Holladay v. Boyd

• Decision Date: 30 December 1996
• Docket Number: No. 1-95-2896,1-95-2896
• Citation: 675 N.E.2d 262,285 Ill.App.3d 1006,221 Ill.Dec. 355
• Parties: , 221 Ill.Dec. 355 Ginger HOLLADAY, Plaintiff-Appellee, v. Bruce BOYD, M.D., Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 262

675 N.E.2d 262

285 Ill.App.3d 1006, 221 Ill.Dec. 355

Ginger HOLLADAY, Plaintiff-Appellee, v. Bruce BOYD, M.D., Defendant-Appellant.

No. 1-95-2896.

Appellate Court of Illinois,

First District, Third Division.

Dec. 30, 1996.

Rehearing Denied Feb. 5, 1997.

Rooks, Pitts and Poust, Chicago (Terrence J. Madden and Jerome N. Groark, of counsel), for Defendant.

William J. Harte, Ltd., and Offices of James T. Keating, Chicago (William J. Harte, Elizabeth Davis-Keating, and Joan M. Mannix, of counsel), for Plaintiff/Appellee.

Justice CAHILL delivered the opinion of the court:

Plaintiff filed a complaint against defendant, a psychiatrist, in June 1990, alleging medical malpractice and negligent infliction of emotional distress. After trial, a jury returned a $1,450,000 verdict for plaintiff.

Defendant argues on appeal that the trial court erred in denying a motion for a directed verdict based upon the two year statute of limitations for medical malpractice. We reverse, finding the complaint timed barred, and do not address the remaining arguments by defendant.

The plaintiff testified at trial, in her case in chief, that after graduating high school, she sang professionally in Memphis, Tennessee and studied sociology and music at Memphis State University. She married in 1971 and divorced in 1975. She then studied music at Peabody College in Nashville.

Plaintiff married her second husband in 1978 and moved to Chicago. She continued to work as a singer in the advertising business, but grew anxious about her career. She and her husband were also having marital problems, and so plaintiff decided to seek professional help. Her first therapy session with defendant, a licensed psychiatrist, was in 1981. She continued treatment of two or three sessions a week through 1986. During this time she divorced her second husband.

Plaintiff testified that in 1984 or 1985 defendant pulled her onto his lap during a therapy session. When asked by counsel what happened after he pulled her onto his lap, plaintiff stated: "I told him I wasn't five years old anymore. I got back in my chair. He said I'm glad you realize that." In later sessions they sat on the floor. She sat between defendant's legs, and sometimes they kissed. She then testified about a specific incident with defendant:

"I took my sweater off and I had like a camisole or something on and he began kissing my neck. And I remember thinking, God, I've been fantasizing for this, you know. I've been fantasizing about this for years. It's finally happening but I don't like it. And I didn't know--I didn't know how to stop it."

Plaintiff testified she had sexual intercourse with defendant during a therapy session at his office in May 1986. Plaintiff then asked defendant: "Does this mean you cannot be my therapist anymore?" Defendant replied he could still be her therapist. They had sexual intercourse five or six times at later sessions in 1986, but not at every session.

After sex with defendant plaintiff experienced nervousness and agitation. She would leave his office and walk down twelve flights of stairs. She also fantasized about punching her arms through windows and could not go straight home, but walked the streets. She felt guilty after sex with defendant because she had a boyfriend.

Plaintiff said that in the summer of 1986 her performance anxiety as a singer had not improved. She was creatively blocked, agitated, and had lost much of her confidence, so she attended a three-week workshop in Kauai, Hawaii. She then attended a nine-month workshop in California in October 1986.

Counsel asked plaintiff why she went to this workshop. She stated: "At the time I felt desperate. And I thought something was wrong with me. * * * I was confused. I still thought that there was something wrong with me, that [defendant] couldn't help me, but maybe somebody else could."

Plaintiff returned to Chicago in the summer of 1987 and visited defendant at his office three times. They had sexual intercourse. Plaintiff did not pay for these visits. She told defendant she wanted to take their relationship out of the office, but he did not give her an answer. When counsel asked what she did after that, she said: "I cried. I cried and I cried. And then I have to say, it was one of the first times that I cried in his office. After five years of therapy, I finally cried."

