Sandler v. Sweet

• Citation: 84 N.E.3d 544,2017 IL App (1st) 163313
• Decision Date: 04 August 2017
• Docket Number: No. 1-16-3313.,1-16-3313.
• Parties: Philip W. SANDLER, Plaintiff-Appellant, v. Jerry J. SWEET, Ph.D., North Shore Medical Group, and North Shore University Health System, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

2017 IL App (1st) 163313

84 N.E.3d 544

Philip W. SANDLER, Plaintiff-Appellant,

v.Jerry J. SWEET, Ph.D., North Shore Medical Group, and North Shore University Health System, Defendants-Appellees.

No. 1-16-3313.

Appellate Court of Illinois, First District, SIXTH DIVISION.

Opinion filed: August 4, 2017

Ronald L. Bell, of Ronald L. Bell & Associates, P.C., of Libertyville, for appellant.

Kevin J. Clancy, Andrea H. Kott, and Joseph E. Comer, of Lowis & Gellen LLP, of Chicago, for appellees.

OPINION

PRESIDING JUSTICE HOFFMAN delivered the judgment of the court, with opinion.

¶ 1 The plaintiff, Philip W. Sandler, brought this action against the defendants, Jerry J. Sweet, Ph.D., North Shore Medical Group, and North Shore University Health System, alleging medical negligence, common law fraud, and breach of fiduciary duty. The circuit court granted the defendants' motion to dismiss, finding that no physician-patient relationship existed and, therefore, no duty of care was owed to the plaintiff. The court subsequently denied the plaintiff's motion for leave to file a second amended complaint. For the reasons that follow, we affirm.

¶ 2 The following facts are derived from the various pleadings, which we accept as true in the context of a motion to dismiss. See Wackrow v. Niemi , 231 Ill. 2d 418, 420, 326 Ill.Dec. 56, 899 N.E.2d 273 (2008).

¶ 3 This case arises directly out of a medical negligence action that the plaintiff filed in the circuit court of Cook County (case No. 09 L 08290) against Advocate Good Samaritan Hospital (Advocate). In that case, the plaintiff sought damages for a brain injury

he allegedly sustained after attempting suicide while receiving inpatient psychiatric treatment at Advocate. During the course of that litigation, Advocate retained Dr. Sweet, a board certified clinical psychologist and neuropsychologist, as a controlled expert under Illinois Supreme Court Rule 213(f)(3) (eff. Jan. 1, 2007).

¶ 4 In February 2012, Dr. Sweet conducted a neuropsychological evaluation of the plaintiff to determine the nature and extent of his alleged brain injury

. Dr. Sweet prepared a written report of his findings and opined that the plaintiff did not suffer a brain injury as a result of his suicide attempt at Advocate. Two years later, in February 2014, Dr. Sweet issued a supplemental report based upon his review of additional medical records. The doctor acknowledged that the additional medical records noted "consideration of brain dysfunction in the form of hypoxic ischemic encephalopathy," but stated that his opinion remained the same. Specifically, he stated that the plaintiff "does not have a cognitive disability, does not have acquired brain dysfunction [,] * * * [and] does not show evidence of executive dysfunction."

¶ 5 On February 4, 2016, the plaintiff filed the instant action against Dr. Sweet and his employers, North Shore Medical Group and North Shore University Health System. The plaintiff's amended complaint sought recovery on theories of medical negligence (count I), common law fraud (count II), and breach of fiduciary duty (count III), all of which are based exclusively upon Dr. Sweet's original and supplemental reports provided in conjunction with the plaintiff's underlying litigation against Advocate. The plaintiff alleged that Dr. Sweet failed to correctly diagnose his brain injury

, which caused him harm because he failed to seek "treatment and rehabilitation, which could have enhanced his quality of life."

¶ 6 In June 2016, the defendants filed a motion to dismiss pursuant to section 2-619(a)(9) of the Code of Civil Procedure (Code) ( 735 ILCS 5/2-619(a)(9) (West 2016)), contending that Dr. Sweet enjoys an absolute privilege from civil liability for any statements he made during the course of the underlying judicial proceedings. Alternatively, the defendants argued that no physician-patient relationship exists between Dr. Sweet and the plaintiff and, therefore, Dr. Sweet owed no duty of care to the plaintiff. In support of their motion, the defendants attached as Exhibit B, a transcript of Dr. Sweet's deposition testimony in the underlying case, in which he stated that he was retained as an expert witness by counsel for Advocate.

¶ 7 In response, the plaintiff maintained that the doctrine of absolute privilege applies only to experts appointed by the court pursuant to Illinois Supreme Court Rule 215 (eff. March 28, 2011), and is limited to statements the expert made while testifying at a deposition or at trial. According to the plaintiff, because his claims are based upon statements made in Dr. Sweet's written reports, and because Dr. Sweet authored those reports before Advocate disclosed him as a "controlled expert" under Illinois Supreme Court Rule 213(f)(3) (eff. Jan. 1, 2007), Dr. Sweet is not immune from civil liability. The plaintiff also disputed the defendants' assertion that no physician-patient relationship existed between himself and Dr. Sweet.

