Appeal from the Circuit Court of the 10th Judicial Circuit Peoria County, Illinois No. 01-L-306 Honorable Joseph R. Vespa, Judge Presiding.
The opinion of the court was delivered by: Justice Slater
This is an action for medical malpractice, medical battery and fraud. The plaintiff appeals from the orders of the trial court which denied his motion for summary judgment and granted the defendants' motions to dismiss and motion for summary judgment.
The plaintiff, Matthew Lane, brought this action after he sustained a leak in his small bowel following a laparoscopic appendectomy. Plaintiff originally filed a four-count complaint against the following defendants: Dr. Anderson, the attending physician; Peoria Surgical Group, Dr. Anderson's employer; Dr. Joo, the chief resident who performed the surgery with Dr. Anderson; and OSF Healthcare Systems, ("OSF"), Dr. Joo's employer. Counts I and II are for medical malpractice against Dr. Anderson and Peoria Surgical Group and are not at issue in this appeal. Counts III and IV allege medical battery against Dr. Joo and OSF, respectively.
On February 25, 2002, the plaintiff moved to amend his complaint to add count V, a claim for medical battery against Dr. Anderson. On April 24, 2002, the trial court denied the plaintiff's motion to amend and held that the facts as alleged by the plaintiff did not support a claim for medical battery. On May 23, 2002, the trial court granted the plaintiff leave to amend his complaint to add counts VI, VII and VIII, which alleged fraud by Dr. Anderson, Dr. Joo and OSF, respectively. The plaintiff and the defendants filed various motions on the pleadings.
On October 25, 2002, the trial court denied the plaintiff's motion for summary judgment on count III of the complaint which alleged medical battery against Dr. Joo. It granted summary judgment in favor of Dr. Joo and OSF Healthcare Systems on counts III and IV, the medical battery counts. It also granted Dr. Anderson, Dr. Joo and OSF's motions to dismiss counts VI, VII and VIII which alleged fraud against each of them, respectively. The plaintiff appeals from the trial court's orders entered on April 24, 2002 and October 25, 2002.
On August 25, 2000, the plaintiff went to see defendant Anderson for recurrent abdominal pain. Dr. Anderson recommended that the plaintiff be hospitalized for a period of observation and possible surgery. After the plaintiff was admitted to the hospital he signed a "Consent to Surgery/Procedure" form. The relevant language of the consent form is as follows:
"I, Matthew Lane, hereby authorize Dr. Rossi, Marshall, DeBord and Anderson and such assistants and associates as may be selected by him/her and OSF St. Francis Medical Center to perform the following procedure(s)/ treatment(s)upon myself/the patient: diagnostic laparoscopy, possible laparoscopic appendectomy, possible open appendectomy."
Dr. Anderson testified that on the evening of August 25, 2000, he contacted his chief resident at the hospital, Dr. Joo, and asked him to assist with the plaintiff's surgery. The next morning, Dr. Joo and Dr. Anderson met with the plaintiff and Dr. Anderson recommended that the plaintiff have the surgery.
Dr. Anderson explained that the procedure performed on the plaintiff, a laparoscopic appendectomy, requires three hands. Two surgeons are needed to elevate the abdominal wall in order to insert a needle into the abdomen. Additionally, a second surgeon is needed to run the camera while one surgeon works the instruments.
Dr. Anderson was scrubbed, present and involved during the plaintiff's surgery. He both supervised and directed the entire procedure. Throughout the surgery, Dr. Anderson was the primary surgeon and Dr. Joo was his assistant. The primary surgeon is responsible for the patient ...