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Laws-info.com » Cases » Illinois » 5th District Appellate » 2001 » Milos v. Hall
Milos v. Hall
State: Illinois
Court: 5th District Appellate
Docket No: 5-00-0285 Rel
Case Date: 09/28/2001
              NOTICE
Decision filed 09/28/01.  The text of this decision may be changed or corrected prior to the filing of a Petition for Rehearing or the disposition of the same.

NO. 5-00-0285

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT


FRANK MILOS, Individually and as 
Special Administrator of the Estate of
Cindy Milos, Deceased,

     Plaintiff-Appellant,

v.

TRACY HALL, EDWARD A. UTLAUT
HOSPITAL, INC., and HARRY W. PARKS,

     Defendants-Appellees.

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Appeal from the
Circuit Court of
St. Clair County.



No. 99-L-577A


Honorable
Milton S. Wharton,
Judge, presiding.

 

PRESIDING JUSTICE MAAG delivered the opinion of the court:

The plaintiff appeals from an order of the St. Clair County circuit court dismissingcounts VII, VIII, and IX of the third amended complaint for the failure to comply withsection 2-622 of the Code of Civil Procedure (735 ILCS 5/2-622 (West 1996)). In thisappeal, brought pursuant to Illinois Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a)), theplaintiff argues that section 2-622 is not applicable because counts VII, VIII, and IX do notallege medical malpractice.

Cindy Milos was admitted to the emergency room of the Edward A. Utlaut Hospital(Utlaut Hospital) at approximately 3:54 a.m. on March 23, 1998. At that time, Mrs. Miloswas seen by the emergency room physician, Tracy Hall, M.D. According to the plaintiff'scomplaint, Mrs. Milos presented with all the signs and symptoms of a diabetic crisis, but shewas discharged without any diagnosis and without having been tested or treated for thesymptoms. At 2:50 p.m., about 12 hours after she was discharged, Mrs. Milos was broughtback to the emergency room in cardiorespiratory arrest and in a diabetic crisis. Blood testsrevealed elevated blood sugar levels and severe diabetic ketoacidosis. Mrs. Milos did notrecover and was pronounced dead at 3:58 p.m. on March 23, 1998. The decedent's husband,Frank Milos, and her mother requested a complete autopsy. Both signed a consent-for-autopsy form provided by Utlaut Hospital. Utlaut Hospital then summoned Dr. Harry W.Parks, a licensed physician who practiced in the field of pathology, to conduct the autopsy. Dr. Parks performed the autopsy and issued a written autopsy report.

On June 28, 1999, Frank Milos (plaintiff), individually and in his capacity as thespecial administrator of the estate of Cindy Milos, deceased, filed suit against UtlautHospital, Tracy Hall, M.D., and Harry W. Parks, M.D., based upon events arising duringCindy Milos' admissions to Utlaut Hospital on March 23, 1998. The wrongful-death andsurvival counts against Utlaut Hospital and Dr. Hall were based upon a theory of medicalnegligence. The counts against Dr. Parks were based on the theory that Dr. Parksintentionally omitted from his autopsy report pertinent facts regarding the decedent'spremortem condition and intentionally misrepresented his conclusions regarding the causeof death, in order to protect Dr. Hall and Utlaut Hospital from potential civil litigation. Thecomplaint at issue, plaintiff's third amended complaint, contains three counts (counts VII,VIII, and IX) against Dr. Parks. Each count is based upon alleged intentionalmisrepresentations and contains the following allegations:

"12. That with respect to the said autopsy, Dr. Harry W. Parks had a fiduciaryduty to the Estate of Cindy Milos to provide accurate and complete informationregarding the cause of death of Cindy Milos.

13. That on or about April 1, 1998, Dr. Harry W. Parks willfully andwantonly breached his fiduciary duty in that in his report he intentionally omitted thefact of Cindy Milos' diabetic crisis and its causal relationship to Cindy Milos' deathand that said report was intentionally misleading regarding the cause of death.

