Feeney v. Toriumi
2022 IL App (1st) 211110-U
| Ill. App. Ct. | 2022Background
- Plaintiff Jeffrey Feeney underwent nasal surgery and alleges surgeon Dr. Dean Toriumi performed additional unconsented procedures (septum/nose correction).
- Feeney originally sued for medical battery (against surgeon and surgical center) and later added medical malpractice counts; defendants moved to dismiss under section 2-619 for lack of the section 2-622 affidavit/report.
- The circuit court dismissed Feeney’s original complaint without prejudice for failure to attach the 2-622 affidavit/report and allowed him to amend; Feeney argued battery claims do not require 2-622 because they allege lack of consent.
- Feeney filed an amended complaint attaching a 2-622 affidavit/report, repleading medical battery counts (citing Foxcroft to preserve appeal) and asserting malpractice counts; defendants answered only the malpractice counts and noted the batteries were replead for preservation.
- The circuit court dismissed the medical battery counts with prejudice, denied a default, then (over defendants’ objection) entered a Rule 304(a) finding that there was no just reason to delay appeal; Feeney appealed the dismissal.
- The appellate court held it lacked jurisdiction because the dismissed battery counts and the remaining malpractice counts arose from the same operative facts, so the dismissal was not a final, appealable order under Rule 304(a).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court’s Rule 304(a) finding made the dismissal of medical battery counts immediately appealable | Feeney: battery counts are distinct claims from malpractice and thus their dismissal is separately appealable under Rule 304(a) | Defendants: Rule 304(a) cannot make nonfinal orders final when related claims remain; battery and malpractice arise from same facts | Court: Dismissal not final because malpractice counts based on same operative facts remained; Rule 304(a) language cannot create finality |
| Whether the appeal was moot because Feeney later filed a section 2-622 affidavit/report with the amended complaint | Feeney: filing the affidavit/report in the amended complaint did not erase the previous dismissal or bar appellate review of the dismissed battery counts | Defendants: the affidavit/report cured the original defect, rendering any earlier dismissal moot | Court: Did not reach mootness on merits because primary jurisdictional defect was nonfinal order; appeal dismissed for lack of jurisdiction |
Key Cases Cited
- Bonhomme v. James, 2012 IL 112393 (discussing Foxcroft rule and preserving dismissed counts by repleading)
- Blumenthal v. Brewer, 2016 IL 118781 (Rule 304(a) cannot render an otherwise nonfinal order final)
- Foxcroft Townhome Owners Ass'n v. Hoffman Rosner Corp., 96 Ill. 2d 150 (repleading dismissed counts to preserve appellate review)
- Davis v. Loftus, 334 Ill. App. 3d 761 (dismissal where related claims remain is nonfinal; appeal dismissed for lack of jurisdiction)