Gragg v. Calandra
State: Illinois
Court: 2nd District Appellate
Docket No: 3-97-0719
Case Date: 07/06/1998
July 6, 1998
No. 3--97--0719
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
GERALDINE GRAGG, Indiv. and ) Appeal from the Circuit
as Special Adm'r of the ) Court of Du Page County
Estate of Ann Guintola, )
Deceased, )
)
Plaintiff-Appellant, )
)
v. ) No. 96--L--52
)
DAVID CALANDRA, RABINDRA )
MALHOTRA, and HINSDALE )
HOSPITAL, )
)
Defendants-Appellees ) Honorable
) Rodney W. Equi,
(J. Houck, Defendant). ) Judge, Presiding.
_________________________________________________________________
JUSTICE INGLIS delivered the opinion of the court:
Plaintiff, Geraldine Gragg, individually, and as special
administrator of the estate of Ann Guintola, deceased, appeals the
order of the trial court of DuPage County that dismissed the first
count of her third amended complaint in favor of defendant Hinsdale
Hospital (Hinsdale) and counts II through IV in favor of defendants
Hinsdale and physicians David Calandra and Rabindra Malhotra
(collectively defendants). Plaintiff alleged that defendants
administered unwanted medical procedures to her father, Florian
Guintola, including open heart surgery and the continuation of life
support. We affirm in part, reverse in part, and remand for
further proceedings consistent with this opinion.
Plaintiff alleged the following. Hinsdale owned and operated
a hospital emergency room and medical care facility, including the
Rooney Heart Institute. Hinsdale employed various physicians and
other health care providers to see and treat patients. Hinsdale
held itself out to the public as a medical facility providing
emergency, specialized cardiac care, and inpatient care by
qualified and competent physicians. Hinsdale represented to the
public that it provided equipment and staff, including a cardiac
catheterization laboratory, "to make the most of the golden hour
after a heart attack."
On December 28, 1992, plaintiff and her mother went with
Florian to the emergency room at Hinsdale where he was seen and
examined by defendant doctors, who were apparent agents of Hinsdale
and who led plaintiff and her mother to believe that they were
agents of the hospital. Florian was examined by a physician who
asked Ann to sign a consent for certain cardiac tests, including an
angiogram. Plaintiff and her mother relied upon Hinsdale to
provide heart catheterization equipment and staff, including
reasonably qualified and competent heart specialists and physicians
who would exercise due care and skill in the treatment of Florian.
Plaintiff and her mother consented to catheterization by defendants
as a result of such reliance. During the catheterization,
performed by defendant Malhotra, Florian suffered a cardiac arrest
and became unconscious and nonresponsive.
Following this, there was no reasonable likelihood that
Florian would survive. Defendant Calandra and defendant J. Houck
(who is not a party to this appeal) nevertheless proceeded to
perform open heart bypass surgery on Florian.
Plaintiff alleged that defendants performed open heart surgery
on Florian without first obtaining consent. Plaintiff also alleged
that Hinsdale had a duty to Florian to permit only authorized
treatment and surgical procedures with informed consent and was
under a duty to obtain consent to surgery.
Florian sustained irreversible brain damage, remained
nonresponsive, and could not survive without life support. Florian
had a living will that stated that in the absence of his ability to
give directions regarding extraordinary measures to sustain life,
his family should honor his wishes to withhold such measures.
Plaintiff and Ann repeatedly asked defendants to remove Florian
from life support to honor his wishes. After requests were made by
Florian s regular physician to discontinue life support, a meeting
was held with plaintiff, Ann, and others, including a nurse for
defendant Calandra and an attorney for Hinsdale, to discuss
Florian s living will. Following the meeting, Dr. Glassford, the
medical staff director of Hinsdale, informed plaintiff and her
mother that the hospital and doctors would not honor the living
will. Florian never regained consciousness and died on January 5,
1993.
