SCOTT W. HOLZRICHTER, Plaintiff-Appellant, v. MARTIN YORATH, ROSALIND FRANKLIN UNIVERSITY OF MEDICINE AND SCIENCES, CHICAGO MEDICAL SCHOOL, DR. WILLIAM M. SCHOLL COLLEGE OF PODIATRIC MEDICINE SCHOOL OF GRADUATE AND POSTDOCTORAL STUDIES (CMS), FOOT AND ANKLE CLINICS OF AMERICA (FACA), AMERICAN MEDICAL ASSOCIATION (AMA), DEPARTMENT OF PROFESSIONAL REGULATION (IDPR), AMERICAN PODIATRIC MEDICAL ASSOCIATION (APMA), and ILLINOIS PODIATRIC MEDICAL ASSOCIATION (IPMA), Defendants-Appellees.
Docket No. 1-11-0287
Appellate Court of Illinois, First District, First Division
March 4, 2013
Rehearing denied April 12, 2013
2013 IL App (1st) 110287
Held
(Note: This syllabus constitutes no part of the opinion of the court but has been prepared by the Reporter of Decisions for the convenience of the reader.)
In an action making numerous allegations, including medical malpractice, medical battery, negligence and antitrust violations, against numerous defendants, including physicians, medical schools and state agencies, arising from the surgical repair of an injury plaintiff suffered when his big toe struck a protrusion in a sidewalk while he was running at night, the trial court‘s orders granting defendants summary judgment, dismissing various claims made by plaintiff and denying his motions to amend or reconsider were upheld on plaintiff‘s pro se appeal.
Decision Under Review
Appeal from the Circuit Court of Cook County, No. 05-L-002037; the Hon. Susan Zwick, the Hon. Ronald S. Davis, and the Hon. James C. Murray, Judges, presiding.
Judgment
Affirmed.
Counsel on Appeal
Johnson & Bell, Ltd., of Chicago (Gregory E. Schiller, David M. Macksey, and Garrett L. Boehm, Jr., of counsel), for appellees Martin Yorath, Rosalind Franklin University of Medicine & Sciences, Chicago Medical School, Dr. William M. Scholl, College of Podiatric Medicine School of Graduate & Postdoctoral Studies.
Clausen Miller, P.C., of Chicago (Monica C. Palermo and Brian J. Riordan, of counsel), for appellee Foot & Ankle Clinics of America.
Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro, Solicitor General and Elaine Wyder-Harshman, Assistant Attorney General, of counsel), for appellee Department of Professional Regulation.
Chicago Law Partners, LLC, of Chicago (Timothy A. French of counsel), for appellees American Podiatric Medical Association and Illinois Podiatric Association.
Panel
JUSTICE DELORT delivered the judgment of the court, with opinion.
Presiding Justice Hoffman and Justice Cunningham concurred in the judgment and opinion.
OPINION
¶ 1 Plaintiff, Scott Holzrichter, who is representing himself, sued defendants, Martin Yorath, D.P.M., Rosalind Franklin University of Medicine and Sciences (RFU), Chicago Medical School (CMS), Dr. William M. Scholl College of Podiatric Medicine School of Graduate and Postdoctoral Studies (Scholl College), Foot and Ankle Clinics of America (FACA), American Medical Association (AMA), Illinois Department of Professional Regulation (IDPR), American Podiatric Medical Association (APMA) and Illinois Podiatric Medical Association (IPMA), seeking damages arising out of injuries he allegedly sustained from podiatric surgery performed by Dr. Yorath. Count I of plaintiff‘s third amended complaint is directed against Dr. Yorath and sounds in medical battery. Plaintiff alleges vicarious liability against CMS and FACA in counts II and III. He asserts the AMA, APMA and IPMA violated the Illinois Antitrust Act (
¶ 2 The circuit court dismissed all counts of the third amended complaint with prejudice except for count I. Dr. Yorath moved for summary judgment on the sole remaining claim for medical battery, and the court granted that motion. Plaintiff appeals pro se. For the following reasons, we affirm.
