[the patient] that she was abused by [her] father" has not engaged in conduct that is extreme and outrageous. (Amended Complaint, at P19). As stated before, this determination is made on a case-by-case basis. Defendants cite no authority for holding that these facts do not satisfy the requirement. Note that Sullivan v. Cheshier is not inapposite: in that case, the court dismissed the Emotional Distress claim against the therapist because the Statute of Limitations had run. Sullivan, at 661.
Dr. Cassens further argues that "it is questionable whether the tort of intentional infliction of emotional distress is ever appropriate under Illinois law in a medical negligence action." (Motion to Dismiss, at p. 11). A plaintiff is always permitted to allege alternative, and sometimes even conflicting, theories of recovery. See Fed.R.Civ.P. 8(a) ("Relief in the alternative or of several different types may be demanded."). In addition, since the court will dismiss the Malpractice and Negligence counts pursuant to this memorandum opinion, the inconsistency pointed out by Dr. Cassens no longer exists. The court therefore denies defendants' motion to dismiss the claims for Intentional Infliction of Emotional Distress (Counts III, X, XV, XVII, XXI, XXVI).
C. Loss of Society
Defendants move to dismiss all the claims alleging Loss of Society due to the alienation of their daughter. Erie and its progeny direct a federal court sitting in diversity to apply state law as interpreted by the highest court of that state. If the highest court has not addressed the issue, the district court is to predict how that court would decide it given the same context. Miller v. Pardner's, Inc., 893 F.2d 932, 934 (7th Cir. 1990); Sundstrand Corp. v. Lake Shore, Inc., 840 F. Supp. 588 (N.D.Ill. 1994). The essential question is: does Illinois recognize a cause of action for Loss of Society stemming from non-fatal injuries? The Northern District of Illinois has addressed this very question twice before, unfortunately with conflicting results.
Both parties cite in support of their position the Illinois Supreme Court case of Dralle v. Ruder, 124 Ill. 2d 61, 529 N.E.2d 209, 124 Ill. Dec. 389 (Ill. 1988). In that case, a mother sued physicians for loss of society resulting from negligent care the child received before and at the time of its birth. The Court framed the facts as illustrating derivative, or indirect interference with the family relationship and held that there was no cause of action and dismissed the case. The court provided three reasons for declining to enlarge liability in this area: " The availability of a tort remedy to the injured child,  the possible multiplication of claims, and  the difficulty of determining damages." Dralle, at 213.
In the case at bar, plaintiffs have alleged a direct interference with the family relationship, rather than a derivative one as in Dralle. Judge Shadur addressed direct interference in the familial relationship in Alber v. Illinois Dept. of Mental Health, 786 F. Supp. 1340 (N.D.Ill. 1992). After citing the tripartite rationale of Dralle, Judge Shadur concluded that, "None of those factors really varies in its applicability just because the tort feasor intended to disrupt the relationship of parent and child rather than negligently inflicting particularized injury on a member of that relationship." After extrapolating Dralle to cover intentional, direct nonfatal interference, he dismissed plaintiffs' claims for loss of society.
Two years later Judge Zagel addressed the exact same issue in Sullivan, 846 F. Supp. at 654. Judge Zagel respectfully disagreed with Judge Shadur by pointing out that the rationales of Dralle did not apply to the facts of his [and our] case: since the patient was convinced that the sexual abuse had occurred, she was not likely to be bring a suit against the doctor. This also means that the possibility of multiple claims was remote.
Sullivan, 846 F. Supp. at 661. Additionally, the "difficulty in determining damages" rationale does not apply to these facts either: while as a general rule, Loss of Society is not a form of damage "capable of being determined with arithmetic certainty" ( Drews v. Gobel Freight Lines, Inc., 144 Ill. 2d 84, 578 N.E.2d 970, 976, 161 Ill. Dec. 324 (1991)), Dralle is concerned about the unique difficulty of a jury cognitively separating the child's damages from the parents' if both were to maintain distinct causes of action. Dralle at 213; interpreted by Barkei v. Delnor Hospital, 176 Ill. App. 3d 681, 531 N.E.2d 413, 423, 126 Ill. Dec. 118 (2d Dist. 1988), appeal denied, 125 Ill. 2d 563, 130 Ill. Dec. 478, 537 N.E.2d 807 (1989). This problem is also absent from the case at bar because the patient/daughter believes she has been "cured" by the defendants, and thus she will have no desire to sue them for malpractice.
