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Josh Tunca v. Thomas A. Painter and Daniel Conway

February 10, 2012

JOSH TUNCA
PLAINTIFF-APPELLANT,
v.
THOMAS A. PAINTER AND DANIEL CONWAY
DEFENDANTS-APPELLEES.



Appeal from Circuit Court of Cook County, Illinois. No. 07 L 6700 Honorable James Egan, Judge Presiding.

The opinion of the court was delivered by: Justice J. Gordon

JUSTICE J. GORDON delivered the judgment of the court, with opinion. Justices Fitzgerald Smith and Howse concurred in the judgment and opinion.

OPINION

¶ 1 Plaintiff Dr. Josh Tunca appeals from two sets of orders from the circuit court of Cook County dismissing multiple complaint counts against defendants Dr. Thomas Painter and Dr. Daniel Conway for failure to state a cause of action. Plaintiff's complaint was amended three times and this appeal encompasses orders entered upon plaintiff's first and third amended

complaints. The first set of orders of the trial court dismissed one count of slander per se against Dr. Painter (count I of plaintiff's first amended complaint), one count of slander per se against Dr. Conway (count III of plaintiff's first amended complaint), and one count of violation of section 8-2101 of the Illinois Code of Civil Procedure (735 ILCS 5/8-2101 (West 2006)) (Medical Studies Act, or Act) against Dr. Conway (count IV of plaintiff's first amended complaint). The second set of orders of the trial court dismissed one count of slander per quod against Dr. Painter (count I of plaintiff's third amended complaint) and one count of slander per quod against Dr. Conway (count III of plaintiff's third amended complaint). Plaintiff maintains that his complaints have sufficient allegations to state a cause of action for slander per se and slander per quod against both Dr. Painter and Dr. Conway, and for violation of the Medical Studies Act by Dr. Conway.

¶ 2 BACKGROUND

¶ 3 Plaintiff, a surgeon who specializes in gynecological oncology at Northwest Community Hospital, filed his initial complaint against defendants on July 28, 2007. That complaint alleged, in pertinent part, that on or about June 24, 2006, plaintiff surgically removed an ovarian tumor, and within hours of that surgery, the patient developed a blood clot in her femoral artery which caused her to lose the pulse in her left leg. According to that complaint, on or about June 25, 2006, Dr. Painter, a vascular surgeon at the same hospital, performed a femoral-femoral bypass on that patient to correct the condition on her leg. In count I of that complaint, labeled "Slander Per Se by Dr. Painter," plaintiff alleged that on or about June 28, 2006, Dr. Painter told Dr. McGillan, the vice-president and medical affairs director for Northwest Community Hospital, that plaintiff had "inadvertently cut the left iliac artery of [p]atient during the course of his operation on June 24, 2006." Plaintiff also alleged that in the course of work at that hospital, Dr. Painter thereafter stated, in the company of other doctors and medical professionals, including Dr. McGillan and Dr. Glass, that plaintiff had "negligently and inadvertently severed [p]atient's artery."

¶ 4 In count II of that complaint, labeled "Slander Per Se by Dr. Conway," plaintiff alleged that on or about February 14, 2007, plaintiff encountered Dr. Conway, the chairman of Northwest Community Hospital department of surgery's quality review committee, and in the presence of other doctors and medical professionals, Dr. Conway informed plaintiff that he should expect a letter from the committee "regarding his allegedly cutting the artery of [p]atient." In addition, plaintiff alleged that on April 11, 2007, plaintiff was called to a meeting of the surgical quality review committee over which Dr. Conway presided. At that meeting, Dr. Conway stated in front of other committee members that he "observed a gross specimen from [p]atient after it was received by the hospital's pathologist and he observed the allegedly severed iliac artery from [p]atient's gross specimen."

