Pantone v. Demos

• Decision Date: 14 April 1978
• Docket Number: No. 77-332,77-332
• Citation: 59 Ill.App.3d 328,375 N.E.2d 480,16 Ill.Dec. 607
• Parties: , 16 Ill.Dec. 607 Anton M. PANTONE and Arnold B. Swerdlow, Plaintiffs-Appellants, v. James Thomas DEMOS and Noel J. Murtagh, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 480

375 N.E.2d 480

59 Ill.App.3d 328, 16 Ill.Dec. 607

Anton M. PANTONE and Arnold B. Swerdlow, Plaintiffs-Appellants, v. James Thomas DEMOS and Noel J. Murtagh, Defendants-Appellees.

No. 77-332.

Appellate Court of Illinois, First District, Fifth Division.

April 14, 1978.

[16 Ill.Dec. 608] Eugene L. Shepp, Chicago, for plaintiffs-appellants

William J. Harte, Ltd., Chicago, for appellee Murtagh.

Hinshaw, Culbertson, Moelmann, Hoban & Fuller, Chicago (Perry L. Fuller, D. Kendall Griffith and Thomas L. Browne, Chicago, of counsel), for appellee Demos.

MEJDA, Justice.

Plaintiffs, Dr. Anton M. Pantone and Dr. Arnold B. Swerdlow, brought this action in six counts, three on behalf of each plaintiff, for the alleged wrongful naming of them as defendants in a medical malpractice action. The malpractice action was filed by the defendant, James T. Demos, a duly-licensed attorney, on behalf of the defendant, Noel J. Murtagh, in the latter's capacity as administrator of the estate of his deceased wife, Anne Murtagh. Defendants moved to dismiss the complaint for failure to state a cause of action. The trial court sustained both motions and entered an order dismissing the complaint as to each defendant, and plaintiffs appeal. The sole issue before this court is whether plaintiffs' complaint states a cause of action against either, or both, defendants. We affirm. A summary of the facts and allegations contained in plaintiffs' complaint follows.

On December 20, 1972, Anne Murtagh, the now deceased wife of the defendant, Noel J. Murtagh, entered Skokie Valley Community Hospital for childbirth. Upon her admission to the hospital she was referred to the radiology department for the purpose of undergoing a chest X-ray in accordance with the usual regimen and practice of the hospital. Plaintiff, Dr. Pantone, was on duty in the radiology department at the time, and he supervised the taking of decedent's chest X-ray films. This was the only time Dr. Pantone saw the decedent and the taking of her chest X-ray was the sole care and treatment which he rendered to the decedent.

Later that same day the other plaintiff, Dr. Swerdlow, was requested by the decedent's attending physician to perform two venous cutdowns on decedent, which he did, without unusual or untoward incident. This was the only time Dr. Swerdlow saw decedent and this was the only care and treatment which he rendered to the decedent. Mrs. Murtagh died later that same day from complications encountered in the course of her childbirth.

Thereafter, defendant Demos filed a medical malpractice action on behalf of defendant Murtagh, who had been appointed administrator of his wife's estate, against a number of defendants, including Dr. Pantone and Dr. Swerdlow. All defendants in that action were accused of committing the exact same careless and negligent acts, namely: (a) failing to control decedent's vaginal bleeding so that as a direct and proximate result thereof, plaintiff's decedent's sustained her death; and (b) failing to have blood available to supplement plaintiff's decedent's blood loss.

Subsequently, Dr. Pantone, by and through his attorneys in the original malpractice action, requested the plaintiff therein to admit certain facts, namely, that the only contact Dr. Pantone had with the decedent was the interpretation of her Thereafter, the plaintiff in that suit, by and through his attorney, replied that he was unable to either admit or deny said facts until after the taking of Dr. Pantone's deposition. Dr. Pantone's deposition was, in fact, never taken, but nonetheless he was dismissed as a party defendant in the malpractice suit on May 21, 1976, at which time his motion for summary judgment was sustained by the court. Dr. Swerdlow likewise was dismissed as a party defendant in the malpractice suit on June 7, 1976, when his motion for summary judgment was sustained by the court.

[16 Ill.Dec. 609] chest X-ray and further that said interpretation did not in any way cause or contribute to the death of the decedent.

Following their dismissal from the malpractice suit, Dr. Pantone and Dr. Swerdlow brought the instant action against the plaintiff in the former action and his attorney, alleging that both defendants were guilty of willfully and wantonly bringing suit against them without reasonable cause and also with maliciously prosecuting the malpractice suit against them without having reasonable cause to do so. In addition, these plaintiffs also sued the attorney defendant for ordinary negligence alleging that he fell below the standards of care required of him in bringing suit against them without having reasonable cause to do so. As noted, the trial court dismissed the complaint as to each defendant for failure to state a cause of action, and this appeal follows.

