see also Munn v. Southern Health Plan, Inc. (N.D. Miss. 1989), 719 F. Supp. 525, modified on other grounds Munn v. Algee (N.D. Miss. 1990), 730 F. Supp. 21.) However, the admissibility of such evidence is not before us on review of the trial court’s allowance of Caserta’s motion for summary judgment.

Turning to the propriety of the trial court’s entry of summary judgment in favor of Caserta, the Illinois Code of Civil Procedure provides that summary judgment is appropriate where the pleadings and depositions show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005(c).) In determining the existence of a genuine issue of material fact, courts must consider the pleadings, depositions, admissions, exhibits, and affidavits on file in the case and must construe them strictly against the movant and liberally in favor of the opponent. (Purtill v. Hess (1986), 111 Ill. 2d 229, 240, 489 N.E.2d 867.) Issues of proximate cause, comparative fault, assumption of the risk, and mitigation of damages are generally matters to be determined by the trier of fact, and summary judgment on these questions is appropriate only where reasonable minds would agree that the facts and their reasonable inferences demonstrate that the moving party is entitled to judgment as a matter of law. See, e.g., King v. Petefish (1989), 185 Ill. App. 3d 630, 541 N.E.2d 847.

Applying these principles to the case at bar, the evidence of record, when viewed in the light most favorable to the plaintiff, reveals genuine issues of material fact that preclude the entry of summary judgment. The depositions of the parties’ experts reveal a factual dispute with respect to whether Caserta’s treatment of Corlett was negligent. Their deposition testimony is also conflicting with regard to whether it was medically probable that Corlett would have survived if he had accepted the blood transfusion. In addition, there is no evidence in the record regarding all of the various factors pertaining to the reasonableness of the blood transfusion suggested to Corlett. Lastly, although the Corletts may have assumed the risk of Corlett’s death as a consequence of their refusal to permit the blood transfusion, it is for a fact finder to determine what percentage of the total damage award should be attributed to Corlett’s refusal of the blood transfusion.

We conclude that when a physician’s negligent act causes a patient to suffer life-threatening injuries, and the patient exercises his fundamental and religious right to refuse a reasonable lifesaving medical procedure and subsequently dies, the patient’s estate should bear a proportionate share of tort liability for the patient’s wrongful death to the extent that the patient’s death was proximately caused by the patient’s refusal of the reasonable lifesaving treatment. On this record, we cannot say as a matter of law that Corlett’s refusal of a blood transfusion was the sole proximate cause of his death, or that Corlett’s refusal of a blood transfusion should, based upon principles of comparative fault, assumption of the risk, or mitigation of damages, relieve Caserta of all liability for Corlett’s death. In our view, these questions are ones over which reasonable minds could differ and require a trial for their ultimate resolution.

For these reasons, we reverse the trial court’s judgment and remand the matter for further proceedings.

Reversed and remanded.

LINN, J., concurs.

JUSTICE JIGANTI,

specially concurring:

In moving for summary judgment, the defendant argued that there is no material issue of fact because it is undisputed that the plaintiff would not have accepted a blood transfusion under any circumstances. The defendant based his argument on the Corletts’ refusal of a blood transfusion and a release they signed to that effect. The Corletts signed the release after the alleged negligence of the doctor occurred. For purposes of our review, we must accept that the defendant was negligent. Purtill v. Hess (1986), 111 Ill. 2d 229, 489 N.E.2d 867.

Illinois common law imposes a duty on the plaintiff not to refuse reasonable medical treatment. (Haering v. Spicer (1900), 92 Ill. App. 449; Illinois Pattern Jury Instructions, Civil, No. 105.08 (1961) (a patient is required to follow reasonable advice of physician); also see Newell v. Corres (1984), 125 Ill. App. 3d 1087, 466 N.E.2d 1085 (under comparative negligence principles, a patient’s refusal to accept treatment is a factor to be weighed in determining the relative degree of negligence of the parties).) In determining the reasonableness of the medical treatment, the finder of fact must consider, among other factors, the degree of risk, the amount of pain, the degree of relief hoped for, and the chances of success of the disputed treatment. (D. Dobbs, Handbook on the Law of Remedies §8.9 (1973).) In the present case, the only evidence presented concerns the plaintiff’s subscription to the beliefs of the Jehovah’s Witness religion. As such, we cannot determine if Corlett’s refusal of a blood transfusion was reasonable and the trial court’s summary judgment order must be reversed.

