Tunca v. Painter

• Decision Date: 10 February 2012
• Docket Number: 1–10–0625.,Nos. 1–09–3384,s. 1–09–3384
• Citation: 965 N.E.2d 1237
• Parties: Josh TUNCA, Plaintiff–Appellant, v. Thomas A. PAINTER and Daniel Conway, Defendants–Appellees.
• Court: United States Appellate Court of Illinois

965 N.E.2d 1237

Josh TUNCA, Plaintiff–Appellant,

v.Thomas A. PAINTER and Daniel Conway, Defendants–Appellees.

Nos. 1–09–3384

1–10–0625.

Appellate Court of Illinois, First District, Fifth Division.

Feb. 10, 2012.

Christian Consentino, St. Charles, for Appellant.

Hall Prangle & Schoonveld, LLC, Chicago (Eric P. Schoonveld, Hugh C. Griffin and Thomas M. Comstock, of counsel), for Appellee.

Justice J. GORDON delivered the judgment of the court, with opinion.

¶ 1 Plaintiff Dr. Josh Tunca appeals from two sets of orders from the circuit court of Cook County dismissing multiple complaint counts against defendants Dr. Thomas Painter and Dr. Daniel Conway for failure to state a cause of action. Plaintiff's complaint was amended three times and this appeal encompasses orders entered upon plaintiff's first and third amended complaints. The first set of orders of the trial court dismissed one count of slander per se against Dr. Painter (count I of plaintiff's first amended complaint), one count of slander per se against Dr. Conway (count III of plaintiff's first amended complaint), and one count of violation of section 8–2101 of the Illinois Code of Civil Procedure ( 735 ILCS 5/8–2101 (West 2006) ) (Medical Studies Act or Act) against Dr. Conway (count IV of plaintiff's first amended complaint). The second set of orders of the trial court dismissed one count of slander per quod against Dr. Painter (count I of plaintiff's third amended complaint) and one count of slander per quod against Dr. Conway (count III of plaintiff's third amended complaint). Plaintiff maintains that his complaints have sufficient allegations to state a cause of action for slander per se and slander per quod against both Dr. Painter and Dr. Conway, and for violation of the Medical Studies Act by Dr. Conway.

¶ 2 BACKGROUND

¶ 3 Plaintiff, a surgeon who specializes in gynecological oncology at Northwest Community Hospital, filed his initial complaint against defendants on July 28, 2007. That complaint alleged, in pertinent part, that on or about June 24, 2006, plaintiff surgically removed an ovarian tumor

, and within hours of that surgery, the patient developed a blood clot in her femoral artery which caused her to lose the pulse in her left leg. According to that complaint, on or about June 25, 2006, Dr. Painter, a vascular surgeon at the same hospital, performed a femoral-femoral bypass on that patient to correct the condition on her leg. In count I of that complaint, labeled "Slander Per Se by Dr. Painter," plaintiff alleged that on or about June 28, 2006, Dr. Painter told Dr. McGillan, the vice-president and medical affairs director for Northwest Community Hospital, that plaintiff had "inadvertently cut the left iliac artery of [p]atient during the course of his operation on June 24, 2006." Plaintiff also alleged that in the course of work at that hospital, Dr. Painter thereafter stated, in the company of other doctors and medical professionals, including Dr. McGillan and Dr. Glass, that plaintiff had "negligently and inadvertently severed [p]atient's artery."

¶ 4 In count II of that complaint, labeled "Slander Per Se by Dr. Conway," plaintiff alleged that on or about February 14, 2007, plaintiff encountered Dr. Conway, the chairman of Northwest Community Hospital department of surgery's quality review committee, and in the presence of other doctors and medical professionals, Dr. Conway informed plaintiff that he should expect a letter from the committee "regarding his allegedly cutting the artery of [p]atient." In addition, plaintiff alleged that on April 11, 2007, plaintiff was called to a meeting of the surgical quality review committee over which Dr. Conway presided. At that meeting, Dr. Conway stated in front of other committee members that he "observed a gross specimen from [p]atient after it was received by the hospital's pathologist and he observed the allegedly severed iliac artery from [p]atient's gross specimen."

¶ 5 With respect to counts I and II of plaintiff's initial complaint, plaintiff alleged that defendants' statements in the presence of and to third parties were false, malicious, slanderous and made with the intent to injure plaintiff's good name and credit in his profession. Additionally, plaintiff alleged that those statements were made for the purpose of causing plaintiff's fellow medical professionals from whom he received referrals of patients to believe that plaintiff had become incompetent to discharge his duties. In addition, plaintiff alleged that defendants' statements caused him to be injured in his good name and professional reputation, and resulted in the loss of patients from referral sources and will work to his injury in the procurement of future patients. Plaintiff alleged that as a result of defendants' slanderous statements, plaintiff has been damaged in excess of $3 million.

