Corgan v. Muehling, 86-2202

• Decision Date: 08 March 1988
• Docket Number: No. 86-2202,86-2202
• Citation: 167 Ill.App.3d 1093,522 N.E.2d 153,118 Ill.Dec. 698
• Parties: , 118 Ill.Dec. 698 Penelope CORGAN, Plaintiff-Appellant, v. Conrad MUEHLING and R.J. Rodriguez, M.D., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

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522 N.E.2d 153 167 Ill.App.3d 1093, 118 Ill.Dec. 698 Penelope CORGAN, Plaintiff-Appellant,
v.
Conrad MUEHLING and R.J. Rodriguez, M.D., Defendants-Appellees. No. 86-2202. Appellate Court of Illinois,
First District, Second Division. March 8, 1988.
Rehearing Denied April 26, 1988.

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[118 Ill.Dec. 699] [167 Ill.App.3d 1094] Michael L. Bolos, Ltd. Chicago (Michael L. Bolos, of counsel), for plaintiff-appellant.

Wildman, Harrols, Allen & Dixon, Chicago (Douglas L. Prochnow, Gary E. Dyal, of counsel), for defendant-appellee Conrad Muehling.

Cassiday, Schade & Gloor, Chicago (Michael J. Morrissey, Michael J. Gallagher, Jean M. Golden and Martha A. Pagliari, of counsel), for defendant-appellee, R.J. Rodriguez, M.D.)

Justice SCARIANO delivered the opinion of the court:

In March of 1979, Penelope Corgan came under the psychological care of Conrad Muehling. She alleges in count I of her complaint that [167 Ill.App.3d 1095] he conducted her treatment negligently, was negligent in having sexual relations with her during this treatment, and "negligently failed either to recognize the evolution of the psychotherapeutic phenomenon of transference and counter-transference or deal appropriately with such evolving phenomenon," all of which caused her emotional trauma. Corgan contends that Muehling was not registered as a psychologist, but was able to practice psychology by having codefendant R.J. Rodriguez, M.D., a psychiatrist, submit Muehling's bills to insurance companies, including plaintiff's, for payment in Rodriguez' name. She averred that Muehling's actions caused her "to experience fear, shame, humiliation, and guilt and as a further result been compelled to undergo more intensive and extensive psychotherapeutic care and counseling * * *." In count III she avers that the same damages were the result of Muehling's willful and wanton misconduct.

In count II Corgan maintains Rodriguez knew that Muehling was "not a registered psychologist in Illinois by virtue of Muehling's failure to have completed the requisite

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[118 Ill.Dec. 700] educational requirements for registration" and that Rodriguez had a consultant relationship with Muehling and "billings for Muehling's services were submitted under Rodriguez' name in cases in which consultations had been had." She asserts that by reason of the foregoing Rodriguez was negligent in his supervision of Muehling and in failing "to warn plaintiff of Muehling's proclivities." In count IV she claims that Corgan has a private right of action for nuisance because of Muehling's failure to register in Illinois as a psychologist. Corgan unsuccessfully attempted to add a count V, wherein she alleges a conspiracy between Muehling and Rodriguez which helped create the situation that caused her injuries.

This appeal is taken from those orders of the trial court which dismissed counts II and IV of the plaintiff's third amended complaint pursuant to Ill.Rev.Stat.1985, ch. 110, par. 2-615, and denied her leave to add supplemental count V to the complaint. Pursuant to Supreme Court Rule 308(a) (107 Ill.2d R. 308(a)), the trial judge certified the related questions of whether Rickey v. Chicago Transit Authority (1983), 98 Ill.2d 546, 75 Ill.Dec. 211, 457 N.E.2d 1, bars Corgan from recovering for emotional damages under counts I and III. This certification is the basis of Muehling's cross-appeal. We have granted Corgan permission to withdraw her appeal as to count II and proposed count V, pursuant to a settlement agreement with Rodriguez. Accordingly, Rodriguez is no longer a party to this appeal.

[167 ILL.APP.3D 1096] OPINION

COUNTS I, III

A. Introduction.

In count I, as noted above, Corgan charges Muehling with malpractice. Malpractice is a form of negligence (Borowski v. Von Solbrig (1975), 60 Ill.2d 418, 328 N.E.2d 301; Illinois Pattern Jury Instruction, Civil No. 105.01 (2d ed. 1971)), thus the first count is in essence for negligence. Therefore, the elements of a malpractice action are the same as for any other negligence case. Borowski, 60 Ill.2d at 423, 328 N.E.2d 301.

Furthermore, the parties agree that count III, wherein Corgan alleges willful and wanton misconduct, also is basically an action for negligence, since this court has held that willful and wanton misconduct is an aggravated form of negligence. (Alley v. Champion (1979), 75 Ill.App.3d 878, 882, 31 Ill.Dec. 533, 394 N.E.2d 735.) Count III is not for the intentional infliction of emotional distress; indeed, Corgan does not contend otherwise. While we must accept all well-pleaded facts as true (Rinck v. Palos Hills Consolidated High School District No. 230 (1979), 82 Ill.App.3d 856, 863, 38 Ill.Dec. 239, 403 N.E.2d 470), Corgan does not plead the elements that constitute intentional infliction of emotional distress. (See, e.g., Knierim v. Izzo (1961), 22 Ill.2d 73, 174 N.E.2d 157.) She does not allege that Muehling's actions were calculated to cause severe emotional distress; rather, among other allegations, she claims that he was acting solely for his own sexual gratification. Since Muehling held himself out as a psychologist, he will be held to the same standard of care as if he were indeed a psychologist. Williams v. Piontkowski (1949), 337 Ill.App. 101, 84 N.E.2d 843; Matthei v. Wooley (1897), 69 Ill.App. 654.

B. The Rickey Case.

Simply and briefly, the questions certified by the circuit court in this case are whether counts I and III of Corgan's third amended complaint are barred by Rickey v. Chicago Transit Authority (1983), 98 Ill.2d 546, 75 Ill.Dec. 211, 457 N.E.2d 1. In Rickey, the plaintiff was attempting to recover damages for the emotional distress he allegedly suffered as a result of the CTA's negligence when he saw his brother being injured on an escalator. ( Rickey, 98 Ill.2d at 548, 75 Ill.Dec. 211, 457 N.E.2d 1.) The Illinois supreme court, in a unanimous opinion, framed the issue in the following manner: "The underlying question is, of course, whether any person who suffers emotional distress can recover, but the question here specifically[167 Ill.App.3d 1097] is whether a bystander

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[118 Ill.Dec. 701] at the injury of another who, generally under the decisions, is a close relative of the bystander can recover." Rickey, 98 Ill.2d at 553, 75 Ill.Dec. 211, 457 N.E.2d 1.

The court then discussed the "impact rule," the governing law in Illinois at that time, which required physical impact or injury in order for a plaintiff to recover in an action for the negligent infliction of emotional distress. The Rickey court noted that this requirement had been frequently satisfied by trivial contacts, and that consequently the impact rule had fallen into disfavor. ( Rickey, 98 Ill.2d at 553, 75 Ill.Dec. 211, 457 N.E.2d 1.) The court also recognized that although recovery for emotional...