Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Horlacher v. Cohen

Court of Appeals of Illinois, First District, Fourth Division

December 21, 2017

BARBARA S. HORLACHER, Plaintiff-Appellant,
v.
WILLIAM J. COHEN, D.D.S., Defendant-Appellee.

         Appeal from the Circuit Court of Cook County No. 15 M2 2084 The Honorable Thaddeus Machnik Judge, presiding.

          JUSTICE GORDON delivered the judgment of the court, with opinion. Presiding Justice Burke and Justice Ellis concurred in the judgment and opinion.

          OPINION

          GORDON, JUSTICE

         ¶ 1 Plaintiff Barbara S. Horlacher filed a pro se complaint in Cook County circuit court alleging malpractice by her dentist, defendant William J. Cohen. On this appeal, plaintiff appeals both (1) the trial court's order, dated June 1, 2016, dismissing her third amended complaint with prejudice and (2) the trial court's order, dated September 21, 2016, denying her motion to reconsider.

         ¶ 2 For the reasons discussed below, we find (1) that the trial court correctly dismissed plaintiff's third amended complaint on June 1, 2016, when plaintiff failed to include a statutorily required written report from another dentist concluding that "a reasonable and meritorious cause" for her action existed (735 ILCS 5/2-622(a)(1) (West 2014)) and (2) that the trial court did not abuse its discretion by subsequently denying plaintiff's motion to reconsider, when plaintiff included the required report in support of this motion-although the trial court had already given plaintiff three previous chances, over the course of an entire year, to amend her complaint and attach a report supporting her claims. For the following reasons, we affirm.

         ¶ 3 BACKGROUND

         ¶ 4 I. Original Complaint

         ¶ 5 On May 28, 2015, plaintiff filed a pro se complaint against defendant, alleging dental malpractice in connection with his treatment of tooth No. 31. Specifically, the complaint alleged:

"Damage and/or loss of four 2nd (second) molar teeth due to infection and/or fracture of 2nd molar #31 by Dr. William Cohen as he entered Tooth #31's cap with a drill causing a fracture with bone marrow oozing into tooth #31. This suit represents the cost to replace these four teeth with dental implants and nowhere near approach[e]s medical and antibiotic costs ensued nor possible loss of all of my teeth, nor death of two of my older doctors from infection by my gram positive staph infection which was systemic. This was a case of intent. Also, Dr. Wm. J. Cohen never informed me of this fracture. Negligence." (Emphasis in original.)

         ¶ 6 On July 6, 2015, plaintiff moved to amend her complaint and a day later, on July 7, 2015, defendant moved to dismiss, claiming, first, that plaintiff failed to file an affidavit, as required by section 2-622 of the Code of Civil Procedure (Code) (735 ILCS 5/2-622(a)(1) (West 2014)), that she had consulted and reviewed the facts of the case with a licensed dentist who had determined there was a reasonable and meritorious cause for filing suit. Second, defendant claimed that plaintiff failed to state the dates of treatment and, thus, failed to allege that the suit fell within the two-year statute of limitations. 735 ILCS 5/13-212(a) (West 2014) ("no action for damages for injury *** against any *** dentist *** arising out of patient care shall be brought more than 2 years after the date on which the claimant knew *** of the existence of the injury").

         ¶ 7 II. First Amended Complaint

         ¶ 8 On July 13, 2015, plaintiff filed her first amended complaint, which, like the original complaint, alleged malpractice in connection with the treatment of tooth No. 31. Specifically, the first amended complaint alleged:

"Damage or loss to molar #31 and all other second molars and gums by infection and fracture of molar #31 by Dr. William J. Cohen as he entered tooth #31's cap with a drill causing bone marrow to ooz[e] into tooth #31. Damages include pain and suffering due to gram positive infection, repeat peridontal care, root canal work, oral surgery and medical care including medications, all of which are due to Dr. William J. Cohen's negligence in 2008. Dr. Wm. J. Cohen never told me the tooth was fractured! (#31). Brief to follow. Affidavit to follow." (Emphases in original.)

         ¶ 9 On July 13, 2015, plaintiff also filed a pro se brief in which she claimed (1) that her reviewing endodontist was out of town but that she could file her own affidavit because she was a registered health professional and (2) that the date of treatment was approximately August 2008. Plaintiff attached her own affidavit and documents showing that she was a technologist in hematology.

         ¶ 10 On July 13, 2015, the trial court granted plaintiff leave to file her first amended complaint.

