Appeal from the Circuit Court of Cook County. No. 93 L 9192. The Honorable Patrick McGann, Judge, Presiding.
Rehearing Denied December 30, 1997. As Corrected December 19, 1997. Second Correction January 22, 1998. Released for Publication January 22, 1998.
The Honorable Justice Hourihane delivered the opinion of the court.
The opinion of the court was delivered by: Hourihane
The Honorable Justice HOURIHANE delivered the opinion of the court:
Plaintiff, Alan Malanowski, individually and as special administrator for the estate of his wife, Jane Malanowski (Malanowski), deceased, sued Dr. Reena Jabamoni and Loyola University of Chicago (Loyola) for negligence and wrongful death, claiming Dr. Jabamoni negligently misdiagnosed his wife's breast cancer. Loyola successfully moved to dismiss certain counts of plaintiff's third amended complaint pursuant to sections 2-615 and 2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615, 2-619 (West 1996)), and was granted summary judgment (735 ILCS 5/2-1005 (West 1996)) as to the remaining counts. Plaintiff appeals. 155 Ill. 2d R. 304(a).
For the reasons set forth below, we affirm in part, reverse in part, and remand for further proceedings.
In his third amended complaint, plaintiff alleges that on July 31, 1991, Malanowski saw Dr. Jabamoni at the Loyola University Mulcahy Outpatient Center (outpatient center) for her regular annual gynecological exam. For several years, Malanowski had been a regular patient of Dr. Jabamoni. At the July 31 appointment, Malanowski noted certain lumps in her right breast, which Dr. Jabamoni concluded were of no medical consequence. Dr. Jabamoni did not suggest any further testing.
Plaintiff further alleges that in April, 1993, Malanowski was diagnosed with a form of advanced breast cancer, necessitating a modified radical mastectomy. She succumbed to the disease on December 15, 1993.
In counts II and V, plaintiff seeks damages against Loyola on a respondeat superior basis, alleging that Dr. Jabamoni was an employed staff physician at the outpatient center and that she treated Malanowski in July, 1991, "during the normal course of her assigned employment at the center." In counts VIII and IX, plaintiff seeks damages against Loyola on an apparent agency theory, alleging that Malanowski reasonably believed that Dr. Jabamoni was an employee of the outpatient center. Finally, in counts III, VI and VII, plaintiff seeks damages against Loyola for its own negligence in failing to supervise the treatment rendered by Dr. Jabamoni.
The trial court dismissed counts II and V on Loyola's 2-619 motion, and counts VIII and IX on Loyola's 2-615 motion. The trial court further granted summary judgment in favor of Loyola as to counts III, VI and VII, and made a Rule 304(a) finding of appealability (155 Ill. 2d R. 304(a)).
Section 2-619 Dismissal of Respondeat Superior Claims
Loyola moved to dismiss counts II and V pursuant to section 2-619(a)(9) of the Code (735 ILCS 5/2-619(a)(9) (West 1996)), arguing that Dr. Jabamoni was not, in fact, an employee of Loyola and that Loyola could not, therefore, be liable for any negligence of Dr. Jabamoni based on respondeat superior. In support of its motion, Loyola submitted the affidavit of Dr. Jan Radke, Vice-President of Health Care Services at Loyola. Plaintiff was granted leave to take Dr. Radke's deposition, the transcript of which plaintiff submitted in opposition to Loyola's motion. The trial court determined that there was no question of fact as to the employment relationship between Loyola and Dr. Jabamoni, and that the only such ...