Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois No. 91--MR--2933 Honorable Lawrence C. Gray, Judge, Presiding
The opinion of the court was delivered by: Justice Homer
IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS
The plaintiff, inmate William McNeil, filed a complaint against the defendant, Dr. Arthur Brewer, medical director of Stateville Correctional Center, alleging deliberate indifference to his medical needs in violation of the plaintiff's eighth amendment rights (count I) and battery based on lack of informed consent to medical procedures (count II). The trial court dismissed the complaint with prejudice. The plaintiff appeals pro se. Following our careful review of the record, we affirm in part, reverse in part and remand.
BACKGROUND AND PROCEDURAL CONTEXT
The plaintiff filed a pro se suit for medical malpractice in the circuit court after unsuccessfully presenting his case in federal court (see McNeil v. United States, 964 F.2d 647 (7th Cir. 1992); McNeil v. United States, No. 92--C--0339 (E.D. Ill. May 29, 1992)). The circuit court dismissed the malpractice suit for want of prosecution, and this court reversed and remanded the cause for further proceedings. McNeil v. Brewer, 242 Ill. App. 3d 463, 610 N.E.2d 778 (1993). On remand, counsel entered his appearance and filed first, second and third amended complaints on the plaintiff's behalf.
The plaintiff's third amended complaint alleges that he has been incarcerated in Stateville Correctional Center since 1982. Upon entering Stateville, the plaintiff was tested and found not infected with the Hepatitis B virus (HBV) or any other communicable disease. In March 1989, the plaintiff tested positive for HBV. Acccording to the complaint, in 1988 and 1989 the defendant conducted a study of the inmate population to determine the transmission rate of certain communicable viruses, including HBV and HIV. Pursuant to the study, blood samples were drawn from inmates upon intake and analyzed by the Center for Disease Control (CDC) for the presence of HBV and HIV. None of the participating inmates was informed that he was enrolled in the study and the plaintiff does not know whether he was enrolled in the study. The plaintiff alleges that the results of the study could and should have been used by the defendant to identify carriers of HBV and to protect inmates in the general population from contracting the virus. He contends that the defendant, knowing there was a substantial risk of harm to the plaintiff, failed to protect him, and thereby displayed deliberate indifference to the plaintiff's medical needs in violation of his eighth amendment rights.
The defendant moved to dismiss the complaint on grounds that (1) the action was time-barred (735 ILCS 5/13--212 (West 1996)); (2) it failed to comply with pleading requirements of the Code of Civil Procedure (Code) for medical malpractice (735 ILCS 5/2--622 (West 1996)); and (3) it failed to allege that the defendant personally treated the plaintiff. The court granted the motion without stating the basis for its decision.
Because a dismissal deprives a litigant of his day in court, it has long been the rule in this state that "[a] trial court should dismiss a cause of action on the pleadings only if it is clearly apparent that no set of facts can be proven which will entitle a plaintiff to recover." Burdinie v. Village of Glendale Heights, 139 Ill. 2d 501, 504, 565 N.E.2d 654, 657 (1990). On review of a trial court's dismissal, this court must determine whether the complaint's well-pleaded allegations, viewed in the light most favorable to the plaintiff, sufficiently establish a cause of action for which relief may be granted. Person v. Behnke, 242 Ill. App. 3d 933, 611 N.E.2d 1350 (1993). In doing so, this court must take all well-pleaded facts in the challenged complaint as true. Person, 242 Ill. App. 3d 933, 611 N.E.2d 1350.
Applying the foregoing standard, this court conducts a de novo review. Toombs v. City of Champaign, 245 Ill. App. 3d 580, 615 N.E.2d 50 (1993). Because the order in this case does not give the trial court's reasons for dismissal, our review of the pleadings must proceed without the benefit of that court's rationale.
A. Count I--Deliberate Indifference To Medical Needs
We first consider the plaintiff's claim of a constitutional deprivation. The eighth amendment to the United States Constitution, which prohibits the infliction of cruel and unusual punishment, has been held to require prison officials to ensure that inmates receive adequate medical care. Estelle v. Gamble, 429 U.S. 97, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976); Farmer v. Brennan, 511 U.S. 825, 128 L. Ed. 2d 811, 114 S. Ct. 1970 (1994). A prisoner's claim for deliberate indifference to medical needs may be stated by showing that 1) the defendant was responsible for the medical care of the prisoner; 2) the defendant knowingly and unreasonably disregarded an objectively intolerable risk of harm to the prisoner's health or safety; and 3) the prisoner suffered serious harm as a result. See Franklin v. District of Columbia, 163 F.3d 625, 635-636 (D.C. Cir. 1998); Sanderfer v. Nichols, 62 F.3d 151, 155 (6th Cir. 1995). An illustration of the scienter element appears in Billman v. Indiana Department of Corrections, 56 F.3d 785, 788 (7th Cir. 1995):
"If [prison employees] place a prisoner in a cell that has a cobra, but they do not know that there is a cobra there (or even that there is a high probability that there is a cobra there), they are not guilty of deliberate indifference even if they should have known about the risk, that is, even if they were negligent--even grossly negligent or even reckless in the tort sense--in failing to know. [Citation.] But if they know that there is a cobra there or at least that there is a high probability of a cobra there, and do nothing, that is deliberate indifference."
The defendant contends that count I was properly dismissed with prejudice in this case because the plaintiff failed to allege facts showing that the defendant had a sufficiently culpable state of mind or that he personally performed any act that created a risk of substantial harm. *fn1 What the plaintiff has alleged, in essence, is that: (1) the defendant was responsible for the medical practices and policies at his place of incarceration; (2) the defendant conducted a secret study of the spread of certain serious infectious diseases, including HBV, within the prison community; (3) the defendant had access to information identifying infected inmates and was required by law to isolate such infected inmates (730 ILCS 5/3--8--2(c) (West 1996)); (4) the defendant knew that infected inmates were housed in the general population; (5) the defendant knew that there was a substantial risk of transmission of HBV by infected inmates in the general population; (6) the defendant deliberately ...