Doe v. Noe

• Decision Date: 26 December 1997
• Docket Number: S,No. 5,No. 1,P,1-96-3855,No. 3,Nos. 1-96-3791,No. 2,M,No. 6,No. 4,D,1,2,3,4,5,6,s. 1-96-3791
• Citation: 293 Ill.App.3d 1099,228 Ill.Dec. 937,690 N.E.2d 1012
• Parties: , 228 Ill.Dec. 937 Jane DOE and John Doe, Plaintiffs-Appellants and Cross-Appellees, v. John NOE, as the Ex'r of the Estate of John Noeeceased; NoeC.; John Noeefendants-Appellees and Cross-Appellants (Noeedical Center; and Noeractice Center, Defendants-Appellees).
• Court: United States Appellate Court of Illinois

Page 1012

690 N.E.2d 1012

293 Ill.App.3d 1099, 228 Ill.Dec. 937

Jane DOE and John Doe, Plaintiffs-Appellants and Cross-Appellees, v. John NOE No. 1, as the Ex'r of the Estate of John Noe No. 2 Deceased; Noe No. 3, S.C.; John Noe No. 4 Defendants-Appellees and Cross-Appellants (Noe No. 5 Medical Center; and Noe No. 6, Practice Center Defendants-Appellees).

Nos. 1-96-3791, 1-96-3855.

Appellate Court of Illinois, First District, Sixth Division.

Dec. 26, 1997.

Jeffrey M. Goldberg, Lawrence R. Kream of Jeffrey M. Goldberg & Associates Ltd., Chicago, for Appellants.

Cassiday, Schade & Gloor, Chicago (Rudolf G. Schade, Jennifer A Keller, Carolyn Quinn, Mark D. Wilson, of counsel), Fedota & Rocca, P.C., Chicago, Brian C. Rocca, Mark J. Smith, for Appellees.

Presiding Justice GREIMAN delivered the opinion of the court:

Plaintiffs Jane Doe (Jane) and her husband John Doe (John) appeal the dismissal of 14 counts in their 18-count second amended complaint, asserting several causes of action premised on the underlying allegation that Jane had been exposed to the human immunodeficiency virus (HIV) during two gynecological surgeries by John Noe No. 2 (hereinafter Surgeon), i.e., the doctor who performed the surgeries and was HIV positive at the time of the surgeries and subsequently died of acquired immune deficiency syndrome (AIDS).

The crux of plaintiffs' complaint is that Surgeon knew that he was HIV positive when he performed two surgeries on Jane, that he failed to disclose his HIV condition to plaintiffs before the surgeries, and that the surgeries exposed Jane to HIV, which is the precursor of AIDS.

In their second amended complaint, plaintiffs directed various claims against the following defendants: (1) Surgeon (John Noe No. 2), the doctor, now deceased, who performed the two surgeries on Jane, and Executor (John Noe No. 1), the executor of the estate of Surgeon; (2) Corporation (Noe No. 3, S.C.), a professional corporation in which Surgeon allegedly was an employee or agent; (3) Partner (John Noe No. 4, M.D.), a medical doctor who allegedly was Surgeon's partner; and (4) Hospital (Noe No. 5, Medical Center and Noe No. 6, Practice Center), the hospital where the surgeries were performed and the health maintenance organization affiliated with the hospital.

On appeal, plaintiffs contest the dismissal of the counts asserting claims for battery, lack of informed consent, intentional infliction of emotional distress, negligent infliction of emotional distress, conspiracy, and loss of consortium (counts I through XIV).

On cross-appeal, we address the trial court's decision to allow the claims directed against Surgeon and Corporation based on negligent infliction of emotional distress upon Jane (counts XV and XVI) and derivative claims of loss of consortium for John (counts XVII to XVIII). In addition, we answer two certified questions relating to these four counts.

The two certified questions are:

"(a) Whether an HIV positive physician has a duty to disclose his or her HIV status to a patient when seeking the patient's consent to perform an invasive medical procedure which exposes the patient to the risk of HIV transmission; and

(b) If such a duty exists, does a cause of action for the negligent infliction of mental distress exist where there is no allegation of actual HIV transmission during the course of the procedure?"

We answer each certified question in the affirmative and then determine whether plaintiff's second amended complaint states causes of action for: (1) battery and loss of consortium arising out of battery (counts I through IV); (2) lack of informed consent and loss of consortium arising out of a lack of informed consent (counts V through VIII); (3) intentional infliction of emotional distress (count X); (4) negligent infliction of emotional distress and loss of consortium arising out of negligent infliction of emotional distress (counts XI through XIV); and (5) conspiracy (count IX).

In addition, plaintiffs contend that the trial court erred in dismissing Partner under section 2-1010 of the Illinois Code of Civil Procedure, which allows for the dismissal of a party who avers that he or she was not involved in the alleged occurrence (735 ILCS 5/2-1010 (West 1992)).

