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

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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, Defendants.
Dr. Norman A. Hagman, Defendant-Appellee. No. 81-944. Appellate Court of Illinois,
Second District. Aug. 6, 1982.

[108 Ill.App.3d 506]

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[64 Ill.Dec. 132] 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[108 Ill.App.3d 507] 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

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[64 Ill.Dec. 133] 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. [108 Ill.App.3d 508] 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...