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Mary Doe A Fictitious Name of A Real Individual, Indiv. and As v. Planned Parenthood/Chicago Area

August 19, 2011

MARY DOE A FICTITIOUS NAME OF A REAL INDIVIDUAL, INDIV. AND AS REPRESENTATIVE OF A CLASS OF ALL WOMEN SIMILARLY SITUATED; MARY DOE, AS ADM'R OF THE ESTATE OF MICHAEL DOE, DECEASED CHILD OF MARY DOE, AND AS REPRESENTATIVE OF A CLASS OF ALL OTHER PREGNANT MOTHERS SIMILARLY SITUATED, PLAINTIFFS-APPELLANTS,
v.
PLANNED PARENTHOOD/CHICAGO AREA; JOHN DOE; MURRAY PELTA; LOUIS FERNANDEZ 1 TO 10
(FICTITIOUS NAMES FOR REAL INDIVIDUALS); NEAL GOULD; AND JANE JONES 1 TO 20
(FICTITIOUS NAMES FOR REAL INDIVIDUALS WHO PROVIDE CLIENT AND PATIENT COUNSELING AT PLANNED
PARENTHOOD/CHICAGO AREA ABORTION CLINICS),
DEFENDANTS-APPELLEES.



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

The Honorable Mary K. Rochford, Judge Presiding.

PRESIDING JUSTICE GARCIA delivered the judgment of the court, with opinion. Justices Cahill and R. E. Gordon concurred in the judgment and opinion

OPINION

¶ 1 Plaintiff Mary Doe appeals the dismissal of her complaint against Planned Parenthood and others. According to the complaint, the plaintiff, about three months pregnant, visited a help center because of uncertainty over her pregnancy. At the pregnancy help center she was told that the fetus she was carrying was a "human being." Thereafter, she visited the Planned Parenthood office in Chicago, which she identifies as an "abortion clinic." According to her complaint, she was counseled at Planned Parenthood that the fetus she was carrying was not a "human being." While at Planned Parenthood, the plaintiff signed a form consenting to a pregnancy termination procedure that same day, which she underwent. On the two-year anniversary of her abortion, the plaintiff filed, as she characterizes it in her brief, a "medical malpractice" suit against Planned Parenthood, its nursing/counseling staff, and the physicians that performed and assisted in the medical procedure, which she filed "both individually and as Special Administratrix of the estate of her child Michael Doe." Grounded on her medical negligence allegations, her suit asserted three causes of action: (1) wrongful death of her fetus; (2) negligent infliction of emotional distress; and (3) violation of the Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) (815 ILCS 505/1 et seq. (West 2008)). All three counts asserted that the plaintiff was misled by Planned Parenthood when she asked "if there was already a human being in existence" before she consented to the abortion procedure. She claims the defendants "incorrectly denied that fact," which caused her to undergo an abortion she otherwise would not have consented to. The circuit court granted the defendants' motion to dismiss. On our de novo review, we affirm.

¶ 2 BACKGROUND

¶ 3 We accept as true the allegations in the plaintiff's complaint. On December 8, 2004, the plaintiff, 19 years old and about 12 weeks pregnant, sought counseling and assistance from the defendant Planned Parenthood/Chicago Area (PP), an abortion clinic. The plaintiff asked a PP counselor whether an abortion would terminate the life of a human being in the biological sense. The counselor replied in the negative. The plaintiff told the counselor that she had been informed by a pregnancy help center that an abortion terminates the life of a human being. The counselor replied that pregnancy help centers often deliberately misrepresent the facts to prospective mothers. The counselor assured her that an abortion did not terminate the life of a human being. Given this assurance, the plaintiff decided to have an abortion that same day.

¶ 4 Exactly two years later, the plaintiff, individually and on behalf of her aborted fetus, filed the instant complaint against the clinic, its doctors, and its nursing/counseling staff, collectively the defendants. (The complaint also asserted allegations in support of a class action, which she does not pursue on appeal.) The plaintiff claimed the defendants committed medical negligence premised on their breach of a common law duty compelling certain disclosures. First, the defendants had a duty to inform her that an abortion "procedure would terminate the life of a second patient, a living human being as a matter of biological fact." Second, the defendants had a duty to inform her there is a greater risk of death, depression, suicide and breast cancer in women who undergo an abortion than in those who give birth. The plaintiff maintained that the defendants' failure to comply with their duty to disclose this information proximately caused her to undergo an abortion. That is, but for the defendants' failure to fully inform her of the direct and collateral consequences of an abortion, she would not have terminated her pregnancy on December 8, 2004.

¶ 5 The defendants moved to dismiss the plaintiff's complaint based on the consent form she signed. After the filing of briefs by the parties, the circuit court dismissed the complaint. The court held the defendants owed no duty to inform a patient of PP that an abortion terminates the life of a human being in the biological sense as a matter of law. Regarding the defendants' alleged violation of the duty to inform her of the "greater risk" associated with an abortion than giving birth, the circuit court concluded no cause of action was stated when she did not allege she experienced any of the "greater risks" associated with a pregnancy termination.

¶ 6 Apart from the insufficient allegations of medical negligence, the circuit court held the individual counts in the complaint were legally unsustainable. The court ruled section 2.2 of the Wrongful Death Act (740 ILCS 180/2.2 (West 2008)) barred the wrongful death count. The court ruled the negligent infliction of emotional distress count failed to state a cause of action where Illinois common law does not recognize the duty the defendants allegedly breached by failing to disclose certain information. The circuit court ruled the Consumer Fraud Act does not apply to actions grounded in medical negligence.

¶ 7 The plaintiff timely filed a notice of appeal. After the plaintiff's motion for reconsideration was denied, the plaintiff filed a second notice of appeal. On her motion, we consolidated the plaintiff's appeals, though she no longer challenges the denial of her motion to reconsider.

¶ 8 ANALYSIS

¶ 9 In her main brief, the plaintiff asserts "Defendants committed medical malpractice in their treatment of Plaintiff Mary Doe *** by making false statements and by failing to properly disclose information relative to the treatment in violation of the principles of law relating to informed consent." (Emphasis added.)

ΒΆ 10 Illinois recognizes a common law duty by doctors to inform their patients of the foreseeable risks and results of a surgical procedure before obtaining the patient's consent to the proposed medical procedure. See Davis v. Kraff, 405 Ill. App. 3d 20, 28-29 (2010) (citing Coryell v. Smith, 274 Ill. App. 3d 543, 546 (1995)). Though the plaintiff's complaint does not expressly assert a count for medical malpractice, her complaint makes clear that the three causes of action asserted in her complaint are grounded in her allegations under the doctrine of informed consent. We first examine the sufficiency of those allegations. We then examine the three counts specifically pled in the complaint. See Lovgren v. Citizens First National Bank of Princeton, 126 Ill. 2d 411, 419 (1989) (the allegations of a complaint, and not the ...


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