Cutler v. Nw. Suburban Cmty. Hosp. Inc.

• Decision Date: 29 November 2010
• Docket Number: No. 2–09–1074.,2–09–1074.
• Citation: 345 Ill.Dec. 852,405 Ill.App.3d 1052,939 N.E.2d 1032
• Parties: Gary CUTLER, Independent Administrator of the Estate of Mary Beth Cutler, Deceased, Plaintiff–Appellant,v.NORTHWEST SUBURBAN COMMUNITY HOSPITAL, INC., Indiv. and d/b/a Barix Clinics and Barix Clinics of Illinois; Forest Health Services Corporation, Indiv. and d/b/a Bariatric Treatment Centers of Illinois; Bariatric Treatment Centers of Illinois, Inc., d/b/a Bariatric Treatment Center; Eric Vaughn; Roy E. Berkowitz; Proctor Hospital; and James R. DeBord, Defendants–Appellees (Bariatric Specialists of Illinois, S.C., and Kent Hess, Defendants).
• Court: United States Appellate Court of Illinois

405 Ill.App.3d 1052

939 N.E.2d 1032

345 Ill.Dec. 852

Gary CUTLER, Independent Administrator of the Estate of Mary Beth Cutler, Deceased, Plaintiff–Appellant,

v.NORTHWEST SUBURBAN COMMUNITY HOSPITAL, INC., Indi

v. and d/b/a Barix Clinics and Barix Clinics of Illinois; Forest Health Services Corporation, Indi

v. and d/b/a Bariatric Treatment Centers of Illinois; Bariatric Treatment Centers of Illinois, Inc., d/b/a Bariatric Treatment Center; Eric Vaughn; Roy E. Berkowitz; Proctor Hospital; and James R. DeBord, Defendants–Appellees (Bariatric Specialists of Illinois, S.C., and Kent Hess, Defendants).

No. 2–09–1074.

Appellate Court of Illinois, Second District.

Nov. 29, 2010.

Nathan Reyes, Cynthia Szymanski Koroll, The Szymanski Koroll Litigation Group, Rockford, for Gary Cutler.Julie A. Teuscher, John J. Reid, Cassiday Schade LLP, Chicago, for Bariatric Specialists of Illinois S.C., Bariatric Treatment Centers of Illinois, Forest Health Services Corp., and Northwest Suburban Community Hospital, Inc.Jennifer L. Medenwald, April R. Walkup, Querrey & Harrow, Ltd., Chicago, for Roy E. Berkowitz and Eric Vaughn.Karen L. Kendall, Roger R. Clayton, Mark A. Ludolph, Heyl, Royster, Voelker and Allen, Peoria, for Proctor Hospital.Marvel Pretorius Jr., Laura A. Petersen, Jay H. Scholl, Quinn, Johnston, Henderson, Pretorius & Cerulo, Peoria, for James R. Debord M.D.Justice SCHOSTOK delivered the opinion of the court:

[345 Ill.Dec. 854 , 405 Ill.App.3d 1053] On July 6, 2007, the plaintiff, Gary Cutler, filed his third amended 27–count medical malpractice complaint against the defendants, Northwest Suburban Community Hospital, Inc. (Northwest Suburban), Bariatric Specialists of Illinois, S.C. (Bariatric Specialists), Forest Health Services Corp. (Forest), Bariatric Treatment Centers of Illinois, Inc. (BTC), Dr. Eric Vaughn, Dr. Roy E. Berkowitz, Proctor Hospital (Proctor), Dr. James DeBord, and Dr. Kent Hess, seeking damages based on the Wrongful Death Act (740 ILCS 180/1 et seq. (West 2004)), the Survival Act (755 ILCS 5/27–6 (West 2004)), and the Rights of Married Persons Act (750 ILCS 65/15 (West 2004)), commonly called the “family expense statute.” On September 21, 2009, the trial court dismissed the plaintiff's third amended complaint with prejudice. The plaintiff appeals from that order. We reverse and remand for additional proceedings.

On April 11, 2005, the plaintiff filed his original malpractice action against the defendants. (However, the original complaint named Dr. Hess as a respondent in discovery rather than a defendant.) In his complaint, the plaintiff alleged that on April 13, 2003, his sister, the decedent, was admitted to Northwest Suburban, in Belvidere, for a Roux-en-y gastrojejunostomy surgery that was performed by Dr. Vaughn. Despite a subsequent fever and leukocytosis, the decedent was discharged from Northwest Suburban on April 20, 2003. Both Drs. Vaughn and Berkowitz treated the decedent postoperatively at Northwest Suburban. The decedent allegedly sought additional medical assistance via phone over the next two days. On April 22, 2003, the decedent went to the emergency room at Proctor, in Peoria, with complaints of severe abdominal pain. At Proctor, she was treated by Dr. DeBord, who contacted Dr. Berkowitz for assistance. The decedent died at Proctor on April 24, 2003. Dr. Hess had provided preoperative care to the decedent. The plaintiff alleged that Drs. Vaughn and Berkowitz were employees, agents, or apparent agents of Forest, BTC, and Bariatric Specialists. The plaintiff further alleged that the defendants and/or their employees or agents were negligent in the postoperative care and treatment of the decedent

[345 Ill.Dec. 855 , 939 N.E.2d 1035]

and that their negligence caused her death.