Plaintiff, in her capacity as administrator of Ann s estate
and individually, brought count I of the third amended complaint
against defendants under section 15 of the Rights of Married
Persons Act (herein called the Family Expense Act) (750 ILCS 65/15
(West 1996)). Count II, brought by the estate, alleges that
defendants violated the Consumer Fraud and Deceptive Business
Practices Act (Consumer Fraud Act) (815 ILCS 505/1 et seq. (West
1996)). Counts III, brought by plaintiff individually, and IV,
brought by the estate, are based on intentional infliction of
emotional distress. Defendants filed separate motions to dismiss.
The trial court dismissed counts I through IV of the complaint
against Hinsdale with prejudice. The trial court also dismissed
counts II through IV against the other defendants with prejudice,
finding that there was no just cause for delay of enforcement or
appeal under Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a)).
Count I against defendant physicians remains pending in the trial
court. Plaintiff timely appeals.
We note that defendants motions to dismiss were made pursuant
to sections 2--615 and 2--619 of the Code of Civil Procedure (Code)
(735 ILCS 5/2--615, 619 (West 1996)). The legal theories for
proceeding on a motion to dismiss under sections 2--615 and 2--619
differ. A section 2--615 attacks the legal sufficiency of the
complaint by asserting that it fails to state a cause of action
upon which relief can be granted. T&S Signs, Inc. v. Village of
Wadsworth, 261 Ill. App. 3d 1080, 1083 (1994). Under section 2--
619, a party admits the legal sufficiency of the complaint but
asserts an affirmative defense or other matter which avoids or
defeats the claim. T&S Signs, Inc., 261 Ill. App. 3d at 1083.
Similar to a motion brought under section 2--615, a motion to
dismiss under section 2--619 admits all well-pleaded facts. Geick
v. Kay, 236 Ill. App. 3d 868, 874 (1992). A reviewing court is not
required to defer to the trial court's judgment on a motion to
dismiss, and we will review the matter de novo. T&S Signs, Inc.,
261 Ill. App 3d at 1084.
Plaintiff first contends that the trial court improperly
dismissed count I against Hinsdale. In count I, plaintiff seeks
recovery individually and as special administrator of Ann s estate
for hospital expenses incurred by Florian under the Family Expense
Act.
Initially, we note that plaintiff individually lacks standing
to bring a claim under the Family Expense Act. Expenses of the
family are those for which the husband and wife are liable. 750
ILCS 65/15 (West 1996). Thus, only a spouse may maintain an action
against a tortfeasor under the statute for family expenses incurred
due to injuries the victim s spouse sustained. See Brown v.
Metzger, 118 Ill. App. 3d 855, 860 (1983). Just as parents cannot
maintain an action for expenses incurred by their adult children,
adult children may not maintain an action for their parents
medical bills. See Rodgers v. Consolidated R.R. Corp., 136 Ill.
App. 3d 191, 196 (1985). Here, plaintiff does not plead that she
is obligated individually to pay Florian s medical expenses and
therefore cannot bring an individual claim under the Family Expense
Act. The trial court properly dismissed count I as to plaintiff
individually.
Plaintiff as special administrator of Ann s estate alleged two
separate injuries under count I. The first injury is based on the
open heart bypass surgery performed without consent. The second
injury arose from placing Florian on life support without consent.
Plaintiff alleged that had she or Ann been informed of the proposed
open heart surgery and Florian s condition, they would have
withheld their consent for the surgery and life support measures.
Plaintiff alleges that, as a direct and proximate result of
defendants actions of performing surgery without consent and
refusing to discontinue life support, Ann became obligated for
medical expenses. Hinsdale counters that the cause of action under
the Family Expense Act does not survive the death of Ann. Hinsdale
contends that, if a cause of action is created by statute and
neither that statute nor any other provides for its survival, the
action abates upon the death of the party, citing Shapiro v.