However, in remanding this case, I believe we must offer some guidance to the trial court so that it may squarely address the effect of Corlett’s religious beliefs on his duty to accept reasonable medical treatment. With respect to this issue, I believe that if a blood transfusion is otherwise considered reasonable, this determination is not changed by the fact that a patient refuses the transfusion because he is a Jehovah’s Witness. Once a patient avails himself of medical treatment generally, he accepts that his treatment will involve reasonable medical procedures. The plaintiff is not precluded from exercising his right to refuse medical treatment for religious reasons; however, he cannot impose a greater liability on the defendant than would have obtained had his religious beliefs permitted him to undergo the treatment. Martin v. Industrial Accident Comm’n (1956), 147 Cal. App. 2d 137, 304 P.2d 828 (upholding finding of Industrial Commission that worker who refused lifesaving blood transfusion because he was a Jehovah’s Witness had unreasonably refused medical treatment and was therefore not entitled to worker’s compensation), disapproved in Montgomery v. Board of Retirement (1973), 33 Cal. App. 3d 447, 109 Cal. Rptr. 181.

Whether a patient’s refusal to accept medical treatment is reasonable depends on factors relating to the risk, effort, sacrifice, and expense involved. (Cockrum v. Baumgartner (1981), 99 Ill. App. 3d 271, 425 N.E.2d 968, reversed on other grounds (1983), 95 Ill. 2d 193, 447 N.E.2d 385, cert. denied (1983), Raja v. Michael Reese Hospital, 464 U.S. 846, 78 L. Ed. 2d 139, 104 S. Ct. 149.) A patient’s religious convictions do not affect the determination of what is reasonable. When a patient refuses an otherwise unreasonable treatment, it is of no consequence that he has based his refusal on religious grounds. (See Montgomery v. Terminal R.R. Association (1979), 73 Ill. App. 3d 650, 392 N.E.2d 77.) Similarly, when a patient refuses an otherwise reasonable treatment, his duty to accept that treatment is not qualified by the fact that his refusal is dictated by his religious beliefs.

As to the release signed by the Corletts, I am in agreement with Judge Joseph Gordon, the original trial judge. Judge Gordon correctly ruled that a release signed after the defendant’s negligence took place cannot serve to retroactively relieve the defendant’s liability.

Because the majority opinion is precedential, I feel that I must make certain comments about it. It appears to me that the question of religion is clearly raised in the briefs and certainly the majority comments on it. However, the majority refuses to rule on the religious question, stating that the admissibility of evidence of religious beliefs is not before the court on review. This stance is rather puzzling in light of the fact that the majority spends a considerable amount of time musing about the religious issue and then appears to rule on the issue specifically. The opinion states that the majority declines to create “an exemption from tort principles” where a patient refuses treatment because of religious convictions. (204 Ill. App. 3d at 412.) In an apparent retreat from that proposition, the majority states that where a party refuses reasonable medical treatment on religious grounds, the refusal should not “completely defeat” the patient’s recovery, and further that the doctor should not be “totally liable” for all subsequent injuries. (204 Ill. App. 3d at 412.) The majority concludes the issue by stating that where the doctor is negligent and the patient exercises his religious right to refuse reasonable medical procedures, the patient’s estate must bear a proportionate share of the tort liability to the extent that the death was proximately caused by the patient’s refusal.

The majority’s messages to the trial court on remand are confusing and mixed. I am concerned about the statements of the court that I have related to the extent that they say that in all situations where a doctor is negligent, an injured patient must recover, albeit on a reduced basis. There may well be situations, the present one included, in which the doctor’s conduct may be denominated as malpractice but no injury would follow if the plaintiff had accepted reasonable treatment.


author: JUSTICE HARTMAN

text:
    ADRIEN YIADOM, by and on behalf of J.P. Clark, Relator, v. ANN KILEY, Director of the Department of Mental Health and Development Disabilities, et al., Respondents-Appellees (Cecil A. Partee, State’s Attorney of Cook County, Intervenor-Appellee).
    First District (2nd Division)
    Nos. 1 — 88—1620, 1—89—1734 cons.
    Opinion filed September 28, 1990.