         ¶ 11 On September 8, 2015, plaintiff moved to amend her first amended complaint (1) to add a claim with respect to the " 'res ipsa loqu[itu]r' doctrine to [her] negligence" claim; and (2) to add claims of "possible manslaughter and elder abuse in regard to [plaintiff], due to gram positive infection" and because "it was not possible to extract tooth #31 as [she] was on prescribed periactin which interferes with platelet and bleeding function."

         ¶ 12 On September 9, 2015, the trial court granted defendant's motion to dismiss the first amended complaint "without prejudice" and granted plaintiff "28 days until October 7, 2015 to file her final amended complaint with proper affidavits attached."

         ¶ 13 III. Second Amended Complaint

         ¶ 14 On October 8, 2015, a day after it was due, plaintiff filed her second amended complaint, which, like her prior complaints, alleged dental malpractice in connection with the treatment of tooth No. 31.[1] However, this complaint added the date of treatment of that tooth, which was September 2, 2008. In addition, the complaint alleged that plaintiff did not leave defendant's care until May 21, 2013, that she did not discover the injury until May 30, 2013, that she filed suit within two years of the date of discovery, and that she had received her dental records from defendant but they were incomplete.

         ¶ 15 Specifically, the second amended complaint alleged:

"Loss of Molar #31 due to vertical root fracture, breakage and damage of all other second molars, decay and chipped right front incisor, inflammation of gums by infection and fracture of molar #31 by Dr. William J. Cohen as he entered tooth #31's cap with a dental drill causing bone marrow (per Dr. Russell Baer) to ooz[e] into tooth #31. Damages include pain and suffering due to gram positive, life-threatening infection (systemic), need for repeat periodontal treatment, root canal work, oral surgery with bone graft and medical care including medications; all of which are due to Dr. William J. Cohen's negligence on 9-2-08. Also there is the cost of implantation.
My dental records subpoen[a]ed from Dr. Cohen's office state that when I arrived in Dr. Cohen's office to get my teeth cleaned on Aug. 19, 2008, both my teeth and gums were healthy and in good condition. When I left Dr. Cohen's care on May 21, 2013, I had broken and chipped teeth, inflammed [sic] gums with life-threatening infection, decay, an urgent need of a cap on molar #18, a vertical root fracture in molar #31 and missing x-rays a month apart as well as other missing records (letter sent out) after paying a total of a little over $14, 500.
I am claiming negligence during the course of dental treatment, relying on the doctrines 'res ipsa loquitur' and failure to inform of the consequences of the procedures. The abscess near the root of molar #31 did not begin to form until 10 months into treatment. The cap of molar #31 was removed because it had a hole in it. This was a puncture injury which the staph bacteria have a great affinity for! This x-ray was missing from the subpoena[ed] records as well as the initial full mouth x-rays, back-up systems exist to prevent loss of computer records. Records were lost here prior to 7 year retention laws! This is negligence too.
I did not know that I had a systemic infection from a dental cause nor that I had a vertical root fracture of molar #31 until the surround disc (Exhibit B) was taken on 5-30-13 by the endodontist. I filed this lawsuit a few days short of two years from 5-30-13 as it relates to the statute of limitations. A reasonable dentist would have informed a patient of the consequences of the procedures prior to treatment, giving them a chance to get a second opinion or decline treatment for any reason including financial at that time. Standard periodontal treatment as was performed at the University of Chicago two years before, may have been all that was necessary. We intend to make use of 'res ipsa loquitur' as defined by section 2-113 of the Code of Civil Procedure. There appears to be some tampering with dental records. We will attempt to prove intent as it relates to 'statute of limitations.' " (Emphases in original.)

         ¶ 16 In addition, plaintiff submitted her own affidavit, which averred that she had "consulted and reviewed the facts of the case *** with the Reviewing Health Professional" who was a dentist.[2] Plaintiff also included a signed letter from a dentist recommending extraction of tooth No. 31 and a "Reviewing Dental Professional's Written Report" which discussed almost exclusively tooth No. 31

         ¶ 17 On November 10, 2015, defendant moved to dismiss on several grounds including (1) that any claims concerning tooth No. 31 were barred by the statute of limitations and the statute of repose, (2) that any claims concerning the treatment of other teeth failed to state the dates of treatment, and (3) that the "Reviewing Dental Professional's Written Report." concerned only tooth No. 31. Defendant moved to dismiss pursuant to sections 2-615, 2-619 and 2-622 of the Code (735 ILCS 5/2-615, 2-619, 2-622 (West 2014)).

         ¶ 18 On December 2, 2015, plaintiff filed a brief in which she claimed, among other things, fraudulent concealment by defendant, and she attached exhibits including her dental records. On December 18, 2015, defendant filed a reply in which he argued, among other things, that plaintiff failed to allege any statements or acts by defendant that would constitute fraudulent concealment.

