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Nosbaum v. Martini

February 15, 2000


The opinion of the court was delivered by: Justice Gordon

Appeal from the Circuit Court of Cook County.

Honorable Susan Fleming, Judge Presiding.

Plaintiff Jesse Nosbaum, a minor, appeals from the circuit court's granting of defendants' motions to dismiss her complaint. In that four-count complaint, Jesse, her mother, Monica Harding (Monica), and her mother's husband, Scott Harding (Scott), alleged medical malpractice and negligent misrepresentation against defendants Susan Martini, Advocate Medical Group (Advocate), and Lutheran General Hospital (Lutheran General). Counts I and II of the complaint are for medical malpractice, and counts III and IV are for negligent misrepresentation. The circuit court granted the defendants' motions to dismiss under section 2-619 of the Illinois Code of Civil Procedure (735 ILCS 5/2-619 (West 1993)). Jesse argues the court erred in finding defendants immune from liability under the Abused and Neglected Child Reporting Act (the Act) (325 ILCS 5/9 (West Supp. 1999)), and in ruling that her complaint did not sufficiently allege liability under an apparent agency theory. Therefore, Jesse contends her medical malpractice claims should not have been dismissed. For the reasons set forth below, we reverse in part, vacate in part and remand for further proceedings.


The defendants moved for dismissal under 735 ILCS 5/2-615 and 5/2-619 (West 1993). In support, they submitted affidavits of Dr. Martini and (Lutheran General social worker) Kim Seltzer, and a supplemental affidavit of Kim Seltzer. Also attached to their motions to dismiss were Kim Seltzer's written report to the Illinois Department of Children and Family Services (DCFS), Laurence Nosbaum's (Laurence) petition for change of residential custody (filed July 29, 1996) and his affidavit in support, and Laurence's amended petition for change of residential custody (filed October 16, 1996). In response, the plaintiffs submitted an affidavit of Monica Harding. Also attached to the plaintiffs' response to the motions to dismiss were Laurence's petition for temporary change of residential custody (filed July 29, 1996), Dr. Martini's report of her examination of Jesse, and Dr. Martini's (April 3, 1997) letter to Laurence's attorney, Denis J. McKeown. The following facts are undisputed.

Jesse is the daughter of Laurence and Monica, who were husband and wife at the time of Jesse's birth (January 2, 1991). Laurence and Monica were divorced on October 13, 1994. Under that decree, the couple had joint custody of Jesse, with Monica designated as the primary physical custodian. On July 12, 1996, Laurence and his mother, Diane Hagopian, brought Jesse to the Lutheran General emergency room complaining that she suffered from vaginal irritation and suggesting she might have been sexually abused by Monica's husband, Scott. Laurence and Jesse were referred to the Child Protective Services (CPS) team within the hospital.

Dr. Martini was a member of the CPS team, but she was an employee of Advocate, an independent entity that had its offices on the premises of Lutheran General. According to Dr. Martini, Laurence informed her that Jesse said she "played doctor" with her stepfather (Scott). Laurence also said he had noticed Jesse placing objects in and around her genital area and rubbing water close to her vagina and saying "it felt good." Jesse also placed crayons in her three-year-old cousin's vagina while staying at her paternal aunt's house. In addition, she became agitated when it was time to leave her father's house and return to her mother's house. Jesse said she wished her mother would die so she could live with her father.

Dr. Martini examined Jesse for physical signs of sexual abuse and completed a report called a Child Protective Services Team Evaluation. Using a device called a colposcope, Dr. Martini concluded that the diameter of Jesse's transhymenal opening was 20 or 21 millimeters, which she termed "abnormal." In both her report and her subsequent affidavit, Dr. Martini said such an opening might indicate sexual abuse or it might result from "digital manipulation" by the child herself. Dr. Martini wrote in her report that she "[s]uggested to father [Laurence] to report [the] case to DCFS" but that "he did not want to." She also wrote that the case was "not reported yet" to DCFS and that Kim Seltzer, a Lutheran General social worker, was "to call DCFS to see if they think [a] report needs to be filed."

Ms. Seltzer also spoke with Laurence on July 12, 1996. Three days later (July 15), she made an oral report to DCFS "[b]ased on Jesse's history given by Mr. Nosbaum." In her subsequent written report to DCFS, submitted on July 22, Ms. Seltzer listed (as evidence of previous suspected abuse) both Laurence's "concerns about Jesse's statements & behavior" and an "[a]bnormal medical exam." Both Ms. Seltzer and Dr. Martini assert in their affidavits that regardless of the results of Dr. Martini's examination, the history reported to them by Laurence meant a report had to be filed with DCFS.