      Mark J. Heyrman, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb, James E. Fitzgerald, and Shauna L. Boliker, Assistant State’s Attorneys, of counsel), for appellees.
   JUSTICE HARTMAN

delivered the opinion of the court:

Adrien Yiadom (petitioner) brought petitions for habeas corpus in 1988 and 1989 on behalf of J.P. Clarke (relator), seeking orders commanding his release from the custody of respondents, the Directors of the Illinois Department of Mental Health and Developmental Disabilities (DMHDD), and the facility director of the Elgin Mental Health Center (Elgin). Upon the motions of the State’s Attorney of Cook County (intervenor), the circuit court, in separate proceedings, dismissed both petitions. Petitioner’s appeals from these rulings were consolidated for review. We must decide whether: appeal No. 1 — 88— 1620 was rendered moot by subsequent events; the circuit court properly dismissed the 1988 habeas corpus petition for its failure to state a claim for relief; the 1988 petition sufficiently alleged facts entitling relator to treatment in the least physically restrictive environment; relator alternatively was entitled to a hearing to determine if his present confinement was the least restrictive setting therapeutically appropriate and consistent with his treatment plan; and in the consolidated appeal, the circuit court properly dismissed the 1989 petition for habeas corpus.

On October 30, 1985, relator was arrested and charged with attempted murder and aggravated battery. Two days later, while in jail awaiting trial, relator suffered an intracranial hemorrhage, or stroke. On April 9, 1986, pursuant to the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1985, ch. 38, par. 104 — 16), the circuit court found relator unfit to stand trial and placed him in custody of DMHDD for treatment. The court also found there was no substantial probability that relator would attain fitness to stand trial within one year.

On May 19, 1986, the court conducted a discharge hearing for relator as mandated by statute (Ill. Rev. Stat. 1985, ch. 38, par. 104— 25) and determined the State sustained its burden of proof with respect to the attempted murder charge. The court found that a judgment of acquittal was not warranted. (Ill. Rev. Stat. 1985, ch. 38, par. 104 — 25(d)(1) (section 104 — 25(d)(1)).) Relator was remanded to the custody of DMHDD for further treatment. The initial one-year treatment period commencing April 9, 1986, and terminating April 8, 1987, was extended up to a maximum treatment period of two years, commencing April 9,1987, and terminating April 8,1989.

As part of the May 19, 1986, order, the court directed DMHDD to make periodic progress reports concerning relator’s fitness, and required immediate notification if DMHDD at any time found relator fit. On June 16, 1986, a court order authorized placement of relator in a “non-secure setting” within DMHDD for medical treatment. Relator has remained in custody of DMHDD at Elgin since his commitment.

Petitioner commenced a habeas corpus action on February 3, 1988 (the 1988 petition), seeking release of relator from custody on three grounds: (1) pursuant to the Illinois Habeas Corpus Act (Ill. Rev. Stat. 1987, ch. 110, par. 10 — 124), the consequent determination that relator would never attain fitness constituted a “subsequent event” that rendered his continued confinement unlawful; (2) relator was entitled to release and transfer to the least physically restrictive environment pursuant to the Code of Criminal Procedure (Ill. Rev. Stat. 1987, ch. 38, par. 104 — 17(a)) and the Mental Health and Developmental Disabilities Code (Mental Health Code) (Ill. Rev. Stat. 1987, ch. 911/2, pars. 2 — 102(a), 3 — 811); and (3) alternatively, relator had not been afforded a hearing consistent with the requirements of procedural due process, and he was entitled to be released unless a hearing was held to ascertain whether his current confinement was the least physically restrictive environment therapeutically appropriate and consistent with the treatment plan.

