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12/26/97 JANE DOE AND JOHN DOE v. JOHN NOE NO. 1

December 26, 1997

JANE DOE AND JOHN DOE, PLAINTIFFS-APPELLANTS AND CROSS-APPELLEES,
v.
JOHN NOE NO. 1, AS THE EX'R OF THE ESTATE OF JOHN NOE NO. 2, DECEASED; NOE NO. 3, S.C.; JOHN NOE NO. 4, DEFENDANTS-APPELLEES AND CROSS-APPELLANTS (NOE NO. 5, MEDICAL CENTER; AND NOE NO. 6, PRACTICE CENTER, DEFENDANTS-APPELLEES).



Appeal from the Circuit Court of Cook County. Honorable Patrick E. McGann, Judge Presiding.

Presiding Justice Greiman delivered the opinion of the court. Theis and Quinn, JJ., concur.

The opinion of the court was delivered by: Greiman

PRESIDING JUSTICE GREIMAN delivered the opinion of the court:

Plaintiffs Jane Doe (Jane) and her husband John Doe (John) appeal the dismissal of 14 counts in their 18-count second amended complaint, asserting several causes of action premised on the underlying allegation that Jane had been exposed to the human immunodeficiency virus (HIV) during two gynecological surgeries by John Noe No. 2 (hereinafter Surgeon), i.e., the doctor who performed the surgeries and was HIV positive at the time of the surgeries and subsequently died of acquired immune deficiency syndrome (AIDS).

The crux of plaintiffs' complaint is that Surgeon knew that he was HIV positive when he performed two surgeries on Jane, that he failed to disclose his HIV condition to plaintiffs before the surgeries, and that the surgeries exposed Jane to HIV, which is the precursor of AIDS.

In their second amended complaint, plaintiffs directed various claims against the following defendants: (1) Surgeon (John Noe No. 2), the doctor, now deceased, who performed the two surgeries on Jane, and Executor (John Noe No. 1), the executor of the estate of Surgeon; (2) Corporation (Noe No. 3, S.C.), a professional corporation in which Surgeon allegedly was an employee or agent; (3) Partner (John Noe No. 4, M.D.), a medical doctor who allegedly was Surgeon's partner; and (4) Hospital (Noe No. 5, Medical Center and Noe No. 6, Practice Center), the hospital where the surgeries were performed and the health maintenance organization affiliated with the hospital.

On appeal, plaintiffs contest the dismissal of the counts asserting claims for battery, lack of informed consent, intentional infliction of emotional distress, negligent infliction of emotional distress, conspiracy, and loss of consortium (counts I through XIV).

On cross-appeal, we address the trial court's decision to allow the claims directed against Surgeon and Corporation based on negligent infliction of emotional distress upon Jane (counts XV and XVI) and derivative claims of loss of consortium for John (counts XVII to XVIII). In addition, we answer two certified questions relating to these four counts.

The two certified questions are:

"(a) Whether an HIV positive physician has a duty to disclose his or her HIV status to a patient when seeking the patient's consent to perform an invasive medical procedure which exposes the patient to the risk of HIV transmission; and

(b) If such a duty exists, does a cause of action for the negligent infliction of mental distress exist where there is no allegation of actual HIV transmission during the course of the procedure?"

We answer each certified question in the affirmative and then determine whether plaintiff's second amended complaint states causes of action for: (1) battery and loss of consortium arising out of battery (counts I through IV); (2) lack of informed consent and loss of consortium arising out of a lack of informed consent (counts V through VIII); (3) intentional infliction of emotional distress (count X); (4) negligent infliction of emotional distress and loss of consortium arising out of negligent infliction of emotional distress (counts XI through XIV); and (5) conspiracy (count IX).

In addition, plaintiffs contend that the trial court erred in dismissing Partner under section 2-1010 of the Illinois Code of Civil Procedure, which allows for the dismissal of a party who avers that he or she was not involved in the alleged occurrence (735 ILCS 5/2-1010 (West 1992)).

Surgeon performed two gynecological surgeries on Jane: a fractional dilation and curettage (D & C) and a polypectomy on May 13, 1993, and another polypectomy on March 26, 1993. In April 1994, plaintiffs filed their original complaint. On October 27, 1994, plaintiffs filed their first amended complaint, which asserted 14 counts based on various theories of liability:

COUNT DEFENDANTS CAUSE OF ACTION

I Surgeon Battery on Jane for performing the

surgery in May 1992

II Surgeon Loss of consortium for John based

on the surgery in May 1992

III Surgeon Battery on Jane for performing the

surgery in March 1993

IV Surgeon Loss of consortium for John based

on the surgery in March 1993

V Surgeon Lack of informed consent for Jane

for the surgery in May 1992

VI Surgeon Loss of consortium for John based

on lack of informed consent for the

surgery in May 1992

VII Surgeon Lack of informed consent for Jane

for the surgery in March 1993

VIII Surgeon Loss of consortium for John based

on lack of informed consent for the

surgery in March 1993

IX Surgeon, Partner Conspiracy

and Corporation

X All Defendants Intenional infliction of emotional

distress upon Jane by their failure

to disclose the HIV status of

Surgeon and the material ...


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