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Gary Cutler, Independent Administrator v. Northwest Suburban Community Hospital

November 29, 2010

GARY CUTLER, INDEPENDENT ADMINISTRATOR
PLAINTIFF-APPELLANT,
v.
NORTHWEST SUBURBAN COMMUNITY HOSPITAL, INC., INDIV. AND D/B/A BARIX CLINICS AND BARIX CLINICS OF ILLINOIS; FOREST HEALTH SERVICES CORPORATION, INDIV. AND D/B/A BARIATRIC TREATMENT CENTERS OF ILLINOIS; BARIATRIC TREATMENT CENTERS OF ILLINOIS, INC., D/B/A BARIATRIC TREATMENT CENTER; ERIC VAUGHN; ROY E. BERKOWITZ; PROCTOR HOSPITAL; AND JAMES R. DEBORD, DEFENDANTS-APPELLEES BARIATRIC SPECIALISTS OF ILLINOIS, S.C., AND
YOUNG, KENT HESS,
DEFENDANTS.



Appeal from the Circuit Court of the Estate of Mary Beth Cutler, Deceased, of Boone County No. 05--L--13 Honorable Judge John H., Presiding.

The opinion of the court was delivered by: Justice Schostok

JUSTICE SCHOSTOK delivered the opinion of the court: On July 6, 2007, the plaintiff, Gary Cutler, filed his third amended 27-count medical malpractice complaint against the defendants, Northwest Suburban Community Hospital, Inc. (Northwest Suburban), Bariatric Specialists of Illinois, S.C. (Bariatric Specialists), Forest Health Services Corp. (Forest), Bariatric Treatment Centers of Illinois, Inc. (BTC), Dr. Eric Vaughn, Dr. Roy E. Berkowitz, Proctor Hospital (Proctor), Dr. James DeBord, and Dr. Kent Hess, seeking damages based on the Wrongful Death Act (740 ILCS 180/1 et seq. (West 2004)), the Survival Act (755 ILCS 5/27--6 (West 2004)), and the Rights of Married Persons Act (750 ILCS 65/15 (West 2004)), commonly called the "family expense statute." On September 21, 2009, the trial court dismissed the plaintiff's third amended complaint with prejudice. The plaintiff appeals from that order. We reverse and remand for additional proceedings.

On April 11, 2005, the plaintiff filed his original malpractice action against the defendants. (However, the original complaint named Dr. Hess as a respondent in discovery rather than a defendant.) In his complaint, the plaintiff alleged that on April 13, 2003, his sister, the decedent, was admitted to Northwest Suburban, in Belvidere, for a Roux-en-y gastrojejunostomy surgery that was performed by Dr. Vaughn. Despite a subsequent fever and leukocytosis, the decedent was discharged from Northwest Suburban on April 20, 2003. Both Drs. Vaughn and Berkowitz treated the decedent postoperatively at Northwest Suburban. The decedent allegedly sought additional medical assistance via phone over the next two days. On April 22, 2003, the decedent went to the emergency room at Proctor, in Peoria, with complaints of severe abdominal pain. At Proctor, she was treated by Dr. DeBord, who contacted Dr. Berkowitz for assistance. The decedent died at Proctor on April 24, 2003. Dr. Hess had provided preoperative care to the decedent. The plaintiff alleged that Drs. Vaughn and Berkowitz were employees, agents, or apparent agents of Forest, BTC, and Bariatric Specialists. The plaintiff further alleged that the defendants and/or their employees or agents were negligent in the postoperative care and treatment of the decedent and that their negligence caused her death.

Attached to the complaint was an affidavit from the plaintiff's attorney pursuant to section 2--622(a)(2) of the Code of Civil Procedure (the Code) (735 ILCS 5/2--622(a)(2) (West 2004)), indicating that the action had not previously been voluntarily dismissed but that she was unable to obtain the requisite reviewing health professional's report before the expiration of the statute of limitations. On April 20, 2005, the plaintiff filed an affidavit and physician's report pursuant to section 2--622(a)(1) of the Code (735 ILCS 5/2--622(a)(1) (West 2004)). On July 7, 2005, all the defendants moved to dismiss the complaint because the plaintiff did not identify the reviewing health professional. Additionally, several defendants asserted that the physician's report was deficient because it did not reveal the physician's specialty or show that the physician had experience in the same area of healthcare as the defendants. Other defendants argued that the report had only general conclusory statements of medical malpractice and failed to specify how the defendants breached the standard of care. In response, the plaintiff argued that he did not have to reveal the name of the reviewing physician and also that, because the physician was a consultant pursuant to Supreme Court Rule 201(b)(3) (210 Ill. 2d R. 201(b)(3)), his identity did not need to be disclosed in the absence of exceptional circumstances. A hearing on the motions to dismiss was scheduled for November 4, 2005.

