Lane v. Anderson

No. 3–03–0030
______________________________________________________________
___

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2004

MATTHEW LANE,

Plaintiff-Appellant,

) Appeal from the Circuit Court
) of the 10th Judicial Circuit
) Peoria County, Illinois
)

) No. 01–L–306

)
)
RICHARD ANDERSON, M.D.,

PEORIA SURGICAL GROUP, OSF )

)
HEALTHCARE SYSTEMS,

d/b/a ST. FRANCIS MEDICAL
)
CENTER, and J.B. Joo, M.D., ) Honorable
) Joseph R. Vespa,
) Judge Presiding.
Defendants-Appellees.
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___

JUSTICE SLATER delivered the opinion of the court:
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___

This is an action for medical malpractice, medical

battery and fraud. The plaintiff appeals from the orders of

the trial court which denied his motion for summary judgment

and granted the defendants = motions to dismiss and motion for

summary judgment.

I. FACTS

A. Procedural Background

The plaintiff, Matthew Lane, brought this action after he

sustained a leak in his small bowel following a laparoscopic

appendectomy. Plaintiff originally filed a four-count

complaint against the following defendants: Dr. Anderson, the

attending physician; Peoria Surgical Group, Dr. Anderson =s

employer; Dr. Joo, the chief resident who performed the

surgery with Dr. Anderson; and OSF Healthcare Systems,

(“OSF”), Dr. Joo =s employer. Counts I and II are for medical

malpractice against Dr. Anderson and Peoria Surgical Group and

are not at issue in this appeal. Counts III and IV allege

medical battery against Dr. Joo and OSF, respectively.

On February 25, 2002, the plaintiff moved to amend his

complaint to add count V, a claim for medical battery against

Dr. Anderson. On April 24, 2002, the trial court denied the

plaintiff =s motion to amend and held that the facts as alleged

by the plaintiff did not support a claim for medical battery.

On May 23, 2002, the trial court granted the plaintiff leave

to amend his complaint to add counts VI, VII and VIII, which

alleged fraud by Dr. Anderson, Dr. Joo and OSF, respectively.

The plaintiff and the defendants filed various motions on the

pleadings.

On October 25, 2002, the trial court denied the

plaintiff =s motion for summary judgment on count III of the

complaint which alleged medical battery against Dr. Joo. It

granted summary judgment in favor of Dr. Joo and OSF

Healthcare Systems on counts III and IV, the medical battery

counts. It also granted Dr. Anderson, Dr. Joo and OSF =s

motions to dismiss counts VI, VII and VIII which alleged fraud

against each of them, respectively. The plaintiff appeals

from the trial court =s orders entered on April 24, 2002 and

October 25, 2002.

B. FACTUAL BACKGROUND

On August 25, 2000, the plaintiff went to see defendant

Anderson for recurrent abdominal pain. Dr. Anderson

recommended that the plaintiff be hospitalized for a period of

observation and possible surgery. After the plaintiff was

admitted to the hospital he signed a “Consent to

Surgery/Procedure” form. The relevant language of the consent

form is as follows:

“I, Matthew Lane, hereby authorize Dr.

Rossi, Marshall, DeBord and Anderson and

such assistants and associates as may be

selected by him/her and OSF St. Francis

Medical Center to perform the following

procedure(s)/ treatment(s)upon myself/the

patient: diagnostic laparoscopy, possible

laparoscopic appendectomy, possible open

appendectomy.”

Dr. Anderson testified that on the evening of August 25,

2000, he contacted his chief resident at the hospital, Dr.

Joo, and asked him to assist with the plaintiff =s surgery. The

next morning, Dr. Joo and Dr. Anderson met with the plaintiff

and Dr. Anderson recommended that the plaintiff have the

surgery.

Dr. Anderson explained that the procedure performed on

the plaintiff, a laparoscopic appendectomy, requires three

hands. Two surgeons are needed to elevate the abdominal wall

in order to insert a needle into the abdomen. Additionally, a

second surgeon is needed to run the camera while one surgeon

works the instruments.

Dr. Anderson was scrubbed, present and involved during

the plaintiff =s surgery. He both supervised and directed the

entire procedure. Throughout the surgery, Dr. Anderson was

the primary surgeon and Dr. Joo was his assistant. The

primary surgeon is responsible for the patient before and

after the operation and for any mistakes that occur during

surgery.

