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Chernyakova v. Puppala

Court of Appeals of Illinois, First District, First Division

August 5, 2019

ELENA CHERNYAKOVA, Plaintiff-Appellant,
VINAYA PUPPALA, M.D.; NORTHWESTERN MEMORIAL HOSPITAL; and MCGAW MEDICAL CENTER OF NORTHWESTERN UNIVERSITY, Defendants Northwestern Memorial Hospital and McGaw Medical Center of Northwestern University, Defendants-Appellees.

          Appeal from the Circuit Court of Cook County No. 13 L 9220 The Honorable Jerry A. Esrig, Judge Presiding.

          JUSTICE PIERCE delivered the judgment of the court, with opinion. Presiding Justice Mikva and Justice Griffin concurred in the judgment and opinion.



         ¶ 1 Plaintiff Elena Chernyakova sued Northwestern Memorial Hospital (Northwestern), McGaw Medical Center of Northwestern University (McGaw), and Vinaya Puppala, M.D., alleging that while she was hospitalized at Northwestern, Puppala-without plaintiff's consent- electronically accessed her medical chart, and took and posted photos of her on social media. The circuit court of Cook County entered summary judgment in favor of Northwestern and McGaw (collectively defendants). Plaintiff proceeded to trial against Puppala. During the trial before a different judge, plaintiff and Puppala settled and requested a "hearing" where their attorneys outlined the terms of the "confidential" settlement. At the request of the parties, the trial court sealed the transcript of the hearing. Shortly after the settlement, plaintiff filed this appeal of the summary judgment orders entered in favor of defendants. While this appeal was being briefed, defendants obtained information about the terms of the settlement agreement that, in their view, called into question the validity of the factual underpinnings of this lawsuit. Defendants moved the trial court to unseal the transcript of the settlement proceedings so that the transcript could be considered in this appeal-even though those proceedings had no direct connection to the summary judgment proceedings-in support of their motion to dismiss this appeal and for sanctions pursuant to Illinois Supreme Court Rule 375 (eff. Feb. 1, 1994). The trial court ultimately unsealed the settlement transcript and the parties agreed that it would be filed in this court under seal. Upon filing, we reviewed the settlement transcript. Thereafter, we ordered defendants to file an amended motion to dismiss and for sanctions, and allowed plaintiff time to file a response thereto.

         ¶ 2 Our review of summary judgment orders is typically limited to the materials of record that were before the circuit court at the time summary judgment was entered. State Farm Mutual Automobile Insurance Co. v. Stuckey, 112 Ill.App.3d 647, 649 (1983). This case, however, presents a unique situation that-given our responsibility to "strive to enhance and maintain confidence in our legal system" (Code of Judicial Conduct, Preamble) and our obligation to do substantial justice-has required us to consider events that have been brought to our attention that occurred after entry of these judgments. We find that the contents of the unsealed settlement transcript, as well as other materials contained in the supplemental record before us, lead to the inescapable conclusion that this appeal is frivolous and is being pursued in bad faith. Pursuant to our inherent authority under Supreme Court Rule 366(a) (eff. Feb. 1, 1994) and for the reasons that follow, we dismiss this appeal and grant defendants' request for sanctions under Supreme Court Rule 375 (eff. Feb. 1, 1994). Furthermore, the clerk of this court is directed to forward a copy of this opinion to the Illinois Attorney Registration and Disciplinary Commission (ARDC) for its consideration.

         ¶ 3 I. BACKGROUND

         ¶ 4 Plaintiffs complaint alleged that in the early morning of June 13, 2013, plaintiff was transported by ambulance from the Chicago lounge Cuvée to the emergency room at Northwestern, where she was admitted for alcohol intoxication. When she awakened in the emergency room around 11:45 a.m., either plaintiff or her friend contacted Puppala, a fellow in McGaw's Multidisciplinary Pain Medicine fellowship program at Northwestern, and told him that plaintiff was in the hospital. Plaintiff and Puppala knew each other socially; they first met in the winter or spring of 2013, socialized as part of a group on several occasions, and they met alone on two occasions prior to June 2013.

         ¶ 5 On June 13, 2013, Puppala visited plaintiff twice at Northwestern. The first visit occurred around noon while plaintiff and her friend were in a private bay in the emergency room. Puppala used his credentials to view plaintiffs electronic medical chart and spoke with plaintiffs treating physician regarding her progress and possible discharge. Whether plaintiff consented to Puppala accessing her medical records and speaking with her treating physician was disputed in the circuit court. The second visit occurred around 3 p.m., after plaintiff had been moved from a private bay to the hallway. Puppala took photographs of plaintiff while she was in her hospital bed in a hospital gown attached to an IV with a towel over her head. Puppala posted the photographs to his Instagram and Facebook accounts, along with a caption that read "Post-Cuvée #bottle #service #gone #bad." Although plaintiff was not named or tagged in the posts, several of plaintiffs acquaintances recognized her as the person in the photo. Whether plaintiff consented to Puppala taking plaintiffs photograph was also disputed in the circuit court. It is undisputed, however, that during his time in the fellowship program, Puppala had disciplinary issues related to his performance, with interacting with patients and patients' families, and with patients' privacy.