On October 5, 2005, the plaintiff filed a motion for an evidentiary hearing to convert Dr. Hess to a party defendant and for leave to file an amended complaint. Attached was a new affidavit and a revised reviewing health professional's report. This report set forth how Dr. Hess violated the standard of care. The motion was granted and the hearing was also set for November 4, 2005. On October 10, 2005, the plaintiff filed another section 2--622(a)(1) physician's report, identical to that filed on October 5, 2005, but identifying the certifying health professional as Dr. Rolland W. Taylor. The November 4, 2005, hearing was subsequently continued to December 21, 2005.

On December 21, 2005, the trial court issued an order in relation to a motion to compel previously filed by Dr. Hess, finding that Dr. Taylor was not a consultant within the meaning of Rule 201(b)(3) and that Dr. Hess should have access to Dr. Taylor's notes. The hearing on the plaintiff's motion to convert Dr. Hess to a party defendant was postponed until March 6, 2006. On February 28, 2006, Dr. Hess filed a motion to strike Dr. Taylor's report and be dismissed as a respondent in discovery. Dr. Hess opined that Dr. Taylor did not have the education, experience, and training to opine that Dr. Hess's treatment of the decedent was negligent. In support, Dr. Hess attached Dr. Taylor's January 2006 discovery deposition transcript from the case of Hunt v. Northwest Suburban Community Hospital, No. 03--C--50250 (N.D. Ill. September 2, 2005), which was then pending in the Northern District of Illinois, Western Division. The defendants in that case included Dr. Hess, Northwest Suburban, Forest, BTC, and Bariatric Specialists.

In his January 2006 discovery deposition in the Hunt case, Dr. Taylor testified, in relevant part, that he did not currently perform bariatric surgeries. He did act as a surgical assistant in a Roux-en-y procedure in 2001 or 2002. He was not board certified in internal medicine, did not complete a residency in internal medicine, and never practiced internal medicine. He last practiced in Illinois in 2002. Finally, he testified that he had cared for a postoperative abdominal surgery patient within the last month and had cared for a postoperative bariatric surgery patient within the last six months.

On March 6, 2006, the plaintiff withdrew his motion to convert Dr. Hess from a respondent in discovery to a party defendant. Consequently, the trial court entered an order dismissing Dr. Hess as a respondent in discovery and stating that all other motions directed to the pleadings regarding Dr. Hess were rendered moot. On May 2, 2006, the trial court granted the defendants' motions to dismiss the plaintiff's complaint without prejudice and ordered that any amended report include the identity of the reviewing health professional. The record does not show that a first amended complaint was ever formally filed. However, on May 31, 2006, the plaintiff filed a "second amended complaint" that included the requisite section 2--622(a)(1) affidavit and physician's report. The report indicated that it was authored by Dr. Taylor.

On June 23, 2006, Dr. DeBord filed a motion to dismiss the counts of the complaint based on the family expense statute, arguing that neither an independent administrator of an estate nor a sibling had standing to sue under that statute. Dr. DeBord also filed an answer. On July 24, 2006, Proctor filed an answer and a motion to dismiss the count directed against it related to the family expense statute. On July 28, 2006, Dr. DeBord filed a motion for clarification and/or reconsideration and to compel, arguing that the trial court's May 2, 2006, order should have required the plaintiff to produce the original signed version of his section 2--622(a)(1) physician's report. On August 2, 2006, Bariatric Specialists, Dr. Vaughn, and Dr. Berkowitz filed an answer to the complaint but subsequently moved to withdraw their answer to the counts related to the family expense statute and joined Proctor's motion to dismiss those counts. On April 3, 2007, Northwest Suburban, Forest, and BTC joined Dr. DeBord's motion to dismiss the counts related to the family expense statute. Shortly thereafter, the remaining defendants joined Dr. DeBord's motion for reconsideration and to compel. On August 23, 2006, Northwest Suburban, Forest, and BTC answered the complaint. In that answer, those defendants raised an affirmative defense alleging that the decedent failed to report all her symptoms and failed to timely seek proper medical treatment.

