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Richard Kopolovic v. Kamlesh Shah and Midwest Center For Day Surgery

March 12, 2012


Appeal from the Circuit Court of Du Page County. No. 07-L-1135 Honorable Hollis L. Webster, Judge, Presiding.

The opinion of the court was delivered by: Justice Schostok

JUSTICE SCHOSTOK delivered the judgment of the court, with opinion. Justices Bowman and Burke concurred in the judgment and opinion.


¶ 1 The plaintiff, Dr. Richard Kopolovic, brought suit against Dr. Kamlesh Shah and the Midwest Center for Day Surgery, LLC (MCDS), alleging that communications by Dr. Shah had defamed Dr. Kopolovic and subjected him to a false light invasion of privacy, that Dr. Shah was the agent of MCDS, and that MCDS had been negligent in its handling of the matter. The trial court granted summary judgment in favor of the defendants on the grounds that (1) the communications at issue were privileged by section 8-2101 of the Code of Civil Procedure (known as the Medical Studies Act) (735 ILCS 5/8-2101 et seq. (West 2008)); (2) the communications were also protected by a common-law conditional privilege; and (3) the statements in the communications were substantially true. Dr. Kopolovic appealed. We reverse and remand.


¶ 3 The following facts are drawn primarily from the deposition testimony and exhibits submitted by the parties in connection with the defendants' motions for summary judgment and, except as noted, are undisputed. The facts provided here are only an outline; additional facts pertinent to specific legal arguments are discussed in conjunction with those arguments.

¶ 4 MCDS operated a surgery center in Downers Grove. Dr. Shah, an anesthesiologist, was an employee of Anesthesia Services, Ltd., a group of anesthesiologists who had a contract with MCDS to provide anesthesiology services at MCDS. Dr. Shah had staff privileges at MCDS, and MCDS did the billing for all of the services Dr. Shah performed at MCDS. Dr. Kopolovic was a plastic surgeon who performed procedures at MCDS and at other medical facilities in the Hinsdale area.

¶ 5 On April 26, 2007, Dr. Kopolovic wrote to the insurer of a female patient who had been diagnosed with an umbilical hernia, seeking advance authorization for two surgical procedures: repair of the hernia and "excision and revision to correct the abdominal wall deformity." The "abdominal wall deformity" was two old scars from a Caesarian section and an appendectomy.

¶ 6 On May 8, 2007, Dr. Kopolovic performed the abdominal surgery and two other, unrelated, cosmetic procedures on the patient at MCDS. Dr. Shah was the anesthesiologist for the surgery. The patient's surgical consent form listed three scheduled procedures, including the hernia repair and the two unrelated cosmetic procedures, but did not list the excision of the old scars. The surgery took several hours. When Dr. Kopolovic was completing the hernia repair, he removed "excess lower abdominal skin and fat" in closing the incision. Dr. Kopolovic and his expert witness contended that this removal was a normal part of the closure of an umbilical hernia repair incision. Dr. Kopolovic's postoperative report listed four surgical procedures: the two unrelated cosmetic procedures, the hernia repair, and "excision of multiple abdominal scars and repair and revision." The hernia repair was billed to the patient's insurer, while the cosmetic procedures were paid for by the patient in advance. There is no suggestion in the record that the patient suffered any adverse consequences from the surgery or was dissatisfied with any aspect of it.

¶ 7 Dr. Shah, however, apparently became concerned that, in light of the manner in which the surgery and closure were performed by Dr. Kopolovic, the surgery was in fact an abdominoplasty (a cosmetic procedure commonly known as a "tummy tuck") rather than the repair of an umbilical hernia. Dr. Shah voiced his concerns to Dr. Griesemer, the chair of the anesthesia department at Advocate Good Samaritan Hospital in Hinsdale. Dr. Griesemer told Dr. Shah to talk to Dr. John Martucci, the chair of Anesthesia Services' MCDS practice and a member of the MCDS board of directors. On Dr. Martucci's advice, Dr. Shah also spoke with Dr. John Wander, the president of the MCDS board. He spoke with Dr. Wander at least twice between May 8 and May 16, 2007. Dr. Wander advised Dr. Shah that if he had any concerns about anything, he should put them in writing and bring them to the board's attention.

