Davis v. Weiskopf, 81-944

• Decision Date: 06 August 1982
• Docket Number: No. 81-944,81-944
• Citation: 439 N.E.2d 60,108 Ill.App.3d 505,64 Ill.Dec. 131
• Parties: , 64 Ill.Dec. 131 Parry J. DAVIS, Plaintiff-Appellant, v. Dr. Jerome S. WEISKOPF, Dr. E. R. Underwood, Dr. Phillip D. Brooks, Rockford Memorial Hospital, a corporation, and Dr. Norman A. Hagman, Defendants. Dr. Norman A. Hagman, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 60

439 N.E.2d 60

108 Ill.App.3d 505, 64 Ill.Dec. 131

Parry J. DAVIS, Plaintiff-Appellant, v.Dr. Jerome S. WEISKOPF, Dr. E. R. Underwood, Dr. Phillip D Brooks, Rockford Memorial Hospital, a corporation and Dr. Norman A. Hagman, DefendantsDr. Norman A. Hagman, Defendant-Appellee.

No. 81-944.

Appellate Court of Illinois Second District.

Aug. 6, 1982.

William T. Cacciatore, Anthony A. Savaiano, Rockford, for plaintiff-appellant.

Robert K. Clark and Robert H. Clark, Rockford, for defendants.

NASH, Justice:

Plaintiff, Parry J. Davis, appealed from the dismissal of his amended complaint for failure to state a cause of action for medical malpractice against defendant, Dr. Norman A. Hagman.The trial court determined as a matter of law there was no physician-patient relationship between plaintiff and defendant and, therefore, no cause of action for malpractice could arise.

Count V of plaintiff's amended complaint alleged inter alia that on May 8, 1979, Dr. Jerome S. Weiskopf, examined plaintiff in the emergency room of Rockford Memorial Hospital and Dr. Philip D. Brooks took x-rays of plaintiff's right knee and interpreted them; that Dr. Weiskopf was informed that the x-rays revealed a giant cell lesion of plaintiff's knee which was suspicious of a primary bone neoplasm of malignant origin; that Dr. Weiskopf then consulted with defendant, Dr. Hagman, regarding the x-ray results and referred plaintiff to him; that plaintiff was not advised of the x-ray results.

The complaint further alleged that plaintiff made an appointment to see Dr. Hagman, as he was instructed to do by Dr. Weiskopf, and appeared in Dr. Hagman's office for the scheduled appointment; that Dr. Hagman rescheduled that appointment without seeing plaintiff; that when plaintiff telephoned the doctor's office before his second appointment and advised the office he would be late, plaintiff was informed that Dr. Hagman would not treat him; and, that Dr. Hagman did not advise plaintiff of his physical condition or refer him to another physician after initially accepting the case from Dr. Weiskopf.The amended complaint further alleges that defendant was guilty of one or more negligent acts or omissions:

"(a) Failed to ever see Plaintiff concerning Plaintiff's medical condition after Defendant agreed with the Defendant, DR. JEROME S. WEISKOPF, to see Plaintiff, when Defendant knew or should have know that Plaintiff's right knee revealed a giant cell lesion which was suspicious for primary bone neoplasm of malignant origin of a serious nature.

(b) Failed to warn or inform Plaintiff that the radiology report of Plaintiff's right knee revealed a giant cell lesion which was suspicious for primary bone neoplasm of malignant origin, when such serious condition was imminent, when Defendant accepted the medical care and treatment of Plaintiff pursuant to his consultation with Defendant, DR. JEROME S. WEISKOPF.

(c) Failed to properly instruct Plaintiff as to the urgency of follow-up medical care and treatment when Defendant knew or should have known of the serious and ominous condition of Plaintiff's medical condition, when Defendant, accepted the medical care and treatment of Plaintiff pursuant to his consultation with Defendant, DR. JEROME S. WEISKOPF.

(d) Failed to refer Plaintiff to another physician or advise Plaintiff to obtain another physician for treatment when the Defendant had accepted Plaintiff's case from the Defendant, DR. JEROME S. WEISKOPF.

(e) Failed to otherwise use due care in the diagnosis and treatment of Plaintiff's right knee."

The complaint concluded with allegations that as a proximate cause of defendant's negligent acts or omissions, plaintiff's leg was required to be amputated and he incurred substantial sums for hospital and medical costs, lost wages and was permanently injured.¹

Defendant's motion to dismiss the complaint did not identify whether it was brought under section 45 or 48 of the Civil Practice Act(Ill.Rev.Stat.1979, ch. 110, pars. 45, 48).It alleged, inter alia, that (1) the amended complaint failed to state a cause of action; (2) that it failed to set forth facts upon which any legal liability of this defendant may be predicated; (3) that the complaint shows on its face Dr. Hagman never treated plaintiff or recommended medical care upon which a medical malpractice claim could be based; that the cause of action purports to be premised upon a duty arising from a physician-patient relationship and the complaint does not allege facts giving rise to that relationship or any duty on the part of the defendant based on tort or malpractice; (4) that the complaint alleges Dr. Jerome S. Weiskopf informed defendant of the x-rays of plaintiff's knee revealing a giant cell lesion suspicious of malignant origin and the complaint of negligence by Dr. Hagman is thus primarily based on the premise he did not inform plaintiff or refer him to another physician.

