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03/29/96 CARLITO TABORA v. GOTTLIEB MEMORIAL

March 29, 1996

CARLITO TABORA, PLAINTIFF-APPELLANT,
v.
GOTTLIEB MEMORIAL HOSPITAL, AND ANTHONY M. SLAWNIAK, AS INDEPENDENT ADMINISTRATOR OF THE ESTATE OF FEDELE MORELLI, DEFENDANTS-APPELLEES.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE KENNETH L. GILLIS, JUDGE PRESIDING.

The Honorable Justice McNAMARA delivered the opinion of the court: Zwick, P.j., and Egan, J., concur.

The opinion of the court was delivered by: Mcnamara

The Honorable Justice McNAMARA delivered the opinion of the court:

Plaintiff, Doctor Carlito Tabora, M.D., appeals the dismissal of certain counts of his second and third amended complaints brought against Gottlieb Memorial Hospital (Gottlieb) and Doctor Fedele Morelli, M.D. (Morelli) after plaintiff's staff privileges at Gottlieb were revoked. The trial court dismissed with prejudice plaintiff's claims of tortious interference with contract, defamation, and intentional infliction of emotional harm, and limited plaintiff's action to allegations that defendants failed to follow procedures prescribed by Gottlieb's bylaws in revoking plaintiff's staff privileges prior to October 1990. We affirm. (Doctor Morelli is now deceased, but his estate has been substituted as defendant.)

Plaintiff's pleadings reveal the following pertinent facts. Plaintiff worked as an anesthesiologist at Gottlieb from 1973 to 1990. During these years, plaintiff was granted privileges for two-year periods, and his last reappointment was for the period of October 1988 through October 1990. On May 21, 1990, Morelli, Gottlieb's medical director at the time, presided over a meeting of the hospital's board of directors, during which Morelli stated that plaintiff was incompetent as an anesthesiologist and that plaintiff falsified patient records. Plaintiff alleges that on May 21, 1990, as a result of Morelli's false claims, he was suspended from practicing medicine at Gottlieb.

Exhibits attached to plaintiff's pleadings reveal that the following events took place after May 21, 1990. By letter dated July 2, 1990, plaintiff was informed that Morelli's complaints had been forwarded to the medical executive committee of Gottlieb and that "the Executive Committee decided not to act on a request for corrective action until an investigation was carried out." The letter also notified plaintiff that "an ad hoc committee has been assigned to evaluate all relevant issues and has requested to meet with you as part of the investigative process." On July 17, 1990, plaintiff was notified by letter that after reviewing the findings of the investigative committee, the medical executive committee would recommend to the board of governors that plaintiff's privileges be terminated. By letter dated September 25, 1990, the board of governors notified plaintiff that it had received, accepted, and affirmed the medical executive committee's recommendation to terminate plaintiff's privileges.

On July 23, 1991, plaintiff filed a complaint at law naming Gottlieb and Morelli as defendants. Plaintiff thereafter filed a first amended complaint on February 21, 1992, and a second amended complaint on February 26, 1993. In his second amended complaint, plaintiff alleged that Gottlieb had breached its contract with plaintiff and violated its bylaws in terminating plaintiff's privileges prior to October 1990 (count I). Plaintiff also asserted that defendants, by and through Morelli's statements and actions, tortiously interfered with plaintiff's contract (count II), defamed plaintiff (count III), and intentionally inflicted emotional harm on plaintiff (count IV).

Gottlieb and Morelli moved to dismiss plaintiff's second amended complaint pursuant to section 2-619 of the Code of Civil Procedure. 735 ILCS 5/2-619 (West 1992) (formerly Ill. Rev. Stat. 1991, ch. 110, par. 2-619). On September 22, 1993, the trial court dismissed with prejudice count II and that portion of count III concerning statements Morelli made to the board of directors, holding that the immunity provisions for peer review in the Hospital Licensing Act (Ill. Rev. Stat. 1989, ch. 111 1/2, par. 151.2 (now 210 ILCS 85/10.2 (West 1992))), and the Medical Practice Act of 1987 (Ill. Rev. Stat. 1989, ch. 111, par. 4400-5 (now 225 ILCS 60/5 (West 1992))) barred these claims. The court also dismissed with prejudice plaintiff's claim of intentional infliction of emotional harm (count IV). Plaintiff was allowed to replead a defamation claim based on any statements about plaintiff's competence made by Morelli outside the peer review process. Plaintiff was also allowed to replead count I to allege that defendants deviated from procedures in Gottlieb's bylaws in revoking plaintiff's privileges. The order did not specify that there was no just reason for delaying enforcement or appeal of the stricken portions.

