Heigert v. Riedel

• Decision Date: 27 November 1990
• Docket Number: No. 5-89-0055,5-89-0055
• Parties: , 151 Ill.Dec. 789 Marie "Diane" HEIGERT, Plaintiff-Appellee, v. David R. RIEDEL, M.D. and Chester Hill, M.D., Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 60

565 N.E.2d 60

206 Ill.App.3d 556, 151 Ill.Dec. 789

Marie "Diane" HEIGERT, Plaintiff-Appellee, v. David R. RIEDEL, M.D. and Chester Hill, M.D., Defendants-Appellants.

No. 5-89-0055.

Appellate Court of Illinois,

Fifth District.

Nov. 27, 1990.

Rehearing Denied Jan. 15, 1991.

Gundlach, Lee, Eggmann, Boyle & Roessler (Richard P. Roessler, James E. DeFranco, of counsel), Belleville, for defendants-appellants.

R. Dan Winnett, Runge & Gumbel, P.C., Collinsville, for plaintiff-appellee.

Justice HARRISON delivered the opinion of the court:

Plaintiff, Marie "Diane" Heigert, brought a negligence action in the circuit court of Madison County to recover damages for personal injuries she sustained as the result of medical malpractice allegedly committed by defendants, David R. Riedel and Chester Hill, each of whom is a licensed physician. Defendants moved to dismiss plaintiff's complaint under section 2-615 of the Code of Civil Procedure (Ill.Rev.Stat.1987, ch. 110, par. 2-615) on the grounds that it failed to state a cause of action. Following a hearing, defendants' motion was denied. We then granted this permissive interlocutory appeal pursuant to Supreme Court Rule 308 (107 Ill.2d R. 308). For the reasons which follow, we now reverse and remand.

Because this appeal is before us on defendants' motion to dismiss, all well-pleaded facts in plaintiff's complaint and all reasonable inferences which can be drawn from those facts will be regarded as true. (Estate of Johnson v. Condell Memorial Hospital (1988), 119 Ill.2d 496, 499, 117 Ill.Dec. 47, 48, 520 N.E.2d 37, 38.) We note, parenthetically, that plaintiff's complaint also has appended to it the affidavit by counsel and the written doctor's report required by section 2-622 of the Code of Civil Procedure (Ill.Rev.Stat.1987, ch. 110, par. 2-622) in medical malpractice actions. As a general rule, exhibits which are attached to a complaint are considered to be part of the complaint (Friedman v. Gingiss (1989), 182 Ill.App.3d 293, 295, 130 Ill.Dec. 738, 740, 537 N.E.2d 1067, 1069), and a motion to dismiss admits as true the facts contained in such exhibits just as it admits well-pleaded facts in the body of the complaint itself. (Bond v. Dunmire (1984), 129 Ill.App.3d 796, 804, 84 Ill.Dec. 862, 868, 473 N.E.2d 78, 84.) Although the courts have yet to decide whether the materials required by section 2-622 of the Code of Civil Procedure (Ill.Rev.Stat.1987, ch. 110, par. 2-622) are sufficiently analogous to "exhibits" in the conventional sense to fall within this rule, resolution of the question is not necessary to the disposition of this appeal.

While defendants challenged the sufficiency of the affidavit of counsel and the written doctor's report at the trial court level, that challenge has not been pursued on appeal. In the proceedings before this court, defendants themselves have cited factual matters contained in the written doctor's report in support of their argument that plaintiff's complaint fails to state a cause of action. For the purposes of this appeal, we shall therefore regard those factual matters as being properly before us and, as with the well-pleaded facts in plaintiff's complaint, they, too, shall be accepted as true.

According to plaintiff's complaint and the attachments thereto, defendants were licensed physicians who practiced medicine in Alton, Illinois. On March 10, 1983, an individual named Howard Lee Christopher was admitted to St. Anthony's Hospital in Alton, and defendants treated him. At the time of his admission, Christopher was diagnosed by defendants as suffering from "Fournier's gangrene." Routine admission tests and X rays revealed, however, that Christopher had a pathological condition in his lung and that his sputum contained "acid fast bacillae."

Plaintiff alleges that these test results suggest a diagnosis of tuberculosis, and that a reasonably competent physician would have been put on notice by the findings that additional diagnostic tests should have been performed to ascertain whether the patient was actually suffering from that disease. According to plaintiff, however, these additional diagnostic tests were either not performed by defendants or else were not performed in a timely fashion. Plaintiff asserts that if defendants had pursued the diagnosis of Christopher properly, they would have discovered that he was, in fact, afflicted with tuberculosis and that the tuberculosis was in a contagious stage.