Surgeon performed two gynecological surgeries on Jane: a fractional dilation and curettage (D & C) and a polypectomy on May 13, 1993, and another polypectomy on March 26, 1993. In April 1994, plaintiffs filed their original complaint. On October 27, 1994, plaintiffs filed their first amended complaint, which asserted 14 counts based on various theories of liability:

COUNT DEFENDANTS CAUSE OF ACTION

I Surgeon Battery on Jane for performing the surgery in May

1992

II Surgeon Loss of consortium for John based on the surgery in

May 1992

III Surgeon Battery on Jane for performing the surgery in March

1993

IV Surgeon Loss of consortium for John based on the surgery in

March 1993

V Surgeon Lack of informed consent for Jane for the surgery

in May 1992

VI Surgeon Loss of consortium for John based on lack of

informed consent for the surgery in May 1992

VII Surgeon Lack of informed consent for Jane for the surgery

in March 1993

VIII Surgeon Loss of consortium for John based on lack of

informed consent for the surgery in March 1993

IX Surgeon, Partner Conspiracy

and Corporation

X All Defendants Intentional infliction of emotional distress upon

Jane by their failure to disclose the HIV status

of Surgeon and the material risk of transmission

of the HIV infection to her

XI Hospital, Partner Negligent infliction of emotional distress upon

and Corporation Jane by their refusal to answer Jane's inquiries

as to whether Surgeon's death was HIV related and

whether Jane had been exposed to the HIV virus by

Surgeon

XII Hospital, Partner Loss of consortium for John based upon count XI

and Corporation

XIII Hospital, Partner Negligent infliction of emotional distress upon

and Corporation Jane based on their duty to Jane to know the HIV

status of Surgeon and to advise Jane of his HIV

infection in advance of the performance of the

invasive surgical procedure

XIV Hospital, Partner Loss of consortium for John based upon count XIII

and Corporation Surgeon, Partner and Corporation filed a motion to dismiss plaintiff's first amended complaint pursuant to section 2-615, among other sections, of the Illinois Code of Civil Procedure (735 ILCS 5/2-615 (West 1992)). These defendants asserted that plaintiffs pleaded insufficient facts, unrecognized duties in law, and unrecognized damages in law. Defendants argued that plaintiffs' allegations of Surgeon's HIV status and of the knowledge of Partner and Corporation of Surgeon's HIV status were unfounded assumptions and conclusions without any factual support. They further asserted that Illinois law does not recognize a duty on the part of Partner and Corporation to know the HIV status of Surgeon, and does not recognize a duty on the part of Surgeon, Partner, or Corporation to inform Jane of Surgeon's HIV condition prior to any medical treatment. These defendants further argued that plaintiff has no recognized damages in law because she did not allege actual exposure to the virus.

These defendants also challenged plaintiffs' first amended complaint under sections 2-619 and 2-622 (735 ILCS 5/2-619, 2-622 (West 1992)), arguing that the affidavit from the health professional was insufficient, conclusory and failed to identify with specificity the reasons and basis for the health care professional's determination that there is a reasonable and meritorious cause.

The Hospital filed a separate motion to dismiss on similar grounds under sections 2-615, 2-619, and 2-622 of the Illinois Code of Civil Procedure. Partner also moved for dismissal pursuant to section 2-1010 on the grounds that he never provided medical treatment of any kind to Jane and they never had a doctor-patient relationship.

On October 11, 1995, the trial court dismissed all of the counts, some with prejudice and some with leave to replead. The trial court also issued a memorandum opinion and order, granting defendants' motions to dismiss under section 2-615. The trial court found, in relevant part, that Surgeon had a duty to "disclose any and all risks imposed by his HIV status prior to performing any invasive procedure on" Jane and that Partner had no duty to plaintiffs because he had no involvement in Jane's care under section 2-1010.

On July 22, 1996, plaintiffs filed their second amended complaint, including the same 14 counts from the first amended complaint and adding 4 more counts (counts XV through XVIII) that were directed against Surgeon and Corporation and based on negligent infliction of emotional distress:

COUNT DEFENDANTS CAUSE OF ACTION

XV Surgeon and Negligent infliction of emotional distress upon Jane as

Corporation to the May 1992 surgery for failure to disclose

Surgeon's HIV status, the material risks of

transmission of HIV infection during surgery, available

alternative treatment, or alternative physicians to

perform surgery

XVI Surgeon and Negligent infliction of emotional distress upon Jane as

Corporation to the March 1993 surgery for failure to disclose the

same information as stated in count XV

XVII Surgeon and Loss of consortium for John based on count XV

Corporation

XVIII Surgeon and Loss of consortium for John based on count XVI.

Corporation

Surgeon, Partner and Corporation filed a motion to dismiss plaintiffs' second amended complaint based on the same arguments they advanced in their motion to dismiss the first amended complaint. The Hospital filed a separate motion to dismiss by incorporating by reference its previously filed motion to dismiss the first amended complaint.

On October 21, 1996, the trial court dismissed with prejudice counts I through XIV. At the hearing on the motions to dismiss plaintiffs' second amended complaint, the trial court reiterated...