OPINION

Preliminarily, we note that the thrust of plaintiffs' arguments to this court is that new legal remedies must be made available to doctors whose livelihood may be endangered by their being improperly named defendants in a medical malpractice action. We must disagree. Rather, we concur with the recent pronouncement of the Illinois Appellate Court for the Second District in the similar case of Lyddon v. Shaw (1978), 56 Ill.App.3d 815, 822, 14 Ill.Dec. 489, 494, 372 N.E.2d 685, 690, that the public interest in free access to the courts as a means of settling disputes "demands that we reject any effort to extend the tort liability for the wrongful filing of a lawsuit beyond the ambit of an action for malicious prosecution or abuse of process."

In counts I and IV of their complaint, plaintiffs attempted to plead tort actions alleging willful and wanton misconduct against both defendants. More specifically, in these two counts plaintiffs alleged that defendants owed them a duty to refrain from willfully and wantonly bringing suit against them without having reasonable cause to believe that they were guilty of medical malpractice, that defendants breached this duty by filing suit against the plaintiffs with a reckless disregard as to the truth or veracity of the allegations contained in such suits, and that plaintiffs were damaged thereby.

The initial response to this contention is that the cause of action alleged by plaintiffs in these counts is not recognized in Illinois. Despite plaintiffs' claim that counts I and IV contain elements "commonly and historically necessary to plead in tort," there is no historical or common law basis for the willful and wanton cause of action proposed herein. In T. E. Hill Co. v. Contractors' Supply & Equipment Co. (1911), 249 Ill. 304, 310, 94 N.E. 544, 546, our supreme court stated:

"At common law a person is not liable for bringing any suit, criminal or civil, or for causing a seizure of property, if the court had jurisdiction of the subject matter and the parties, unless he acts maliciously and without probable cause."

Hill still represents the state of the law in Illinois. (See Lyddon v. Shaw; Westphal v. Fridly (1975), 34 Ill.App.3d 611, 339 N.E.2d 30.) Thus, the existent remedy for plaintiffs' alleged wrong lay in an action for malicious prosecution. Therefore, counts I and IV were properly dismissed for failure to state a cause of action for the wrongful initiation of civil proceedings.

However, plaintiffs also alleged in these counts that Article I, Section 12 of the Illinois Constitution guarantees them redress for such alleged wrongful acts. Section 12 reads as follows "Every person shall find a certain remedy in the laws for all injuries and wrongs which he receives to his person, privacy, property or reputation. He shall obtain justice by law, freely, completely, and promptly." (Ill.Const.1970, art. I, § 12.)

Plaintiffs argue that this provision constitutes a mandate that this court recognize a new cause of action for the willful and wanton filing of a lawsuit. We cannot agree.

Section 12 is "an expression of a philosophy and not a mandate that a 'certain remedy' be provided in any specific form or that the nature of the proof necessary to the award of a judgment or decree continue without modification." (Sullivan v. Midlothian Park Dist. (1972), 51 Ill.2d 274, 277, 281 N.E.2d 659, 662.) Thus, that plaintiffs in this case may fear that they would be subjected to more onerous burdens of proof under the recognized remedies for such wrongs is irrelevant. So long as some remedy for the alleged wrong exists section 12 does not mandate recognition of any new remedy. (See Lyddon v. Shaw; Steffa v. Stanley (1976), 39 Ill.App.3d 915, 350 N.E.2d 886; Goldstein v. Hertz Corp. (1973), 16 Ill.App.3d 89, 305 N.E.2d 617.) As recognized by the Lyddon court, in this type of case one may file an action for malicious prosecution, or perhaps for abuse of process, and furthermore "a party who is put to the defense of a groundless lawsuit has available the remedy of a motion in the original action for an award of attorney fees under section 41 of the Civil Practice Act (Ill.Rev.Stat.1975, ch. 110, par. 41) and in an appropriate case may be instrumental in the institution of disciplinary proceedings against the offending attorney." (56 Ill.App.3d at 823, 14 Ill.Dec. at 495, 372 N.E.2d at 691.) Section 12 mandates no additional remedies.

Plaintiffs have also advanced several public policy considerations which they contend should lead this court to voluntarily recognize an action for the willful and wanton institution of a suit without reasonable cause. Principally, plaintiffs argue that the court must fashion a new remedy to deal with the medical malpractice crisis. Plaintiffs further suggest that their new cause of action is necessary to eliminate a potential strain on our judicial system and to correct the following inadequacies in existing remedies: (1) that section 41 of the Civil Practice Act only is available against a litigant, not his attorney, and only allows recovery of reasonable expenses and attorneys' fees, and (2) that other causes of...