BACKGROUND
¶ 3 Plaintiff initially injured his left big toe during the late summer of 1995. He testified by deposition that he was running at night and stubbed the toe on a crack in the sidewalk that had been raised upward from the growth of a tree root underneath. According to plaintiff, when his left big toe struck the sidewalk, it “caused the head of the first metatarsal to be moved immediately off the sesamoid apparatus.” In other words, the toe “was driven down and below the second toe.” Plaintiff further explained that his sesamoid apparatus, the “equivalent to a kneecap of the knee,” was dislocated “and it caused a bow strung big toe.”
¶ 4 Plaintiff testified that he did not seek medical treatment at the time he stubbed his toe. Plaintiff “thought with time it would heal because I did not really know the state of my foot—and it didn‘t.”
¶ 5 Seven years after he stubbed his toe, plaintiff sought medical treatment at Community Health Clinic. Twice weekly, podiatrists from Scholl College would visit the clinic to provide free services to indigent and uninsured patients. Community Health Clinic scheduled an appointment for plaintiff to see a doctor from the Scholl College.
¶ 7 On January 21, 2003, Dr. Yorath examined plaintiff‘s left big toe for the first time. Dr. Yorath diagnosed plaintiff with hallux abducto valgus and suggested an osteotomy or bunionectomy. Plaintiff recalled from the initial examination that Dr. Yorath discussed the type of surgical procedure, a “Z scarf-Meyer osteotomy,” and described it. According to plaintiff, Dr. Yorath told him the surgery required “cutting the first metatarsal, which is the longest, biggest long bone in the foot,” “moving the two pieces and screwing them back together again.”
¶ 8 Plaintiff testified that during the January 21 meeting, Dr. Yorath proposed cutting the extensor hallucis brevis tendon during the course of the Z scarf osteotomy procedure. Plaintiff “immediately told him don‘t do that.” Plaintiff believed Dr. Yorath was joking when he suggested cutting the tendon. Plaintiff stated Dr. Yorath did not explain that cutting the tendon was part of the Z scarf osteotomy procedure and that, when plaintiff objected to the cutting of the tendon, Dr. Yorath remained silent and then changed the subject. According to plaintiff, cutting a tendon during the Z scarf osteotomy procedure was “absurd.” Plaintiff testified that he had no medical training, but knew that cutting tendons “had nothing to do with the osteotomy he was describing. An osteotomy and cutting tendons are two totally completely separate things that have nothing to do with each other in any way.” He stated it was “preposterous [for Dr. Yorath] to even suggest that [the extensor hallucis brevis] tendon has anything to do with the development of this [hallux abducto valgus] pathology.” Plaintiff refused to defer to a physician on the issue of whether cutting the tendon is part of the Z scarf osteotomy procedure and stated a physician who would suggest such a course of action “is a fraud.”
¶ 9 The progress notes dated January 21, 2003, reflect that the Z scarf osteotomy procedure recommended to plaintiff “would be better suited to allow for ease of ambulation as well as correction of deformity.” The notes stated plaintiff demonstrated an “understanding of rationale as to this approach to [the] problem,” but made no mention of plaintiff instructing Dr. Yorath not to cut the extensor hallucis brevis tendon.
¶ 10 Following the initial appointment with Dr. Yorath, plaintiff sent him a January 22, 2003, letter outlining “a layman history” of what he believed happened to his foot when he injured it in 1995. The correspondence included no express instruction to Dr. Yorath to not cut any tendons. Plaintiff stated he sent the correspondence for “strictly physical history.”
¶ 12 Plaintiff testified that at the end of the January 28 appointment, he told Dr. Yorath that he wanted to go forward with the Z scarf osteotomy procedure, but did not authorize the cutting of any tendons. Plaintiff believed cutting the tendons involved “a totally separate procedure” and that Dr. Yorath‘s suggestion to cut the tendons was “a mere like whimsical experiment on his part.” The Scholl Foot Clinic scheduled plaintiff for preoperative blood work on February 13, 2003 and surgery on February 18, 2003.