¶ 6 In count III of plaintiff's initial complaint, labeled "Violation of the Medical Studies Act," plaintiff reincorporated the charges set forth in the previous paragraphs and alleged that Dr. Conway's conduct constituted a violation of the Illinois Medical Studies Act ( 735 ILCS 5/8–2101 (West 2006) ), in that his statements made outside the peer review committee meeting in the presence of other doctors constituted disclosure of privileged information under the Act. With respect to count III, plaintiff alleged that as a result of Dr. Conway's violation of the Act, plaintiff was injured in his good name and reputation, which has resulted in the loss of patients from referral sources and will work to his injury in procuring future patients. Plaintiff alleged that as a result of Dr. Conway's violation of the Act, plaintiff has been damaged in excess of $3 million.

¶ 7 On February 22, 2008, the trial court dismissed the counts of slander per se (counts I and II of the initial complaint) against each defendant, pursuant to the innocent construction rule. A second reason given for the dismissal of the count of slander per se with respect to Dr. Conway alone (count II of the initial complaint) was that the factual statements contained therein are protected by the Medical Studies Act and cannot serve as a basis for a defamation claim. For that reason, the trial court also dismissed plaintiff's allegation that Dr. Conway violated the Act (count III of the initial complaint).

¶ 8 On March 18, 2008, plaintiff filed a first amended complaint, in which he realleged the same facts contained in his previous complaint, except that in count I, again labeled "Slander Per Se by Dr. Painter," plaintiff alleged that on or about June 28, 2006, Dr. Painter told Dr. McGillan that plaintiff had "inadvertently and negligently cut the left iliac artery of [p]atient during the course of his operation on June 24, 2006," thus adding the word "negligently" to his allegations. (Emphasis added.) In addition, plaintiff added a count which was labeled "Violation of the Medical Studies Act by Dr. Painter" (count II of plaintiff's first amended complaint), in which he realleged the previous paragraphs and stated that Dr. Painter's conduct constituted a violation of the Act. Plaintiff alleged that Dr. Painter's statements were outside the auspices of a peer review committee meeting and in the presence of other doctors and medical personnel constituted disclosure of privileged information under the Act.

¶ 9 Additionally, in the count labeled "Slander Per Se by Dr. Conway" (count III of the first amended complaint), plaintiff realleged the facts contained in count II of his previous complaint, but omitted the allegation with respect to Dr. Conway's statements made at the meeting of the surgical quality review committee. In addition, plaintiff added to that count the allegation that when Dr. Conway informed plaintiff that he should expect a letter from the committee regarding his alleged negligent cutting of the patient's artery, the doctors and medical personnel who were present at that time were not members of any hospital or department peer review committee. In the count labeled "violation of the Medical Studies Act by Dr. Conway" (count IV of the first amended complaint), plaintiff alleged the same facts as the corresponding count in his previous complaint (count III of the initial complaint).

¶ 10 On October 29, 2008, the trial court again dismissed, this time with prejudice, count I of plaintiff's first amended complaint, which alleged slander per se by Dr. Painter, and counts III and IV of plaintiff's first amended complaint, which alleged slander per se and violation of the Medical Studies Act by Dr. Conway, respectively. The trial court did not dismiss count II of plaintiff's first amended complaint, which alleged violation of the Medical Studies Act by Dr. Painter, which remained pending.

¶ 11 On November 3, 2008, plaintiff filed a second amended complaint, in which he realleged the facts contained in his previous complaints with respect to the surgery he performed on the patient in question, and Dr. Painter's subsequent surgery on that patient. In count I of plaintiff's second amended complaint, which was labeled "Slander Per Quod by Dr. Painter," plaintiff alleged the same facts contained in count I of his first amended complaint, which was then labeled "Slander Per Se By Dr. Painter." In addition, plaintiff alleged in that count that the statements made by Dr. Painter to doctors, including Dr. McGillan and Dr. Robert Glass, became widely disseminated among doctors with privileges at Northwest Community Hospital. He further alleged and that as a result of Dr. Painter's allegations that plaintiff severed the patient's artery, doctors on whom plaintiff relies to refer patients have come to question plaintiff's abilities as a surgeon and have referred fewer patients to him for that reason. Additionally, plaintiff alleged that as a result of Dr. Painter's statements, plaintiff has seen a precipitous drop in the number of patients referred by other doctors by approximately 25%...