On October 5, 1993, plaintiff filed a two-count third amended complaint. In count I, plaintiff alleged that Gottlieb breached its contract with plaintiff and violated its bylaws in terminating plaintiff's "employment/staff privileges." Plaintiff alleged that "said contract of employment extended until at least October 1990, but was also to continue indefinitely, two years at a time." Plaintiff's exhibits included a letter from Gottlieb notifying him that his most recent reappointment extended until October 1990. Count II of the third amended complaint was a defamation count. It alleged that Morelli made false statements about plaintiff in May 1990 and for five years preceding May 1990.

Pursuant to a motion by defendants, the trial court dismissed with prejudice that portion of count I concerning an oral promise of lifetime privileges after October 1990, holding that it violated the Illinois Frauds Act. 740 ILCS 80/0.01 et seq. (West 1992) (formerly Ill. Rev. Stat. 1991, ch. 59, par. 0.01 et seq.). The trial court also dismissed the defamation count, holding that it violated the one-year statute of limitations for defamation claims. 735 ILCS 5/13-201 (West 1992) (formerly Ill. Rev. Stat. 1991, ch. 110, par. 13-201). The court's order, dated January 21, 1994, specified that there was no just reason for delaying enforcement or appeal of the stricken portions. The order also granted plaintiff leave to replead the remaining allegations in count I.

On February 16, 1994, plaintiff filed a fourth amended complaint. It alleged that defendants violated hospital bylaws in revoking plaintiff's privileges and terminating his employment prior to October 1990. The fourth amended complaint remains pending in the trial court.

On February 17, 1994, plaintiff filed a notice of appeal appealing from the trial court's order dismissing with prejudice certain portions of his third amended complaint (appeal No. 1-94-0657). On March 21, 1994, plaintiff moved to amend the trial court's September 22, 1993, order dismissing portions of plaintiff's second amended complaint. Specifically, plaintiff moved to make final and appealable the trial court's dismissal of the tortious interference with contract count, the intentional infliction of emotional harm count, and that portion of the defamation count concerning statements Morelli made to the board of directors. The trial court granted this motion and amended the order. On March 31, 1994, plaintiff filed a notice of appeal appealing from the trial court's amended order (appeal No. 1-94-1165). On May 10, 1994, plaintiff's appeals were consolidated.

Plaintiff's contentions on appeal can be summarized as follows: (1) defendants have failed to establish that they are statutorily immune from civil damages arising from the revocation of plaintiff's privileges; (2) the trial court improperly dismissed plaintiff's claims of intentional infliction of emotional harm and defamation arising from Morelli's conduct for five years preceding the revocation of plaintiff's privileges; and (3) the trial court erred in dismissing plaintiff's allegations that he had a lifetime contract of two-year reappointments at Gottlieb. Initially, however, we must address defendants' argument that plaintiff waived review of each of the above issues when he elected to file his third and fourth amended complaints.

It is well established that a party who files an amended pleading waives any objection to the trial court's ruling on former complaints. Foxcroft Townhome Owners Ass'n v. Hoffman Rosner Corp., 96 Ill. 2d 150, 449 N.E.2d 125, 70 Ill. Dec. 251 (1983); DuPage Aviation Corp. v. DuPage Airport Authority, 229 Ill. App. 3d 793, 594 N.E.2d 1334, 171 Ill. Dec. 814 (1992). Where an amended complaint is complete in itself and does not refer to or adopt a prior pleading, the prior pleading ceases to be a part of the record for most purposes, ...


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