McDonald v. Lipov

• Decision Date: 19 June 2014
• Docket Number: No. 2–13–0401.,2–13–0401.
• Parties: Michelle Eva McDONALD, Plaintiff–Appellant, v. Eugene G. LIPOV, d/b/a Advanced Pain Centers, S.C., d/b/a Alexian Brothers Medical Center, Jaydeep Joshi, d/b/a Advanced Pain Centers, S.C., d/b/a Alexian Brothers Medical Center, Sarah Sanders, d/b/a Advanced Pain Centers, d/b/a Alexian Brothers Medical Center, Viren Gohil, d/b/a Alexian Brothers Medical Center, Jeannie Ycarro, d/b/a Alexian Brothers Medical Center, Barry Bikshorn, d/b/a Northwest Neurology, d/b/a Alexian Brothers Medical Center, Jerry Andrews, d/b/a Alexian Brothers Medical Center, d/b/a IPC–Hospitalists of Chicago, Szymon Rosenblatt, d/b/a Chicago Institute of Neurosurgery, Defendants–Appellees.
• Court: United States Appellate Court of Illinois

13 N.E.3d 179

Michelle Eva McDONALD, Plaintiff–Appellant
v.
Eugene G. LIPOV, d/b/a Advanced Pain Centers, S.C., d/b/a Alexian Brothers Medical Center, Jaydeep Joshi, d/b/a Advanced Pain Centers, S.C., d/b/a Alexian Brothers Medical Center, Sarah Sanders, d/b/a Advanced Pain Centers, d/b/a Alexian Brothers Medical Center, Viren Gohil, d/b/a Alexian Brothers Medical Center, Jeannie Ycarro, d/b/a Alexian Brothers Medical Center, Barry Bikshorn, d/b/a Northwest Neurology, d/b/a Alexian Brothers Medical Center, Jerry Andrews, d/b/a Alexian Brothers Medical Center, d/b/a IPC–Hospitalists of Chicago, Szymon Rosenblatt, d/b/a Chicago Institute of Neurosurgery, Defendants–Appellees.

No. 2–13–0401.

Appellate Court of Illinois, Second District.

June 19, 2014.

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Michelle Eva McDonald, of Beach Park, appellant pro se.

Robert L. Nora, Lynne M. Damsma, and Taylor V. Nora, all of Nora & Tanzillo, LLP, of Chicago, for appellee Szymon Rosenblatt.

Deborah M.R. O'Brien, Vito M. Masciopinto, and Jamie Crowley, all of Lowis & Gellen LLP, for appellee Jeannie Ycarro.

Richard J. Hickey, Thomas A. Rieck, and Scott Stirling, all of Hickey, Melia & Associates, Chtrd., of Chicago, for appellee Jerry Andrews.

Michael C. Kominiarek, Lisa M. Green, and Michael R. Webber, all of Kominiarek Bresler Harvick & Gudmundson, LLC, of Chicago, for appellee Barry Bikshorn.

Brian J. Hickey and Mark A. Sansone, both of Cassiday Schade LLP, of Naperville, for other appellees.

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OPINION

Presiding Justice BURKE delivered the judgment of the court, with opinion.

¶ 1 Plaintiff, Michelle Eva McDonald, is a young woman who suffers from back pain and ailments in her lower extremities. She filed a pro se amended complaint for injuries that allegedly arose from medical care provided by defendants in 2007. The complaint alleged medical malpractice and medical battery. The trial court gave plaintiff three extensions of time to comply with the affidavit and health-professional's-report requirements of section 2–622 of the Code of Civil Procedure (Code) (735 ILCS 5/2–622 (West 2008) ). Defendants filed motions to dismiss on the grounds that plaintiff's filings did not meet the requirements (see 735 ILCS 5/2–619, 2–622(g) (West 2008)) and that the allegations did not state a claim (see 735 ILCS 5/2–615 (West 2008) ). The court eventually dismissed plaintiff's amended complaint with prejudice.

¶ 2 Plaintiff appealed, arguing that the trial court erred in determining that (1) all of plaintiff's claims sounded in medical malpractice, which required her to comply with section 2–622 of the Code; (2) plaintiff did not substantially comply with section 2–622; (3) all of defendants' motions to dismiss could be granted in a combined ruling; (4) the amended complaint should be dismissed with prejudice; and (5) plaintiff's motion for summary judgment was premature.

¶ 3 We concluded that plaintiff's claims of medical malpractice required her to comply with section 2–622, that plaintiff failed to comply with section 2–622, and that the trial court did not abuse its discretion in dismissing the malpractice claims with prejudice. We also held that the medical battery allegations failed to state a claim and were subject to dismissal under section 2–615. However, we concluded that the court abused its discretion in dismissing the medical battery allegations with prejudice, and we remanded the cause to afford plaintiff the opportunity to cure the defective allegations. McDonald v. Lipov, No. 2–10–0518, 2011 WL 10452209 (2011) (unpublished order under Supreme Court Rule 23 ) (McDonald I ).