Dr. Anderson testified that it is not known what portion

of the operation a resident will perform at the beginning of a

procedure. In this case, Dr. Joo performed a significant part

of the laparoscopic appendectomy.

Dr. Anderson =s dictated report of the operation, as well

as his handwritten operative report, listed him as the surgeon

and Dr. Joo as the assistant. The perioperative record for

surgical services listed Dr. Anderson as the primary surgeon

and Dr. Joo as the resident. The pathology report contained

only Dr. Anderson =s name as the physician who performed the

surgery.

In his deposition testimony, Dr. Joo stated that in

August 2000 he was a fifth year resident in the surgery

residency program at St. Francis Medical Center. On

August 26, 2000, he examined the plaintiff. Dr. Joo said it

was his habit to introduce himself to a patient as the chief

resident and as Dr. Anderson =s assistant. Shortly before the

operation, he and Dr. Anderson met with the plaintiff and

recommended that he have the surgery. Dr. Joo said that it

was probably after this meeting that he told Dr. Anderson that

he would like to assist him in the surgery.

Dr. Joo testified that it was his habit to be waiting for

the patient when he was brought into the operating room. He

would have then spoken to the plaintiff to reassure him.

Immediately before the operation, Dr. Joo signed the bottom of

the plaintiff =s consent form which identified the plaintiff as

the patient and confirmed the procedure to be performed.

Dr. Joo testified that the laparoscopic appendectomy

procedure which the plaintiff underwent required the use of

three hands during the procedure. It is not possible for a

single surgeon to perform the procedure. Typically, both the

supervising surgeon and the resident participate in almost all

aspects of the surgery.

II. ANALYSIS

A. Counts III and IV of the Complaint

1. Plaintiff =s Motion for Summary Judgment

On appeal, the plaintiff argues that the trial court

erred in denying his motion for summary judgment on count III

of his complaint which alleged medical battery against Dr.

Joo. The denial of a motion for summary judgment is not a

final and appealable order. Blott v. Hanson, 283 Ill. App. 3d

656, 670 N.E.2d 345 (1996). The denial of the plaintiff =s

motion for summary judgment as to count III is not appealable

as a matter of law.

2. Defendants Joo and OSF =s Motions
for Summary Judgment

Next, the plaintiff argues that the trial court erred in

granting summary judgment in favor of Dr. Joo and OSF on

counts III and IV of the complaint which alleged medical

battery against each of them. The plaintiff argues that Dr.

Joo committed medical battery when the treatment plaintiff

received varied substantially with the consent that he gave

when he signed the “Consent to Surgery/Procedure” form.

Specifically, he argues that Dr. Joo performed a majority of

the surgery and he did not consent to that degree of

participation by a doctor not specifically listed on the

consent form. As support for his contention, he cites to

Guebard v. Jabbay, 117 Ill. App. 3d 1, 452 N.E.2d 751 (1983).

Finally, he claims that OSF, as Dr. Joo =s employer, is

vicariously liable.

A motion for summary judgment will be granted when the

pleadings, depositions and admissions on file, together with

the affidavits, if any, show that there is no genuine issue of

material fact and that the movant is entitled to judgment as a

matter of law. 735 ILCS 5/2–1005(c)(West 2000); Purtill v.

Hess, 111 Ill. 2d 229, 489 N.E.2d 867 (1986). An appellate

court will review the grant of a motion for summary judgment

on a de novo basis. Kellner v. Bartman, 250 Ill. App. 3d

1030, 620 N.E.2d 607 (1993).

In a medical battery case, a plaintiff may recover by

establishing the following: (1) a total lack of consent to the

procedure performed; (2) the treatment was contrary to the

patient =s will; or (3) the treatment was at substantial

variance with the consent granted. Curtis v. Jaskey, 326 Ill.

App. 3d 90, 759 N.E.2d 962 (2001).

