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Nissenson v. Bradley

September 26, 2000


Appeal from the Circuit Court of Cook County. No. 96 L 10396 Honorable Jennifer Duncan-Brice, Judge Presiding.

The opinion of the court was delivered by: Presiding Justice Cahill

Contemnor Roy Olson was the attorney for plaintiff Mary Nissenson in this medical malpractice action. Contemnor appeals from an order finding him in contempt for failure to pay $3,220 in attorney fees and expenses incurred by defendant Craig Bradley, M.D. The fees were assessed as a sanction under Supreme Court Rule 137 (155 Ill. 2d R. 137) for contemnor's failure to withdraw an allegedly false medical report attached to plaintiff's complaint as required by section 2-622 of the Code of Civil Procedure (Code) (735 ILCS 5/2-622 (West 1998)).

On appeal, contemnor contends: (1) Supreme Court Rule 137 and section 2-622 of the Code only provide for sanctions against the attorney who files a false or fraudulent pleading or paper; (2) Dr. Fisher's report was not false, fraudulent or inaccurate; and (3) contemnor's conduct was reasonable at all stages of the case.

On September 6, 1996, plaintiffs Mary Nissenson and her husband William Scheer filed this action, listing Phillip Taxman and Brian Hurst of Phillip Taxman, Ltd., as their attorneys. The complaint alleged medical and professional negligence against defendant Craig Bradley, M.D., and his business, an out-patient surgical clinic. Mary alleged that on February 23, 1995, Dr. Bradley negligently performed facial cosmetic surgery on her after a November 3, 1994, consultation. Brian Hurst signed an affidavit that he had reviewed the case with Dr. Jack Fisher, a health professional reasonably knowledgeable in the relevant practice area. Hurst averred that Dr. Fisher determined, after review of the medical records and other materials, there was a reasonable and meritorious basis for filing the action. Also attached to the complaint was the following document:


I am board certified and in active practice in the same specialty as Dr. Craig Bradley. I am involved with the teaching of medical students, residents and interns. I have reviewed the records provided to me by Mrs. Mary Scheer's attorneys concerning her care by Dr. Craig Bradley in Chicago, Illinois. I have based my opinion on the fact that Dr. Bradley deviated from the appropriate standard of care through the following acts and omissions:

(a) Dr. Bradley failed to do a proper, complete and thorough work-up of Mrs. Scheer, including, but not limited to failing to consider alternative methods of treatment and therapy;

(b) Dr. Bradley performed procedures on Mrs. Scheer that were unnecessary, not indicated, contraindicated, and which exposed Mrs. Scheer to an avoidable and unreasonable risk of injury;

(c) Dr. Bradley failed to properly diagnose the condition of Mrs. Scheer; (d) Dr. Bradley failed to obtain appropriate, proper and requisite informed consent for procedures performed on Mrs. Scheer.

I believe the foregoing deviations directly and proximately resulted in the injuries suffered by Mrs. Scheer. My opinions are subject to modification upon the obtaining of additional information through discovery or otherwise."

The document was unsigned, on plain paper, with Dr. Fisher's name and address in San Diego typed at the bottom. Defendants answered on October 1, 1995, without challenging the medical report.

On May 22, 1998, contemnor wrote Dr. Fisher that Mary's prior attorney had withdrawn and that he represented Mary. On August 13, 1998, contemnor wrote to Dr. Fisher and asked that he review physician reports and depositions. On January 5, 1999, contemnor sent Dr. Fisher a copy of Dr. Bradley's deposition for his review. Dr. Fisher replied on January 17, 1999, concluding, "I cannot find a basis for declaring anything that Dr. Bradley did or failed to do to represent negligence or departure from the recognized standard of care."

On February 24, 1999, Dr. Fisher wrote defense counsel that, several years earlier, he had seen Mary at the request of Taxman. Dr. Fisher told Taxman that he could not find a basis for concluding that Dr. Bradley had been negligent. When contemnor later contacted him to review additional records, Dr. Fisher made his position clear to contemnor that his opinion was unlikely to change. After reviewing the records and Dr. Bradley's deposition testimony, Dr. Fisher wrote contemnor that he could not find anything negligent in Dr. Bradley's care of Mary and declined to participate further. Dr. Fisher wrote, "I have not agreed to serve as an expert witness in this case. If Mr. Olson has listed me as his expert, he is mistaken."

Dr. Bradley moved to withdraw his answer and dismiss the complaint on March 4, 1999, because the "purported" written report attached to the complaint did not contain Dr. Fisher's signature, and Dr. Fisher stated in his February 24 letter to defense counsel that it had been his opinion that Dr. Bradley's care of Mary had not been negligent, contrary to the written report. Dr. Bradley argued that the report was invalid and the complaint was subject to dismissal under sections 2-622 (a) (1) and 2-622 (g) of the Code. 735 ILCS 5/2-622 (a) (1), (g) (West 1998). At a hearing on March 4, 1999, there was a discussion concerning ...

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