In support of his motion Dr. Hagman submitted his affidavit in which he stated he was not informed of the x-ray results and the only information he received concerning plaintiff was that Dr. Weiskopf was referring a patient who had some swelling of the knee, the cause of which Dr. Weiskopf was not sure.Defendant's affidavit further stated that an appointment was made to see plaintiff on May 14, 1980, which plaintiff did not keep; that a second appointment for him was made May 25 and plaintiff failed to appear as scheduled and, as defendant had to go to the hospital for another appointment, he was not present when plaintiff arrived late; that plaintiff was rescheduled to be seen by defendant on May 31 and did not appear and, that no physician-patient relationship was established with plaintiff.

At the hearing of the motion to dismiss, defendant's counsel described it as being under both section 45and48 of the Civil Practice Act.After reviewing the pleadings, together with defendant's affidavit, the trial court determined that no physician-patient relationship was established as a matter of law and dismissed the complaint.

Plaintiff contends that the complaint alleges facts which disclose a duty to Parry Davis on the part of defendant, its breach, and damages to him proximately caused thereby.Plaintiff also asserts that the trial court improperly considered defendant's affidavit in support of the motion to dismiss.Defendant contends that as plaintiff never saw or was treated medically by defendant no consensual physician-patient relationship came into existence and, absent that relationship, no duty towards plaintiff existed upon which to base the cause of action.

We note initially that a motion to dismiss a pleading should clearly delineate the section of the Civil Practice Act under which it has been brought and may not properly be combined for a joint analysis and determination.(Galayda v. Penman(1980), 80 Ill.App.3d 423, 424-25, 35 Ill.Dec. 590, 591, 399 N.E.2d 656, 657, leave to appeal denied;Cain v. American National Bank & Trust Co. of Chicago(1975), 26 Ill.App.3d 574, 585, 325 N.E.2d 799, 808;Brewer v. Stovall(1977), 54 Ill.App.3d 261, 266, 369 N.E.2d 365, 369.)It has been held to be error to bring a combined motion for dismissal under both sections 45and48, requiring reversal if prejudice results to the non-movant.Herman v. Hamblet(1980), 81 Ill.App.3d 1050, 1055, 36 Ill.Dec. 835, 840, 401 N.E.2d 973, 978;seeJanes v. First Federal Savings & Loan Association(1974), 57 Ill.2d 398, 405-06, 312 N.E.2d 605, 609.

Under section 45, a defendant may seek dismissal of a complaint for failure to state a cause of action and must therein specify why the pleading is legally insufficient.(Ill.Rev.Stat.1979, ch. 110, par. 45.)This motion admits all well-pleaded facts in the complaint and they must be taken as true.(Uptown Federal Savings & Loan Association v. Kotsiopoulos(1982), 105 Ill.App.3d 444, 449, 61 Ill.Dec. 323, 327, 434 N.E.2d 476, 480;Buchalo v. Country Mutual Insurance Co.(1980), 83 Ill.App.3d 1040, 1042, 39 Ill.Dec. 89, 91, 404 N.E.2d 473, 475, leave to appeal denied;Hild v. Avland Development Co.(1977), 46 Ill.App.3d 173, 177, 4 Ill.Dec. 672, 676, 360 N.E.2d 785, 789,leave to appeal denied. )Factual defenses are not available under section 45;the court may consider only the allegations of the complaint and may not consider supporting affidavits offered by the movant.County of Cook v. Illinois Wine & Spirits Co.(1981), 93 Ill.App.3d 710, 715-16, 49 Ill.Dec. 122, 126, 417 N.E.2d 812, 816;Cain v. American National Bank & Trust Co. of Chicago(1975), 26 Ill.App.3d 574, 585, 325 N.E.2d 799, 808.

Under section 48a defendant may seek dismissal of an action because it is barred by affirmative matter which defeats the claim and may support the motion by facts stated in affidavits if the grounds do not appear on the face of the complaint.(Ill.Rev.Stat.1979, ch. 110, par. 48(1)(i).)Generally, unless refuted by plaintiff's counteraffidavit, the facts alleged in defendant's affidavit must be taken as true.(Silverstein v. Schak(1982), 107 Ill.App.3d 641, 63 Ill.Dec. 370, 437 N.E.2d 1292;D'Urso v. Wildheim(1976), 37 Ill.App.3d 835, 839, 347 N.E.2d 463, 465.)Motions to dismiss brought under sections 45 or 48 are both subject to the rule that they admit all well-pleaded facts in the complaint, but not conclusions unsupported by allegations of specific fact upon which such conclusions rest.Village of Niles v. City of Chicago(1980), 82 Ill.App.3d 60, 67-68, 37 Ill.Dec. 142, 147, 401 N.E.2d 1235, 1240, leave to appeal denied;Smith v. St. Therese Hospital(1980), 87 Ill.App.3d 782, 785, 43 Ill.Dec. 219, 222, 410 N.E.2d 219, 222.

In this court, defendant treats his motion to dismiss as under section 48(1)(i) arguing that his affidavit, which was not countered by plaintiff, established there was no physician-patient relationship between them and, therefore, no duty of care to plaintiff could arise.

Defendant's motion...