On November 16, 2006, Dr. DeBord filed a motion for substitution of judge. On November 22, 2006, the trial court entered an order related to the July 28, 2006, motion for reconsideration/clarification and to compel. The trial court noted that the motion should have been filed within 30 days of its May 2, 2006, order and that it was therefore treating the motion as a petition brought pursuant to section 2--1401 of the Code (735 ILCS 5/2--1401 (West 2006)). The trial court determined that the defendants had not met the threshold requirements of a section 2--1401 petition and therefore denied the defendants' motion. On December 12, 2006, the trial court granted Dr. DeBord's motion for substitution of judge and the case was reassigned.

On March 14, 2007, Bariatric Specialists, Dr. Vaughn, and Dr. Berkowitz filed a motion for leave to file affirmative defenses. As affirmative defenses, those defendants alleged that the decedent failed to seek timely medical treatment and that her failure was more than 50% of the proximate cause of her injuries. On April 4 and 16, 2007, respectively, Dr. DeBord and Proctor moved to file affirmative defenses on the same basis. On July 30, 2007, the trial court entered an order granting (1) the defendants' motions to dismiss with prejudice the counts of the plaintiff's second amended complaint related to the family expense statute; (2) the defendants' motion for leave to file affirmative defenses; and (3) the plaintiff leave to file a third amended complaint. An order was also entered that same day again reassigning the case.

On July 6, 2007, the plaintiff filed his third amended complaint. The 27-count third amended complaint alleged three counts against each individual defendant based on wrongful death, survival, and the family expense statute. The plaintiff acknowledged in the complaint that the counts related to the family expense statute were dismissed but he continued to include those counts so as to "preserve the record for appeal." The third amended complaint was accompanied by an attorney affidavit dated October 5, 2005, and a physician's report that opined only as to how Dr. Hess's treatment of the decedent fell below the applicable standard of care. The defendants filed motions to dismiss the third amended complaint based on the insufficiency of the physician's report. The plaintiff subsequently filed a motion for leave to file an amended section 2--622(a)(1) report because the wrong report had accidentally been attached to the third amended complaint. On August 17, 2007, the trial court granted the plaintiff leave to file the amended physician's report. That order did not address the defendants' motions to dismiss.

Four days earlier, on August 13, 2007, Northwest Suburban filed a "Suggestion of Bankruptcy" indicating that it had filed for bankruptcy protection pursuant to chapter 11 of the Bankruptcy Code (11 U.S.C. §101 et seq. (2006)) and that the instant case was subject to an automatic stay. On August 17, 2007, the trial court sua sponte ordered the parties to provide authority regarding the effect of Northwest Suburban's bankruptcy and the applicability of the stay to any other defendants. On December 3, 2007, the trial court continued all matters to February 15, 2008, for status. On that date, the bankruptcy stay was lifted. On May 2, 2008, the trial court granted the plaintiff's motion to voluntarily dismiss Bariatric Specialists from the case without prejudice. On June 27, 2008, the trial court granted a motion to withdraw and a new attorney appeared on behalf of Drs. Vaughn and Berkowitz.

On January 28, 2009, the plaintiff filed motions for default against all the defendants, except Bariatric Specialists and Dr. Hess, because they never answered the third amended complaint. In response, the defendants argued that the trial court had never ruled on their motions to dismiss. At a February 17, 2009, hearing on the various motions, the trial court entered an order indicating that the motions would be ruled upon on March 3, 2009. On February 24, 2009, Drs. Vaughn and Berkowitz issued a records subpoena to Dr. Taylor.

