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06/07/89 Michael S. Cardwell, v. Rockford Memorial Hospital

June 7, 1989

MICHAEL S. CARDWELL, PLAINTIFF-APPELLANT

v.

ROCKFORD MEMORIAL HOSPITAL ASSOCIATION ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

539 N.E.2d 1322, 183 Ill. App. 3d 1072, 132 Ill. Dec. 516 1989.IL.857

Appeal from the Circuit Court of Winnebago County; the Hon. John E. Sype, Judge, presiding.

APPELLATE Judges:

JUSTICE INGLIS delivered the opinion of the court. WOODWARD, J., concurs. JUSTICE NASH, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE INGLIS

Plaintiff, Dr. Michael S. Cardwell, appeals from an order of the circuit court of Winnebago County dismissing his complaint against defendants, Rockford Memorial Hospital Association (Hospital), and Terry A. White, individually and as assistant administrator of the Hospital. The trial court granted defendants' motion to dismiss pursuant to section 2-619(a)(9) of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1987, ch. 110, par. 2-619(a)(9)) on the basis that statutes and Hospital bylaws provided defendants with immunity for the conduct alleged in plaintiff's complaint. The sole issue on appeal is whether the trial court erred in granting defendants' motion to dismiss. We affirm.

In 1985, plaintiff was a perinatalogist (specialist in the care and treatment of high risk fetuses) employed by the Hospital under written contract as medical director of the department of perinatalogy. In May or June of that year, Gary Longanecker, administrator of the employee assistance program for the Hospital, began to suspect that plaintiff had a drinking problem. Longanecker's suspicion was fostered after smelling alcohol on plaintiff's breath during working hours on several different occasions. In August 1985, plaintiff's secretary, Alyce Lashock, approached Longanecker and advised him that she detected alcohol on plaintiff's breath while he was performing certain medical procedures. Lashock further stated that plaintiff was exhibiting "bizarre behavioral mood swings" and lapses of memory. Longanecker conveyed this information to Dr. William Rouse, chairman of the Hospital credentials committee, and defendant Terry White, assistant administrator of the Hospital and plaintiff's immediate supervisor.

White subsequently approached Lashock to discuss plaintiff's behavior. Lashock told White that she had witnessed abrupt changes in plaintiff's behavior during a three- to four-month period prior to August 1985. According to Lashock, plaintiff became volatile, secretive, hyperactive, and frantic. Lashock further related that plaintiff would disappear for periods of time and return "wired." Lashock advised White that plaintiff was also exhibiting poor judgment in the handling of his patients.

Following his interview with Lashock, White contacted Dr. Richard Banta, a chemical dependency specialist, and requested his assistance as a consultant in plaintiff's case. Banta subsequently conducted interviews with members of the Hospital staff who had contact with plaintiff. Among those interviewed were White, Lashock, and several nurses who worked closely with plaintiff. According to these witnesses, plaintiff was subject to mood swings, frequently reversed his position in business Discussions, had a selective memory, did not accept responsibility for his own actions, became abrupt and tactless with patients, and became self-centered. Banta was also told that plaintiff was obsessed with talk of drinking and often boasted about becoming intoxicated. In addition, plaintiff would occasionally leave work and return "wired." Plaintiff was described as bizarre, paranoid, and mood-elevated. The witnesses also noted that plaintiff's appetite became sporadic and that he had developed an unusual rapport with drug company representatives. In conducting the interviews, Banta noted that while the witnesses believed that something was wrong with plaintiff, they were reluctant to speak because of a fondness and respect for him. Banta advised White that, in Banta's opinion, plaintiff had a substance abuse problem that required rapid intervention.

Acting on Banta's advice, Dr. John McHugh, vice-president of medical affairs for the Hospital, formed a committee consisting of himself, White, Rouse, and Dr. Richard Novak, first vice-president of the medical staff. On August 29, 1985, this committee met for the purpose of confronting plaintiff on his behavior and suggesting the possibility that he had an alcohol, drug, or emotional problem which required intervention. The committee requested plaintiff to submit to an evaluation by Dr. Donald Sellers, a physician experienced in treating impaired physicians. Plaintiff initially refused but relented when he was advised that his refusal to undergo the evaluation would result in the immediate revocation of his staff privileges at the Hospital. The evaluation was conducted later that day at Lutheran General Hospital in Park Ridge, Illinois. The record is silent with respect to the results of the evaluation except to indicate that hospitalization was not required. Plaintiff resigned from the Hospital in the early part of 1986.

On August 26, 1986, plaintiff filed the instant action. Plaintiff's initial complaint was dismissed, and, on December 11, 1987, plaintiff filed a four-count amended complaint against the Hospital and White. Plaintiff's amended complaint sought recovery under theories of slander, "coercion," intentional infliction of emotional distress, and intentional interference with an employment contract. The amended complaint alleged that defendants accused plaintiff of alcohol or drug addiction or emotional instability and knew those accusations to be groundless. The amended complaint further alleged that plaintiff was coerced into undergoing a psychiatric examination and that the substance of the accusations and psychiatric evaluation were communicated to persons who did not have a legitimate interest in that knowledge.

On January 26, 1988, defendants moved to dismiss plaintiff's amended complaint pursuant to sections 2-615 and 2-619 of the Code (Ill. Rev. Stat. 1987, ch. 110, pars. 2-615, 2-619). Defendants' motion was supported by a copy of the employment contract between plaintiff and the Hospital, the deposition transcript of Dr. Banta, and the affidavits of Dr. McHugh, White, and Longanecker. The trial court granted defendants' motion pursuant to section 2-619(a)(9) after concluding that defendants presented affirmative matter which defeated plaintiff's claims. Specifically, the court found that defendants' conduct fell within the provisions of certain statutes and the Hospital bylaws entitling them to immunity. The trial court subsequently denied plaintiff's motion to reconsider, and plaintiff brought this timely appeal.

Initially, we note that defendants' motion to dismiss was brought pursuant to both sections 2-615 and 2-619 of the Code (Ill. Rev. Stat. 1987, ch. 110, pars. 2-615, 2-619). It is improper for a defendant to combine separate motions under each of these sections for joint analysis and determination. (Schlenz v. Castle (1985), 132 Ill. App. 3d 993, 1002-03, aff'd (1986), 115 Ill. 2d 135; Davis v. Weiskopf (1982), 108 Ill. App. 3d 505, 508.) However, while this improper motion practice is error and should not be condoned, it does not command reversal unless prejudice results to the nonmovant. (Schlenz, 132 Ill. App. 3d at 1003; Davis, 108 Ill. App. 3d at 508.) The record in the instant action indicates that plaintiff knew prior to the hearing that defendants sought dismissal under either section of the Code. In addition, the court continued the hearing on the motion at which time plaintiff's counsel indicated that he was prepared to address defendants' motion pursuant to section 2-619. Accordingly, we conclude that plaintiff was not prejudiced by the procedure utilized and we may proceed to the merits of the case.

Plaintiff contends that the trial court erred in granting defendants' motion to dismiss. Plaintiff argues that defendants failed to state "affirmative matter" sufficient for dismissal pursuant ...


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