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Josh Tunca v. Thomas A. Painter

November 9, 2012


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

The opinion of the court was delivered by: Justice Taylor

JUSTICE TAYLOR delivered the judgment of the court, with opinion.

Presiding Justice McBride and Justice Palmer concurred in the judgment and opinion.


¶ 1 Plaintiff, Dr. Josh Tunca, appeals from an order of the circuit court of Cook County granting summary judgment in favor of defendant, Dr. Thomas Painter, on count II of his third amended complaint, which alleged that plaintiff's statements to other doctors about plaintiff's performance violated the confidentiality provisions of section 8-2101 of the Code of Civil Procedure, commonly referred to as the Medical Studies Act (Act) (735 ILCS 5/8-2101 et seq. (West 2010)). Plaintiff contends that he has a private right of action for defendant's violation of the Act and that, contrary to the trial court's findings, defendant's statements to other doctors about plaintiff's performance were privileged under the Act.


¶ 3 Plaintiff, a surgeon who specializes in gynecological oncology at Northwest Community Hospital, filed a complaint, which was amended three times, against defendant and Dr. Daniel Conway, who is not a party to this appeal. Each version of that complaint alleged, and the parties do not dispute, that on or about June 24, 2006, plaintiff surgically removed an ovarian tumor, and that shortly after surgery, the patient lost pulse in her left leg due to a clot in her femoral artery. Defendant, a vascular surgeon, was then called to perform a femoral-femoral bypass on the patient to restore the blood flow in her leg.

¶ 4 The complaint further alleged that on or about June 28, 2006, defendant approached Dr. John McGillan, the vice-president and medical affairs director for the hospital, and told him that plaintiff had cut the patient's left iliac artery during her first operation. Defendant thereafter stated, in the course of his work at the hospital and in the company of numerous other doctors and medical personnel, including Dr. Robert Glass, that plaintiff had negligently and inadvertently severed the patient's artery. According to the complaint, none of the doctors to whom defendant spoke was a member of any peer review committee for the hospital, and therefore, his statements constituted disclosure of privileged information in violation of the Act. Plaintiff alleged that defendant's statements became widely disseminated throughout the hospital and that, as a result of defendant's violation of the Act, plaintiff was injured in his professional reputation and lost patients from referral sources, which, in turn, caused a substantial decrease in his income.

¶ 5 In addition to his claim of violation of the Act, plaintiff initially alleged that defendant's statement constituted slander per se, but in his third amended complaint, he changed his theory to slander per quod. Plaintiff's complaints included similar claims of slander per se, slander per quod and violation of the Act by Dr. Conway, based on that doctor's own statements which are not pertinent to this appeal. The circuit court dismissed all counts against Dr. Conway and the counts of slander against defendant, thereby disposing of all issues other than the alleged violation of the Act by defendant. On appeal from that order, this court held in Tunca I that plaintiff's third amended complaint sufficiently alleged slander per quod against both doctors, but all other dismissed claims had been forfeited. Tunca v. Painter, 2012 IL App (1st) 093384 (Tunca I).

¶ 6 On July 23, 2010, while the appeal was pending in Tunca I, defendant filed a motion for summary judgment on the remaining count of plaintiff's third amended complaint, for defendant's alleged violation of the Act. In that motion, defendant alleged that there is no private right of action for an alleged violation of the Act because plaintiff is not a member of the class of persons that the statute was enacted to benefit and his alleged injury was not one that the Act was designed to prevent. He further argued that a private right of action is unnecessary to carry out the purposes of the Act or to encourage compliance because the Act provides for criminal sanctions and penalties. Alternatively, defendant argued that there was insufficient evidence of a causal connection between defendant's statements and plaintiff's reduction in patient referrals and income. Lastly, defendant claimed that his alleged statements to other doctors took place outside of any peer review process and, therefore, the confidentiality provision of the Act did not apply.

¶ 7 Attached to defendant's motion for summary judgment was plaintiff's discovery deposition, in which plaintiff acknowledged that defendant's statement to Dr. McGillan took place prior to any peer review or committee action and was "outside of peer review" because "nothing had started" at that time. Plaintiff further acknowledged that a committee meeting on this incident took place in February 2007, and that he participated in a peer review meeting in March or April of that year. He stated that defendant, who is a member of the surgical quality review committee, was present at that second meeting.

¶ 8 On October 14, 2010, the circuit court granted summary judgment in favor of defendant, finding that defendant's statements did not fall within the protections of the Act because they were made outside of peer review. Plaintiff filed a motion to reconsider, in which he claimed that the peer review process began almost immediately after he performed his surgery and, therefore, the Act was applicable to defendant's statements because they were made after the process began.

ΒΆ 9 Attached to plaintiff's motion was defendant's discovery deposition, in which he stated that the peer review process is automatically triggered when a patient is returned to surgery from recovery because of complications that occur after surgery. Defendant acknowledged that such was the case with plaintiff's patient, because he was called to perform additional surgery due to the numbness in her leg while she was recovering from her first surgery. He further stated that formal peer review is a committee meeting, but the peer review process encompasses a doctor's investigation of the case prior to that meeting. Defendant explained, however, that while he assumed that plaintiff's surgery would be referred to peer review, he did not know before the meeting whether the committee would, in fact, review that incident because he was not assigned to review plaintiff's case ahead of ...

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