Chernoff, 3 Ill. App. 3d 396 (1972). Hinsdale argues that, because
neither the Family Expense Act nor the Survival Act (755 ILCS 5/27-
-6 (West 1996)) provides a remedy for survival, the action abated
on the death of the Ann. We disagree.
The law determining the abatement or survival of actions is
governed by common-law rules and statutory provisions changing the
common law. Shapiro, 3 Ill. App. 3d 396 at 401. Application of
the correct rule depends upon the nature of the action to which it
is applied. Therefore, we must characterize the theory of recovery
that plaintiff alleges in count I.
Here, plaintiff alleges that Hinsdale wrongfully caused
medical expenses to be incurred. Plaintiff is not seeking recovery
for Florian s injuries, but rather plaintiff seeks a property right
to recover expenses based on the hospital s liability. The Family
Expense Act did not create the liability; it merely provides a
mechanism for recovery. Where recovery does not rest on the
statute but upon a property right, it survives. See, e.g.,
McDaniel v. Bullard, 34 Ill. 2d 487, 491-92 (1966). Thus, we find
that the action is not dependent upon Ann s survival. We now
proceed with our review of the trial court s dismissal of count I
against Hinsdale.
Hinsdale argues that the trial court correctly found that
count I was grounded on healing art malpractice, for which a
section 2--622 health professional report (735 ILCS 5/2--622 (West
1996)) must be attached. Hinsdale contends that the physician s
report submitted by plaintiff insufficiently complied with the
proper standards. Plaintiff argues that the underlying action
sounds in battery because the open heart surgery and life support
were given without consent and, therefore, a section 2--622 report
is unnecessary. We agree.
Liability for battery emphasizes the plaintiff s lack of
consent to a touching. Cohen v. Smith, 269 Ill. App. 3d 1087, 1090
(1995). A defendant may be liable not only for contacts which do
actual physical harm, but also for those relatively trivial ones
which are merely offensive and insulting. Cohen, 269 Ill. App. 3d
at 1091. "[A] plaintiff is entitled to demand that the defendant
refrain from the offensive touching, although the contact results
in no visible injury." W. Keeton, Prosser & Keeton on Torts 9, at
41 (5th ed. 1984).
We held in Kus v. Sherman Hospital, 268 Ill. App. 3d 771, 779
(1995), that the plaintiff s medical battery claim was viable under
Illinois law. We recognized that in Illinois two causes of action
exist for lack of consent to medical procedures. One action is
based on negligence and the other is based on battery. Kus, 268
Ill. App. 3d at 779. In Guebard v. Jabaay, 117 Ill. App. 3d 1, 7
(1983), the court held that where an unauthorized surgeon operates,
he commits a technical trespass to the patient resulting in the
intentional tort of battery. It is not the hostile intent of the
defendant but rather the absence of consent by the plaintiff that
is at the core of an action for battery. Gaskin v. Goldwasser, 166
Ill. App. 3d 996, 1012 (1988).
Plaintiff s complaint alleges that Hinsdale operated on
Florian without consent and maintained Florian on life support
against the wishes expressed in his living will and his family s
wishes. Here, the violation of a plaintiff s right to bodily and
personal integrity by an unconsented-to touching is the essence of
the claim for battery. By stating that surgery and treatment were
performed without consent, plaintiff has stated a claim for medical
battery. See Grant v. Petroff, 291 Ill. App. 3d 795, 804-05
(1997); Cohen, 269 Ill. App. 3d at 1090-93; Kus, 268 Ill. App. 3d
at 779.
Moreover, it is clear that plaintiff does not allege any
deviation from the appropriate medical standards. Plaintiff s
claim under count I against the hospital is not based upon medical
malpractice. Consequently, it is unnecessary to provide a section
2--622 report.
Hinsdale contends that it did not have the duty to obtain
consent to perform the surgery and therefore cannot be liable.