Intervenor filed a return to the 1988 petition, denying that a subsequent event occurred entitling petitioner to be discharged. Respondents also filed a return to the 1988 petition, stating relator was lawfully in its custody, hospitalized in a nonsecure setting at Elgin, and being treated in the least restrictive DMHDD environment appropriate to his needs.

On March 10, 1988, intervenor filed a motion to dismiss the petition for failure to state a claim, alleging that there was no subsequent act, omission, or event which entitled relator to discharge under the Illinois Habeas Corpus Act.

Petitioner cross-filed a motion for partial summary judgment, requesting relator be released from DMHDD custody unless civilly committed. She alleged the following as uncontested issues of fact: (1) relator was confined at Elgin; (2) the sole basis for that confinement was relator’s commitment under the Code of Criminal Procedure; (3) the sole predicate for relator’s commitment was the court’s finding that relator was unfit to stand trial and unlikely to attain fitness within one year; and (4) though relator’s original detention was lawful, respondents determined that there was not a substantial probability relator would regain fitness to stand trial in the foreseeable future. This last allegation, which petitioner characterized as the subsequent event entitling relator to release, was supported by the affidavit of Dr. Garth Smith, a psychiatrist at Elgin.

The court dismissed the 1988 habeas corpus petition on May 12, 1988, finding as follows: relator was not being unlawfully held or denied his liberty at Elgin; relator’s original detention was lawful; no facts were set forth in the 1988 petition showing that relator was entitled to discharge; the determination that relator would never regain fitness was insufficient to fall within the purview of the Habeas Corpus Act; the hearings afforded petitioner by DMHDD met due process requirements; relator was not entitled to discharge under the Mental Health Code; his treatment plan fell within the purview of “least restrictive environment”, and he was not entitled to a further hearing on the matter; and, in accordance with the previous order, relator was not to be released until April 8, 1989, when a further hearing would be commenced to determine his future need for treatment. Petitioner challenges this ruling in appeal No. 1 — 88—1620 (the first appeal.)

During the pendency of the first appeal, relator’s two-year extended treatment period expired, and on January 25, 1989, a further hearing was held as required by statute. (Ill. Rev. Stat. 1987, ch. 38, par. 104 — 25(g)(2) (section 104 — 25(g)(2)).) The circuit court found relator continued to be unfit to stand trial, was unlikely to become fit in the near future, and was subject to involuntary admission. The court remanded relator to the custody of DMHDD, but indicated placement in a secured setting was not required. The court by order retained jurisdiction over relator for a maximum period of 30 years, or until' October 30, 2015.

On March 30, 1989, petitioner filed another petition for habeas corpus on behalf of relator (the 1989 petition), alleging he was entitled to a discharge on two grounds: (1) respondents failed to file a petition for commitment with 60 days as required by the Mental Health Code, rendering relator’s continued confinement unlawful; and (2) the failure to provide a hearing 60 days after the initial commitment violated relator’s due process and equal protection rights. Intervenor’s return asserted that no subsequent act, omission, or event occurred entitling relator to a discharge.

Petitioner subsequently moved for summary judgment on the 1989 petition. After argument on June 13, 1989, the circuit court denied petitioner’s motion for summary judgment and dismissed the 1989 petition. She challenges this ruling in appeal No. 1 — 89—1734 (the consolidated appeal).

I

A threshold issue to be resolved is whether the first appeal has been rendered moot by subsequent events. Involved here is the extended treatment period imposed on relator pursuant to section 104— 25(d)(1), which has now expired.

Generally, the mootness doctrine is not applicable to mental health cases (In re Garcia (1978), 59 Ill. App. 3d 500, 503, 375 N.E.2d 557) and should not be imposed where it would preclude issues capable of repetition from ever being reviewed on appeal. (People v. Nunn (1982), 108 Ill. App. 3d 169, 172-73, 438 N.E.2d 1342.) Otherwise, dismissal for mootness of orders involving commitment periods of short duration might remove an entire class of cases from appellate review. See In re Wathan (1982), 104 Ill. App. 3d 64, 432 N.E.2d 670.

