Holzrichter v. Yorath

• Decision Date: 12 April 2013
• Docket Number: Docket No. 1–11–0287.
• Parties: Scott W. HOLZRICHTER, Plaintiff–Appellant, v. Martin YORATH, Rosalind Franklin University Of Medicine and Sciences, Chicago Medical School, Dr. William M. Scholl College Of Podiatric Medicine School Of Graduate and Postdoctoral Studies (CMS), Foot And Ankle Clinics Of America (FACA), American Medical Association (AMA), Department Of Professional Regulation (IDPR), American Podiatric Medical Association (APMA), and Illinois Podiatric Medical Association (IPMA), Defendants–Appellants.
• Court: United States Appellate Court of Illinois

2013 IL App (1st) 110287

987 N.E.2d 1

369 Ill.Dec. 659

Scott W. HOLZRICHTER, Plaintiff–Appellant,

v.Martin YORATH, Rosalind Franklin University Of Medicine and Sciences, Chicago Medical School, Dr. William M. Scholl College Of Podiatric Medicine School Of Graduate and Postdoctoral Studies (CMS), Foot And Ankle Clinics Of America (FACA), American Medical Association (AMA), Department Of Professional Regulation (IDPR), American Podiatric Medical Association (APMA), and Illinois Podiatric Medical Association (IPMA), Defendants–Appellants.

Docket No. 1–11–0287.

Appellate Court of Illinois, First District, First Division.

March 4, 2013.

Rehearing Denied April 12, 2013.

Scott Holzrichter, of Chicago, appellant pro se.

Johnson & Bell, Ltd., of Chicago (Gregory E. Schiller, David M. Macksey, and Garrett L. Boehm, Jr., of counsel), for appellees Martin Yorath, Rosalind Franklin University of Medicine & Sciences, Chicago Medical School, Dr. William M. Scholl, College of Podiatric Medicine School of Graduate & Postdoctoral Studies.

Clausen Miller, P.C., of Chicago (Monica C. Palermo and Brian J. Riordan, of counsel), for appellee Foot & Ankle Clinics of America.

American Medical Association, of Chicago (Leonard A. Nelson, of counsel), for appellee American Medical Association.

Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro, Solicitor General and Elaine Wyder-Harshman, Assistant Attorney General, of counsel), for appellee Department of Professional Regulation.

Chicago Law Partners, LLC, of Chicago (Timothy A. French of counsel), for appellees American Podiatric Medical Association and Illinois Podiatric Association.

OPINION

Justice DELORT delivered the judgment of the court, with opinion.

[369 Ill.Dec. 662]¶ 1 Plaintiff, Scott Holzrichter, who is representing himself, sued defendants, Martin Yorath, D.P.M., Rosalind Franklin University of Medicine and Sciences (RFU), Chicago Medical School (CMS), Dr. William M. Scholl College of Podiatric Medicine School of Graduate and Postdoctoral Studies (Scholl College), Foot and Ankle Clinics of America (FACA), American Medical Association (AMA), Illinois Department of Professional Regulation (IDPR), American Podiatric Medical Association (APMA) and Illinois Podiatric Medical Association (IPMA), seeking damages arising out of injuries he allegedly sustained from podiatric surgery performed by Dr. Yorath. Count I of plaintiff's third amended complaint is directed against Dr. Yorath and sounds in medical battery. Plaintiff alleges vicarious liability against CMS and FACA in counts II and III. He asserts the AMA, APMA and IPMA violated the Illinois Antitrust Act (740 ILCS 10/3(1)–(3) (West 2004)) in counts IV, X and XI. Count V of the third amended complaint alleges negligence against the IDPR. Plaintiff claims fraudulent concealment against Dr. Yorath in count VI. He alleges Dr. Yorath committed medical malpractice, breach of informed consent and gross negligence in counts VII and VIII. Finally, count IX sets forth a claim of res ipsa loquitur against Dr. Yorath.

¶ 2 The circuit court dismissed all counts of the third amended complaint with prejudice except for count I. Dr. Yorath moved for summary judgment on the sole remaining claim for medical battery, and the court granted that motion. Plaintiff appeals pro se. For the following reasons, we affirm.

¶ 3 BACKGROUND

¶ 4 Plaintiff initially injured his left big toe during the late summer of 1995. He testified by deposition that he was running at night and stubbed the toe on a crack in the sidewalk that had been raised upward from the growth of a tree root underneath. According to plaintiff, when his left big toe struck the sidewalk, it “caused the head of the first metatarsal to be moved immediately off the sesamoid apparatus.” In other words, the toe “was driven down and below the second toe.” Plaintiff further explained that his sesamoid apparatus, the “equivalent to a kneecap of the knee,” was dislocated “and it caused a bow strung big toe.”

¶ 5 Plaintiff testified that he did not seek medical treatment at the time he stubbed his toe. Plaintiff “thought with time it would heal because I did not really know the state of my foot—and it didn't.”

¶ 6 Seven years after he stubbed his toe, plaintiff sought medical treatment at Community Health Clinic. Twice weekly, podiatrists from Scholl College would visit the clinic to provide free services to indigent and uninsured patients. Community Health Clinic scheduled an appointment for plaintiff to see a doctor from the Scholl College.