According to plaintiff, accepted standards of medical care require that certain precautions be taken in order to prevent tuberculosis patients from spreading their illness to other members of the hospital population, including having the patient isolated. Because defendants failed to realize that Christopher suffered from tuberculosis, however, such precautions were not taken here. Plaintiff, who was employed at St. Anthony's Hospital as a nurse, claims that she then came into contact with Christopher in the course of her duties and contracted the disease from him.

In her complaint, plaintiff seeks to impose liability on defendants for the resultant damages she sustained on the grounds that they acted negligently in one or more of the following respects: (a) failing to perform the necessary diagnostic tests which would have disclosed that Christopher was suffering from contagious tuberculosis "and/or" failing to perform those tests in a timely fashion; (b) failing to isolate Christopher; and (c) failing to warn her of the dangers of coming into contact with Christopher.

As we indicated at the outset of this opinion, this matter is now before us following the circuit court's denial of defendants' motion to dismiss plaintiff's complaint for failure to state a cause of action. It is axiomatic that in order to survive a motion to dismiss, a complaint must state a cause of action that is legally, as well as factually, sufficient. A legally sufficient complaint is one which sets forth a legally recognized claim upon which the plaintiff is entitled to recover damages. (Northrop Corporation v. Crouch-Walker, Inc. (1988), 175 Ill.App.3d 203, 205-06, 124 Ill.Dec. 803, 804, 529 N.E.2d 784, 785.) A complaint for negligence, to be legally sufficient, must set out facts that establish the existence of a duty owed by the defendant to the plaintiff, a breach of that duty, and an injury proximately caused by that breach. (Kirk v. Michael Reese Hospital and Medical Center (1987), 117 Ill.2d 507, 525, 111 Ill.Dec. 944, 952-53, 513 N.E.2d 387, 395-96, cert. denied (1988), 485 U.S. 905, 108 S.Ct. 1077, 99 L.Ed.2d 236.) On this appeal, defendants' sole claim is that the circuit court erred in denying their motion to dismiss because the first of these elements, the existence of a duty, is absent.

The determination of whether a duty exists, i.e., whether the defendant and the plaintiff stood in such a relationship to one another that the law imposed upon the defendant an obligation of reasonable conduct for the benefit of the plaintiff, is an issue of law to be determined by the court. (117 Ill.2d at 525, 111 Ill.Dec. at 953, 513 N.E.2d at 396.) A key concern in determining whether a duty exists is the reasonable foreseeability of injury. This, however, is not the only consideration. The question of duty in a negligence action should also take into account the likelihood of injury, the magnitude of the burden of guarding against it, and the consequences of placing that burden upon the defendant. (117 Ill.2d at 526, 111 Ill.Dec. at 953, 513 N.E.2d at 396.) In this regard, our supreme court has recently reiterated that a court's determination of duty reflects the policy and social requirements of the time and community. In its view, " 'duty' is not sacrosanct in itself, but is only an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection. [Citation.]" 117 Ill.2d at 526-27, 111 Ill.Dec. at 953, 513 N.E.2d at 396.

Surprisingly, there is a dearth of case law regarding the duty of a physician in the context of medical malpractice actions involving communicable diseases such as tuberculosis. One standard reference work, however, has stated:

"[I]t is the general rule that a physician is liable for his negligence in permitting persons to be exposed to infectious or communicable diseases to the injury of the persons so exposed. Thus, a physician in attendance upon a case of typhoid fever must notify attendants of the nature and character of the disease, warn them of the danger of infection, and instruct them as to the usual methods approved by the profession, of which he has knowledge, for preventing the spread of the disease. He must also exercise reasonable care to advise members of the patient's family, and others who are liable to be exposed thereby, of the nature of the disease and the danger of exposure."

61 Am.Jur.2d Physicians, Surgeons and Other Healers § 245 at 377 (1981).

This view has been adopted by the courts of at least two other jurisdictions. In Hofmann v. Blackmon (Fla.App.1970), 241 So.2d 752, the District Court of Appeal of Florida, Fourth District, held (1) that a physician owes a duty to a minor child who is a member of the immediate family of and living with a patient suffering from tuberculosis to inform those charged with the minor's well-being of the nature of the contagious disease and the precautionary steps to be taken to prevent the child from contracting such disease and (2) that this duty is not negated by the fact that the physician may have negligently failed to become aware that his patient was suffering from tuberculosis. Under this holding, if the physician negligently failed to diagnose tuberculosis in the patient and the patient's child then contracted the disease from the patient, the physician would have breached a duty he owed to the child and would be liable for the child's injuries.

Similarly, in DiMarco v....