Here, a two-year commitment period has expired well before appellate review. Under section 104 — 25(dXl), extended treatment periods may be as short as 15 months, and perhaps less, since that period is the stated “maximum” for certain classes of felonies. (Ill. Rev. Stat. 1987, ch. 38, par. 104 — 25(dXl).) Consequently, orders for commitment under this section normally will expire before appellate review, thereby invoking the mootness doctrine. Since dismissal for mootness would eliminate appellate review in this class of cases, that doctrine must be held inapplicable here. (See In re Wathan, 104 Ill. App. 3d at 65-66.) This court will consider the first appeal.

II

Petitioner first contends the circuit court erred in denying partial summary judgment on the 1988 petition and in granting intervenor’s motion to dismiss. The Hlinois Habeas Corpus Act requires that a prisoner be discharged from custody where, though the original imprisonment was lawful, some subsequent act, omission or event takes place entitling him to be discharged. (Ill. Rev. Stat. 1987, ch. 110, par. 10— 124(2).) Petitioner characterizes as a subsequent event the finding that relator would never regain fitness, and claims he was entitled to be discharged as a matter of law pursuant to the United States Supreme Court decision in Jackson v. Indiana (1972), 406 U.S. 715, 32 L. Ed. 2d 435, 92 S. Ct. 1845 (Jackson).

In Jackson, the petitioner was a “mentally defective deaf mute” charged with two crimes and found unfit to stand trial. Under Indiana statute, unfit defendants were to be held indefinitely in a mental health facility until they were found to have regained their fitness. Discharge of such a defendant was discretionary and would not occur unless he was certified as “sane.” No evidence suggested the petitioner in Jackson could ever be rendered fit for trial, however. Finding that these circumstances rendered the petitioner’s commitment “permanent in practical effect,” the Jackson court held that Indiana’s indefinite commitment of petitioner solely on the basis of his incompetency to stand trial was a violation of his due process rights. (406 U.S. at 727, 731-39, 32 L. Ed. 2d at 444, 447-51, 92 S. Ct. at 1852, 1854-58.) It explained in pertinent part:

“At the least, due process requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed.
We hold, consequently, that a person charged by a State with a criminal offense who is committed solely on account of his incapacity to proceed to trial cannot be held more than the reasonable period of time necessary to determine whether there is a substantial probability that he will attain that capacity in the foreseeable future. If it is determined that this is not the case, then the State must either institute the customary civil commitment proceeding that would be required to commit indefinitely any other citizen, or release the defendant.” 406 U.S. at 738, 32 L. Ed. 2d at 451, 92 S. Ct. at 1858.

Contrary to petitioner’s conclusion, however, Jackson does not automatically entitle relator to release in the instant case. In People v. Raseaitis (1984), 126 Ill. App. 3d 600, 607, 467 N.E.2d 1098, the court con-' trasted the Indiana statute at issue in Jackson with the Hlinois statute, and concluded:

“It is significant that under the Hlinois statute defendants are subject to the extended treatment period only after a discharge hearing at which the State must meet its burden of, in effect, proving the defendant guilty beyond a reasonable doubt. Thus defendants are not being committed s.olely because they are not fit for trial.”

Here, the order remanding relator to the custody of DMHDD for the extended period of treatment (pursuant to Ill. Rev. Stat. 1985, ch. 38, par. 104 — 25) explicitly stated it was “based upon the discharge hearing,” wherein the court had determined the State sustained its burden of proof and that a judgment of acquittal was not warranted. Unlike Jackson, therefore, the finding that relator was unfit to stand trial was not the sole basis for his commitment.

Further, the period of relator’s commitment under section 104— 25(d) was definite. The Jackson court was concerned that the petitioner’s commitment was tantamount to a life sentence without his having been convicted of a crime; here, relator’s extended treatment period was limited to a maximum of two years, in compliance with section 104 — 25(d). One of the primary objectives of the fitness provisions in the Code of Criminal Procedure is to ensure that defendants who were found unfit to stand trial and substantially unlikely to regain fitness would not be institutionalized indeterminately. (People v. Raseaitis, 126 Ill. App. 3d at 605, citing Report, Governor’s Commission for Revision of the Mental Health Code of Hlinois 6 (1976).) The indefinite period of commitment found violative of due process in Jackson is absent in the instant case.