         ¶ 19 On January 13, 2016, the trial court granted defendant's motion to dismiss without prejudice and granted plaintiff "leave to file her Third and Final Amended Complaint no later than February 16, 2016."

         ¶ 20 IV. Third Amended Complaint

         ¶ 21 On February 16, 2016, plaintiff filed her third amended complaint, consisting of five handwritten pages that sought damages for allegedly negligent dental treatment by defendant with respect to tooth No. 31, as well as other teeth. Although the complaint provides some dates, it does not distinguish between those dates when the allegedly negligent treatment was performed by defendant and those dates when the alleged injuries were discovered by other dentists. Thus, for example, the complaint alleges that there was a "deep drill injury" to tooth No. 31 on September 2, 2008, which apparently was done by defendant based on prior documents. However, the complaint further alleges that tooth No. 18 collapsed between September 2, 2008, and March 12, 2010, without specifying whether defendant or some other dentist was treating her on March 2, 2010. The complaint also alleges that she received "treatment of molars #18, #31 and gums" "on 3-12-10" and "5-11-10 to present" without stating who was treating her during this time. The complaint also makes allegations concerning an "Invisalign" treatment under a heading that states "2-28-09 to 7-7-09 plus."

         ¶ 22 With respect to the statutes of limitation and repose, plaintiff alleged that she filed her first complaint on May 28, 2015, and that "I did not know that I had a systemic infection from a dental cause nor that I had a vertical root fracture of molar #31 until the disc (Exhibit B) was taken on 5-30-13 by the endodontist." Plaintiff alleged that defendant tried "getting past the statutes of limitation and repose" when he told her to find a dentist to do a "hemisection" when he knew no one would do this procedure and when he blamed the condition of tooth No. 31 on her endodontist "as a failed root canal." (Emphasis in original.)

         ¶ 23 Plaintiff also alleged that she needed missing X-rays, which she claimed that defendant was required to keep for 12 years. Plaintiff claimed that she should have 90 days after receipt of the X-rays in order to file a written report, and she requested that the court not rule on the limitation and repose statutes until after depositions were taken concerning the incomplete records.

         ¶ 24 Attached to the third amended complaint was an affidavit from plaintiff, which averred, in relevant part, about the missing records:

"The dental records of [plaintiff] arrived by certified mail incomplete on August 1, 2015. The missing initial full-mouth x-rays would verify the presence of decay and thus the necessity for treatment of tooth #30 and #31 on 9-2-08 or any other lower teeth which is not true for a computer image ***. The missing x-ray of tooth #31 dated 7-7-09 would verify the treatment of tooth #31 on 7-7-09 *** beginning of a root ab[s]cess in Tooth #31, ten months after the drill injury on 9-2-08 to the capped tooth #31."

         ¶ 25 Plaintiffs affidavit did not attach a written report from a reviewing dentist. 735 ILCS 5/2-622(a)(1) (West 2014) ("A copy of the written report, clearly identifying the plaintiff and the reasons for the reviewing health professional's determination that a reasonable and meritorious cause for the filing of the action exists, must be attached to the affidavit ***."). However, plaintiffs affidavit averred that she was executing her affidavit-not pursuant to subsection (a)(1) of section 2-622 of the Code-but alternatively pursuant to subsection (a)(3) which permits an affidavit averring that plaintiff made a request for records and defendant failed to produce them. 735 ILCS 5/2-622(a)(3) (West 2014) (plaintiff "shall file an affidavit, attached to the original and all copies of the complaint, declaring one of the following: *** 3. That a request has been made by the plaintiff *** for *** records *** and the party required to comply *** has failed to produce such records within 60 days").

         ¶ 26 On March 14, 2016, defendant moved to dismiss plaintiffs third amended complaint, claiming, among other things, that her action was barred by the relevant statutes of limitations and repose and that she failed to file a written report of a reviewing dentist as required by statute. Defendant again moved to dismiss pursuant to sections 2-615, 2-619 and 2-622 of the Code (735 ILCS 5/2-615, 2-619, 2-622 (West 2014)). Defendant's motion claimed that plaintiff alleged damages resulting from defendant's treatment of (1) tooth No. 31 on September 2, 2008, (2) tooth No. 18 between September 2, 2008, and March 12, 2010, (3) tooth No. 7 on July 18, 2011, and (4) teeth Nos. 15 and 2 on unspecified dates.

         ¶ 27 With respect to plaintiff's allegations of missing records, defendant's motion argued in relevant part:

"[Plaintiff] was provided copies of all of the records and x-rays in [defendant's] files via a letter from [defendant's] attorneys dated July 29, 2015. *** There are no ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.