TUNCA v. Painter, 965 N.E.2d 1237

Dr. Josh Tunca, a gynecologic-oncology surgeon, accused Dr. Painter and Dr. Conway of defamatory statements about his surgical competence.
Initial complaint in 2007 alleged slander per se by Painter and Conway and a Medical Studies Act violation by Conway related to statements about a patient’s artery being severed during surgery.
Amendments realleged and expanded the defamation theories; Painter’s statements allegedly occurred June 28, 2006, and Conway’s statements in February–April 2007, with dissemination among hospital staff.
Plaintiff claimed damages exceeding $3 million from loss of referrals and income due to these statements.
Trial court dismissed several counts on Oct. 29, 2008; plaintiff amended again, leading to further dismissals on June 16, 2009, of slander per quod and related claims, with one count remaining pending.
Court declined to hear merits on appeal from October 29, 2008 orders due to lack of jurisdiction and preservation issues; ultimately, appellate court reversed in part and remanded, but lacked jurisdiction to review some earlier dismissals.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Jurisdiction and preservation of appeal	Tunca preserved claims via Rule 304(a) findings and timely notices.	No timely, proper notice; amended complaints voided preservation; no jurisdiction.	Appeal jurisdiction lacking; plus claims not preserved through later amendments.
Defamation per se vs per quod and protection of opinions	Statements to colleagues implied professional negligence; per se and per quod remain viable.	Statements were opinions or nonactionable; protected by First Amendment in certain contexts.	Statements were defamatory on their face (per se or per quod) and not protected opinions; reversal on merits for counts I and III.
Sufficiency of special damages for defamation per quod	Plaintiff pled substantial special damages (loss of referrals and income).	Damages not pled with specificity or direct causation.	Special damages adequately pled; damages tied to decline in referrals and specific income loss.
Medical Studies Act immunity	Act violations occurred outside peer-review context and were actionable.	Statements within hospital context may be privileged under Act.	Not reached on merits due to preservation/jurisdiction issues; court noted procedural limitations.

Foxcroft Townhome Owners Ass'n v. Hoffman Rosner Corp., 96 Ill.2d 150 (1983) (amendments can negate earlier rulings; final pleading controls)
Tabora v. Gottlieb Memorial Hospital, 279 Ill.App.3d 108 (1996) (preservation via subsequent pleading or timely appeal required)
Du Page Aviation Corp., Flight Services, Inc. v. Du Page Airport Authority, 229 Ill.App.3d 793 (1992) (preservation and filing of subsequent pleadings affect review)
Vilardo v. Barrington Community School District 220, 406 Ill.App.3d 713 (2010) (waiver when final complaint omits prior theory)
Bryson v. News America Publications, Inc., 174 Ill.2d 77 (1996) (per quod damages may be pled without extrinsic facts if defamatory on its face)
Mittelman v. Witous, 135 Ill.2d 220 (1989) (defamatory statements of professional negligence are actionable)
Barakat v. Matz, 271 Ill.App.3d 662 (1995) (statements implying professional incompetence are actionable on face)
Anderson v. Vanden Dorpel, 172 Ill.2d 399 (1996) (context matters in assessing statements as facts or opinion)
Dunlap v. Alcuin Montessori School, 298 Ill.App.3d 329 (1998) (distinguishes opinion from defamatory statements of fact)
O'Casek v. Children's Home & Aid Society of Illinois, 229 Ill.2d 421 (2008) (overrules Clifford-based constraints; adopts modern foreseeability approach)