Relator’s confinement was secured in careful compliance with Illinois statutory framework, which sufficiently addresses the due process concerns raised in Jackson. (See People v. Polachek (1984), 128 Ill. App. 3d 200, 205-06, 470 N.E.2d 584; People v. Raseaitis, 126 Ill. App. 3d 600.) In contradistinction to Jackson, relator was not committed solely because of his unfitness, his status was to be monitored periodically by the court, and the extended treatment period was definite. Jackson therefore does not compel relator’s discharge as a matter of law.

III

Petitioner next maintains the 1988 petition sufficiently alleged facts under the Code of Criminal Procedure and the Mental Health Code entitling relator to conditional release so he could be treated in the least physically restrictive environment. In essence, petitioner asserts that because relator no longer is dangerous to himself or others due to his “progressive functional deterioration,” a subsequent event has occurred entitling him to be discharged.

Assuming, arguendo, relator no longer is a danger to himself or others, that fact does not entitle him to release from DMHDD custody. The primary basis for an extended commitment period under section 104 — 25(d) is the evidence of criminal acts or offenses adduced at the discharge hearing. (People v. McBrien (1986), 144 Ill. App. 3d 489, 493, 494 N.E.2d 732.) As previously noted, relator was remanded for an extended period of treatment because the court found him unfit to stand trial and, in the subsequent discharge hearing, not subject to acquittal on the attempted murder charge. Since relator’s danger to himself and others did not constitute the basis for his commitment, the evanescence of that single factor cannot be considered a subsequent event for purposes of habeas corpus action. The circuit court therefore did not err in dismissing this portion of the 1988 petition.

IV

Petitioner alternatively contends that the 1988 petition established relator’s right to a hearing on his eligibility for treatment in the least physically restrictive environment. She claims that, at the least, due proess required that relator be given an opportunity to be heard.

Criminal defendants adjudged unfit to stand trial have a State-created liberty interest in treatment in the least physically restrictive environment, which requires the State to abide by the requirements of procedural due process. (Johnson by Johnson v. Brelje (7th Cir. 1983), 701 F.2d 1201, 1205.) Fundamental due process requires a meaningful and timely opportunity to be heard. Mathews v. Eldridge (1976), 424 U.S. 319, 333, 47 L. Ed. 2d 18, 32, 96 S. Ct. 893, 902.

In the instant case, petitioner’s claim that relator has not been afforded a meaningful hearing concerning his treatment plan is contradicted by the record. Relator’s placement was considered on the following occasions: a fitness hearing, in which the court decided to place relator in custody of DMHDD rather than on an outpatient basis (Ill. Rev. Stat. 1987, ch. 38, pars. 104 — 16, 104 — 17); a discharge hearing (Ill. Rev. Stat. 1987, ch. 38, par. 104 — 25); and a proceeding wherein the court ordered relator placed in a nonsecure setting. Any concerns regarding the propriety of relator’s treatment plan presumably were raised at those proceedings, which afforded him a meaningful opportunity to be heard. Also, DMHDD was required by order to report periodically to the court regarding relator’s progress toward fitness. As found by the circuit court, the hearings afforded relator by DMHDD satisfied due process.

Further, respondents stated in their return to the 1988 petition: “Relator is being treated in the least restrictive DMHDD environment appropriate to his mental and medical needs.” The determination as to the appropriate placement for confinement of an unfit defendant is best left to DMHDD. (In re Langdon (1977), 53 Ill. App. 3d 768, 368 N.E.2d 1143.) Since the circuit court specifically considered the issue and held that relator’s treatment fell “within the purview of 'least restrictive environment’ pursuant to Illinois Statute,” a further hearing on this matter is unnecessary.