Attached to the complaint was an affidavit from the plaintiff's attorney pursuant to section 2–622(a)(2) of the Code of Civil Procedure (the Code) (735 ILCS 5/2–622(a)(2) (West 2004)), indicating that the action had not previously been voluntarily dismissed but that she was unable to obtain the requisite reviewing health professional's report before the expiration of the statute of limitations. On April 20, 2005, the plaintiff filed an affidavit and physician's report pursuant to section 2–622(a)(1) of the Code (735 ILCS 5/2–622(a)(1) (West 2004)). On July 7, 2005, all the defendants moved to dismiss the complaint because the plaintiff did not identify the reviewing health professional. Additionally, several defendants asserted that the physician's report was deficient because it did not reveal the physician's specialty or show that the physician had experience in the same area of healthcare as the defendants. Other defendants argued that the report had only general conclusory statements of medical malpractice and failed to specify how the defendants breached the standard of care. In response, the plaintiff argued that he did not have to reveal the name of the reviewing physician and also that, because the physician was a consultant pursuant to Supreme Court Rule 201(b)(3) (210 Ill.2d R. 201(b)(3)), his identity did not need to be disclosed in the absence of exceptional circumstances. A hearing on the motions to dismiss was scheduled for November 4, 2005.

On October 5, 2005, the plaintiff filed a motion for an evidentiary hearing to convert Dr. Hess to a party defendant and for leave to file an amended complaint. Attached was a new affidavit and a revised reviewing health professional's report. This report set forth how Dr. Hess violated the standard of care. The motion was granted and the hearing was also set for November 4, 2005. On October 10, 2005, the plaintiff filed another section 2–622(a)(1) physician's report, identical to that filed on October 5, 2005, but identifying the certifying health professional as Dr. Rolland W. Taylor. The November 4, 2005, hearing was subsequently continued to December 21, 2005.

On December 21, 2005, the trial court issued an order in relation to a motion to compel previously filed by Dr. Hess, finding that Dr. Taylor was not a consultant within the meaning of Rule 201(b)(3) and that Dr. Hess should have access to Dr. Taylor's notes. The hearing on the plaintiff's motion to convert Dr. Hess to a party defendant was postponed until March 6, 2006. On February 28, 2006, Dr. Hess filed a motion to strike Dr. Taylor's report and be dismissed as a respondent in discovery. Dr. Hess opined that Dr. Taylor did not have the education, experience, and training to opine that Dr. Hess's treatment of the decedent was negligent. In support, Dr. Hess attached Dr. Taylor's January 2006 discovery deposition transcript from the case of Hunt v. Northwest Suburban Community Hospital, No. 03—C—50250 (N.D.Ill. September 2, 2005), which was then pending in the Northern District of Illinois, Western Division. The defendants in that case included Dr. Hess, Northwest Suburban, Forest, BTC, and Bariatric Specialists.

In his January 2006 discovery deposition in the Hunt case, Dr. Taylor testified, in relevant part, that he did not currently perform bariatric surgeries. He did act as a surgical assistant in a Roux-en-y procedure in 2001 or 2002. He was not board certified in internal medicine, did not complete a residency in internal medicine, and never practiced internal medicine. He last practiced in Illinois in 2002. Finally, he

[345 Ill.Dec. 856 , 939 N.E.2d 1036]

testified that he had cared for a postoperative abdominal surgery patient within the last month and had cared for a postoperative bariatric surgery patient within the last six months.

On March 6, 2006, the plaintiff withdrew his motion to convert Dr. Hess from a respondent in discovery to a party defendant. Consequently, the trial court entered an order dismissing Dr. Hess as a respondent in discovery and stating that all other motions directed to the pleadings regarding Dr. Hess were rendered moot. On May 2, 2006, the trial court granted the defendants' motions to dismiss the plaintiff's complaint without prejudice and ordered that any amended report include the identity of the reviewing health professional. The record does not show that a first amended complaint was ever formally filed. However, on May 31, 2006, the plaintiff filed a “second amended complaint” that included the requisite section 2–622(a)(1) affidavit and physician's report. The report indicated that it was authored by Dr. Taylor.

On June 23, 2006, Dr. DeBord filed a motion to dismiss the counts of the complaint based on the family expense statute, arguing that neither an independent administrator of an estate nor a sibling had standing to sue under that statute. Dr. DeBord also filed an answer. On July 24, 2006, Proctor filed an answer and a motion to dismiss the count directed against it related to the family expense statute. On July 28, 2006, Dr. DeBord filed a motion for clarification and/or reconsideration and to compel, arguing that the trial court's May 2, 2006, order should have required the plaintiff to produce the original signed version of his section 2–622(a)(1) physician's report. On August 2, 2006, Bariatric Specialists, Dr. Vaughn, and Dr. Berkowitz filed an answer to the complaint but subsequently moved to withdraw their answer to the counts related to the family expense statute and joined Proctor's motion to dismiss those counts. On April 3, 2007, Northwest Suburban, Forest, and BTC joined Dr. DeBord's motion to dismiss the counts related to the family expense statute. Shortly thereafter, the remaining defendants joined Dr. DeBord's motion for reconsideration and to compel. On August 23, 2006, Northwest Suburban, Forest, and BTC answered the complaint. In that answer, those defendants raised an affirmative defense alleging that the decedent failed to report all her symptoms and failed to timely seek proper medical treatment.

On November 16, 2006, Dr. DeBord filed a motion for substitution of judge. On November 22, 2006, the trial...