14. That the said decision by Harry W. Parks, M.D.[,] to intentionally omitany reference of Cindy Milos' diabetic crisis in the autopsy report was not based uponany medical judgment but was based entirely upon a desire to protect Utlaut Hospitalfrom a potential civil action."

Plaintiff also alleged that they were damaged as a result of the permanent loss of accurate medical information concerning the decedent's cause of death.

Dr. Parks filed a motion to dismiss, pursuant to section 2-615 of the Code of CivilProcedure (735 ILCS 5/2-615 (West 1996)). In his motion, Dr. Parks argued that countsVII, VIII, and IX of the third amended complaint should be dismissed because plaintiff'sclaims were based on medical negligence and plaintiff failed to file an affidavit of merit asrequired by section 2-622. Plaintiff countered that section 2-622 did not apply because thecounts against Dr. Parks did not allege medical negligence. The trial court granted Dr.Parks' motion to dismiss, finding that the conduct alleged in those claims sounded in medicalnegligence and that plaintiff had not filed the required section 2-622 affidavit of merit.

In reviewing an order granting a motion to dismiss for the failure to state a cause ofaction, we must determine whether the allegations of the complaint, when viewed in a lightmost favorable to the plaintiff, are sufficient to state a cause of action upon which relief canbe granted. Rekosh v. Parks, 316 Ill. App. 3d 58, 63, 735 N.E.2d 765, 771 (2000). A causeof action will not be dismissed on the pleadings unless it clearly appears that no set of factscould be proven which would entitle a plaintiff to recover. Rekosh, 316 Ill. App. 3d at 63,735 N.E.2d at 771. No complaint is bad in substance that contains such information asreasonably informs the defendant of the nature of the claim he is called upon to meet. Stanley Magic-Door, Inc. v. City of Chicago, 74 Ill. App. 3d 595, 598, 393 N.E.2d 535, 537(1979). We review an order granting a section 2-615 motion to dismiss de novo. Burgessv. Pocrnich, 284 Ill. App. 3d 757, 758, 672 N.E.2d 1334, 1336 (1996).

Section 2-622 of the Illinois Code of Civil Procedure provides in pertinent part asfollows:

"Healing art malpractice. (a) In any action, whether in tort, contract[,] orotherwise, in which the plaintiff seeks damages for injuries or death by reason ofmedical, hospital, or other healing art malpractice, the plaintiff's attorney or theplaintiff, if the plaintiff is proceeding pro se, shall file an affidavit, attached to theoriginal and all copies of the complaint, declaring one of the following: ***."(Emphasis added.) 735 ILCS 5/2-622(a) (West 1996).

In this appeal, we must determine whether section 2-622 applies to the claims filedagainst Dr. Parks. Therefore, we must determine whether the acts alleged in the countsagainst Dr. Parks constitute healing art malpractice.

Although section 2-622 does not define the phrase "healing art malpractice", Illinoiscourts have considered the scope and meaning of that phrase. In Lyon v. Hasbro Industries,Inc., 156 Ill. App. 3d 649, 653, 509 N.E.2d 702, 705 (1987), the appellate court began itsanalysis by considering the meaning of the specific terminology at issue, in order to ascertainthe legislature's intent. The court noted:

" 'Healing' is defined as: 'The restoration to a normal mental or physicalcondition ***.' (Taber's Cyclopedic Medical Dictionary 725 (15th ed. 1985).) 'Art'is defined as a skill acquired by experience, study, or observation and as a branch oflearning. (Webster's Ninth New Collegiate Dictionary 105 (1986).) 'Malpractice' isdefined as incorrect or negligent treatment of the patient by a person responsible forhis health care. (Taber's Cyclopedic Medical Dictionary 1001 (15th ed. 1985).) Itis also defined as a dereliction from a professional duty or a failure to exercise anadequate degree of care in rendering service. Webster's Ninth New CollegiateDictionary 721 (1986)." Lyon, 156 Ill. App. 3d at 653, 509 N.E.2d at 705.

