Winters v. Podzamsky
| Decision Date | 20 July 1993 |
| Docket Number | No. 3-92-0638,3-92-0638 |
| Citation | 252 Ill.App.3d 821,621 N.E.2d 72 |
| Parties | , 190 Ill.Dec. 203 Marjorie WINTERS and Don F. Winters, Plaintiffs-Appellants, v. John E. PODZAMSKY and Caner Celebouglu, Defendants (St. Mary's Hospital, a Corporation, Defendant-Appellee). |
| Court | United States Appellate Court of Illinois |
Marjorie Winters and Don Winters, plaintiffs, appeal from the dismissal with prejudice of their medical malpractice cause of action against St. Mary's Hospital of Streator, Illinois, for failure to comply with the requirements of section 2-622 of the Code of Civil Procedure (Ill.Rev.Stat.1991, c. 110, par. 2-622.)
Plaintiffs contend (1) that the trial court abused its discretion in dismissing with prejudice their second and third amended complaints against the hospital, (2) that section 2-622 does not apply to a cause alleging the inadequacy of a patient's informed consent, and (3) that their motion to reconsider and motion for leave to file a fourth amended complaint should not have been denied. We affirm the judgment of the trial court.
In order to understand the issues on appeal, the history of this litigation must be examined. According to plaintiffs' first complaint, Marjorie Winters consulted Dr. John E. Podzamsky at his office in Minonk, Illinois, on October 10, 1989, at which time he undertook to remove surgically a growth or discoloration from her left leg. Dr. Podzamsky allegedly was unable to stop the bleeding and sent Marjorie to St. Mary's Hospital in Streator for further treatment by Dr. Caber Celebouglu, a surgeon, who was able to close the wound. Dr. Podzamsky submitted some tissue from the lesion to the Stoink Pathology Laboratory in Bloomington, Illinois, and received a written report stating: "Superficial spreading malignant melanoma from skin of back of left lower leg, level of invasion II, penetration 0.26 mm., margins free."
Plaintiffs' further alleged that Dr. Celebouglu, assisted by Dr. Podzamsky, performed subsequently a wide local excision with a skin graft at St. Mary's Hospital on October 24. Prior to the surgical procedure St. Mary's hospital pathology laboratory examined the same tissue specimen slides as had been examined by Stoink Laboratory and prepared a written report dated October 19, stating:
Plaintiffs also aver that, as a result of the negligent acts of Dr. Podzamsky and Dr. Celebouglu, Marjorie's condition was misdiagnosed, the surgery was unskillfully performed, a nerve in her leg was injured, and as a result she is disfigured, crippled and disabled. Other counts allege that both doctors failed to explain fully the proposed procedure and to inform Marjorie of the risks and available alternatives.
The counts against the hospital asserted in part that the hospital permitted surgery to be performed without Marjorie's informed consent, permitted the surgery when it was not necessary or required, and failed to call for a consultation by a trained pathologist to confirm the diagnosis of a Level IV malignant melanoma.
Plaintiffs filed an attorney's affidavit asserting that the facts had been reviewed by a qualified health professional and that there was a reasonable and meritorious cause for filing the action. The health professional's report indicated that resections of a possible malignant melanoma should not be attempted as an office procedure, that such procedures should not be attempted by physicians without appropriate experience, and that there was a difference of opinion in the two pathology reports.
Defendant hospital's motion to dismiss the complaint was allowed on the ground that plaintiffs had failed to file a separate affidavit and health professional report for each defendant. Plaintiffs were allowed 28 days to file the required documents. Plaintiffs then filed an amended complaint, attorney's affidavits for each defendant, and two versions of the health professional's report. Defendant hospital again moved to dismiss for reason that the health professional's report did not disclose any negligence on the part of the hospital. The relevant report stated that the surgeon should have sought a third opinion when confronted with the confusion of two pathology reports finding different depths of the melanoma.
Again, the hospital's motion to dismiss was granted and plaintiffs were given 28 days to file an amended complaint. Subsequently the second amendment to the complaint was filed along with a fourth version of the health professional's report. The complaint now alleged that the hospital employed incompetent pathologists and failed to supervise their conduct, but nothing in the health professional's report related to any such deficiencies in the hospital's conduct. The report reviewed in more detail the two pathology reports received before the October 24 surgery and then stated that Marjorie's hospital chart does not contain documentation to indicate that Dr. Celebouglu advised the patient of the conflicting pathology reports or the proposed procedure and risks of complications. The report also said that the chart did not document that the hospital obtained a consent from Marjorie which provided her with sufficient information to make an informed decision.
Once more, defendant hospital moved to dismiss on the ground that the health professional's report fails to set forth a meritorious cause of action against the hospital in that it only notes that the two pathology reports were confusing and conflicting. The motion also asserted that the hospital has no legal duty to obtain the patient's consent. After a hearing on the motion, the trial court dismissed the cause of action against the hospital with prejudice, stating that the report does not have enough in it to allow plaintiffs to go forward against the hospital. The health professional's comments concerning lack of documentation as to what Dr. Celebouglu told Marjorie before surgery were held to be insufficient. The court stated that there has to be an end to litigation and that plaintiffs have been given enough chances to amend. Thus the dismissal order did not allow another amendment.
Counsel for plaintiffs then filed a motion to reconsider the dismissal and offered a fourth amendment to the complaint, this time arguing that plaintiffs did not need to provide a health professional's report when challenging the hospital's failure to require an informed consent because that involved ordinary negligence based on a violation of the hospital's rules and regulations, not negligent medical care. The trial court looked at the new allegations in the fourth amended complaint and concluded that all of them related to informed consent issues. Since section 2-622 expressly applies to a complaint where plaintiffs rely on the doctrine of informed consent, plaintiffs failure to satisfy the requirements of section 2-622 was held to defeat their claim. After the trial court denied the motion to reconsider and refused leave to file the fourth amendment to the complaint, plaintiffs filed a supplemental motion to reconsider. That was also denied, and this appeal followed.
Section 2-622 provides:
"Healing art malpractice. (a) In any action, whether in...
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