This court believes that Judge Zagel has poignantly questioned Judge Shadur's reasoning to the point of making it non-persuasive, but dismissing one theory does not call for application of another without an independent basis for support. After disposing of Shadur's reasoning, Judge Zagel concludes "I do not believe the [Supreme Court of Illinois] would preclude an intentional tort suit under the specific facts alleged here." This court agrees, and the support for this decision can be found within the Dralle opinion itself.
The Dralle court noted that "We do not consider at this time the nature or extent of the recovery in cases based on what has been termed a 'direct interference' with the parent-child relationship, as opposed to the indirect interference involved here...recognition of a cause of action for direct interference does not entail recovery for the type of harm asserted here." (citations omitted, emphasis added).
If the court did not want to recognize the direct interference claim, it would not have gone through the trouble of distinguishing its holding from Dymek v. Nyquist, 128 Ill. App. 3d 859, 83 Ill. Dec. 52, 469 N.E.2d 659 (Ill.App. 1st Dist. 1984) (loss of society action maintained where father had alleged that former spouse and psychiatrist had conspired to "brainwash" his son in an attempt to destroy their relationship) and Kunz v. Deitch, 660 F. Supp. 679 (N.D.Ill. 1987) (Loss of society action sustained where widowed father sued maternal grandparents for attempting to put father's son up for adoption without father's knowledge or consent): it could have simply held that there is no cause of action for interference resulting in non-fatal injuries, period, thereby overruling those two cases. In addition, the second part of the above quote simply makes the argument that recognizing an action for direct interference does not necessitate recognizing a similar action for derivative interference. The court would not have to point this out if it didn't recognize direct interference to begin with. It is the court's very insistence that Dralle is not a direct interference case that shows its approbation and desire to preserve those cases.
Dralle implicitly recognizes a cause of action for direct interference with filial relationships and recovery for Loss of Society stemming from that interference. Illinois cases subsequent to Dralle conform to this analysis. See, e.g. Person v. Behnke, 242 Ill. App. 3d 933, 611 N.E.2d 1350 1355, 183 Ill. Dec. 702 (4th Dist.), appeal denied, 152 Ill. 2d 579, 190 Ill. Dec. 909, 622 N.E.2d 1226 (1993) (permitting non-fatal direct interference claim as being consistent with the holding in Dralle). This court therefore denies defendants' motion to dismiss those counts (Counts IV, XI, XVI, XVIII, XXII, XXVII).
D. Public Nuisance
The therapist moves to dismiss plaintiffs' counts that allege Public Nuisance. The "Clinical Psychologist Licensing Act" provides in part that, "No individual...shall without a valid license as a clinical psychologist...hold himself out to the public as a clinical psychologist or render or offer to render clinical psychological services as defined in this Act." 225 ILCS 15/1 et seq. Illinois law recognizes a private right of action based on a statutory regulatory violation such as the above only if: (1) the plaintiff is a member of the class for whose benefit the Act was enacted; (2) it is consistent with the underlying purpose of the Act; (3) the plaintiff's injury is one the Act was designed to prevent; and (4) it is necessary to provide an adequate remedy for violations of the Act. Corgan v. Muehling, 143 Ill. 2d 296, 574 N.E.2d 602, 609, 158 Ill. Dec. 489 (Ill. 1991) (finding a right of action by a patient treated by an unlicensed psychologist). In Sullivan, this district recognized a cause of action for public nuisance brought by the parents of the patient who received treatment from an unlicensed clinical psychologist.
Neither the Sullivan court nor the parties in this action analyze the propriety of the public nuisance claim with regard to the four requirements listed above. Absent such an inquiry by the moving party and based on this district's prior recognition of such a claim this court will give the benefit of the doubt to the plaintiffs and deny the defendants' motion to dismiss. However, plaintiffs will not be able to win on their Public Nuisance claims if they lose on the other counts which allege specific forms of injury such as Emotional Distress and Loss of Society; it is clear that Illinois law following Corgan still requires as part of the prima facie case that the plaintiffs have been injured by the unlicensed psychologist. Corgan, 574 N.E.2d at 610. Defendants' motion to dismiss the Public Nuisance claims (Counts V, XII, XXIII) is denied.