¶ 5 With respect to counts I and II of plaintiff's initial complaint, plaintiff alleged that defendants' statements in the presence of and to third parties were false, malicious, slanderous and made with the intent to injure plaintiff's good name and credit in his profession. Additionally, plaintiff alleged that those statements were made for the purpose of causing plaintiff's fellow medical professionals from whom he received referrals of patients to believe that plaintiff had become incompetent to discharge his duties. In addition, plaintiff alleged that defendants' statements caused him to be injured in his good name and professional reputation, and resulted in the loss of patients from referral sources and will work to his injury in the procurement of future patients. Plaintiff alleged that as a result of defendants' slanderous statements, plaintiff has been damaged in excess of $3 million.

¶ 6 In count III of plaintiff's initial complaint, labeled "Violation of the Medical Studies Act," plaintiff reincorporated the charges set forth in the previous paragraphs and alleged that Dr. Conway's conduct constituted a violation of the Illinois Medical Studies Act (735 ILCS 5/8-210 (West 2007)), in that his statements made outside the peer review committee meeting in the presence of other doctors constituted disclosure of privileged information under the Act. With respect to count III, plaintiff alleged that as a result of Dr. Conway's violation of the Act, plaintiff was injured in his good name and reputation, which has resulted in the loss of patients from referral sources and will work to his injury in procuring future patients. Plaintiff alleged that as a result of Dr. Conway's violation of the Act, plaintiff has been damaged in excess of $3 million.

¶ 7 On February 22, 2008, the trial court dismissed the counts of slander per se (counts I and II of the initial complaint) against each defendant, pursuant to the innocent construction rule. A second reason given for the dismissal of the count of slander per se with respect to Dr. Conway alone (count II of the initial complaint) was that the factual statements contained therein are protected by the Medical Studies Act and cannot serve as a basis for a defamation claim. For that reason, the trial court also dismissed plaintiff's allegation that Dr. Conway violated the Act (count III of the initial complaint).

¶ 8 On March 18, 2008, plaintiff filed a first amended complaint, in which he realleged the same facts contained in his previous complaint, except that in count I, again labeled "slander per se by Dr. Painter," plaintiff alleged that on or about June 28, 2006, Dr. Painter told Dr. McGillan that plaintiff had "inadvertently and negligently cut the left iliac artery of [p]atient during the course of his operation on June 24, 2006," thus adding the word "negligently" to his allegations. In addition, plaintiff added a count which was labeled "Violation of the Medical Studies Act by Dr. Painter" (count II of plaintiff's first amended complaint), in which he realleged the previous paragraphs and stated that Dr. Painter's conduct constituted a violation of the Act. Plaintiff alleged that Dr. Painter's statements were outside the auspices of a peer review committee meeting and in the presence of other doctors and medical personnel constituted disclosure of privileged information under the Act.

¶ 9 Additionally, in the count labeled "Slander per se by Dr. Conway" (count III of the first amended complaint), plaintiff realleged the facts contained in count II of his previous complaint, but omitted the allegation with respect to Dr. Conway's statements made at the meeting of the surgical quality review committee. In addition, plaintiff added to that count the allegation that when Dr. Conway informed plaintiff that he should expect a letter from the committee regarding his alleged negligent cutting of the patient's artery, the doctors and medical personnel who were present at that time were not members of any hospital or department peer review committee. In the count labeled "violation of the Medical Studies Act by Dr. Conway" (count IV of the first amended complaint), plaintiff alleged the same facts as the corresponding count in his previous complaint (count III of the initial complaint).

¶ 10 On October 29, 2008, the trial court again dismissed, this time with prejudice, count I of plaintiff's first amended complaint, which alleged slander per se by Dr. Painter, and counts III and IV of plaintiff's first amended complaint, which alleged slander per se and violation of the Medical Studies Act by Dr. Conway, respectively. The trial court did not dismiss count II of plaintiff's first amended complaint, which alleged violation of the Medical Studies Act by Dr. Painter, which remained pending.