On July 29, 1996, Laurence filed simultaneous petitions for change of residential custody and for temporary change of residential custody, asking that custody of Jesse be transferred to him. The petitions were filed with the circuit court of the 19th judicial circuit in Lake County, Illinois. In his petition for change of residential custody, Laurence listed several grounds, including Monica's removal of Jesse from the Chicago area to an "isolated environment" in southern Illinois, Jesse's comment that "she plays doctor with an adult in Southern Illinois," and Jesse's masturbation and apparent "preoccupation with sexual matters." He also noted that Dr. Martini had examined Jesse and found "an abnormal opening of the vaginal area *** that can be consistent in sexual abuse cases," and he attached a copy of Dr. Martini's report. In addition, Laurence noted that Lutheran General had reported the case to DCFS "as suspected child abuse." On August 19, 1996, the court ordered temporary custody of Jesse transferred from Monica to Laurence for 90 days. The court extended that custody arrangement on the following November 8, noting that Jesse could stay with Monica for the Thanksgiving holiday but that her husband, Scott, could not be left alone with Jesse. In January 1997, the court denied Laurence's petition for a further extension of the temporary custody arrangement, finding that he had not sustained his burden of proof. The judge ordered that Jesse's custody arrangement revert to its prior status and that Jesse be returned to Monica. However, the issue of permanent change of custody remained pending.

In a letter dated April 3, 1997, Dr. Martini wrote to Laurence's attorney, Denis J. McKeown, informing him that the initial transhymenal diameter was incorrect and that she had amended Jesse's medical record to reflect the correct diameter of 4 millimeters, which she said was "in the normal range." Dr. Martini said the error resulted from "confusion of one of the magnifying powers used on the colposcope." In August 1997, following a trial on Laurence's petition for change of custody, the court terminated the joint custody arrangement and awarded sole custody of Jesse to Monica.

Eight months later (April 28, 1998), Jesse, Monica and Scott filed the instant complaint, alleging medical malpractice (counts I and II) and negligent misrepresentation (counts III and IV) against Dr. Martini, Advocate, and Lutheran General. Counts I and III seek damages for Jesse for the mental anguish and loss of companionship of her mother and stepfather that she suffered when she was temporarily removed from her mother's care. Counts II and IV seek similar damages plus attorney fees for Monica and Scott. In the instant appeal, only Jesse is contesting the dismissal of the complaint, and she is appealing only the dismissal of her medical malpractice claims (not her negligent misrepresentation claims).

On January 7, 1999, the trial court dismissed the complaint under section 2-619, holding that "Dr. Martini and the hospital meet the statutory definition of those afforded immunity under the [Abused and Neglected Child Reporting] Act as they were involved in the creation of the report [to DCFS] by providing information to Ms. Seltzer." The court also held that the plaintiffs failed to show the defendants acted in bad faith and that the statute thus "operates to immunize the defendants." In addition, because the complaint did not allege that the plaintiff, Jesse, acted in reliance on the defendants' conduct, the court held that it failed to state a claim against Lutheran General for the apparent agency of Dr. Martini. A motion to reconsider was denied on March 10, 1999. This appeal followed.


I. Standard of Review

In a section 2-619 motion, all well-pleaded allegations in support of the claim are taken as true, and all reasonable inferences are drawn in the plaintiff's favor. Calloway v. Kinkelaar, 168 Ill. 2d 312, 325, 659 N.E.2d 1322, 1329 (1995); Prodromos v. Howard Savings Bank, 295 Ill. App. 3d 470, 474, 692 N.E.2d 707, 710 (1998); Barber-Colman Co. v. A & K Midwest Insulation Co., 236 Ill. App. 3d 1065, 1073, 603 N.E.2d 1215, 1221-22 (1992). A section 2-619 motion should be granted only if no set of facts can be proven that would support the plaintiff's cause of action. Prodromos, 295 Ill. App. 3d at 474, 692 N.E.2d at 710.

A section 2-619 motion to dismiss falls between "the completely legal bases of section 2-615 and the completely factual ones of section 2-1005." Barber-Colman, 236 Ill. App. 3d at 1071, 603 N.E.2d at 1221. It provides a means of obtaining summary disposition of both issues of law and of easily proved issues of fact, "with a reservation of jury trial as to disputed questions of fact." Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 115, 619 N.E.2d 732, 735 (1993). Section 2-619(c) states: "If a material and genuine disputed question of fact is raised[,] the court may decide the motion upon the affidavits and evidence offered by the parties, or may deny the motion ***" 735 ILCS 5/2-619(c) (West 1993). However, the motion should be denied if a ...

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