Here, the facts do not show that the treatment the

plaintiff received was at substantial variance with the

consent the plaintiff granted. The “Consent to

Surgery/Procedure” form that the plaintiff executed stated

that he authorized “Dr. Rossi, Marshall, DeBord, and Anderson

and such assistants and associates as may be selected by

him/her and OSF St. Francis Medical Center” (emphasis added)

to perform upon him a laparoscopic appendectomy. It is

undisputed that more than one surgeon is needed to perform

this procedure. It is typical for both the supervising

surgeon and the resident to participate in virtually all

aspects of the procedure. Dr. Anderson was scrubbed, present

and involved during the entire procedure. He was the primary

surgeon, and Dr. Joo was his assistant. As the primary

surgeon, Dr. Anderson was responsible for the plaintiff during

the entire operation, including being responsible for any

mistakes that occurred during the procedure. Dr. Anderson

guided Dr. Joo throughout the entire procedure and made all of

the decisions and necessary judgments. Everything Dr. Joo did

was subject to Dr. Anderson =s approval. Further, all pertinent

operative reports, including Dr. Anderson =s dictated report of

operation, his handwritten operative report and the

perioperative record for surgical services listed Dr. Anderson

as the surgeon and Dr. Joo as the assistant. The pathology

report was sent to Dr. Anderson as the physician who performed

the surgery and contained only his name. Dr. Anderson was the

operating surgeon in this case, regardless of the degree to

which Dr. Joo participated. The plaintiff consented to Dr.

Anderson and his assistant to perform the surgery, and that is

what was done.

The plaintiff cites to the Second District’s opinion in

Guebard v. Jabbay, 117 Ill. App. 3d 1, 452 N.E.2d 751 (1983),

as authority for the proposition that a medical battery

occurred in this case. Specifically, the plaintiff alleges:

(1) the facts in the Guebard case are nearly identical to the

instant case; and (2) Guebard held, as a matter of law, that

the resident in that case had committed medical battery. See

Guebard, 117 Ill. App. 3d 1, 452 N.E.2d 751. We disagree with

both of the plaintiff’s allegations.

In Guebard, the plaintiff sued her surgeon, Dr. Jabbay,

after two failed knee surgeries. She alleged that Dr. Jabbay

violated the doctrine of informed consent when he failed to

inform her that a resident would perform the first surgery.

She also filed a battery claim, but withdrew it before the

case went to the jury. Guebard, 117 Ill. App. 3d 1, 2, 452

N.E.2d 751, 754. The jury returned a verdict for Dr. Jabbay.

On appeal, the Second District held that the doctrine of

informed consent did not apply in this case. Guebard, 117

Ill. App. 3d 1, 7, 452 N.E.2d 751, 756. However, in dicta,

the court noted that the plaintiff may have had a cause of

action for battery. Guebard, 117 Ill. App. 3d 1, 8, 452

N.E.2d 756. However, the plaintiff had no recourse since she

had withdrawn her battery claim.

Although the facts in Guebard are similar to the instant

case, they contain some important distinctions. In Guebard,

the handwritten report of the operation indicated that the

surgery was performed by the resident. Further, other

typewritten notes indicated that Dr. Jabbay was the assistant.

Conversely, in the instant case, all pertinent operative

reports listed Dr. Anderson as the surgeon and Dr. Joo as the

assistant.

Further, Guebard did not hold, as a matter of law, that

the resident in that case had committed medical battery. See

Guebard v. Jabbay, 117 Ill. App. 3d 1, 452 N.E.2d 751 (1983).

Battery was not an issue in Guebard. The only issue before

the court was whether the plaintiff could recover on her

informed consent count. The parties did not brief the medical

battery issue, nor did the court decide the issue in ruling

for Dr. Jabbay on the informed consent count. Therefore, the

ruling in the Guebard case does not affect the disposition of

the instant case. See Guebard v. Jabbay, 117 Ill. App. 3d 1,

452 N.E.2d 751 (1983). The trial court properly granted

summary judgment in favor of defendants Joo and OSF on counts

III and IV of the complaint.

B. Count V of the Complaint

The plaintiff next argues that the facts he alleged in

count V of his complaint were sufficient to state a cause of

action for medical battery against Dr. Anderson. In essence,

the plaintiff is arguing that the trial court erred in denying

his motion for leave to amend his complaint to add count V.

The plaintiff acknowledges that if this court finds summary

judgment in favor of Dr. Joo was proper, then we need not

reach this issue because count V is predicated on Dr.

Anderson =s vicarious liability for the alleged medical battery

committed by Dr. Joo.