¶ 11 On November 3, 2008, plaintiff filed a second amended complaint, in which he realleged the facts contained in his previous complaints with respect to the surgery he performed on the patient in question, and Dr. Painter's subsequent surgery on that patient. In count I of plaintiff's second amended complaint, which was labeled "Slander Per Quod by Dr. Painter," plaintiff alleged the same facts contained in count I of his first amended complaint, which was then labeled "Slander Per Se By Dr. Painter." In addition, plaintiff alleged in that count that the statements made by Dr. Painter to doctors, including Dr. McGillan and Dr. Robert Glass, became widely disseminated among doctors with privileges at Northwest Community Hospital. He further alleged and that as a result of Dr. Painter's allegations that plaintiff severed the patient's artery, doctors on whom plaintiff relies to refer patients have come to question plaintiff's abilities as a surgeon and have referred fewer patients to him for that reason. Additionally, plaintiff alleged that as a result of Dr. Painter's statements, plaintiff has seen a precipitous drop in the number of patients referred by other doctors by approximately 25% since the time Dr. Painter made those statements, and that plaintiff expects that trend to continue.

¶ 12 In count II of plaintiff's second amended complaint, labeled "Violation of the Medical Studies Act by Dr. Painter," plaintiff realleged the facts in the corresponding count of his first amended complaint. In count III of his second amended complaint, labeled "Dlander Per Quod by Dr. Conway," plaintiff alleged the same facts contained in count III of his first amended complaint, which was then labeled "Slander Per Se by Dr. Conway." Plaintiff further alleged that his encounter with Dr. Conway took place in a common hallway of the hospital, and in addition to Dr. Conway's statement that a letter would be sent from the committee regarding the negligent cutting of the patient's artery, Dr. Conway also informed plaintiff that he, in fact, negligently cut that patient's artery. In addition, plaintiff alleged that Dr. Conway made those statements by "loudly vocalizing the same across said hallway." Further, plaintiff claimed that the allegations made by Dr. Conway became widely disseminated among the doctors with privileges at Northwest Community Hospital. He also averred that as a result of Dr. Conway's allegations that plaintiff did, in fact, negligently sever the patient's artery, doctors on whom plaintiff relies to refer patients have come to question plaintiff's abilities as a surgeon and have referred fewer patients to him for that reason. According to plaintiff, as a result of Dr. Conway's statements, plaintiff has seen a precipitous drop in the number of patients referred by other doctors by approximately 25% since Dr. Conway made those statements, and he expects that trend to continue.

¶ 13 On February 6, 2009, the trial court dismissed the counts of slander per quod (counts I and III of plaintiff's second amended complaint) against each defendant without prejudice, but did not dismiss the count of violation of the Medical Studies Act against Dr. Painter (count II of the second amended complaint).

¶ 14 On March 11, 2009, plaintiff filed a third amended complaint, in which he again realleged the facts in regard to the surgery he performed on the patient in question, and Dr. Painter's subsequent surgery. In count I of his third amended complaint, labeled "Slander Per Quod by Dr. Painter," plaintiff realleged the facts contained in count I of his first and second amended complaints, namely, that on June 28, 2006, Dr. Painter told Dr. McGillan that plaintiff had inadvertently and negligently cut his patient's artery during the course of an operation on June 24, 2006. As he had done previously, plaintiff again alleged that Dr. Painter stated in the presence of numerous other doctors, including Dr. McGillan and Dr. Glass, that plaintiff negligently and inadvertently severed the patient's artery. In addition, plaintiff alleged that presently and at the time Dr. Painter made his statements regarding plaintiff, plaintiff relied on physician referrals to his practice as a primary source of patients. Further, plaintiff alleged, more specifically, that once the false statements by Dr. Painter were made and disseminated throughout the hospital, several doctors, including Dr. Arvind Goyal, "became concerned over [plaintiff's] abilities to properly treat patients and for a time he would not refer patients that he otherwise would have referred, but for the allegations that [plaintiff] had negligently severed a patient's artery." Additionally, plaintiff alleged that, as a result of Dr. Painter's statements, plaintiff experienced a drop in his business income from 2006 to 2007 in the amount of $861,506.

