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In re Detention of Duke

Court of Appeals of Illinois, First District, Second Division

December 17, 2013

In re DETENTION OF TERRY DUKE Terry Duke, Plaintiff-Appellant,
Jacqueline Buck, Ph.D., and Kimberly Weitl, Psy.D., Defendants-Appellees Erin Busse, M.A., L.P.C. and Liberty Healthcare Corporation, Defendants.

Held [*]

In proceedings on a petition seeking plaintiff’s involuntary commitment as a sexually violent person, his counterclaims alleging that defendants, including psychiatrists and counselors, were guilty of medical and professional malpractice in diagnosing and treating him as a sexual sadist were properly dismissed, since he failed to seek proper leave to file the counterclaims, defendants had no duty to plaintiff, and defendants were immune from liability as agents of the State of Illinois.

Appeal from the Circuit Court of Cook County, Nos. 02-CR-80003, 11-MR-00031, 11-MR-00038; the Hon. William G. Lacy, Judge, presiding.

J. Nicolas Albukerk, of Albukerk & Associates, of Chicago, for appellant.

John A. Ousk and Julie A. Murphy, both of Patton & Ryan, LLC, of Chicago, for appellees.

Panel JUSTICE SIMON delivered the judgment of the court, with opinion. Presiding Justice Quinn and Justice Pierce concurred in the judgment and opinion.



¶ 1 Plaintiff Terry Duke appeals from the dismissal of two counterclaim/cross-claims (counterclaims) he filed as part of proceedings relating to the Illinois Attorney General's petition to involuntarily commit plaintiff as a sexually violent person pursuant to the Sexually Violent Persons Commitment Act. 725 ILCS 207/1 et seq. (West 2002) (Act). Plaintiff alleged that defendants Dr. Jacqueline Buck, Dr. Kimberly Weitl, licensed therapist Erin Busse, and Liberty Healthcare Corporation committed medical and professional malpractice by improperly diagnosing and treating plaintiff as a sexual sadist. Plaintiff sought damages for deprivation of comfort, companionship and affection, as well as lost gains and earnings resulting from his involuntary and unjust detainment due to the misdiagnosed and/or improperly validated disorders.

¶ 2 Dr. Weitl was not served with process and did not appear. The remaining defendants moved to dismiss the counterclaims on various grounds pursuant to section 2-619 of the Illinois Code of Civil Procedure. 735 ILCS 5/2-619 (West 2012). The circuit court granted the motions to dismiss, without prejudice. The court followed the rule announced in Lieberman v. Liberty Healthcare Corp., 408 Ill.App.3d 1102 (2011), that the filing of such a claim in a commitment proceeding is precluded until a favorable termination in the underlying proceedings is reached. Plaintiff only appeals the dismissal of his counterclaims against Drs. Buck and Weitl, arguing that the circuit court improperly interpreted Lieberman in dismissing his malpractice claims and that Lieberman actually supports his right to bring malpractice claims in the underlying case. Plaintiff also argues that the circuit court erred in dismissing the counterclaim against Dr. Weitl because the court lacked jurisdiction. Dr. Buck filed an appearance with this court, filed an appellate brief, and presented oral argument. Dr. Weitl did not file an appearance or take any part in the proceedings before this court. For the following reasons, we affirm the judgment of the circuit court.


¶ 4 Following numerous convictions for sexual offenses and a declaration that he was a habitual sex offender, plaintiff was imprisoned at the Dixon Correctional Center in July 1984 and was scheduled to be paroled on July 5, 2002. However, pursuant to section 10 of the Act, the Illinois Department of Corrections engaged Anthony T. Schaab, Ph.D., on April 11, 2002, to conduct a clinical evaluation of plaintiff to determine if plaintiff was a sexually violent person subject to commitment. Based upon the results of the evaluation, the Attorney General filed a petition to commit plaintiff as a sexually violent person on June 26, 2002.

¶ 5 Plaintiff was transferred to the Illinois Department of Human Services Sexually Violent Persons Treatment and Detention Center in Rushville, Illinois. On December 16, 2002, the circuit court found probable cause for plaintiff's detention pending a final adjudication of the petition for commitment. Plaintiff has filed several continuances and a trial has yet to be held on the Attorney General's petition. Plaintiff remains detained under the 2002 court order.

¶ 6 On February 9, 2009, the circuit court granted the Attorney General's request to appoint Dr. Buck to conduct an updated evaluation of plaintiff because of the delays in the proceedings and Dr. Schaab's retirement. Dr. Buck submitted a report in August 2009, the Attorney General was granted leave to amend her petition, and an amended petition was filed on October 27, 2010. The amended petition incorporated the evaluation by Dr. Buck and asserted that plaintiff suffered from three mental disorders that predispose him to engage in acts of sexual violence thereby requiring his confinement.

ΒΆ 7 Plaintiff did not file an answer to the amended petition. Instead, on August 29, 2011, plaintiff filed his counterclaim against Dr. Buck sounding in medical malpractice. On October 5, 2011, plaintiff filed his second counterclaim, naming Dr. Weitl, Busse and Liberty Healthcare as defendants. Plaintiff claimed that Dr. Weitl committed professional malpractice in diagnosing and treating plaintiff for the disorder "Paraphilia Not Otherwise Specified Sexually Attracted to Non-consenting Women/Females ('paraphilia non-consent')." Plaintiff alleged that Dr. Weitl indicated this disorder is addressed in the Diagnostic and Statistical Manual of Mental Disorders IV TR (DSM), but the disorder does not exist in the DSM. This issue was not dealt with by the ...

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