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Castro v. Bellucci

March 31, 2003

SOPHIA MARIE CASTRO, PLAINTIFF-APPELLANT,
v.
JOHN B. BELLUCCI, INDIV. AND AS AN AGENT AND/OR EMPLOYEE OF FAMILY MEDICINE SPECIALISTS, INC., FAMILY MEDICINE SPECIALISTS, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County No. 97 L 8383 Honorable Martin S. Agran, Judge Presiding.

The opinion of the court was delivered by: Justice O'malley

UNPUBLISHED

Plaintiff, Sophia Marie Castro, appeals from the trial court's grant of dismissal as to portions of count III and count IV of her fourth amended complaint against defendants, Family Medicine Specialists, Inc. (Family Medicine) and John B. Bellucci, M.D. For the reasons that follow, we reverse the judgment of the trial court and remand for further proceedings.

The facts necessary to our resolution of this appeal are as follows. On May 7, 1996, Castro had an initial office visit with Dr. Jennifer Bellucci-Jackson for dysfunctional uterine bleeding. Although Dr. Bellucci-Jackson did not take a complete history or perform a complete physical, she was made aware that Castro was experiencing painful headaches. Dr. Bellucci-Jackson scheduled Castro for a pelvic ultrasound. On May 12, Castro experienced a severe headache and dizziness, pursuant to which she was taken to the emergency room of Elmhurst Memorial Hospital. There, she was evaluated and subsequently discharged.

On May 14, as a follow-up to both her emergency room visit and her May 7 visit with Dr. Bellucci-Jackson, Castro saw Dr. John Bellucci, one of Dr. Bellucci-Jackson's partners at Family Medicine. Dr. Bellucci was made aware of Castro's headaches and related symptoms.

On May 15, Castro's mother, Stella Herrick, telephoned Dr. Bellucci-Jackson and informed her that Castro was suffering from a severe headache and dizziness. Mrs. Herrick wanted to take Castro to a chiropractor; Dr. Bellucci-Jackson stated that she did not know of one to suggest for referral purposes. Later that day, Castro saw W. John Cox, D.C., and underwent cervical manipulation. Castro, who was 31 at the time, subsequently suffered a stroke.

On July 15, 1996, Castro filed a complaint at law against Dr. Cox and John Cox Chiropractic, Ltd., in which she alleged that Dr. Cox negligently failed to perform a neurologic exam prior to administering cervical manipulation. Castro filed a first amended complaint on May 12, 1998. Relevant to our decision here, in her first amended complaint, Castro named Drs. Bellucci and Bellucci-Jackson as respondents in discovery. *fn1 Both were subsequently deposed.

On February 11, 1999, Castro filed a second amended complaint, in which she converted Dr. Bellucci to a defendant on the basis of the May 14, 1996, visit. Specifically, Castro alleged in count VII of that complaint that Dr. Bellucci was negligent in one or more of the following respects:

"(a) [he] failed to perform appropriate neurologic examination on SOPHIA prior to chiropractic treatment; or

(b) [he] failed to refer SOPHIA to a neurologist; or

(c) [he] was otherwise negligent in treating SOPHIA."

Family Medicine was also named as a defendant, based upon its agency relationship with Dr. Bellucci. *fn2 On April 16, 1999, Dr. Bellucci-Jackson was dismissed from the case.

On August 10, 2001, Castro filed a fourth amended complaint. The initial counts are essentially the same as the second amended complaint in that they are directed against Family Medicine through its agent, Dr. John Bellucci. Count III includes the following allegations: Castro's May 13 appointment with Dr. Jennifer Bellucci-Jackson was changed to May 14 at a different location; on May 14 Castro was evaluated by Dr. Bellucci; Dr. Belluci was negligent in his diagnosis and treatment on May 14 and those negligent acts were the direct and proximate cause of Castro's injuries. Count IV, however, is different in that 16 paragraphs of count IV make specific reference to allegedly negligent conduct on the part of Dr. Jennifer Bellucci-Jackson on dates in May 1996, when she either saw plaintiff or spoke with her mother on the phone. These allegations are identical or at least substantially the same (i.e. failing to diagnose and treat symptoms of potential stroke) as those alleged against her colleague, Dr. John Bellucci. Count IV alleges that Family Medicine, through its agents, was negligent in one or more of the following respects:

"(a) failing to refer SOPHIA to a neurologist; or

(b) failing to properly diagnose Sophia's condition; or

(c) failing to properly evaluate and assess ...


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