Under ordinary negligence principles, it generally is the duty of
the physician, not the hospital, to obtain consent. Pickle v.
Curns, 106 Ill. App. 3d 734, 738 (1982). In this instance, the
alleged liability arises from an unconsented-to touching.
Furthermore, under the doctrine of apparent authority, a
hospital can be held vicariously liable for the negligent acts of
a physician providing care at a hospital, regardless of whether the
physician is an independent contractor, unless the patient knows,
or should have known, that the physician is an independent
contractor. Gilbert v. Sycamore Municipal Hospital, 156 Ill. 2d
511, 524 (1993). In Gilbert, the decedent s estate brought a
medical malpractice and wrongful death action against the doctor
who treated the decedent and the hospital. The hospital contended
that it was not vicariously liable for the doctor s alleged
negligence because he was not the hospital s agent or employee. In
so holding, the supreme court, concerned with the realities of
modern hospital care, held:
" '[H]ospitals increasingly hold themselves out to the public
in expensive advertising campaigns as offering and rendering
quality health services ***. Modern hospitals have spent
billions of dollars marketing themselves, nurturing the image
with the consuming public that they are full-care modern
health facilities. All of these expenditures have but one
purpose: to persuade those in need of medical services to
obtain those services at a specific hospital.' " Gilbert, 156
Ill. 2d at 520, quoting Kashishian v. Port, 167 Wis. 2d 24,
38, 481 N.W.2d 277, 282 (1992).
The court further observed that modern hospital care involves the
reasonable expectations of the public:
" '[G]enerally people who seek medical help through the
emergency room facilities of modern-day hospitals are unaware
of the status of the various professionals working there.
Absent a situation where the patient is directed by his own
physician or where the patient makes an independent selection
as to which physicians he will use while there, it is the
reputation of the hospital itself upon which he would rely.
Also, unless the patient is in some manner put on notice of
the independent status of the professionals with whom it might
be expected to come into contact, it would be natural for him
to assume that these people are employees of the hospital.' "
Gilbert, 156 Ill. 2d at 521, quoting Arthur v. St. Peters
Hospital, 169 N.J. Super. 575, 583, 405 A.2d 443, 447 (1979).
Under the doctrine of apparent authority, a hospital can be
held vicariously liable for the negligent acts of a physician
providing care at the hospital. We see no reason why this
reasoning should not apply to an intentional tort, as in this case,
where, under the guise of apparent authority, an agent commits an
intentional tort while furthering the business of the principal.
See Bonnem v. Harrison, 17 Ill. App. 2d 292, 298-99 (1958).
Hinsdale next argues that it cannot be liable for the acts of
the defendant physicians because plaintiff failed to properly plead
a principal-agent relationship. Hinsdale argues that, other than
alleging that the hospital represented to the public that it
provided equipment, staff, and emergency care by the physicians,
plaintiff made no specific allegations about how the hospital held
out the physicians as its agents.
The supreme court in Gilbert also rejected a similar argument.
There, the plaintiff simply alleged that the physician was an agent
or employee of the hospital. Gilbert, 156 Ill. 2d at 527. Here,
plaintiff alleges that the physician defendants were apparent
agents of Hinsdale, did not advise plaintiff otherwise, and led
plaintiff to believe that they were agents of Hinsdale. We find
plaintiff adequately pleaded apparent agency. Accordingly, we
reverse the trial court s dismissal of count I against Hinsdale
brought by plaintiff in her capacity as administrator of Ann s
estate. We reiterate that the trial court properly dismissed count
I as to plaintiff individually. In all other respects, count I
against defendant physicians remains.
Plaintiff next argues that the trial court improperly
dismissed count II against all defendants for a violation of
section 2 of the Consumer Fraud Act (815 ILCS 505/2 (West 1996)).