[369 Ill.Dec. 663]¶ 7 On November 19, 2002, a Scholl College physician examined plaintiff at Community Health Clinic and diagnosed his left foot ailment as hallux abducto valgus. “Hallux” refers to the big toe, “abducto” refers to the abnormal inward leaning of the big toe and “valgus” refers to the abnormal angulation of the big toe, commonly associated with bunion anomalies. The physician executed a referral form on the same date for plaintiff to be assessed further by the Foot Clinic for the Uninsured at Scholl College (Scholl Foot Clinic). According to plaintiff, he was first seen at the Scholl Foot Clinic in November 2002 by a third-year podiatric medical school student and again on December 10, 2002 by a physician. Medical records dated December 10, 2002 indicate that plaintiff suffered from a “bunion that's painful with running.” The medical records, labeled “progress notes,” describe plaintiff's pain as “dull and achy of gradual onset of 7 years [ sic ] duration,” caused “while running when he hit his foot against a curb.”

¶ 8 On January 21, 2003, Dr. Yorath examined plaintiff's left big toe for the first time. Dr. Yorath diagnosed plaintiff with hallux abducto valgus and suggested an osteotomy or bunionectomy. Plaintiff recalled from the initial examination that Dr. Yorath discussed the type of surgical procedure, a “Z scarf-Meyer osteotomy,” and described it. According to plaintiff, Dr. Yorath told him the surgery required “cutting the first metatarsal, which is the longest, biggest long bone in the foot,” “moving the two pieces and screwing them back together again.”

¶ 9 Plaintiff testified that during the January 21 meeting, Dr. Yorath proposed cutting the extensor hallucis brevis tendon during the course of the Z scarf osteotomy procedure. Plaintiff “immediately told him don't do that.” Plaintiff believed Dr. Yorath was joking when he suggested cutting the tendon. Plaintiff stated Dr. Yorath did not explain that cutting the tendon was part of the Z scarf osteotomy procedure and that, when plaintiff objected to the cutting of the tendon, Dr. Yorath remained silent and then changed the subject. According to plaintiff, cutting a tendon during the Z scarf osteotomy procedure was “absurd.” Plaintiff testified that he had no medical training, but knew that cutting tendons “had nothing to do with the osteotomy he was describing. An osteotomy and cutting tendons are two totally completely separate things that have nothing to do with each other in any way.” He stated it was “preposterous [for Dr. Yorath] to even suggest that [the extensor hallucis brevis] tendon has anything to do with the development of this [hallux abducto valgus] pathology.” Plaintiff refused to defer to a physician on the issue of whether cutting the tendon is part of the Z scarf osteotomy procedure and stated a physician who would suggest such a course of action “is a fraud.”

¶ 10 The progress notes dated January 21, 2003 reflect that the Z scarf osteotomy procedure recommended to plaintiff “would be better suited to allow for ease of ambulation as well as correction of deformity.” The notes stated plaintiff demonstrated an “understanding of rationale as to this approach to [the] problem,” but made no mention of plaintiff instructing Dr. Yorath not to cut the extensor hallucis brevis tendon.

¶ 11 Following the initial appointment with Dr. Yorath, plaintiff sent him a January 22, 2003 letter outlining “a layman history” of what he believed happened to his foot when he injured it in 1995. The correspondence included no express instruction to Dr. Yorath to not cut any tendons. Plaintiff stated he sent the correspondence for “strictly physical history.”

[369 Ill.Dec. 664]¶ 12 On January 28, 2003, plaintiff returned for a second visit with Dr. Yorath. The progress notes of the same date, labeled “pre-op physical,” document that plaintiff had been extensively consulted as to the nature of his foot condition and the surgical remedy. During the January 28 appointment, plaintiff acknowledged Dr. Yorath had expressed he was contemplating cutting the tendons during the procedure. Plaintiff reiterated to Dr. Yorath that he did not want any tendons to be cut. According to plaintiff, each time Dr. Yorath mentioned cutting the tendon, plaintiff responded, “don't do that.” Plaintiff does not recall having a thorough conversation with Dr. Yorath regarding the status of his foot condition or his surgical options. He also denied having a thorough conversation with Dr. Yorath regarding the planned surgical procedure. Plaintiff testified, however, that he was allowed to ask Dr. Yorath questions and did so during his visits with Dr. Yorath prior to the surgery. Dr. Yorath's Illinois Supreme Court Rule 213(f) (Ill.S.Ct. R. 213(f) (eff. Jan. 1, 2007)) disclosures state that Dr. Yorath would testify he explained to plaintiff that severing of the tendons is part and parcel of the Z scarf osteotomy procedure.

¶ 13 Plaintiff testified that at the end of the January 28 appointment, he told Dr. Yorath that he wanted to go forward with the Z scarf osteotomy procedure, but did not authorize the cutting of any tendons. Plaintiff believed cutting the tendons involved “a totally separate procedure” and that Dr. Yorath's suggestion to cut the tendons was “a mere like whimsical experiment on his part.” The Scholl Foot Clinic scheduled plaintiff for preoperative blood work on February 13, 2003...