McDonald v. Lipov
| Decision Date | 24 March 2014 |
| Docket Number | No. 2-13-0401,2-13-0401 |
| Citation | 2014 IL App (2d) 130401 |
| Parties | MICHELLE EVA McDONALD, Plaintiff-Appellant, v. DR. EUGENE G. LIPOV, d/b/a Advanced Pain Centers, d/b/a Alexian Brothers Medical Center, DR. JAYDEEP JOSHI, d/b/a Advanced Pain Centers, 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, DR. BARRY BIKSHORN, d/b/a Northwest Neurology, d/b/a Alexian Brothers Medical Center, DR. JERRY ANDREWS, d/b/a Alexian Brothers Medical Center, d/b/a IPC-Hospitalists of Chicago, DR. SZYMON ROSENBLATT, d/b/a Chicago Institute of Neurosurgery, Defendants-Appellees. |
| Court | United States Appellate Court of Illinois |
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court
of Du Page County.
¶ 1 Held: The trial court did not err in dismissing with prejudice the second amended complaint.
¶ 2 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 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.
¶ 3 Plaintiff appealed, arguing that the trial court erred in determining that (1) all of plaintiff's claims sound in medical malpractice, which requires 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.
¶ 4 We concluded that plaintiff's claims of medical malpractice required her to comply with section 2-622, plaintiff failed to comply with section 2-622, and the trial court did not abuse its discretion in dismissing with prejudice the malpractice claims. 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 curethe defective allegations. McDonald v. Lipov, No. 2-10-0518 (unpublished order under Supreme Court Rule 23).
¶ 5 On remand, plaintiff filed a 33-count, second amended complaint, which attempted to allege the following types of claims against various 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), (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.
¶ 6 Plaintiff appeals again, arguing that (1) she satisfied the counter-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; (2) Dr. Lipov's affidavit should have been stricken as "insufficient in law"; and (3) the dismissal violates her right to due process because it denies her "right to remedy and justice"; (4) a genuine issue of material fact precludes the dismissal; (5) the statute of limitations or statute of repose does not bar her medical battery claims; and (6) defendants failed to establish that plaintiff consented to the intrusions.
¶ 7 We agree with defendants that the trial court properly dismissed the entire second amended complaint with prejudice. First, plaintiff's medical battery claims, which are based on treatment that substantially varied from the consent granted, require compliance with section 2-622 of the Code because the expert testimony needed to assess the claims require 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, to the extent that the second amended complaint restates explicitly or incorporates by reference certain claims from the original complaint and the amended complaint, plaintiff either abandoned those claims or wefound 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.
¶ 9 On August 6, 2012, plaintiff filed a second amended complaint containing 33 claims, which can be sorted into three categories. First, the pleading contains 10 claims labeled "medical battery," for which we remanded the cause. The claims allege various acts and omissions of defendants, but every 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 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 is a brand name of a particular catheter that has been approved by the FDA for use in the RACZ 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 trial 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 plaintiff's claims were for medical negligence, not medical battery; and (3) plaintiff never obtained a health professional's report required for medical negligence claims.
¶ 10 Second, the pleading 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 certain claims, the second amended complaint also incorporates by reference all of the claims of the original complaint and theamended complaint. In McDonald I, we determined that the trial court properly dismissed these claims with prejudice. When plaintiff restated the claims in the second amended complaint, the court dismissed them again, commenting that "[w]e've been over that ground and that has been through the higher courts."
¶ 11 Third, the pleading contains 14 new claims: three claims of fraudulent concealment, nine claims of conspiracy, one claim of vicarious liability, and one 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. Plaintiff's timely appeal followed.
¶ 14 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 plaintiff's complaint, but asserts an affirmative defense or other matter that avoids or defeats the plaintiff's claim." DeLuna v. Burciaga, 223 Ill. 2d 49, 59 (2006); Solaia Technology, LLC v. Specialty Publishing Co., 221 Ill. 2d 558, 579 (2006). For a section 2-619 dismissal, our standard of review is de novo. Solaia Technology, 221 Ill. 2d at 579.
¶ 15 When reviewing a dismissal under section 2-619, a court must accept as true all well-pleaded facts in the plaintiff's complaint and all inferences that can reasonably be drawn in the plaintiff's favor. Morr-Fitz, Inc. v. Blagojevich, 231 Ill. 2d 474, 488 (2008). In ruling on a motion to dismiss under section 2-619, the trial court may consider pleadings, depositions, and affidavits. Raintree Homes, Inc. v. Village of Long Grove, 209 Ill. 2d 248, 262 (2004). Even if the trial court dismissed on an improper ground, a reviewing court may affirm the dismissal, ifthe record supports a proper ground for dismissal. Raintree, 209 Ill. 2d at 261 ().
¶ 16 The trial court dismissed plaintiff's claims labeled "medical battery" on the grounds that the claims required compliance with section 2-622 of the Code and plaintiff still had not complied with that statute. Section 2-622 was enacted to curtail frivolous medical malpractice lawsuits and to eliminate such actions at the pleading stage before the expenses of litigation mount. DeLuna v. St. Elizabeth's Hospital, 147 Ill. 2d 57, 65 (1992). Section 2-622(a)(1) requires a plaintiff, if proceeding pro se, or his attorney to file an affidavit of merit with the complaint stating that the affiant has consulted and reviewed the facts of the case with a health professional who, in a written medical report—after a review of the medical records and other relevant material—has determined...
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