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Natale v. Gottlieb Memorial Hospital

June 30, 2000

ROBERT D. NATALE, PLAINTIFF-APPELLANT,
V.
GOTTLIEB MEMORIAL HOSPITAL, DEFENDANT-APPELLEE



The opinion of the court was delivered by: Justice South

Appeal from the Circuit Court of Cook County. Honorable Sharon Johnson Coleman and Julia Nowicki, Judges Presiding.

Plaintiff, Robert Natale, filed a two-count amended complaint seeking damages for medical negligence and spoliation of evidence against defendant, Gottlieb Memorial Hospital (Gottlieb). Gottlieb filed a motion for summary judgment as to count I, medical negligence. The trial court granted summary judgment on count I.

The case was scheduled for trial. Prior to commencement of trial, Gottlieb filed a motion to dismiss count II, spoliation of evidence, pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 1993)). The trial court granted the motion dismissing Natale's complaint for failure to state a cause of action and thereby dismissed the case in its entirety.

Plaintiff appeals the judgment of dismissal for count II and the prior summary judgment order for count I.

The issues presented for review are (1) whether the trial court erred in granting summary judgment to Gottlieb Memorial Hospital on plaintiff's fear-of-infection claim absent any evidence of actual exposure to infection; and (2) whether the trial court erred in dismissing plaintiff's spoliation of evidence claim for failure to state a cause of action.

On January 13, 1994, Natale underwent a colonoscopy. The endoscope (scope) used in this procedure had been provided for the physician's use by Gottlieb. These instruments typically undergo substantial cleaning and disinfection procedures, both by hand and machine, after every use in accordance with an established protocol. On January 10, 1994, a water main break interrupted supply to the hospital and caused it to shut down its mechanical scope washer. When the water supply was restored, the hospital personnel flushed the machine of any possibly contaminated water by running it through a full cycle. Since no scopes were being washed, a timer on one of the staged disinfection cycles was reduced from 10 minutes to 1 minute. The timer was not readjusted before the machine was put back into use for scope cleansing.

On January 14, 1994, the improper setting was detected by a GI Lab technician, who notified Dr. Gerard Sublette, the physician in charge of the GI Lab. Dr. Sublette directed the hospital staff to clean and fully disinfect all scopes so that they might be used for upcoming procedures.

Gottlieb's infection control personnel were also notified, and they assessed the risk of infection. First, Gottlieb determined who had undergone procedures with incompletely processed scopes. Natale was identified as one of the involved patients. Next, Gottlieb's infection control team reviewed the medical records of these patients to determine whether any of them was a known or likely carrier of any infection. The records disclosed that none of the patients were known to be positive for HIV, hepatitis or any other infection. The infection control team, including its medical director, Dr. Donna Hanlon, a specialist in infectious diseases, considered the risk of transmission of infection in these circumstances and determined that it was quite small. However, in follow-up calls to each patient, including Natale, Gottlieb inquired how they were feeling and the responses revealed no signs of infection in any of the patients. The primary care physicians for all of the patients were told of the incident so that they could follow their patients and watch for any signs of infection. In addition, Gottlieb concluded that the involved patients should be advised of the incident and offered free blood testing.

Natale was contacted by Gottlieb and came in for the offered testing. In a personal meeting with Madilyn DiSalvo, Infection Control Coordinator, Natale was advised that the risk of infection was extremely low. Natale received the blood testing, and the results were negative. DiSalvo discussed the method of transmission of several infectious diseases with Natale, and she told him that HIV is sexually transmitted. She advised him about the use of condoms for "safer sex." Natale stated that DiSalvo told him to conduct his life as though he had been exposed to hepatitis and/or HIV.

Natale underwent periodic blood tests to determine whether or not he contracted HIV or another infection. To date, Natale has not tested positive for HIV or any other infection.

Plaintiff's original two-count complaint claimed emotional distress damages as the result of a possible exposure to infection. Gottlieb moved to dismiss Natale's claim for emotional distress damages for failure to state a cause of action. The court dismissed the emotional distress damages claims, and, on Gottlieb's subsequent motion, there being no other damages claimed, dismissed the entire complaint. Plaintiff appealed to this court. Natale v. Gottlieb Memorial Hospital, 292 Ill. App. 3d 512, 685 N.E.2d 971 (1997). We reversed the dismissal of plaintiff's original complaint, holding that Natale had alleged sufficient facts of actual exposure.

On remand, discovery was initiated. Plaintiff testified at his deposition that he had no evidence that he was actually exposed to any particular infection, and that his "fear" of possible infection, which was always related to HIV, ended in 1994, several months before the filing of his original complaint. After considering the evidence, the lower court found that Natale had no evidence of actual exposure to any infection and granted the motion for summary judgment.

Prior to Gottlieb's filing of its motion for summary judgment, plaintiff filed an amended complaint which added a new count for spoliation. The amended complaint alleged that when Gottlieb discovered that an endoscope used during plaintiff's procedure had not been properly sterilized, the scope contained evidence of those foreign microorganisms which were inserted into plaintiff's colon during the procedure. Plaintiff asserted that Gottlieb breached a duty owed to him by not identifying the microorganisms and preserving the evidence.

Gottlieb moved for dismissal of count II of plaintiff's amended complaint, arguing that plaintiff did not and could not plead and prove the elements of the underlying claim for emotional distress, requiring dismissal of the spoliation claim. The trial court, after argument, granted defendant's motion, dismissed ...


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