V

In the consolidated appeal, petitioner challenges the dismissal of her 1989 habeas corpus petition, which sought relator’s release from involuntary commitment secured under section 104 — 25(g) of the Code of Criminal Procedure. That section provides, in pertinent part (Ill. Rev. Stat. 1987, ch. 38, par. 104 — 25(g)(2)):

“At the expiration of an extended period of treatment ordered pursuant to this Section:
(2) If the defendant continues to be unfit to stand trial, the court shall determine whether he or she is subject to involuntary admission under the Mental Health and Developmental Disabilities Code or constitutes a serious threat to the public safety. If so found, the defendant shall be remanded to [DMHDD] *** for further treatment and shall be treated in the same manner as a civilly committed patient for all purposes, except that the original court having jurisdiction over the defendant shall be required to approve any conditional release or discharge of the defendant, for the period of commitment equal to the maximum sentence to which the defendant would have been subject had he or she been convicted in a criminal proceeding.” (Emphasis added.)

Petitioner maintains a person committed pursuant to section 104— 25(g)(2) is entitled to the various procedural rights afforded by the Mental Health Code. According to section 3 — 813 therein (Ill. Rev. Stat. 1987, ch. 91V2, par. 3 — 813) (section 3 — 813), an initial order for involuntary admission under the Mental Health Code may not exceed 60 days; prior to the expiration of the initial order, if the facility director believes the patient continues to be subject to involuntary admission, a new petition with supporting documents may be filed with the court; if no new petition is filed prior to the expiration of the initial order, the patient shall be discharged; an additional treatment period may be ordered if the court, following a hearing, finds that the patient continues to be subject to involuntary admission. Petitioner suggests that the 60-day period specified in section 3 — 813 has expired without relator receiving a subsequent hearing, which she concludes constitutes an “omission” under the Habeas Corpus Act entitling relator to release.

Petitioner reasonably construes section 104 — 25(g)(2) as incorporating the procedures set forth in the Mental Health Code. A defendant remanded to DMHDD pursuant to that section is to be “treated in the same manner as a civilly committed patient for all purposes” with only two specified exceptions: (1) the defendant is subject to the criminal jurisdiction of the court for a period equal to the maximum sentence he might have received if convicted in a criminal proceeding (People v. Polachek, 128 Ill. App. 3d at 203); and (2) the defendant is to be placed in a secure setting unless the court determines such placement is unnecessary. Section 104 — 25(gX2) nowhere excludes the periodic evaluations required by section 3 — 813. No preceding cases have explicitly considered the applicability of the Mental Health Code procedures to defendants committed under section 104 — 25(gX2); nevertheless, several do suggest the only distinction between such persons and those civilly committed under the Mental Health Code is that the former individuals are subject to the aforementioned jurisdiction of the criminal court. See People v. Polachek, 128 Ill. App. 3d at 203; see also People v. McBrien, 144 Ill. App. 3d at 493; People v. Williams (1986), 142 Ill. App. 3d 858, 863, 494 N.E.2d 525.

Intervenor interprets the language “shall be treated in the same manner as a civilly committed patient for all purposes” as referring only to the treatment towards mental illness a defendant is to receive, and therefore not incorporating the procedural rights of the Mental Health Code. “Treatment,” as defined in the Mental Health Code, means “an effort to accomplish an improvement in the mental condition or related behavior of a patient.” (Ill. Rev. Stat. 1987, ch. 91V2, par. 1— 128.) The word “treated” is not specifically defined. If the legislature intended the narrow construction urged by intervenor, it would have used the word “treatment” instead of “treated” in the language at issue. Different results are presumed to be intended when the legislature uses certain words in one instance and different words in another. (People v. Williams, 142 Ill. App. 3d at 862.) That such a defendant is to be treated like a civilly committed patient “for all purposes” further belies the limited interpretation promulgated by intervenor. Statutory language must be accorded its plain and ordinary meaning, and a court is not free to restrict the plain meaning of an unambiguous statute. (Ehredt v. Forest Hospital, Inc. (1986), 142 Ill. App. 3d 1009, 1012, 492 N.E.2d 532.) The plain and ordinary meaning of section 104 — 25(g)(2) is that a defendant committed under its provisions must be treated like a civilly committed patient for all purposes, which includes his being afforded all procedural rights not expressly excluded.