¶ 8 Dr. Shah drafted a memorandum, which was eventually typed up on the letterhead of Advocate Good Samaritan Hospital and read as follows:

"To: The Board Members and Consulting Committee at [MCDS] From: Dr. Kamlesh Shah Date: May 16, 2007 Re: Unethical Practice at [MCDS] Cc: Dr. Frank Madda, Dr. John Wander, Dr. John Martucci, Dr. Jane Dillon, Dr. Richard Bulger, Dr. Kopolovich [sic]

Dear Sir/s, Madame,

I would like to bring your attention [sic] a case that I happened to be involved with on May 7 [sic], 2007 at [MCDS]. This is regarding *** a 46 year old female who underwent cosmetic surgery at [MCDS]. Dr. Kopolovich [sic] performed the surgery. The patient was scheduled for 5 hours of procedure-(liposuction, blepharoplasty, and umbilical hernia repair). As I observed, the patient had minimal or no umbilical hernia but underwent full addominoplasty [sic]-disguised as umbilical hernia repair. As opposed to the usual and customary practice of patient making full advanced [sic] payments to the center and to the Anesthesiologist, only partial payment was collected from the patient as part was billed to the insurance company for the repair of the umbilical hernia. Financial arrangements aside, I think it is unethical to perform a surgery which is not on the consent or on the schedule. In my opinion this is a deceptive practice that needs to be brought to the attention of the consulting committee and the board of directors at [MCDS].

When I asked the nurses about how the center could allow this kind of deceptive practice, they told me that this is not the first time and not the first plastic surgeon involved. In the past, other cosmetic surgeons also have done something similar. With this conversation, I felt compelled to bring this to everyone's attention. I don't have anything personal against any of the individuals involved in this but am writing this to stop this unethical and deceptive practice which can also be a cause for legal actions against the center and all other individuals involved by either the insurance company and/or patients.

Thank you for your attention to this matter.

Sincerely, [signature] Dr. Kamlesh Shah"

Dr. Shah did not review the patient's medical file, the billing records, or the records relating to the surgery before creating the memorandum.

¶ 9 Dr. Shah distributed the memorandum in sealed envelopes to persons whose names were given to him by Drs. Martucci and Wander, although at the time of his deposition he did not recall who those persons were. MCDS's board of directors had physician and nonphysician members; there is no evidence regarding whether all members of the board received the memorandum. Further, although the memorandum was also addressed to the consulting committee of MCDS, a body that served as a peer review and credentialing committee for MCDS, the record does not reflect whether the members of that committee (who are almost wholly distinct from the persons on the board of MCDS) actually received the memorandum.*fn1 Similarly, although Dr. Kopolovic was listed among the persons copied on the memorandum, he testified that he did not receive the memorandum until June 20, 2007, when Dr. Dillon (the medical director of MCDS, a member of the MCDS board, and the chair of its consulting committee) provided a copy to him.

¶ 10 When Dr. Dillon received the memorandum in her mailbox at Advocate Good Samaritan Hospital, she undertook to investigate it because as medical director of MCDS she was responsible for investigating incident reports such as the memorandum. Thereafter, she spoke with Dr. Kopolovic on the telephone and met with him on June 20, 2007, when she gave him the memorandum. She also met with him a few days later, at which point he showed her intra-operative photos. Dr. Dillon asked Dr. Kopolovic to attend the June 25, 2007, board meeting, but he was unable to do so as he was leaving the country for a scheduled family vacation. Thereafter, communications broke down. Dr. Kopolovic never appeared before the board and, according to Drs. Dillon and Wander, the board's investigation of the issues raised in the memorandum is still pending. Dr. Kopolovic filed the present suit against Dr. Shah and MCDS on October 29, 2007.

¶ 11 For the purposes of this appeal, the relevant complaint is the second amended complaint, filed on October 7, 2009. Counts I and II were against Dr. Shah, claiming that he had engaged in defamation per se and false light invasion of privacy. Counts III and IV were against MCDS. Count III alleged that Dr. Shah was an agent of MCDS and that MCDS was vicariously liable for Dr. Shah's torts. Count IV alleged that MCDS was directly liable in negligence because it owed Dr. Kopolovic a duty of care, relating to its investigation of the memorandum, which it breached.

ΒΆ 12 In July 2010, Dr. Shah and MCDS each filed a motion seeking summary judgment. They argued that Dr. Shah's memorandum was protected by the Medical Studies Act (735 ILCS 5/8-2101 et seq. (West 2008)); it was also protected by a common-law conditional privilege; and it was substantially true. These arguments were directed toward the defamation claim; the defendants argued that the other claims could not stand if the memorandum was found to be privileged or otherwise not defamatory. In addition, MCDS argued that Dr. Shah was not its employee and that it therefore could not be vicariously liable for his actions, and that it had not been negligent. The motions were fully briefed, with substantial deposition testimony presented by both parties in support of their arguments. In addition to the testimony described above, Dr. Shah's expert witness opined that Dr. Kopolovic had performed an abdominoplasty on the patient and had conspired with the patient to bill the procedure as an umbilical hernia repair, thereby defrauding the insurance company, MCDS, and Dr. Shah. Dr. Kopolovic's expert witness opined to the contrary that the removal of excess fat and skin from the patient was a normal and expected part of an umbilical hernia repair. On January 11, 2011, the trial court heard oral argument. Immediately following oral argument, the trial court granted the motions for summary judgment "for the reasons set forth in the record," which were as follows: (1) the memorandum was privileged under the Medical Studies Act; (2) it was also conditionally privileged; and (3) it was substantially true. The trial court stated that it was required to ...

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