McDonald v. Lipov
13 N.E.3d 179
Ill. App. Ct.2014Background
- Michelle McDonald (pro se) sued multiple medical defendants for injuries from a 2007 RACZ caudal epidural procedure, alleging medical malpractice and medical battery among other claims.
- The trial court repeatedly ordered compliance with section 2-622 (affidavit of merit and health-professional’s report); McDonald failed to produce the required expert report despite extensions.
- The trial court dismissed McDonald’s amended complaint with prejudice; this court’s prior (unpublished) decision (McDonald I) affirmed dismissal of malpractice claims, found battery claims deficient under section 2-615, but held dismissing battery with prejudice was an abuse and remanded to allow repleading.
- On remand McDonald filed a 33-count second amended complaint repleading 10 medical-battery claims, restating nine previously-dismissed claims, and adding 14 new claims (fraudulent concealment, conspiracy, vicarious liability, spoliation).
- The trial court admitted Dr. Lipov’s affidavit that McDonald signed a written consent and that the Myelotec catheter is FDA-approved; it found McDonald failed to comply with section 2-622 and dismissed the second amended complaint with prejudice.
- On appeal the court affirmed: section 2-622 may apply to medical-battery claims that require expert evaluation; McDonald did not satisfy 2-622, repleaded claims barred by law of the case, and the court did not abuse discretion in denying new claims on remand.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether section 2-622 applies to McDonald’s medical-battery claims | McDonald: 2-622 does not apply to medical battery | Defendants: Battery claims that turn on whether treatment exceeded consent require expert proof under 2-622 | Held: 2-622 can apply where resolution requires medical expertise beyond lay comprehension; thus McDonald needed to comply |
| Whether McDonald’s section 1-109 verification satisfied 2-622(a)(3) | McDonald: her verified complaint (section 1-109) meets the affidavit requirement of 2-622(a)(3) | Defendants: verification is not the 2-622(a)(3) affidavit; it lacks the required statements about record requests and does not substitute for the expert report | Held: 1-109 verification is not a substitute; she failed to comply with 2-622(a) |
| Whether Dr. Lipov’s affidavit was admissible and dispositive | McDonald: his affidavit was insufficient and she was denied opportunity to challenge it | Defendants: affidavit meets Ill. S. Ct. R. 191 and establishes existence of consent absent a counteraffidavit | Held: affidavit complied with Rule 191; McDonald forfeited challenge by not seeking discovery or filing a Rule 191(b) continuance affidavit |
| Whether the trial court erred in permitting repleading/new claims on remand | McDonald: should be allowed to add or replead claims | Defendants: reasserted/different claims were previously dismissed or outside scope of remand and prejudicial | Held: court properly dismissed previously-adjudicated claims under law of the case and did not abuse discretion in denying new claims given procedural history and prejudice concerns |
Key Cases Cited
- DeLuna v. St. Elizabeth’s Hospital, 147 Ill. 2d 57 (1992) (purpose and scope of section 2-622 to screen frivolous medical claims)
- Raintree Homes, Inc. v. Village of Long Grove, 209 Ill. 2d 248 (2004) (trial court may consider pleadings, depositions, and affidavits on a section 2-619 motion)
- Gragg v. Calandra, 297 Ill. App. 3d 639 (1998) (distinguishes lack of consent battery from lack of informed consent negligence)
- Schindel v. Albany Medical Corp., 252 Ill. App. 3d 389 (1993) (medical questions requiring expert analysis cannot be resolved by lay jurors)
- Bloom v. Guth, 164 Ill. App. 3d 475 (1987) (section 2-622 applies even when plaintiff styles claim as non-malpractice if resolution requires medical expertise)