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Milos v. Hall

September 28, 2001


Appeal from the Circuit Court of St. Clair County. No. 99-L-577A Honorable Milton S. Wharton, Judge, presiding.

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


The plaintiff appeals from an order of the St. Clair County circuit court dismissing counts VII, VIII, and IX of the third amended complaint for the failure to comply with section 2-622 of the Code of Civil Procedure (735 ILCS 5/2-622 (West 1996)). In this appeal, brought pursuant to Illinois Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a)), the plaintiff argues that section 2-622 is not applicable because counts VII, VIII, and IX do not allege medical malpractice.

Cindy Milos was admitted to the emergency room of the Edward A. Utlaut Hospital (Utlaut Hospital) at approximately 3:54 a.m. on March 23, 1998. At that time, Mrs. Milos was seen by the emergency room physician, Tracy Hall, M.D. According to the plaintiff's complaint, Mrs. Milos presented with all the signs and symptoms of a diabetic crisis, but she was discharged without any diagnosis and without having been tested or treated for the symptoms. At 2:50 p.m., about 12 hours after she was discharged, Mrs. Milos was brought back to the emergency room in cardiorespiratory arrest and in a diabetic crisis. Blood tests revealed elevated blood sugar levels and severe diabetic ketoacidosis. Mrs. Milos did not recover and was pronounced dead at 3:58 p.m. on March 23, 1998. The decedent's husband, Frank Milos, and her mother requested a complete autopsy. Both signed a consent-for-autopsy form provided by Utlaut Hospital. Utlaut Hospital then summoned Dr. Harry W. Parks, a licensed physician who practiced in the field of pathology, to conduct the autopsy. Dr. Parks performed the autopsy and issued a written autopsy report.

On June 28, 1999, Frank Milos (plaintiff), individually and in his capacity as the special administrator of the estate of Cindy Milos, deceased, filed suit against Utlaut Hospital, Tracy Hall, M.D., and Harry W. Parks, M.D., based upon events arising during Cindy Milos' admissions to Utlaut Hospital on March 23, 1998. The wrongful-death and survival counts against Utlaut Hospital and Dr. Hall were based upon a theory of medical negligence. The counts against Dr. Parks were based on the theory that Dr. Parks intentionally omitted from his autopsy report pertinent facts regarding the decedent's premortem condition and intentionally misrepresented his conclusions regarding the cause of death, in order to protect Dr. Hall and Utlaut Hospital from potential civil litigation. The complaint at issue, plaintiff's third amended complaint, contains three counts (counts VII, VIII, and IX) against Dr. Parks. Each count is based upon alleged intentional misrepresentations and contains the following allegations:

"12. That with respect to the said autopsy, Dr. Harry W. Parks had a fiduciary duty to the Estate of Cindy Milos to provide accurate and complete information regarding the cause of death of Cindy Milos.

13. That on or about April 1, 1998, Dr. Harry W. Parks willfully and wantonly breached his fiduciary duty in that in his report he intentionally omitted the fact of Cindy Milos' diabetic crisis and its causal relationship to Cindy Milos' death and that said report was intentionally misleading regarding the cause of death.

14. That the said decision by Harry W. Parks, M.D.[,] to intentionally omit any reference of Cindy Milos' diabetic crisis in the autopsy report was not based upon any medical judgment but was based entirely upon a desire to protect Utlaut Hospital from a potential civil action."

Plaintiff also alleged that they were damaged as a result of the permanent loss of accurate medical information concerning the decedent's cause of death.

Dr. Parks filed a motion to dismiss, pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 1996)). In his motion, Dr. Parks argued that counts VII, VIII, and IX of the third amended complaint should be dismissed because plaintiff's claims were based on medical negligence and plaintiff failed to file an affidavit of merit as required by section 2-622. Plaintiff countered that section 2-622 did not apply because the counts against Dr. Parks did not allege medical negligence. The trial court granted Dr. Parks' motion to dismiss, finding that the conduct alleged in those claims sounded in medical negligence and that plaintiff had not filed the required section 2-622 affidavit of merit.

In reviewing an order granting a motion to dismiss for the failure to state a cause of action, we must determine whether the allegations of the complaint, when viewed in a light most favorable to the plaintiff, are sufficient to state a cause of action upon which relief can be granted. Rekosh v. Parks, 316 Ill. App. 3d 58, 63, 735 N.E.2d 765, 771 (2000). A cause of action will not be dismissed on the pleadings unless it clearly appears that no set of facts could be proven which would entitle a plaintiff to recover. Rekosh, 316 Ill. App. 3d at 63, 735 N.E.2d at 771. No complaint is bad in substance that contains such information as reasonably informs the defendant of the nature of the claim he is called upon to meet. Stanley Magic-Door, Inc. v. City of Chicago, 74 Ill. App. 3d 595, 598, 393 N.E.2d 535, 537 (1979). We review an order granting a section 2-615 motion to dismiss de novo. Burgess v. Pocrnich, 284 Ill. App. 3d 757, 758, 672 N.E.2d 1334, 1336 (1996).

Section 2-622 of the Illinois Code of Civil Procedure provides in pertinent part as follows:

"Healing art malpractice. (a) In any action, whether in tort, contract[,] or otherwise, in which the plaintiff seeks damages for injuries or death by reason of medical, hospital, or other healing art malpractice, the plaintiff's attorney or the plaintiff, if the plaintiff is proceeding pro se, shall file an affidavit, attached to the original and all copies of the complaint, declaring one of the following: ***." (Emphasis added.) 735 ILCS 5/2-622(a) (West 1996).

In this appeal, we must determine whether section 2-622 applies to the claims filed against Dr. Parks. Therefore, we must determine whether the acts alleged in the counts against ...

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