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06/11/87 Patricia A. Buechele, v. St. Mary's Hospital

June 11, 1987





509 N.E.2d 744, 156 Ill. App. 3d 637, 109 Ill. Dec. 83 1987.IL.800

Appeal from the Circuit Court of Macon County; the Hon. Art Powers, Jr., Judge, presiding.


JUSTICE GREEN delivered the opinion of the court. SPITZ, P.J., and LUND, J., concur.


This case concerns the sufficiency of a complaint to state a cause of action for the torts of defamation, intentional infliction of emotional distress and retaliatory discharge. Plaintiff, Patricia Buechele, filed a complaint against defendant, St. Mary's Hospital, in the circuit court of Macon County on April 26, 1985. She subsequently filed an amended complaint on December 27, 1985. On April 4, 1986, following a hearing on the amended complaint, the court dismissed counts II and III with prejudice for failure to state a cause of action. Count I was dismissed with leave to file an amended count I within 28 days. Plaintiff elected to stand on the amended count, and, on August 1, 1986, the court granted defendant's motion to dismiss count I. Plaintiff filed notice of appeal on September 2, 1986.

Defendant argues initially that appeal as to counts II and III was not timely filed. Defendant maintains that, because those counts were dismissed with prejudice in April 1986, the orders were final and plaintiff was required to file appeal as to those counts within 30 days. Defendant's argument is without merit. An order dismissing a portion of a complaint with prejudice is not appealable as a matter of right unless it meets the requirements of Supreme Court Rule 304 (103 Ill. 2d R. 304; Commercial National Bank v. Northwest Bank (1984), 128 Ill. App. 3d 1050, 471 N.E.2d 944). Defendant's reliance on St. Joseph Data Service, Inc. v. Thomas Jefferson Life Insurance Co. (1979), 73 Ill. App. 3d 935, 393 N.E.2d 611, is misplaced. There, orders final as to some but not all counts of a complaint were deemed appealable when a finding complying with Supreme Court Rule 304(a) (103 Ill. 2d R. 304(a)) had been made. Those requirements were not met here, and plaintiff properly filed appeal within 30 days of entry of the appealable order.

Count I of plaintiff's amended complaint alleged: (1) Plaintiff was employed by defendant as a registered nurse; (2) on January 5, 1984, defendant's supervisory personnel accused plaintiff of stealing drugs and controlled substances from defendant's emergency room; (3) on January 5, 1984, plaintiff's immediate supervisor accused plaintiff of stealing those substances in the presence of others; (4) on February 9, 1984, defendant determined that those accusations against plaintiff lacked foundation; (5) on April 30, 1984, unknown employees of defendant reported thefts of drugs and controlled substances and filed a complaint in that regard against plaintiff with the Illinois Department of Education and Registration (Department); (6) the Department subsequently determined that the accusations were untrue; (7) defendant's employees were acting within the scope of their employment when they made the accusations; and (8) those employees made the accusations maliciously and with the knowledge they were false.

Count II of plaintiff's complaint alleged: (1) As a result of the allegations in count I, plaintiff was required to employ an attorney to represent her and defend her against the charges; (2) throughout the time those accusations were made, defendant's supervisory employees harassed, mistreated and intimidated plaintiff by criticizing her job performance using harsher and stricter standards than those applied to other nursing personnel, changing her work schedule, and casting suspicion among other medical personnel about her ability to handle drugs and controlled substances; (3) at the time of the occurrences, plaintiff was pregnant and more susceptible to infliction of emotional distress; (4) as a result of the foregoing, plaintiff suffered nervous shock, emotional distress, pain and suffering, and was required to purchase medication for recurring migraine headaches. Count III alleged that plaintiff was discharged from her employment with defendant in retaliation for filing the instant suit against defendant.

Count I is an action for defamation predicated on two separate alleged acts of misconduct. The first act consisted of allegedly slanderous comments made by an employee of defendant in the presence of others on or about January 5, 1984. The second act consisted of allegedly libelous statements transmitted by an employee of defendant to the Department of Registration and Education on April 30, 1984.

Defendant argued in its motion to dismiss that the allegedly slanderous comments, made on or about January 5, 1984, were time barred by plaintiff's failure to file her complaint within one year after the cause of action accrued. (Ill. Rev. Stat. 1985, ch. 110, par. 13-201.) We agree. Plaintiff filed her complaint on April 16, 1985, which was more than one year after the statements were made. The trial court correctly dismissed the count as to any allegedly slanderous statements made on or about January 5, 1984.

Defendant further argued that any allegedly libelous statements made in a report to the Illinois Department of Registration and Education on or about April 30, 1984, were barred by section 26.1 of the Illinois Nursing Act (Ill. Rev. Stat. 1985, ch. 111, par. 3435.1), which states in part that "[any] person making a report under this Section or in good faith assisting another person in making such a report" shall have civil and criminal immunity from suit arising from such action. Plaintiff made no allegation that any employees of defendant assisted in the making of such a report. Accordingly, any employees of defendant who made such a report would appear by the foregoing language to have absolute immunity from suit.

However, the next sentence of section 26.1 after that discussed in the ...

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