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June 17, 1997


Appeal from the Circuit Court of Cook County. Honorable Julia M. Nowicki, Judge Presiding.

Rehearing Denied July 23, 1997. Released for Publication August 5, 1997.

The Honorable Justice McNULTY delivered the opinion of the court. Tully, J., concurs. DiVITO, P.j., specially concurs.

The opinion of the court was delivered by: Mcnulty

JUSTICE McNULTY delivered the opinion of the court:

The six fictitiously named plaintiffs sued Northwestern University and a dental student from Northwestern's dental school for emotional harm they suffered when Northwestern sent the plaintiffs a letter informing them that a dental student who participated in their treatment had tested positive for human immunodeficiency virus (HIV), the virus that causes acquired immune deficiency syndrome (AIDS). Defendants moved to dismiss for failure to state a cause of action, pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615(b) (West 1994)), and they separately moved to dismiss pursuant to section 2-619 (735 ILCS 5/2-619(a)(9) (West 1994)). Plaintiffs appeal from the trial court's judgment dismissing the complaint with prejudice.

The six fictitiously named plaintiffs received various treatments from several students in Northwestern's dental clinic during 1990 and 1991. On July 22, 1991, Northwestern sent a letter to all six plaintiffs, along with numerous other patients, stating:

"Recently we learned that a dental student involved in providing care to you in the Dental Clinic has tested positive for HIV ***.

We believe, based on the most current and reliable scientific evidence, that the likelihood that you were infected with the HIV virus as a result of contact with this student is extremely low. All persons providing dental care are required to follow precautions designed to prevent the communication of diseases, including HIV. These precautions have been taken. However, we strongly recommend that you be tested for the presence of the virus.

The Northwestern University Dental School is offering free testing for HIV." (Emphasis in original.) Because defendants did not in the letter identify the infected student, plaintiffs feared that any of the students may have been infected. Plaintiffs' attorneys later determined the identity of the infected student, whom they then sued under the fictitious name of John Noe. Noe worked in Northwestern's dental clinic from June 1990 until July 1991. He participated in electrosurgery to reduce Anita Doe's gums and in a root canal performed on her in July and August 1990. He diagnosed Laurel Doe's fractured tooth and participated in a tooth extraction in September 1990. He took X rays of Bertha Doe's teeth in March 1991. Noe treated John Doe several times over the course of his year in the clinic. The last treatment was a tooth cleaning Noe performed on May 23, 1991. Anita, Laurel and John bled during Noe's treatments. Noe cemented a loose tooth for Brian Doe in August 1990, and he took Carol Doe's blood pressure while discussing oral hygiene with her in February 1991.

Plaintiffs allege that both Noe and Northwestern knew Noe had tested positive for HIV by August 1990, when he treated Anita Doe. Defendants presented affidavits denying both the testing and the knowledge, and the concurrence relies on this evidence to support its assertion that defendants here acted promptly and responsibly. However, the affidavits merely contradict an ultimate fact stated in the complaint. See Inland Real Estate Corp. v. Lyons Savings & Loan, 153 Ill. App. 3d 848, 854, 506 N.E.2d 652, 106 Ill. Dec. 852 (1987). While the evidence might have some relevance to a motion for summary judgment, it has no bearing on the motions to dismiss pursuant to section 2-615 or 2-619. Cioni v. Gearhart, 201 Ill. App. 3d 853, 856-57, 559 N.E.2d 494, 147 Ill. Dec. 321 (1990). Accordingly, we ignore that evidence for review of the order dismissing the complaint. We assume that Noe tested positive for HIV, and Northwestern knew of that positive test, prior to August 1990.

Plaintiffs further alleged:

"Accidental blood trauma to the hands and fingers of dental practitioners can occur during the performance of invasive dental procedures such as teeth cleaning, extractions, fillings, drilling, root canals, injections, and other dental surgeries."

They claimed the traumas could occur even though neither the patient nor the practitioner knew of the trauma, and sometimes practitioners might conceal from their patients the occurrence of such trauma. Plaintiffs alleged that some of the students sometimes failed to use all proper barrier precautions, like gloves. Plaintiffs did not allege that any of them knew or believed that any dental student suffered such trauma while treating them.

Plaintiffs brought a complaint in 12 counts. In the first count they sought certification of the class of all persons who received Northwestern's letter, with the six fictitiously named plaintiffs as class representatives. For all subsequent counts, plaintiffs separated those whom Noe invasively treated from plaintiffs who received no such treatment. According to plaintiffs, Anita, Laurel, Bertha and John Doe received invasive treatment, while Noe never invasively treated Brian or Carol Doe. The invasively treated plaintiffs charged defendants with breach of fiduciary duty (count II), intentional infliction of emotional distress (count IV), battery (count VI), common law fraud (count VII), consumer fraud (count XII), breach of contract (count VIII), and negligent malpractice (count X). Brain and Carol sued for breach of fiduciary duty (count III), intentional infliction of emotional distress (count V), breach of contract (count IX), and dental malpractice (count XI).

In counts II through XII, plaintiffs alleged they "suffered physical distress and discomfort and mental pain and anguish upon learning of the possibility of infection with HIV." Plaintiffs do not allege that any of them have ever tested positive for HIV, and in response to defendants' request, the named plaintiffs admitted that they never tested positive for HIV. This is evidence of an affirmative matter related to an argument for defeating the claim, properly considered on a motion to dismiss pursuant to section 2-619. Goldstein v. Lustig, 154 Ill. App. 3d 595, 602, 507 N.E.2d 164, 107 Ill. Dec. 500 (1987). Defendants also presented the conclusions of studies which found only a very small chance of transmission of HIV in the course of medical treatment. Although plaintiffs in their complaint emphasized that researchers could not rule out the possibility of HIV transmission from health care providers to patients, they did not allege any particular level of probability of transmission. Defendants' evidence of an extremely small probability of such transmission is properly before the court on review of the section 2-619 motion.

The trial court dismissed counts II through XII for failure to allege actual exposure to HIV, finding that allegation necessary for recovery of damages for fear of contracting AIDS. While plaintiffs on appeal contest the requirement of actual exposure, they do not dispute the trial court's finding that "as to all counts, the plaintiffs' damages are predicated on the fear of contracting *** HIV." The court dismissed count I and denied the motion for class certification because the named plaintiffs had no cause of action.

Plaintiffs seek reversal of the judgment as to all counts. They argue that they have stated a cause of action for battery because they never consented to treatment by a student infected with HIV. To state a cause of action for a battery in the course of health care, the plaintiff must allege

"a total lack of consent to medical procedures ***. *** The defendants' privilege is limited at least to acts substantially similar to those to which the plaintiffs consented. If the defendants went beyond the consent given, to perform substantially different acts, they will be liable under a theory of battery." (Emphasis in original.) Gaskin v. Goldwasser, 166 Ill. App. 3d 996, 1012, 520 N.E.2d 1085, 117 Ill. Dec. 734 (1988).

The United States Court of Appeals for the Seventh Circuit explained:

"Illinois law distinguishes between medical malpractice cases alleging no informed consent and those claiming a total lack of consent to the medical procedure in question. [Citation.] Informed consent cases concern the duty of a physician who has obtained consent to perform a medical procedure to disclose fully the risks associated with that procedure. Such cases are viewed as negligence actions. Total lack of consent cases involve a physician who undertakes to treat a patient without the patient's consent; absent consent, it is meaningless to require the disclosure of risks necessary to an 'informed' decision. Rather, total lack of consent ...

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