Malanowski v. Jabamoni

• Decision Date: 26 November 1997
• Docket Number: No. 1-95-3381,1-95-3381
• Citation: 688 N.E.2d 732,293 Ill.App.3d 720
• Parties: , 228 Ill.Dec. 34 Jane MALANOWSKI and Alan Malanowski, Plaintiffs-Appellants, v. Dr. Reena JABAMONI, Defendant (Loyola University of Chicago, Defendant-Appellee).
• Court: United States Appellate Court of Illinois

Page 732

688 N.E.2d 732

293 Ill.App.3d 720, 228 Ill.Dec. 34

Jane MALANOWSKI and Alan Malanowski, Plaintiffs-Appellants, v. Dr. Reena JABAMONI, Defendant (Loyola University of Chicago Defendant-Appellee).

No. 1-95-3381.

Appellate Court of Illinois,

First District, Fifth Division.

Nov. 26, 1997.

Rehearing Denied Dec. 30, 1997.

Jerome W. Pinderski, Jr., Paul C. Pinderski, Pinderski & Pinderski, Ltd., Palatine, for Plaintiffs-Appellants.

Terrence M. Burns, Patricia C. Nowak, Nicole Roth, Rooks, Pitts and Poust, Chicago, for Defendant-Appellee.

Justice HOURIHANE delivered the opinion of the court:

Plaintiff, Alan Malanowski, individually and as special administrator for the estate of his wife, Jane Malanowski (Malanowski), deceased, sued Dr. Reena Jabamoni and Loyola University of Chicago (Loyola) for negligence and wrongful death, claiming Dr. Jabamoni negligently misdiagnosed his wife's breast cancer. Loyola successfully moved to dismiss certain counts of plaintiff's third amended complaint pursuant to sections 2-615 and 2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615, 2-619 (West 1996)), and was granted summary judgment (735 ILCS 5/2-1005 (West 1996)) as to the remaining counts. Plaintiff appeals. 155 Ill.2d R. 304(a).

For the reasons set forth below, we affirm in part, reverse in part, and remand for further proceedings.

BACKGROUND

In his third amended complaint, plaintiff alleges that on July 31, 1991, Malanowski saw Dr. Jabamoni at the Loyola University Mulcahy Outpatient Center (outpatient center) for her regular annual gynecological exam. For several years, Malanowski had been a regular patient of Dr. Jabamoni. At the July 31 appointment, Malanowski noted certain lumps in her right breast, which Dr. Jabamoni concluded were of no medical consequence. Dr. Jabamoni did not suggest any further testing.

Plaintiff further alleges that in April, 1993, Malanowski was diagnosed with a form of advanced breast cancer, necessitating a modified radical mastectomy. She succumbed to the disease on December 15, 1993.

In counts II and V, plaintiff seeks damages against Loyola on a respondeat superior basis, alleging that Dr. Jabamoni was an employed staff physician at the outpatient center and that she treated Malanowski in July, 1991, "during the normal course of her assigned employment at the center." In counts VIII and IX, plaintiff seeks damages against Loyola on an apparent agency theory, alleging that Malanowski reasonably believed that Dr. Jabamoni was an employee of the outpatient center. Finally, in counts III, VI and VII, plaintiff seeks damages against Loyola for its own negligence in failing to supervise the treatment rendered by Dr. Jabamoni.

The trial court dismissed counts II and V on Loyola's 2-619 motion, and counts VIII and IX on Loyola's 2-615 motion. The trial court further granted summary judgment in favor of Loyola as to counts III, VI and VII, and made a Rule 304(a) finding of appealability (155 Ill.2d R. 304(a)).

ANALYSIS

Section 2-619

Dismissal of Respondeat Superior Claims

Loyola moved to dismiss counts II and V pursuant to section 2-619(a)(9) of the Code (735 ILCS 5/2-619(a)(9) (West 1996)), arguing that Dr. Jabamoni was not, in fact, an employee of Loyola and that Loyola could not, therefore, be liable for any negligence of Dr. Jabamoni based on respondeat superior. In support of its motion, Loyola submitted the affidavit of Dr. Jan Radke, Vice-President of Health Care Services at Loyola. Plaintiff was granted leave to take Dr. Radke's deposition, the transcript of which plaintiff submitted in opposition to Loyola's motion. The trial court determined that there was no question of fact as to the employment relationship between Loyola and Dr. Jabamoni, and that the only such relationship was in connection with her role as a professor at Preliminarily, we observe that Loyola's motion should have been brought under section 2-1005 of the Code (735 ILCS 5/2-1005 (West 1996)), not section 2-619. The purpose of a section 2-619 motion is to dispose of issues of law or easily proved issues of fact at the outset of the litigation. Spiegel v. Hollywood Towers Condominium Association, 283 Ill.App.3d 992, 998, 219 Ill.Dec. 436, 671 N.E.2d 350 (1996). More specifically, section 2-619(a)(9) permits dismissal of an action where "the claim asserted against defendant is barred by other affirmative matter avoiding the legal effect of or defeating the claim." 735 ICLS 5/2-619(a)(9) (West 1996). An "affirmative matter" is something in the nature of a defense that completely negates the cause of action or refutes crucial conclusions of law or conclusions of material fact unsupported by allegations of specific fact contained in or inferred from the complaint. Bucci v. Rustin, 227 Ill.App.3d 779, 782, 169 Ill.Dec. 810, 592 N.E.2d 297 (1992). Evidence which merely refutes a well-pled fact in the complaint is not an "affirmative matter" within the meaning of the statute. Bucci, 227 Ill.App.3d at 782, 169 Ill.Dec. 810, 592 N.E.2d 297; Evergreen Oak Electric Supply and Sales Co. v. First Chicago Bank of Ravenswood, 276 Ill.App.3d 317, 319, 212 Ill.Dec. 804, 657 N.E.2d 1149 (1995).