¶ 8 On August 4, 2016, the circuit court entered a written order dismissing the plaintiff's amended complaint with prejudice. The court observed that Dr. Sweet was retained by Advocate, the plaintiff's adversary in the underlying medical malpractice case, and his role was limited to evaluating the nature and extent of the plaintiff's alleged brain injury

. The court further noted that Dr. Sweet was not sought out by the plaintiff or by any other physician caring for the plaintiff, did not report to the plaintiff, and was not involved in the plaintiff's care or treatment. The court concluded, therefore, that no physician-patient relationship existed and Dr. Sweet owed no duty of care to the plaintiff.¹ On September 1, 2016, the plaintiff filed a motion for reconsideration and a motion for leave to file a second amended complaint, which the circuit court denied. This timely appeal followed.

¶ 9 A section 2-619 motion to dismiss admits the legal sufficiency of the plaintiff's claim but asserts that certain defects or defenses exist outside of the pleadings which defeat the claim. Sandholm v. Kuecker , 2012 IL 111443, ¶ 55, 356 Ill.Dec. 733, 962 N.E.2d 418. In reviewing a section 2-619 motion, the court is obligated to construe the pleadings and supporting documents in the light most favorable to the nonmoving party, and to accept as true all well-pleaded facts in the plaintiff's complaint. Bjork v. O'Meara , 2013 IL 114044, ¶ 21, 369 Ill.Dec. 313, 986 N.E.2d 626. We review an order granting a section 2-619 motion de novo . Id .

¶ 10 The plaintiff's first contention on appeal is that the circuit court erred in dismissing count I of his amended complaint, which alleged that Dr. Sweet was medically negligent for failing to diagnose him with a brain injury

. We disagree.

¶ 11 In a negligence action for medical malpractice, the plaintiff's complaint must allege facts that are sufficient to show "the existence of a duty owed by the defendant to the plaintiff, a breach of that duty, and an injury proximately caused by that breach." Kirk v. Michael Reese Hospital & Medical Center , 117 Ill. 2d 507, 525, 111 Ill.Dec. 944, 513 N.E.2d 387 (1987). Whether a duty exists is a question of law to be determined by the court. Id . In determining whether a duty exists in a particular case, a court will consider "the foreseeability of the plaintiff's injury, the likelihood of the occurrence, the magnitude of the burden of guarding against it, and the consequences of placing that burden on the defendant." Doe v. McKay , 183 Ill. 2d 272, 278, 233 Ill.Dec. 310, 700 N.E.2d 1018 (1998). Our supreme court has stated that a physician's duty is limited to situations in which a direct physician-patient relationship exists or there is a special relationship between the patient and the plaintiff. Id. at 279, 233 Ill.Dec. 310, 700 N.E.2d 1018 (citing Kirk , 117 Ill. 2d at 529-32, 111 Ill.Dec. 944, 513 N.E.2d 387 ).

¶ 12 In this case, the major point of contention on the plaintiff's medical negligence claim is whether Dr. Sweet, an expert witness retained by the plaintiff's adversary in pending litigation, owed a legal duty to the plaintiff. In resolving the question of duty, we consider the readily analogous cases of Cook v. Optimum/Ideal Managers Inc. , 130 Ill. App. 3d 180, 84 Ill.Dec. 933, 473 N.E.2d 334 (1984), and In re Detention of Duke , 2013 IL App (1st) 121722, 377 Ill.Dec. 916, 2 N.E.3d 1197.

¶ 13 In Cook , 130 Ill. App. 3d at 182, 84 Ill.Dec. 933, 473 N.E.2d 334, the plaintiff, a claimant in a workers' compensation case, was examined by a physician retained by his employer. When the physician refused to furnish the plaintiff with a report of the medical examination, the plaintiff filed suit, alleging that the withholding of the report damaged him because his treating physicians did not have access to it. Id. at 187-88, 84 Ill.Dec. 933, 473 N.E.2d 334. On appeal, the court held that the physician did not owe a duty of care to the plaintiff, including a duty to disclose medical information. Id. at 189, 84 Ill.Dec. 933, 473 N.E.2d 334. The court explained that the physician did not agree to see the plaintiff for purposes of care and treatment, but rather for purposes of an examination on behalf of the plaintiff's adversary in pending litigation. The court further noted that the plaintiff had other treating physicians and determined the foreseeability and likelihood of injury resulting from withholding the examination report was "insubstantial." Id . Although the magnitude of the burden in guarding against such injury was "slight," the court nonetheless concluded that a duty of care should not be recognized under these circumstances. Id. at 189-90, 84 Ill.Dec. 933, 473 N.E.2d 334.

¶ 14 In Duke , 2013 IL App (1st) 121722, ¶¶ 1, 7, 377 Ill.Dec. 916, 2 N.E.3d 1197, the plaintiff filed a medical negligence counterclaim against a court-appointed forensic psychiatrist, alleging that she improperly diagnosed and treated him as a sexual sadist. Affirming the dismissal of the plaintiff's...