On March 3, 2009, the trial court denied the plaintiff's motions for default and denied, in part, the defendants' motions to dismiss the plaintiff's third amended complaint. Specifically, the trial court dismissed only the counts against Bariatric Specialists and Dr. Hess and the counts based on the family expense statute. On that same day, the plaintiff filed a motion to quash the records subpoena issued to Dr. Taylor. The plaintiff argued that the subpoena violated Rule 201(b)(3) because Dr. Taylor was a consultant and that it ran afoul of section 2--622(e) (735 ILCS 5/2--622(e) (West 2004)) because there was no indication that the plaintiff's attorney's affidavit was untrue. On March 9, 2009, Drs. Vaughn and Berkowitz responded to the plaintiff's motion to quash and argued that a different discovery deposition of Dr. Taylor from the Hunt case, taken in September 2005, showed that Dr. Taylor had not performed gastric bypass surgery since 2000 and that between 2002 and 2004 he was not practicing. Drs. Vaughn and Berkowitz further argued that under section 2--622(e) they were entitled to question a reviewing health professional's qualifications if there was a good-faith basis that the qualifications were suspect. The defendants also pointed out that the trial court had determined that Dr. Taylor was not a consultant. On March 12, 2009, the trial court granted the plaintiff's motion to quash, finding that a records subpoena was an improper method by which to seek discovery pursuant to section 2--622(e). The trial court also reiterated that Dr. Taylor was not a consultant pursuant to Rule 201(b)(3).

On March 25, 2009, Drs. Vaughn and Berkowitz filed a motion to depose Dr. Taylor pursuant to section 2--622(e) of the Code. In that motion, they argued that Dr. Taylor's September 2005 discovery deposition in the Hunt case showed that representations in the plaintiff's section 2--622(a)(1) attorney affidavit were inconsistent regarding whether Dr. Taylor was knowledgeable as to the issues in the case. On March 26, 2009, Dr. DeBord filed a motion to reconsider his third motion to dismiss, based on the September 2005 discovery deposition in Hunt that allegedly showed that Dr. Taylor was not qualified to author a section 2--622(a)(1) physician's report. Drs. Vaughn and Berkowitz later joined in this motion. On March 25, 2009, Northwest Suburban, Forest, and BTC answered the plaintiff's third amended complaint. As an affirmative defense, the defendants argued that the decedent was negligent in failing to timely seek proper medical care. Proctor filed an answer on March 9, 2009, but did not raise any affirmative defenses.

In his September 2005 discovery deposition in the Hunt case, Dr. Taylor testified, in part, that he was a doctor of osteopathy and currently worked as an emergency physician at Southwest Health Center (Southwest), in Platteville, Wisconsin. Southwest had a bariatric surgical practice and he treated postoperative bariatric surgical patients in that emergency room. He was licensed to practice medicine in Illinois and Wisconsin and was board certified in general surgery. Around 1970, he did a rotating internship, where he assisted in several Roux-en-y surgeries. He did a surgical residency, where he performed about 1,800 abdominal surgeries and 6 bariatric bypass gastric exclusion surgeries. Dr. Taylor testified that the risks associated with abdominal surgery include postoperative infections. After his residency, he went into private practice and performed up to 300 abdominal surgeries per year. He worked in family medicine from 1980 to 1992. From 1983 to 1987, he also worked as an emergency physician. From 1994 to 2002, he worked as an in-house trauma surgeon and the procedures he performed were not done under general anesthesia. From 2002 until 2004, he was not practicing medicine due to a personal illness. Most of the abdominal surgeries he performed were prior to 1992. Since 1992, he had performed a handful of abdominal surgeries--such as bowel perforations, liver lacerations, or splenic lacerations. The last time he did a Roux-en-y was about five years ago. He had not participated in gastric stapling since 1992. The last weight-loss surgical procedure he did was in the 1970s, during his residency. Dr. Taylor acknowledged that he did not have formal bariatric surgical training, had never formulated guidelines or protocols for performance of bariatric surgery, and had never screened a patient for bariatric surgery.

On April 9, 2009, the plaintiff filed a motion to strike the motion to depose Dr. Taylor, arguing that Drs. Vaughn and Berkowitz had waived their right to challenge the section 2--622(a)(1) affidavit and physician's report because extensive hearings and discovery had already occurred. The plaintiff also argued that Dr. Taylor was qualified to author the report. The plaintiff further argued that a reviewing health professional could not be deposed pursuant to section 2--622(e) unless the trial court first found that the section 2--622(a)(1) affidavit was untrue. The plaintiff also filed a response in opposition to Dr. DeBord's motion to reconsider. The plaintiff argued that Dr. Taylor was qualified to author the section 2--622(a)(1) report because Dr. ...


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