Defendants counter that any action under the Consumer Fraud Act
abated at Florian s death; that, even if the claim survives, the
conduct arising out of the practice of medicine is not a "trade or
commerce" within the meaning of the Act; and that the allegations
fail to state a claim for such relief because they allege medical
malpractice and only tangentially relate to the business aspects of
the medical profession.
In order to state a cause of action under the Consumer Fraud
Act, a complaint must set forth specific facts that show a
deceptive act or misrepresentation of a material fact by the
defendant, the defendant s intention that the plaintiff rely on the
deception or misrepresentation, and that the deception or
misrepresentation occur in the course of business. Connick v.
Suzuki Motor Co., Ltd., 174 Ill. 2d 482, 501 (1996); People ex rel.
Hartigan v. E & E Hauling, Inc., 153 Ill. 2d 473, 492 (1992). The
complaint must set forth specific facts that establish each element
of the claim. E & E Hauling, 153 Ill. 2d at 492. The
representations can only be material if some connection is shown
between those representations and the injury. E & E Hauling, 153
Ill. 2d at 492. The deceptive statements must proximately cause
the alleged injury. Connick v. Suzuki Motor Company, Ltd., 275
Ill. App. 3d 705, 722 (1995).
We find that plaintiff fails to state a claim for relief under
the Consumer Fraud Act. Plaintiff alleges that Hinsdale and
defendants represented to the public that patients for cardiology
services would promptly receive care for cardiac patients who would
be in surgery within an hour. Plaintiff further alleges that
defendants had a complete cardiovascular center with a
catheterization lab and would help patients choose the right
doctor. However, plaintiff does not specify how the advertisements
were false or deceptive or how the advertisements caused any
damages. Plaintiff fails to show a connection between those
representations and the injury that surgery was performed without
consent and that Florian was placed on life support against his
permission. In short, plaintiff simply does not allege a deceptive
act or misrepresentation by defendants that was made with the
intent that plaintiff rely upon them. Accordingly, we find that
the trial court properly dismissed count II, as there are no
allegations supporting the conclusion that the misrepresentations
made by defendants were fraudulent or that the injury resulted from
them.
Plaintiff next contends that the trial court improperly
dismissed the intentional infliction of emotional distress claims
set forth in counts III and IV of her complaint. Count III was
brought in plaintiff s individual capacity, and count IV was
brought in plaintiff s capacity as special administrator of her
mother s estate.
To state a claim for intentional infliction of emotional
distress, the plaintiff must allege that the defendant engaged in
extreme and outrageous conduct; that the defendant acted with the
intent or knowledge that there was at least a high probability that
his or her conduct would inflict severe emotional distress and with
the reckless disregard of that probability; and that the plaintiff
experienced severe emotional distress. Public Finance Corp. v.
Davis, 66 Ill. 2d 85, 89-90 (1976). These factors must be applied
on a case-by-case basis, and the determination of whether the
conduct is actionable is to be made pursuant to an objective
standard. Miller v. Linden, 172 Ill. App. 3d 594, 596-97 (1988).
The distress inflicted must be so severe that no reasonable man
could be expected to endure it. McGrath v. Fahey, 126 Ill. 2d 78,
86 (1988).
Plaintiff alleged that defendants "verbally abused" and
"repeatedly insult[ed] and injure[d]" and "wilfully and wantonly
inflict[ed]" severe emotional distress on her and her mother by
repeatedly accusing them in a public area in the presence of others
of trying to kill Florian; by continuing life support without good
cause, knowing that plaintiff and her mother were under emotional
distress; by refusing to honor Florian s living will and family
requests, knowing that their refusals were themselves causing
plaintiff and her mother great emotional distress; and by refusing
to perform an EEG test or to report the results of such a test,
knowing that the test would likely confirm that there was no brain
activity.
Plaintiff relies on Wall v. Pecaro, 204 Ill. App. 3d 362
(1990). In that case, the plaintiff sought medical treatment from
the defendant regarding a tumorous growth in the roof of her mouth.