E. Health Art Affidavit
Alternatively, defendants argue that the "health art affidavit" submitted by plaintiffs, which is required by Illinois law as a prerequisite to filing a medical malpractice claim, is insufficient. Illinois law requires that before bringing suit against a health care provider for health art malpractice, a plaintiff must acquire an affidavit from a third party health professional who, after reviewing the medical record and other materials, has concluded that the cause of action contemplated is not meritless. 735 ILCS 5/2-622. In addition, "Failure to file a certificate required by this Section shall be grounds for dismissal. Id., at § 622(f). The purpose of this statute is to "deter the filing of frivolous medical lawsuits and to insure the meritoriousness of those causes which are filed. Peterson v. Hinsdale Hosp., 233 Ill. App. 3d 327, 599 N.E.2d 84, 174 Ill. Dec. 538 (2d Dist. 1992).
Cases addressing the application of this statute have concluded that it should be liberally construed to allow compliance whenever possible: the statute represents a mere pleading technicality, and any defect can be easily cured by granting leave to amend. Thompson by Thompson v. Heydemann, 231 Ill. App. 3d 578, 596 N.E.2d 664, 667, 173 Ill. Dec. 40 (1st Dist. 1992). Most importantly, whether to dismiss a complaint at all for failure to obtain an adequate affidavit remains in the sound discretion of the trial court judge. 596 N.E.2d at 668. For example, in Sullivan, the court found the required affidavit to be adequate, even though the affiant had not examined the medical records. Sullivan, 846 N.E.2d at n.6. The court noted that "This is not good practice" but supported the affidavit anyway because the plaintiffs did not have access to the medical records. Id.
Defendants assert that the affidavit filed is insufficient because the affiant did not examine the medical records. (Motion to Dismiss, at p. 14). Plaintiffs maintain that they were not allowed access to the medical records, and thus, relying on Sullivan, the affidavit as it has been submitted is sufficient. (Response, at p.7). This is certainly a good defense to not having read them.
Given the factual similarities between this case and Sullivan, coupled with the liberal construction of the statute, the "healing art affidavit" in this case is than sufficient. The allegations against the defendants appear to have merit here, thus the purpose behind the statute has been met, even if literal compliance with it has not.
In addition, the affidavit is only necessary in malpractice actions: having decided to dismiss those counts alleging malpractice, plaintiffs are not required to file an affidavit with respect to the remaining claims since they do not involve Healing Art Malpractice. Defendants' motion to dismiss the entire complaint for this technicality is therefore denied.
F. Punitive Damages
The defendants have moved to strike any claim for punitive damages pursuant to Fed.R.Civ.P. 12(f). The applicable Illinois statute provides: "In all cases in which the plaintiff seeks damages by reason of...healing art malpractice, no punitive damages shall be allowed." 735 ILCS 5/2-1115; see Russell by Russell v. Good Shepherd Hosp., 222 Ill. App. 3d 140, 583 N.E.2d 672, 164 Ill. Dec. 756 (2d Dist. 1991). Plaintiffs respond by arguing that, at the very least, this statute does not apply to the claims against defendant Moore because she was not a licensed psychologist.
This statute does not apply to the remainder of this case. As discussed above, the malpractice and negligence counts are dismissed, leaving claims for intentional infliction of emotional distress, loss of society due to interference with family relations, and public nuisance. These three claims are not claims for malpractice. If they were, the whole case would be dismissed based for a lack of a "special relationship" as discussed above. Defendants do not argue this, and for good reason. At the heart of any malpractice claim is the assertion that the plaintiff had a duty of care which was breached. None of the elements of the remaining claims involves this type of inquiry or proof.
Therefore, the remaining claims do not come under the rubric of "malpractice." The motion to strike punitive damages is thus denied with respect to the remaining claims alleged against both defendants. Williams v. Chicago Osteopathic Med. Ctr., 173 Ill. App. 3d 125, 527 N.E.2d 409, 122 Ill. Dec. 911 (1st Dist. 1988) (a suit against a physician that does not fall within the scope of "healing art malpractice" can allege punitive damages).
WHEREFORE, the defendants' motion to dismiss the Amended Complaint is GRANTED with prejudice with respect to claims of negligence and malpractice (Counts I, II, VI, VII, VIII, IX, XIII, XIV, XIX, XX, XXIV, XXV) and DENIED with respect to all other counts. The court also DENIES defendants' motion to strike claims for punitive damages.
Dated: SEP 29 1995
David H. Coar
United States District Judge