         ¶ 6 Counts I and II of plaintiff's second amended complaint asserted claims of invasion of privacy against defendants. She alleged that Puppala, without plaintiffs consent, "intruded upon seclusion" by accessing plaintiff s medical chart and taking photographs of her while she was hospitalized. She further alleged that defendants improperly caused or allowed the photographs of her hospitalization to be publicized, which were "private facts that were not a legitimate public concern." She alleged that Northwestern provided Puppala with substantial assistance in committing a tort by failing to prevent Puppala from having access to its computer systems and by failing to have proper procedures in place to prevent Puppala from taking photos of patients. Counts III and IV asserted claims for intentional and negligent infliction of emotional distress, respectively, alleging that Puppala's conduct, substantially assisted by Northwestern and McGaw, was extreme and outrageous and caused plaintiff severe emotional distress, and that Puppala either intended to cause plaintiff emotional distress, or his conduct was "recklessly or consciously done in disregard to the probability" of causing plaintiff emotional distress.

         ¶ 7 Count V asserted a claim of direct negligence against Northwestern and McGaw. Plaintiff alleged that defendants had a duty to protect "patients at their facilities from doctors who are a danger to the patients' physical, emotional, and mental well-being as well as a duty to protect their patients' privacy rights." She alleged that they breached that duty when they failed to prevent Puppala, whom they knew had a history of misbehavior, from having access to their facilities and computer systems, and that their breach proximately caused plaintiff's injuries. She further alleged that defendants' conduct warranted punitive damages. Finally, in an amendment to her second amended complaint, plaintiff alleged in counts VI-IX that Puppala was McGaw's agent, and that McGaw was therefore vicariously liable for Puppala's conduct as alleged in counts I-IV.[1]

         ¶ 8 Defendants moved for summary judgment on all of plaintiff s claims against them. On August 7, 2017, after briefing and a hearing, Judge Jerry A. Esrig entered summary judgment in favor of McGaw on count V in plaintiff's second amended complaint. Plaintiffs subsequent motion to reconsider was denied on August 30, 2017. On November 3, 2017, Judge Esrig entered summary judgment in favor of Northwestern on counts I-V of plaintiffs second amended complaint, and also entered summary judgment in favor of McGaw on counts VI-IX in plaintiff's amendment to her second amended complaint.

         ¶ 9 Plaintiff then proceeded to trial against Puppala before a different judge. On November 21, 2017, during trial, plaintiff and Puppala advised the trial judge that they had reached a settlement that required "the release of Puppala by [p]laintiff and a dismissal of him from this case with prejudice." At counsels' request, the trial judge held a "hearing," transcribed by an official court reporter, that consisted of counsel stating the amount Puppala agreed to pay, that plaintiff agreed to write favorable letters on Puppala's behalf stating the underlying allegations were "mistaken" and that she consented to the photos and the postings, and that the settlement was "confidential." Counsel prepared, and the trial judge entered, a series of orders, including a written order sealing the transcript of the November 21, 2017, hearing. Twenty days later, plaintiff filed a timely notice of appeal from the summary judgment orders entered by Judge Esrig. Puppala is not a party to this appeal.

         ¶ 10 While this appeal was pending, defendants filed a motion in the circuit court to unseal the November 21 hearing transcript and have it made a part of the appellate record. Attached to that motion was the affidavit of Mark J. Lura, one of Northwestern's attorneys, which averred that after the settlement, he "5. *** was informed that part of the aforementioned settlement involved Plaintiff providing Dr. Puppala with a document which would be used in defense of a pending investigation by the State of Georgia's Composite Medical Board reviewing Dr. Puppala's conduct which was at issue in this case. 6. It is my understanding that pursuant to the settlement, Plaintiff provided Dr. Puppala with a documented admission that she had given her consent to Dr. Puppala to take her picture."

         ¶ 11 After plaintiff filed her appellant's brief, defendants sought to stay this appeal pending the resolution of their motion to unseal the transcript. A different panel of this court denied the motion to stay and subsequently entered a final extension of time for defendants to file their appellate briefs. On February 22, 2019, in conjunction with the filing of their briefs, defendants moved this court to dismiss this appeal and for sanctions pursuant to Rule 375, asserting that Northwestern had

"obtained reliable information that the settlement agreement between Plaintiff and Puppala included Plaintiff's agreement to provide a document to Dr. Puppala stating that, at a minimum, the photographs were actually taken and posted to social media with her consent (in other words, that her claims in her lawsuit were without merit) with the intent that Puppala then could provide that letter to medical [sic] licensing board of the State of Georgia in order to obtain medical licensure in that state."

         ¶ 12 The motion further asserted that on February 14, 2019, the trial judge granted defendants' motion to unseal the November 21, 2017, hearing transcript for inclusion in the record on appeal, but-despite the circuit court's order- plaintiff's counsel Joel Brodsky had instructed the court reporter to not provide a copy of the transcript to defendants. As a result, defendants did not have access to the November 21 hearing transcript at the time they filed their appellate briefs or their joint motion to dismiss and for sanctions. Nonetheless, defendants asserted that, assuming their information was correct, plaintiff's appeal was frivolous and was not being pursued in good faith. Furthermore, defendants requested that we sanction plaintiffs ...

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