Lenahan v. University of Chicago

SUPREME COURT CASES

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State: Illinois

Court: 1st District Appellate

Docket No: 1-02-2513, 1-02-2867 cons. Rel

Case Date: 03/31/2004

FIFTH DIVISION
March 31, 2004

Nos. 1-02-2513 & 1-02-2867:C.

KAREN LENAHAN, as Special Administrator
of the Estate of Shawn Lenahan,
Deceased,

Plaintiff-Appellant,

THE UNIVERSITY OF CHICAGO, an Illinois
Not For Profit Corporation; THE
UNIVERSITY OF CHICAGO HOSPITALS,
an Illinois Corporation;
DAVID LIEBOWITZ; XCYTE
THERAPIES, INC., a Delaware Corporation;
ARCH DEVELOPMENT CORPORATION, an
Illinois Not For Profit Corporation;
and STEPHANIE F. WILLIAMS,

Defendants-Appellees.

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Appeal from the
Circuit Court of
Cook County.

No. 00 L 008473

Honorable
Kathy Flanagan,
Judge Presiding.

JUSTICE O'BRIEN delivered the opinion of the court:

Plaintiff, Karen Lenahan, as special administrator ofthe estate of Shawn Lenahan (the decedent), filed a 21-count, fifth amended complaint under the Survival Act(755 ILCS 5/27-6 (West 1998)) and the Wrongful Death Act (740ILCS 180/0.01 et seq. (West 1998)) against defendants, theUniversity of Chicago, the University of Chicago Hospitals,Doctor David Liebowitz, Xcyte Therapies, Inc., ArchDevelopment Corporation, and Doctor Stephanie Williams. Plaintiff sought damages on numerous theories ofliability based on the decedent's death. The trial courtdismissed counts XIII, XIV, XVI, XVII, XVIII, XIX, XX, and XXI ofplaintiff's fifth amended complaint pursuant to section 2-615 of the Illinois Code of Civil Procedure (Code) (735 ILCS5/2-615 (West 1998)). Plaintiff appeals pursuant to SupremeCourt Rule 304(a), contending that counts XIII, XIV, XVI, XVII,XVIII, XIX, XX, and XXI sufficiently state causes of action. Weaffirm in part, reverse in part, and remand for furtherproceedings.

Plaintiff's fifth amended complaint alleged thefollowing pertinent facts.

The decedent suffered from non-Hodgkin'slymphoma, a type of cancer. He was first treated at CentralDuPage Hospital in August 1998, where his type of cancerwas misdiagnosed and as a result he received improperchemotherapy that allowed his disease to progressunchecked. After he was rediagnosed by IndianaUniversity Hospital in October 1998, he began a differentchemotherapy/radiation treatment plan, which was laterdiscontinued and changed to high-dose salvagechemotherapy.

In November 1998, the decedent went to the Universityof Chicago Hospitals, where he was treated by DoctorGinna Laport. Doctor Laport recommended that he betreated with a high-dose chemotherapy/stem-celltransplant regimen. Doctor LaPort also recommendedthat the decedent participate in a phase I clinical trial(referred to as Protocol 8558) at the University of ChicagoHospitals being run by University of Chicago doctors. Protocol 8558 involved a treatment plan whereby some ofthe patient's T-cells would be collected before the startof the chemotherapy/stem cell regimen; an experimentallab technique would be used to select particular T-cellsand stimulate them to produce an immune reaction tocancer cells; the colony of such selected and stimulatedcells would be grown and expanded in the lab, outside thepatient's body; and the expanded T-cells would bereinfused into the patient's body at the end of the high-dose chemotherapy/stem cell procedure, in the hope thatthey would fight any remaining cancer cells and helprestore the patient's immune system.

The decedent enrolled in Protocol 8558. During thecourse of the treatment, he died.