The defendant knew that the plaintiff did not have cancer but
recommended that the plaintiff submit to unnecessary surgery that
would have resulted in the removal of half of the plaintiff s face
and the loss of her fetus. The defendant repeatedly told her that
if she failed to undergo the procedures, her cancer would spread
rapidly. After the plaintiff told the defendant that he was
discharged, the defendant continued to insist that she allow him to
perform the procedures, and he even called her at home. The court
found the defendant s conduct outrageous because the defendant knew
or had reason to know that the plaintiff was peculiarly susceptible
to emotional distress due to her pregnancy, especially in light of
the fact that the procedures he recommended would have resulted not
only in the loss of her viable fetus but also the loss of half her
face. Wall, 204 Ill. App. 3d at 368-69.
Plaintiff also relies on Kolegas v. Heftel Broadcasting Corp.,
154 Ill. 2d 1 (1992) and Cohen, 269 Ill. App. 3d 1087. The
defendant in Kolegas knew that the plaintiff s wife and child were
afflicted with Elephant Man s disease and that the plaintiffs were
promoting a festival to promote public awareness of the disease,
yet he made statements during a radio program implying, among other
things, that the plaintiff s wife was so hideous no one would marry
her except under duress. Similarly, the defendant in Cohen knew
that, because of the restrictions placed on the plaintiff by her
religion, the plaintiff would be particularly susceptible to
emotional distress if the defendant did not abide by those
restrictions, yet the defendant allowed a male nurse to view and
touch the plaintiff. Cohen, 269 Ill. App. 3d at 1095-96.
Plaintiff alleges that she and her mother were in such an
emotional state because of Florian s condition that they were more
susceptible to emotional distress and that defendants conduct
adversely affected their emotional state. Like the defendants in
Wall, Kolegas, and Cohen, defendants in this case knew or had
reason to know that plaintiff and Ann were extremely distraught
because of Florian s condition, yet defendants repeatedly accused
plaintiff and her mother of trying to kill Florian. Under the
circumstances, there was a high probability that severe emotional
distress would follow, but defendants consciously disregarded it.
We agree with plaintiff that this conduct could be deemed
outrageous by a jury.
Defendants argue that they had a legitimate objective in
sustaining Florian s life. Although a defendant may reasonably
believe that his objective is legitimate, it does not provide him
with carte blanche to pursue that objective by outrageous means.
McGrath, 126 Ill. 2d at 88. In the present context, considering
the emotional state of plaintiff and her mother and that defendants
knew or should have known of their emotional state, defendants'
actions of accusing plaintiff and her mother of trying to kill
Florian could be considered so mortifying and callous as to amount
to outrageous conduct. We find that plaintiff adequately alleged
an extreme and outrageous course of action. Accordingly, the trial
court erred in dismissing counts III and IV against defendants for
intentional infliction of emotional distress.
In closing, we note that, because counts III and IV are based
on an intentional tort, the doctrine of transferred negligence is
inapplicable and there is no need to file a section 2--622 report.
However, punitive damages may not be assessed as an additional
recovery where the conduct arises from intentional infliction of
emotional distress. Knierim v. Izzo, 22 Ill. 2d 73, 87-88 (1961);
Morrison v. Sandell, 112 Ill. App. 3d 1057, 1060 (1983).
For the foregoing reasons, that part of the judgment of the
circuit court of DuPage County that dismissed count I brought by
plaintiff as administrator of Ann s estate against Hinsdale is
reversed, and the cause is remanded for further proceedings
consistent with this order. That part of the judgment of the
circuit court of DuPage County that dismissed count II against
defendants is affirmed. That part of the judgment of the circuit
court of DuPage County that dismissed counts III and IV is
reversed, and the cause is remanded with directions to strike those
portions of counts III and IV asking for punitive damages.
Affirmed in part; reversed in part; cause remanded with
directions.
COLWELL and HUTCHINSON, JJ., concur.
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