Court of Appeals of Illinois, First District, Sixth Division
PHILIP W. SANDLER, Plaintiff-Appellant,
JERRY J. SWEET, Ph.D., NORTH SHORE MEDICAL GROUP, and NORTH SHORE UNIVERSITY HEALTH SYSTEM, Defendants-Appellees.
from the Circuit Court of Cook County No. 16 L 62008
Honorable Roger G. Fein, Judge, Presiding.
PRESIDING JUSTICE HOFFMAN delivered the judgment of the
court, with opinion. Justices Rochford and Delort concurred
in the judgment and opinion.
HOFFMAN PRESIDING JUSTICE.
1 The plaintiff, Philip W. Sandler, brought this action
against the defendants, Jerry J. Sweet, Ph.D, North Shore
Medical Group, and North Shore University Health System,
alleging medical negligence, common law fraud, and breach of
fiduciary duty. The circuit court granted the defendants'
motion to dismiss, finding that no physician-patient
relationship existed and, therefore, no duty of care was owed
to the plaintiff. The court subsequently denied the
plaintiff's motion for leave to file a second amended
complaint. For the reasons that follow, we affirm.
2 The following facts are derived from the various pleadings,
which we accept as true in the context of a motion to
dismiss. See Wackrow v. Niemi, 231 Ill.2d 418, 420
3 This case arises directly out of a medical negligence
action that the plaintiff filed in the circuit court of Cook
County (case No. 09 L 08290) against Advocate Good Samaritan
Hospital (Advocate). In that case, the plaintiff sought
damages for a brain injury he allegedly sustained after
attempting suicide while receiving inpatient psychiatric
treatment at Advocate. During the course of that litigation,
Advocate retained Dr. Sweet, a board certified clinical
psychologist and neuropsychologist, as a controlled expert
under Illinois Supreme Court Rule 213(f)(3) (eff. Jan. 1,
4 In February 2012, Dr. Sweet conducted a neuropsychological
evaluation of the plaintiff to determine the nature and
extent of his alleged brain injury. Dr. Sweet prepared a
written report of his findings and opined that the plaintiff
did not suffer a brain injury as a result of his suicide
attempt at Advocate. Two years later, in February 2014, Dr.
Sweet issued a supplemental report based upon his review of
additional medical records. The doctor acknowledged that the
additional medical records noted "consideration of brain
dysfunction in the form of hypoxic ischemic encephalopathy,
" but stated that his opinion remained the same.
Specifically, he stated that the plaintiff "does not
have a cognitive disability, does not have acquired brain
dysfunction[, ] *** [and] does not show evidence of executive
5 On February 4, 2016, the plaintiff filed the instant action
against Dr. Sweet and his employers, North Shore Medical
Group and North Shore University Health System. The
plaintiff's amended complaint sought recovery on theories
of medical negligence (count I), common law fraud (count II),
and breach of fiduciary duty (count III), all of which are
based exclusively upon Dr. Sweet's original and
supplemental reports provided in conjunction with the
plaintiff's underlying litigation against Advocate. The
plaintiff alleged that Dr. Sweet failed to correctly diagnose
his brain injury, which caused him harm because he failed to
seek "treatment and rehabilitation, which could have
enhanced his quality of life."
6 In June 2016, the defendants filed a motion to dismiss
pursuant to section 2-619(a)(9) of the Code of Civil
Procedure (Code) (735 ILCS 5/2-619(a)(9) (West 2016)),
contending that Dr. Sweet enjoys an absolute privilege from
civil liability for any statements he made during the course
of the underlying judicial proceedings. Alternatively, the
defendants argued that no physician-patient relationship
exists between Dr. Sweet and the plaintiff and, therefore,
Dr. Sweet owed no duty of care to the plaintiff. In support
of their motion, the defendants attached as Exhibit B, a
transcript of Dr. Sweet's deposition testimony in the
underlying case, in which he stated that he was retained as
an expert witness by counsel for Advocate.
7 In response, the plaintiff maintained that the doctrine of
absolute privilege applies only to experts appointed by the
court pursuant to Illinois Supreme Court Rule 215 (eff. March
28, 2011), and is limited to statements the expert made while
testifying at a deposition or at trial. According to the
plaintiff, because his claims are based upon statements made
in Dr. Sweet's written reports, and because Dr. Sweet
authored those reports before Advocate disclosed him as a
"controlled expert" under Illinois Supreme Court
Rule 213(f)(3) (eff. Jan. 1, 2007), Dr. Sweet is not immune
from civil liability. The plaintiff also disputed the
defendants' assertion that no physician-patient
relationship existed between himself and Dr. Sweet.
8 On August 4, 2016, the circuit court entered a written
order dismissing the plaintiff's amended complaint with
prejudice. The court observed that Dr. Sweet was retained by
Advocate, the plaintiff's adversary in the underlying
medical malpractice case, and his role was limited to
evaluating the nature and extent of the plaintiff's
alleged brain injury. The court further noted that Dr. Sweet
was not sought out by the plaintiff or by any other physician
caring for the plaintiff, did not report to the plaintiff,
and was not involved in the plaintiff's care or
treatment. The court concluded, therefore, that no
physician-patient relationship existed and Dr. Sweet owed no
duty of care to the plaintiff. On September 1, 2016, the
plaintiff filed a motion for reconsideration and a motion for
leave to file a second amended complaint, which the circuit
court denied. This timely appeal followed.
9 A section 2-619 motion to dismiss admits the legal
sufficiency of the plaintiff's claim but asserts that
certain defects or defenses exist outside of the pleadings
which defeat the claim. Sandholm v. Kuecker, 2012 IL
111443, ¶ 55. In reviewing a section 2-619 motion, the
court is obligated to construe the pleadings and supporting
documents in the light most favorable to the nonmoving party,
and to accept as true all well-pleaded facts in the
plaintiff's complaint. Bjork v. O'Meara,
2013 IL 114044, ¶ 21. We review an order granting a
section 2-619 motion de novo. Id.
10 The plaintiff's first contention on appeal is that the
circuit court erred in dismissing count I of his amended
complaint, which alleged that Dr. Sweet was medically
negligent for failing to diagnose him with a brain injury. We
11 In a negligence action for medical malpractice, the
plaintiff's complaint must allege facts that are
sufficient to show "the existence of a duty owed by the
defendant to the plaintiff, a breach of that duty, and an
injury proximately caused by that breach." Kirk v.
Michael Reese Hospital & Medical Center, 117 Ill.2d
507, 525 (1987). Whether a duty exists is a question of law
to be determined by the court. Id. In determining
whether a duty exists in a particular case, a court will
consider "the foreseeability of the plaintiff's
injury, the likelihood of the occurrence, the magnitude of
the burden of guarding against it, and the consequences of
placing that burden on the defendant." Doe v.
McKay, 183 Ill.2d 272, 278 (1998). Our supreme court has
stated that a physician's duty is limited ...