¶ 15 In count II of his third amended complaint, labeled "Violation of the Medical Studies Act by Dr. Painter," plaintiff realleged the facts contained in the corresponding counts of his first and second amended complaints. In count III of plaintiff's third amended complaint, labeled "Slander Per Quod by Dr. Conway," plaintiff realleged the facts contained in count III of his first and second amended complaints, including the facts that on or about February 14, 2007, he encountered Dr. Conway, who told plaintiff, in the presence of other doctors, that plaintiff had negligently cut his patient's artery and that he should expect a letter from the quality review committee regarding such negligent cutting of that patient's artery. Here too, plaintiff alleged, as he did in the preceding count I of that complaint, that presently and at the time Dr. Conway made his statement regarding plaintiff, plaintiff relied on physician referrals to his practice as a primary source of patients. In addition, plaintiff alleged that the statement by Dr. Conway became widely disseminated among all of those we were present and within earshot of his comments, as well as to others, including doctors who were not present at the time those comments were made. Further, plaintiff alleged that once the false statement by Dr. Conway became disseminated throughout the hospital, several doctors, including Dr. Goyal, "became concerned over [plaintiff's] ability to properly treat patients and for a time he would not refer patients that he otherwise would have referred but for the allegations that [plaintiff] had negligently severed a patient's artery." Plaintiff further alleged that as a result of Dr. Conway's statement, plaintiff experienced a drop in his business income from 2006 to 2007 in the amount of $861,506.

¶ 16 On June 16, 2009, the trial court granted defendants' motion to dismiss, pursuant to section 2-615 of the Illinois Code of Civil Procedure (735 ILCS 5/2-615 (West 2008)), counts I and III of plaintiff's third amended complaint, which, as noted, alleged that slander per quod by Dr. Painter and Dr. Conway, respectively. Count II of the third amended complaint, which alleged violation of the Medical Studies Act by Dr. Painter, remained pending. In one of its written orders, the trial court also found that there was no just reason to delay enforcement or appeal of those orders pursuant to the Illinois Supreme Court Rule 304(a) (Ill. S. Ct. R. 304(a) (eff. Jan 1, 2006)).

¶ 17 Plaintiff filed a motion to reconsider the trial court's dismissal orders entered on June 16, 2009, which the trial court denied on November 5, 2009. On December 7, 2009, plaintiff filed his notice of appeal from the judgment orders entered on June 16, 2009 and the denial of the motion to reconsider.*fn1

¶ 18 On January 28, 2010, the trial court entered an order in which it found that no just reason to delay an appeal under Supreme Court Rule 304(a) from prior orders entered by the trial court on October 29, 2008, dismissing the counts of slander per se and the count of a violation of the Medical Studies Act by Dr. Conway, in plaintiff's first amended complaint. On March 2, 2010, plaintiff apparently filed a notice of appeal from the orders entered on October 29, 2008, and two days later, on March 4, 2010, he apparently filed a document titled "motion for an extension of time in which to file late notice of appeal, joining prior appeal." It also appears that on March 9, 2010, this court granted that motion. None of these documents, including the order granting plaintiff's motion, are contained in the record, and are found only in the appendix to defendants' brief. None of the parties appear to have objected to the fact that the foregoing documents are not included in the record, but were included only in defendants' appendix. Nevertheless, for the reasons discussed below, we have concluded that we lack jurisdiction to entertain the appeal.

¶ 19 ANALYSIS

¶ 20 1. Slander Per Se by Dr. Painter and Dr. Conway and Violation of the Medical Studies Act by Dr. Conway

ΒΆ 21 On appeal from the trial court's orders entered on October 29, 2008, which dismissed plaintiff's claims of slander per se against Dr. Painter and Dr. Conway, and plaintiff's claim of violation of the Medical Studies Act by Dr. Conway pursuant to counts I, III and IV of plaintiff's first amended complaint, plaintiff first contends that the trial court erred in dismissing his claims of slander per se because defendants' statements were not entitled to protection under the innocent construction rule. Plaintiff further contends that the trial court erred in dismissing his claim of violation of the Medical Studies Act by Dr. Conway because information gathered before a meeting of the hospital's peer review committee is not immunized by absolute privilege. We have determined that we cannot reach the merits of plaintiff's appeal from those orders ...


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