[228 Ill.Dec. 37] Loyola's Stritch School of Medicine. Accordingly, the trial court granted Loyola's motion dismissing counts II and V. We affirm.

Here, Loyola's section 2-619 motion challenged plaintiff's factual allegation that Dr. Jabamoni was an "employed staff physician" at the outpatient center, and that her allegedly tortious conduct was committed "during the normal course of her assigned employment" with Loyola. Clearly, however, Dr. Jabamoni's employment relationship with Loyola was elemental to plaintiff's respondeat superior claim. Evidence which merely refutes this ultimate fact and well-pled allegation is not an "affirmative matter" under section 2-619. See Longust v. Peabody Coal Co., 151 Ill.App.3d 754, 757, 104 Ill.Dec. 436, 502 N.E.2d 1096 (1986). Had Loyola wished to challenge the factual sufficiency of plaintiff's claim that Dr. Jabamoni was an employed staff physician of Loyola, then the proper vehicle would have been a motion for summary judgment under section 2-1005 (735 ILCS 5/2-1005 (West 1996)). Longust, 151 Ill.App.3d 754, 104 Ill.Dec. 436, 502 N.E.2d 1096; Barber-Colman v. A & K Midwest Insulation Co., 236 Ill.App.3d 1065, 1072-73, 177 Ill.Dec. 841, 603 N.E.2d 1215 (1992).

Although a section 2-619(a)(9) motion may not be used as a substitute for a summary judgment motion (Longust, 151 Ill.App.3d at 757, 104 Ill.Dec. 436, 502 N.E.2d 1096), we note that they are similar in that a fact motion under section 2-619 essentially amounts to a summary judgment procedure. Landon v. Jarvis, 255 Ill.App.3d 439, 446, 194 Ill.Dec. 255, 627 N.E.2d 371 (1993); Ralston v. Casanova, 129 Ill.App.3d 1050, 1056, 85 Ill.Dec. 76, 473 N.E.2d 444 (1984). Thus, we do not regard the misdesignation of Loyola's motion as grounds for reversal. As this court has observed:

"Meticulous practice dictates that motions should be properly designated. However, misdesignation is not always fatal to the right of the movant to prevail. [Citation omitted.] The court will look to the substance of the motion to determine which section of the Code of Civil Procedure governs. [Citation omitted.] Reversal by reason of misdesignation is only required where the nonmovant has been prejudiced by the error [Citation omitted] * * *." Scott Wetzel Services v. Regard, 271 Ill.App.3d 478, 481, 208 Ill.Dec. 98, 648 N.E.2d 1020 (1995).

Here, we find no prejudice to the plaintiff. A very narrow, clearly defined issue was raised in Loyola's motion, Loyola was ordered to produce Dr. Radke for his deposition, and plaintiff was granted leave to issue written discovery on the matters raised in Dr. Radke's affidavit. Thus, in the interests of judicial economy, we shall treat Loyola's motion as one for summary judgment.

We review the grant of summary judgment de novo. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill.2d 90, 102, 180 Ill.Dec. 691, 607 N.E.2d 1204 (1992). Our function is to determine whether the trial court properly determined that no genuine issue of material fact had been We agree with the trial court that there is no question of fact as to the employment relationship between Dr. Jabamoni and Loyola and that the only such relationship was with respect to the doctor's role as a professor at Loyola's Stritch School of Medicine. The unrebutted deposition testimony of Dr. Radke established that the only persons Loyola employs at the outpatient center are the administrative directors and managers for each practice discipline, nurses, clerical staff, and medical assistants. Physicians practicing at the outpatient center are independent contractors who use the medical office space for their private practices. Although Loyola's credentials committee must grant "privileges" to physicians who wish to see patients at the outpatient center, Dr. Radke testified that Loyola has "nothing to say about how the individual physicians practice or how their decisions are made." Loyola is only the administrative manager of the facility; it provides no clinical management. Significantly, the type of control necessary to establish an employer-employee relationship is control over the details and methods of work. Bryant v. Fox, 162 Ill.App.3d 46, 50, 113 Ill.Dec. 790, 515 N.E.2d 775 (1987); Spivey v. Brown, 150 Ill.App.3d 139, 143, 103 Ill.Dec. 876, 502 N.E.2d 23 (1986). Plainly, such control is absent here. Further, the fact that Loyola supplied personnel and equipment to the physicians practicing at the outpatient center does not evidence a right to govern their conduct. Barton v. Evanston Hospital, 159 Ill.App.3d 970, 974, 111 Ill.Dec. 819, 513 N.E.2d 65 (1987).

[228 Ill.Dec. 38] raised, and if none was raised, whether judgment was proper as a matter of law. Lavat v. Fruin Colnon Corp., 232 Ill.App.3d 1013, 1023, 173 Ill.Dec. 914, ...