¶ 4 On remand, plaintiff filed a 33–count, second amended complaint, which attempted to allege the following types of claims against defendants: (1) medical battery, (2) medical negligence, (3) fraudulent concealment, (4) conspiracy, (5) violations of the Emergency Medical Treatment and Active Labor Act (42 U.S.C. § 1395dd (2012) ), (6) breach of contract, (7) vicarious liability, and (8) spoliation of evidence. The trial court dismissed the second amended complaint with prejudice for failing to state a claim.

¶ 5 Plaintiff appeals again, arguing that (1) section 2–622 does not apply to her medical battery claims; (2) she satisfied the affidavit requirement of section 2–622(a)(3) (735 ILCS 5/2–622(a)(3) (West 2012)) by verifying the second amended complaint by certification according to section 1–109 of the Code (735 ILCS 5/1–109 (West 2012) ); (3) Dr. Lipov's affidavit should have been stricken as “insufficient in law”; (4) the dismissal violates her right to due process, because it denies her “right to remedy and justice”; (5) a genuine issue of material fact precludes the dismissal; (6) the statute of limitations or statute of repose does not bar her medical battery claims; and (7) defendants failed to establish that plaintiff consented to the intrusions.

¶ 6 We agree with defendants that the trial court properly dismissed the second amended complaint with prejudice. First, plaintiff's medical battery claims, which allege treatment that substantially varied

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from the consent granted, require compliance with section 2–622 of the Code, because an assessment of the claims requires knowledge, skill, or training in a technical area outside the comprehension of laypersons. Contrary to plaintiff's assertion, she has not complied with section 2–622. Second, the second amended complaint restates explicitly or incorporates by reference certain claims from the original complaint and the amended complaint, but plaintiff either abandoned those claims or we found them defective in McDonald I, and our decision is the law of the case. Third, considering the long procedural history of this matter, we conclude that the trial court did not abuse its discretion in denying plaintiff leave to assert new claims that she could have pleaded earlier.

¶ 7 I. BACKGROUND

¶ 8 On August 6, 2012, plaintiff filed her second amended complaint, which contains 33 claims that can be sorted into three categories. First, the complaint contains 10 claims labeled “medical battery,” which plaintiff had the opportunity to cure on remand. The claims allege various acts and omissions by defendants, but each claim alleges that the conduct was an unauthorized “deviation from consent.” Dr. Lipov, her treating physician, submitted an affidavit stating, in part, that plaintiff signed a written consent form agreeing to undergo the RACZ caudal epidural injection procedure that is the subject of the claims. His affidavit also states that the Myelotec catheter used in the procedure has been approved by the Food and Drug Administration for use in the procedure. Over plaintiff's objection, the court found Dr. Lipov's affidavit to be in compliance with Illinois Supreme Court Rule 191 (eff. Jan. 4, 2013). The court dismissed the claims, concluding that (1) without a counteraffidavit submitted by plaintiff, the court must take as true Dr. Lipov's statement that plaintiff signed a consent form; (2) the existence of a signed consent form meant that plaintiff's claims were for medical negligence, not medical battery; and (3) plaintiff never obtained a health professional's report as required for medical negligence claims.

¶ 9 Second, the complaint restates nine claims from the amended complaint: four negligence claims, three alleged violations of the Emergency Medical Treatment and Active Labor Act, and two claims of breach of contract. (Besides explicitly restating these claims, the second amended complaint also incorporates by reference all of the claims of the original complaint and the amended complaint.) In McDonald I, we determined that the trial court properly dismissed these claims with prejudice. When plaintiff restated the claims, the court dismissed them again, commenting that “[w]e've been over that ground and that has been through the higher courts.”

¶ 10 Third, the complaint contains 14 new claims: 3 claims of fraudulent concealment, 9 claims of conspiracy, 1 claim of vicarious liability, and 1 claim of spoliation of evidence. The trial court dismissed these claims with prejudice. The court concluded that allowing plaintiff to add these claims would violate our mandate in McDonald I. Plaintiff's timely appeal followed.

¶ 11 II. ANALYSIS

¶ 12 A. Medical Battery

¶ 13 On appeal, plaintiff asks us to reverse the trial court's dismissal of the medical battery claims, entered pursuant to section 2–619 of the Code. 735 ILCS 5/2–619 (West 2012). “A motion to dismiss, pursuant to section 2–619 of the Code, admits the legal sufficiency of the plaintiffs' complaint, but asserts an affirmative defense or other matter that avoids

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or defeats the plaintiffs' claim.” DeLuna v. Burciaga, 223 Ill.2d 49, 59, 306 Ill.Dec. 136, 857 N.E.2d 229 (2006) ; Solaia Technology, LLC v. Specialty Publishing Co., 221 Ill.2d 558, 578–79, 304 Ill.Dec. 369, 852 N.E.2d 825 (2006). For a section 2–619 dismissal, our standard of review is de novo. Solaia Technology, 221 Ill.2d at 579, 304 Ill.Dec. 369, 852 N.E.2d 825.

¶ 14 When reviewing a dismissal under section 2–619, a court must accept as true all well-pleaded facts in the plaintiff's complaint and...