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Miller v. Rosenberg

April 19, 2001


The opinion of the court was delivered by: Justice McMORROW

Docket No. 89009-Agenda 26-September 2000.

The primary issue presented in this appeal is whether section 2-109 of the Code of Civil Procedure (735 ILCS 5/2-109 (West 1998)), which eliminates the requirement to plead or prove special injury for certain malicious prosecution plaintiffs, is unconstitutional because it violates two provisions of the Illinois Constitution of 1970: the special legislation clause set forth in article IV, section 13 (Ill. Const. 1970, art. IV, §13), and the right to equal protection guaranteed by article I, section 2 (Ill. Const. 1970, art. I, §2). The circuit court of Lake County held that section 2-109 violates each of these constitutional provisions. Appeal was taken directly to this court. 134 Ill. 2d R. 302(a). For the reasons that follow, we reverse the judgment of the circuit court and remand this cause for further proceedings.


In November 1988, Elaine Rosenberg filed a medical malpractice lawsuit against Dr. Jerald Miller, a periodontist. Rosenberg, who had been a patient of Dr. Miller between March 1982 and February 1987, claimed in her complaint that, during this time period, Miller negligently failed to detect, diagnose and treat an impacted wisdom tooth in Rosenberg's lower right jaw. According to Rosenberg's complaint, she underwent surgery to extract this tooth in March 1987. Rosenberg alleged that as a direct and proximate cause of Miller's negligence in failing to timely diagnose and treat her lower right wisdom tooth, the tooth became embedded in her jawbone, causing parathesia, or numbness, in her jaw and face. In his answer to Rosenberg's complaint, Miller stated that while Rosenberg was under his care, he referred her to an oral surgeon. Rosenberg, however, failed to follow up on this referral. Miller further alleged that two of Rosenberg's prior treaters had also advised her to undergo an examination by an oral surgeon for the possible extraction of the wisdom tooth.

After the completion of discovery, the circuit court granted summary judgment in favor of Miller. On appeal, the appellate court reversed the grant of summary judgment, and remanded the cause to the circuit court. Rosenberg v. Miller, 247 Ill. App. 3d 1023 (1993). The matter thereafter proceeded to trial. The jury found Miller not liable, and on April 21, 1995, judgment for Miller was entered on the jury's verdict.

On November 8, 1995, Miller filed a three-count malicious prosecution action against Rosenberg and her attorneys. Only count I of Miller's complaint is at issue in this appeal. *fn1 Miller alleged that, in commencing and continuing to pursue her medical malpractice lawsuit, Rosenberg acted without probable cause and with malice in several respects. According to Miller, Rosenberg "alleged a lack of knowledge of the presence of an impacted lower right wisdom tooth" while she was his patient, "despite previously being advised of this condition." Further, Miller stated that Rosenberg "failed to properly investigate" both "the facts surrounding her claims of negligence" and "whether the alleged negligence of [Miller] was a cause of her claimed injury." Miller also alleged that Rosenberg had filed and continued to prosecute the medical malpractice lawsuit against him "without probable cause in retribution for perceived incourtesies by [Miller toward Rosenberg]," and that Rosenberg's objective was to "obtain money despite the fact that she knew or should have known that any alleged negligence was not a cause of any alleged injuries." Miller further claimed that, as a direct and proximate result of Rosenberg's lawsuit, he "suffered personal and pecuniary injuries, including but not limited to, mental anguish," experienced "increased anxiety," was forced to incur attorney fees and "expend considerable time and energy in the defense of the underlying action," and was "required to defend his professional reputation and will be required to pay increased premiums for professional liability insurance."

In October 1996, Rosenberg filed a motion to dismiss Miller's malicious prosecution action pursuant to sections 2-615 and 2-619 of the Code of Civil Procedure (735 ILCS 5/2-615, 2-619 (West 1996)). Rosenberg alleged that, under Illinois law, in order to validly plead a common law cause of action for malicious prosecution, a plaintiff must claim that he suffered injury or damages over and above the ordinary expense and trouble attendant in defending any civil action. Because Miller had not alleged that he suffered a "special injury" as a result of Rosenberg's lawsuit, Rosenberg argued that Miller had not pled a valid malicious prosecution claim.

In addition, Rosenberg maintained in her motion to dismiss that Miller's complaint could not be saved by section 2-109 of the Code of Civil Procedure (735 ILCS 5/2-109 (West 1996)). Section 2-109 provides:

"In all cases alleging malicious prosecution arising out of proceedings which sought damages for injuries or death by reason of medical[,] hospital[,] or other healing art malpractice, the plaintiff need not plead or prove special injury to sustain his or her cause of action. In all such cases alleging malicious prosecution, no exemplary or punitive damages shall be allowed." 735 ILCS 5/2-109 (West 1996).

Rosenberg asserted that the special benefit afforded by section 2-109 to malicious prosecution plaintiffs who also happen to be health care providers violates not only the proscription against special legislation found in article IV, section 13, of the Illinois Constitution of 1970 (Ill. Const. 1970, art. IV, §13), but also the guarantee of due process and equal protection contained in article I, section 2 (Ill. Const. 1970, art. I, §2). Specifically, Rosenberg contended that section 2-109 is unconstitutional because it arbitrarily and irrationally eliminates the common law special injury requirement for this select group of plaintiffs, thereby making it far easier for these plaintiffs to file and proceed with a malicious prosecution claim than it is for other malicious prosecution plaintiffs who must still establish a special injury.

The circuit court denied Rosenberg's motion to dismiss on January 10, 1997. The court found that although section 2-109 confers special privileges upon health care providers who file malicious prosecution actions which arise out of underlying medical malpractice litigation, this special treatment does not violate the Illinois Constitution. The court reasoned that this classification is warranted by the Illinois General Assembly's determination that there existed a medical malpractice crisis at the time section 2-109 was enacted.

On December 9, 1999, the circuit court held a hearing on a motion in limine filed by Rosenberg which requested that the court bar Miller in his malicious prosecution action from the recovery of attorney fees he incurred in defending against the underlying malpractice lawsuit. The circuit court agreed with Rosenberg that, pursuant to section 2-622(e) of the Code of Civil Procedure (735 ILCS 5/2-622(e) (West 1998)), any claim by Miller to recover attorney fees in connection with the underlying medical malpractice litigation was untimely. *fn2

During the hearing on the attorney fee matter, the circuit court judge noted that his previous ruling with respect to the constitutionality of section 2-109 was rendered prior to this court's 1997 decision in Best v. Taylor Machine Works, 179 Ill. 2d 367 (1997). Because the circuit court judge had "never considered this case in light of the Best case," he invited the parties to again submit briefs "to revisit the question of whether or not [section 2-109] is or is not special legislation."

On January 20, 2000, the circuit court declared that section 2-109 violates the Illinois Constitution, specifically, the prohibition against special legislation (Ill. Const. 1970, art. IV, ยง13) and the guarantee of equal protection (Ill. Const. 1970, art. ...

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