Applying principles of statutory construction, the court concluded that the phrase "healingart" should be given broad application encompassing "an entire branch of learning dealingwith the restoration of physical or mental health". Lyon, 156 Ill. App. 3d at 654, 509 N.E.2dat 706. In addition, the fact that the words "medical", "hospital", and "other" modify ordescribe the term "healing art" and are connected by the conjunction "or" also indicates thatthe legislature intended that section 2-622 apply to the many branches of healing arts,including medical healing arts and hospital healing arts.

Although this section has been deemed to have a broad application, not every act oromission committed by a physician or hospital constitutes healing art malpractice. See, e.g.,Cohen v. Smith, 269 Ill. App. 3d 1087, 1092-93, 648 N.E.2d 329, 333-34 (1995); Edelin v.Westlake Community Hospital, 157 Ill. App. 3d 857, 862, 510 N.E.2d 958, 961 (1987). Thenature of the act alleged should determine whether the activity constitutes healing artmalpractice. See Lyon, 156 Ill. App. 3d at 655, 509 N.E.2d at 706.

In this case, it is alleged that plaintiff granted consent to Dr. Parks to perform acomplete autopsy and relied upon Dr. Parks to properly perform the procedure and toprovide complete and accurate information in the autopsy report about the decedent'spremortem quality of care and cause of death. Plaintiff has alleged that Dr. Parks wilfullyand maliciously omitted certain premortem lab results from the report in order tomisrepresent the cause of death, for the purpose of protecting other doctors from liabilityclaims. Plaintiff has not alleged that Dr. Parks breached an accepted standard of care whileattempting to restore Cindy Milos to normal mental or physical condition. We recognize thatan autopsy is a medical procedure requiring a skill acquired by experience, study, orobservation. However, it is not, by definition, a "healing art". The goal of the autopsyprocedure is not to restore normal physical or mental health. Though we do not wish tosound callous, we must point out that Dr. Parks did not treat Cindy Milos, the patient; heperformed an autopsy on a dead body. Any breach of duty arising from the performance ofan autopsy and the preparation of the autopsy report cannot be the basis for a cause of actionsounding in healing art malpractice.

Further, the fact that plaintiff may have to present expert testimony to establishprofessional standards governing the preparation and content of autopsy reports does nottransform this case into a healing arts malpractice action. The nature of the acts allegeddetermines whether the activity constitutes healing art malpractice. See Lyon, 156 Ill. App.3d at 655, 509 N.E.2d at 706. By way of illustration, consider the following hypotheticalcase. A hospital escalator stops abruptly and without warning, causing a visitor who wasriding the escalator to fall and break his arm. Assume also that the hospital providesappropriate care to the visitor and the arm heals properly. Under those hypothetical facts,the hospital's liability arises from the failure to maintain its escalator in proper working orderand not from healing art malpractice. Nevertheless, the visitor may be required to procureexpert testimony to establish that the hospital failed to comply with industry standardsgoverning the maintenance of escalators in health care centers. The fact that experttestimony is required to establish a breach of duty does not convert that action to a hospital-healing-art-malpractice action. Similarly, the fact that plaintiff may be required to procureexpert testimony to establish that Dr. Parks breached a duty by failing to comply withestablished professional standards and procedures governing the preparation and the contentof an autopsy report does not convert the pending action to one sounding in medical healingart malpractice. Accordingly, a section 2-622 affidavit was not required, and the circuitcourt erred in dismissing counts VII, VIII, and IX against Dr. Parks on that basis.

Viewing the allegations in counts VII, VIII, and IX of plaintiff's third amendedcomplaint in a light most favorable to plaintiff, we conclude that the facts alleged reasonablyinform Dr. Parks of the nature of the claims he is being called upon to defend and aresufficient to state a cause of action upon which relief can be granted. Accordingly, thejudgment of the circuit court is reversed, and the cause is remanded for further proceedings.

Reversed; cause remanded.

GOLDENHERSH and WELCH, JJ., concur.

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