Sandler v. Sweet
2017 IL App (1st) 163313
Ill. App. Ct.2017Background
- Sandler sued Dr. Jerry J. Sweet and his employers alleging medical negligence, common-law fraud, and breach of fiduciary duty based on neuropsychological reports Dr. Sweet prepared in litigation where he was retained by Advocate (Sandler’s adversary).
- Dr. Sweet evaluated Sandler in 2012 and issued a report concluding Sandler had no acquired brain dysfunction; he later issued a supplemental report in 2014 after reviewing additional records, maintaining the same opinion.
- Sandler’s underlying malpractice suit against Advocate relied in part on these evaluations; Sandler’s later suit claimed the reports caused him harm by preventing treatment/rehabilitation.
- Defendants moved to dismiss under section 2-619, arguing (1) expert-witness absolute privilege shields the reports and (2) no physician–patient relationship existed, so no duty arose. The circuit court dismissed the complaint with prejudice and denied leave to amend.
- On appeal the court reviewed de novo and accepted pleadings as true for the motion-to-dismiss standard.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Dr. Sweet owed a duty supporting a medical-negligence claim | Sandler argued the evaluation created a duty and Dr. Sweet misdiagnosed him | Dr. Sweet was an expert retained by an adversary, not a treating physician, so no physician–patient relationship or duty existed | No duty: independent expert exam for a third party does not create physician–patient relationship; negligence claim dismissed |
| Whether breach of fiduciary duty claim survives alongside malpractice claim | Sandler maintained a separate fiduciary claim based on same facts | Defendants argued the fiduciary claim is duplicative of the malpractice claim | Dismissed as duplicative of the negligence claim |
| Whether Dr. Sweet’s written reports are protected by absolute witness privilege (fraud claim) | Sandler argued absolute privilege applies only to court‑appointed experts and to testimony, not pre‑testimony reports | Defendants argued absolute privilege covers expert reports prepared for litigation and applies to party‑retained experts | Held reports and related communications were absolutely privileged; fraud claim dismissed |
| Whether denial of leave to file second amended complaint was an abuse of discretion | Sandler proposed deleting allegation that Sweet was a controlled expert | Defendants noted the proposed amendment would not cure defects; deposition transcript showed Sweet as party‑retained expert | Denial affirmed: amendment would not cure pleading defects or avoid attached evidence |
Key Cases Cited
- Kirk v. Michael Reese Hosp. & Med. Ctr., 117 Ill.2d 507 (Illinois Supreme Court) (physician’s duty depends on physician–patient or special relationship)
- Doe v. McKay, 183 Ill.2d 272 (Illinois Supreme Court) (limits on recognizing duty absent direct or special relationship)
- Neade v. Portes, 193 Ill.2d 433 (Illinois Supreme Court) (breach of fiduciary duty claim duplicative of malpractice when arising from same facts)
- Briscoe v. LaHue, 460 U.S. 325 (U.S. Supreme Court) (rationale for absolute witness immunity to protect judicial process)
- McNall v. Frus, 336 Ill. App. 3d 904 (Illinois Appellate Court) (party‑retained expert’s reports and testimony covered by absolute privilege)
- Cook v. Optimum/Ideal Managers, Inc., 130 Ill. App. 3d 180 (Illinois Appellate Court) (examining physician retained by adversary owed no duty to examinee)
- Jurgensen v. Haslinger, 295 Ill. App. 3d 139 (Illinois Appellate Court) (explaining public policy basis for absolute privilege)
- Spaids v. Caterpillar, Inc., 57 Ill. 289 (Illinois Supreme Court) (absolute privilege covers statements pertinent and material to controversy)