Since the trial court properly granted summary judgment

for Dr. Joo and OSF on the medical battery counts, we find

that the facts alleged in count V of the complaint do not

sufficiently support a claim for medical battery against Dr.

Anderson.

C. Count VI of the Complaint

The plaintiff contends that the trial court erred in

granting Dr. Anderson =s motion to dismiss count VI of the

complaint. In count VI, the plaintiff alleges that Dr.

Anderson committed fraud when he: (1) represented to the

plaintiff that he would be performing the surgery when he knew

that Dr. Joo had the option to be the operating surgeon; and

(2) later concealed the fact that Dr. Joo had chosen to do the

surgery and Dr. Anderson instead assisted Dr. Joo. In the

alternative, the plaintiff argues that the trial court erred

in dismissing count VI of the complaint because it contained

genuine issues of material fact.

In ruling upon a motion

to dismiss, a trial court accepts as true all well-pled facts,

as well as all reasonable inferences favorable to the party

opposing the motion which may be drawn from the facts.

Richardson v. Dunbar, 95 Ill. App. 3d 254, 419 N.E.2d 1205

(1981). The court does not, however, accept as true mere

conclusions of law or fact. Payne v. Mill Race Inn, 152 Ill.

App. 3d 269, 504 N.E.2d 193 (1987). The grant of a motion to

dismiss will be reviewed on a de novo basis. Ramos v. City of

Peru, 333 Ill. App. 3d 75, 775 N.E.2d 184 (2002).

To prove that a concealment constituted a fraudulent

misrepresentation, a plaintiff must prove: (1) the concealment

was of a material fact; (2) the concealment was intended to

induce a false belief; (3) the innocent party could not have

discovered the truth through a reasonable inquiry or

inspection and relied upon the silence as a representation

that the fact did not exist; (4) the concealed information was

such that the injured party would have acted differently if he

had been aware of it; and (5) the reliance by the person from

whom the fact was concealed led to his injury. Williams v.

Chicago Osteopathic Health Systems, 274 Ill. App. 3d 1039, 654

N.E.2d 613 (1995).

Here, the plaintiff argues that Dr. Anderson fraudulently

concealed that Dr. Joo would be the operating surgeon. The

deposition testimony is clear, however, that Dr. Anderson, not

Dr. Joo, was the operating surgeon in this case. Dr. Anderson

was present for and participated in all aspects of the

surgery. He directed all of Dr. Joo =s movements, and he alone

was responsible for the plaintiff throughout the surgery. The

degree of Dr. Joo =s participation did not change his role from

assisting physician to operating surgeon.

In the alternative, the plaintiff contends that count VI

should not have been dismissed because genuine issues of

material fact exist regarding which physician acted as the

operating surgeon and which physician acted as the assistant

during the plaintiff =s procedure. We have reviewed the

pleadings and find no genuine issue of material fact that

would preclude the dismissal of count VI. The undisputed

facts show that the plaintiff executed a broad consent form

which authorized four surgeons and “such associates and

assistants” as they selected to “perform” the procedure.

There was no limitation on the consent given. Dr. Anderson

was the operating surgeon regardless of the degree to which

Dr. Joo participated. The allegations raised by the plaintiff

are simply contrary to those facts. See Burton v. County of

Jackson, 246 Ill. App. 3d 677, 616 N.E.2d 662 (1993)

(allegations in a complaint are insufficient to raise a

genuine issue of material fact where the affidavits and

depositions which support a motion for summary judgment set

forth facts to the contrary). Therefore, the trial court

properly dismissed count VI of the complaint.

D. Counts VII and VIII of the Complaint

The plaintiff next argues that Dr. Joo and OSF are liable

for the fraud allegedly committed by Dr. Anderson. Since we

have found that Dr. Anderson was not liable for fraud under

count VI, we likewise find that the trial court properly

dismissed counts VII and VIII of the complaint alleging fraud

against Dr. Joo and OSF, respectively.

E. Punitive Damages

Finally, the plaintiff argues that if the pleadings in

counts VI, VII and VIII state a cause of action for fraud,

then he is entitled to recover punitive damages. Counts VI,

VII and VIII do not state a cause of action for fraud.

Therefore, we need not determine whether the plaintiff is

entitled to punitive damages on those counts.

The judgment of the circuit court of Peoria County is

affirmed.

Affirmed.

BARRY and LYTTON, J.J., concurs.