Plaintiff moved to California in the summer of 1987. A friend, Barbara Belanyi, picked her up at the airport. She told Belanyi of her sexual relationship with defendant. Belanyi told her the relationship was inappropriate and that she should find another therapist. Plaintiff then sent defendant a letter stating she would not see him again and the therapy was over. Plaintiff said Belanyi had a degree in psychology and she respected Belanyi's opinion. Plaintiff then began therapy with Charles Dillon. She told him in 1987 of her relationship with defendant. When counsel asked what Dillon said plaintiff stated: "He said something like we both must have gotten in trouble." She told no one other than Dillon and Belanyi that she had sex with defendant because, she said, "I think I was ashamed of it. * * * I was embarrassed that I had a relationship--a sexual relationship with my therapist."

Plaintiff talked with defendant by telephone until the spring of 1990. She filed this complaint on June 29, 1990. She stated she has anxiety attacks, nightmares, inability to sleep, problems with concentration, feelings of guilt and shame, low self confidence and self-esteem, and uncontrolled emotions.

Belanyi testified by evidence deposition. She met plaintiff in the summer of 1986, and they became friends. They attended a workshop in Kauai in July 1986. Plaintiff then seemed upset, agitated, anxious, nervous, and under stress. Belanyi also attended the nine-month workshop with plaintiff in California in 1986. She and plaintiff were good friends and saw each other daily. Plaintiff was nervous, anxious, and under stress. When plaintiff returned to California from Chicago in the summer of 1987, Belanyi described her as "flipped out." Belanyi testified: "[Plaintiff] was very upset, and after some questioning, she finally relayed that her relationship with Dr. Boyd was more than she had insinuated." When plaintiff told Belanyi about her sexual relationship with defendant, Belanyi encouraged her to "break off" the relationship and told her it was "totally inappropriate" and that she needed to see another therapist "immediately." She also "encouraged her to sever any further conversations with Dr. Boyd." They often spoke about the relationship and remained close friends.

Edison DeMello, plaintiff's treating therapist in 1989, testified that plaintiff suffered from post-traumatic stress syndrome and depression.

Ann Thompson, plaintiff's treating therapist in 1991, testified by evidence deposition that plaintiff was suffering from post-traumatic stress disorder and panic disorder without agoraphobia caused by sexual contact with a former therapist.

Two experts who interviewed plaintiff and reviewed her records also testified. Dr. Strasburger, a psychiatrist, said that plaintiff was extremely confused as a result of the sexual relationship with defendant. Dr. Burstein, a psychologist, said that in his opinion plaintiff suffered from post-traumatic stress disorder as a result of the sexual contact with defendant.

At the close plaintiff's case in chief, defendant moved for a directed verdict. He argued that the complaint was time barred because plaintiff knew or reasonably should have known that defendant's sexual contacts were inappropriate and that she had been injured by those contacts more than two years before she filed the action on June 29, 1990.

The court denied the motion, stating only: "I will just tell the jury there is no issue--when the complaint was filed, just decide the liability or non-liability."

Defendant argues on appeal that the court erred when it denied the motion for a directed verdict because the evidence shows as a matter of law that the complaint was timed barred under the two year statute of limitations applicable to actions against physicians.

A verdict should be directed when all the evidence, viewed in a light most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict based on the evidence could stand. Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d 494, 510, 229 N.E.2d 504 (1967). A directed verdict is improper where "there is any evidence, together with reasonable inferences to be drawn therefrom, demonstrating a substantial factual dispute, or where the assessment of credibility of the witnesses or the determination regarding conflicting evidence is decisive to the outcome." Maple v. Gustafson, 151 Ill.2d 445, 454, 177 Ill.Dec. 438, 603 N.E.2d 508 (1992). In ruling on a motion for a directed verdict, the trial court can neither weigh the evidence nor judge the credibility of witnesses. Maple, 151 Ill.2d at 453, 177 Ill.Dec. 438, 603 N.E.2d 508.

Plaintiff first argues that defendant waived the statute of limitations defense because he failed to plead it as an affirmative defense. She cites Goldman v. Walco Tool & Engineering Co., 243 Ill.App.3d 981, 184 Ill.Dec. 841, 614 N.E.2d 42 (1993), in support of her argument. The Goldman court noted that the statute of limitations is an affirmative defense which is waived if not pled.

Section 2-613(d) of the Code of Civil Procedure (735 ILCS 5/2-613(d) (West 1994)) provides:

"The facts constituting any affirmative defense * * * and any ground or defense, whether affirmative or not, which, if not expressly stated in the pleading, would be likely to take the opposite party by surprise, must be plainly set forth in the answer or reply." 735 ILCS 5/2-613(d) (West 1994).

Section 2-613 is designed to prevent unfair surprise at trial. Cross v. Ainsworth Seed Co., 199 Ill.App.3d 910, 918, 145 Ill.Dec. 927, 557 N.E.2d 906 (...