In counts XIII and XIV, subparagraphs a through p ofparagraph 26, plaintiff alleged institutional negligenceagainst the University of Chicago (University) andUniversity of Chicago Hospital, Inc. (Hospital), directlyand independently, based on each institution's failure toprovide and obtain from the decedent an adequateinformed consent to participate in Protocol 8558.

In counts XIII and XIV, subparagraph q of paragraph 26,plaintiff alleged institutional negligence against theUniversity and Hospital based on their failure to providecompetent personnel to observe the treatment given andto remove the decedent at the first sign of adversesymptoms.

In counts XVI and XVII, plaintiff alleged medicalnegligence against Doctor Liebowitz, based on hisinvolvement as the doctor directing research inProtocol 8558.

In counts XVIII and XIX, plaintiff alleged that DoctorLiebowitz, Xcyte Therapies, Inc. (a privately held biotechcompany), Arch Development Corporation (the University'sbusiness development company), the University and theHospital conspired to conduct Protocol 8558, knowingthat human subjects would be recruited using a consentform that concealed their expectation that 95% of theparticipants would die.

In counts XX and XXI, plaintiff alleged medicalnegligence against Doctor Williams.

The trial court dismissed counts XIII, XIV, XVI, XVII, XVIII,XIX, XX, and XXI pursuant to section 2-615 of the Code andentered orders pursuant to Supreme Court Rule 304(a) (155Ill. 2d R. 304(a)) that there was no just reason for delayingenforcement or appeal. Plaintiff filed this timely appeal.

Dismissal of a cause of action pursuant to section2-615 is appropriate only when it clearly appears that no setof facts could ever be proved under the pleadings thatwould entitle the plaintiff to recover. Mt. Zion State Bank& Trust v. Consolidated Communications, Inc., 169 Ill. 2d 110,115 (1995). On review of an order granting a section 2-615motion, all well-pleaded facts and all reasonableinferences from them are taken as true. Mt. Zion Bank, 169Ill. 2d at 115. Whether a complaint states a valid cause ofaction is a question of law, and our review of a dismissalpursuant to a section 2-615 motion is de novo. Majumdar v.Lurie, 274 Ill. App. 3d 267, 268 (1995).

I. THE DISMISSAL OF COUNTS XIII AND XIV, SUBPARAGRAPHS
a THROUGH p OF PARAGRAPH 26

First, plaintiff argues that by answering counts XIIIand XIV of the original complaint after their first motionto dismiss was denied, defendants waived their right tobring a subsequent section 2-615 motion to dismiss countsXIII and XIV of the fifth amended complaint. Plaintiff citesAdcock v. Brakegate, Ltd., 164 Ill. 2d 54, 60 (1994), which heldthat where a trial court denies a defendant's motion todismiss a complaint, and that defendant elects to file ananswer to the complaint, the defendant waives any defectin the pleading. Plaintiff's argument is unavailing, as theallegations pled in counts XIII and XIV of the fifthamended complaint differ from the allegations in countsXIII and XIV of the original complaint. Defendants did notwaive their right to bring a section 2-615 motion todismiss the allegations raised for the first time in countsXIII and XIV of the fifth amended complaint.

On the merits, plaintiff argues that the trial courterred by dismissing counts XIII and XIV, subparagraphs athrough p of paragraph 26, which alleged institutionalnegligence against the University and Hospital, directlyand independently, based on each institution's failure toprovide and obtain from the decedent an adequateinformed consent to participate in Protocol 8558.⁽¹⁾ Specifically, plaintiff alleged that during the decedent'senrollment in Protocol 8558, the University and theHospital were signatories to a policy stating that theyeach bear an independent institutional responsibility toobtain informed consent from all human subjects in theclinical trial, and that such informed consents mustcomply with applicable Food and Drug Administration(FDA) and Department of Health and Human Services (DHHS)rules and regulations as set forth in Titles 21 and 45 of theCode of Federal Regulations (CFR) (21 C.F.R.