Intervenor nevertheless insists that, if the legislature intended for defendants committed under section 104 — 25(g)(2) to receive all procedural rights of persons committed under the Mental Health Code, the statute would have mirrored the language set forth in section 104— 23(bX3). (Ill. Rev. Stat. 1987, ch. 38, par. 104 — 23(b)(3).) Given the plain meaning of the statutory language, as described above, the additional language urged by intervenor would be superfluous.

Intervenor’s narrow interpretation of section 104 — 25(g)(2) also implicates the due process concerns raised in Jackson. If the statute is limited to simply requiring similar treatment services, it would fail to provide for periodic evaluation of relator’s need for involuntary commitment, hearings on his progress, and other matters such as release procedures. Fundamental fairness inherent in the due process clause requires periodic evaluation of relator’s fitness to stand trial. (See People v. Lang (1986), 113 Ill. 2d 407, 444, 498 N.E.2d 1105.) Correlatively, incorporating section 3 — 813 of the Mental Health Code into section 104 — 25(g)(2) would satisfy due process concerns by providing a procedure for periodic review of relator’s need for involuntary commitment.

Under the facts set forth in the 1989 petition, and in accordance with the above discussion, relator was entitled to a hearing on his continued need for involuntary commitment or his discharge. Moreover, the allegation that relator’s period of lawful confinement has expired is a proper basis for relief under the Habeas Corpus Act. (Raimondo v. Kiley (1988), 172 Ill. App. 3d 217, 227, 526 N.E.2d 457; Raimondo v. Pavkovic (1982), 107 Ill. App. 3d 226, 229, 437 N.E.2d 712.) The dismissal of the 1989 habeas corpus petition therefore was error.

Additionally, it is undisputed the initial 60-day period specified in section 3 — 813 of the Mental Health Code has expired without the required hearing. Relator therefore is entitled to his release unless civil commitment is sought. (Cf. Kulak v. Belletire (1986), 148 Ill. App. 3d 268, 498 N.E.2d 859; In re Commitment of Guy (1984), 126 Ill. App. 3d 267, 466 N.E.2d 1252.) We recognize that section 104 — 25(g)(2) requires the criminal court to approve relator’s discharge (People v. Williams, 142 Ill. App. 3d at 863). A hearing is therefore necessary to ascertain relator’s continued need for involuntary commitment. If the circuit court deems relator’s discharge inappropriate, it can again remand him to custody of DMHDD pursuant to section 104 — 25(gX2).

In light of the foregoing, the circuit court’s dismissal of the 1988 petition for habeas corpus, the subject of appeal No. 1 — 88—1620, must be affirmed. The court’s dismissal of the 1989 petition for habeas corpus, at issue in appeal No. 1 — 89—1734, must be reversed, and the cause remanded for further proceedings consistent with this opinion.

No. 1 — 88—1620, Affirmed.

No. 1 — 89—1734, Reversed and remanded.

DiVITO, P.J., and SCARIANO, J., concur.

      According to the social assessment prepared at Elgin, relator is partially paralyzed and remains confined to a wheelchair because of his unsteady gait and general physical incapacity. He also suffers from an absence of recent memory, seizures and dementia.

      Relator currently is committed pursuant to section 104 — 25(g)(2) (Ill. Rev. Stat. 1987, ch. 38, par.104 — 25(g)(2)), which is the subject of the consolidated appeal.

      We reject petitioner’s further argument that relator’s confinement was not reasonably related to legitimate purposes. Section 104 — 25(d) balances the interests of a criminal defendant found unfit to stand trial with society’s interest in protecting itself from persons who commit crimes against it, and is reasonably designed to accomplish constitutionally permissible objectives. People v. Raseaitis, 126 Ill. App. 3d at 607-08.

      Section 104 — 23(bX3) provides, in pertinent part, that a person committed to DMHDD under its provisions “shall be treated in the same manner as any other civilly committed patient for all purposes including admission, selection of the place of treatment and the treatment modalities, entitlement to rights and privileges, transfer, and discharge.” Ill. Rev. Stat. 1987, ch. 38, par. 104-23(bX3).