¶ 13 Plaintiff recalled a February 13, 2003 meeting with Dr. Yorath, but Dr. Yorath‘s progress notes only reflect a February 17, 2003 preoperation confirmation call with “all questions answered.” The record does not include a corresponding February 13 progress note indicating an appointment with Dr. Yorath.
¶ 14 Plaintiff described the February 13 appointment as a “discussion,” rather than as an exam. Plaintiff testified, “I don‘t know whether I brought up the letter of [January] 22nd again. *** I did try to get an idea of what he‘s going to do and again, he wasn‘t very verbal. He didn‘t tell me much about the surgery. But I just told him, be conservative and do not snip tendons.” Plaintiff believed the purpose of the February 13 appointment “was to get both of us clearly understanding what was going to happen on the 18th.” He could not recall whether he asked Dr. Yorath any questions about the surgery. Plaintiff stated that Dr. Yorath was “distant” during the appointment.
¶ 15 On February 18, 2003, plaintiff presented to the Scholl Foot Clinic for the Z scarf osteotomy procedure. Prior to the surgery, plaintiff read and signed a consent form authorizing Dr. Yorath to perform a “Scarf ‘Z’ bunionectomy of the Left foot,” which includes “cut[ting] the big toe bone [and] mov[ing] it to reduce pain [and] stabliz[ing] the base [with] 2 screws.” A third-year podiatric medical student, J.J. Konkol, filled out the consent form and explained the surgery, consent form and the possible risks and complications to plaintiff. Plaintiff testified that Konkol did not state tendons would be cut during the procedure. Plaintiff told Konkol that he did not want any tendons to be cut during the surgery, but did not ask Konkol to include that language in the consent form. Plaintiff acknowledged that the consent form would not include all the details of the surgical procedure, but would have expected the form to include an “EHB
¶ 16 The consent form plaintiff signed states the following:
“All questions that I have were answered fully to my satisfaction. Alternatives, including not having surgery, have been explained to me, along with their potential risks and benefits. I have decided upon the surgery described herein.”
The consent form also provides, “I understand that possible risks and complications may include, but are not limited to *** [t]he possibility that no improvement in my condition may occur after surgery has been explained to me and I understand that no guarantee of improvement can be made.”
¶ 17 Dr. Yorath‘s operative report, dated February 18, 2003, documents that he performed the surgery with the assistance of two third-year podiatric medical students, Konkol and Miguel Rodriguez. Plaintiff testified that he was under a local anesthetic throughout the procedure and was able to listen to Dr. Yorath narrate the surgical process to the medical students assisting. Although under a local anesthetic, plaintiff was able to listen to every word Dr. Yorath said during the surgery.
¶ 18 Plaintiff recalled several events that occurred during the procedure. According to plaintiff, Dr. Yorath made the first incision. Dr. Yorath then “mentioned that the sesamoid bone was stuck in place, and he couldn‘t budge it with his fingers; and that was very unusual.” Plaintiff recalled Dr. Yorath stating that he would leave the sesamoid stuck in place and correct the problem by releasing the connective tissue. Plaintiff testified that Dr. Yorath never mentioned the word “tendon” during the surgery, but plaintiff understood “connective tissue” meant the tendons. Plaintiff stated that the term “connective tissue” was a vague term that could mean something other than tendons, such as ligaments. Plaintiff regretted not asking any questions during the surgery. He stated in his testimony that after Dr. Yorath described the sesamoid as stuck, “I wish I would have opened my mouth right then and tell him, either deal with the sesamoid or stop the procedure.” Plaintiff agreed, however, that the stuck sesamoid “was significant” and “that although it might not have been what [Dr. Yorath] necessarily expected, it was one that had to be addressed.” Plaintiff recalled from the surgery that, once Dr. Yorath encountered the stuck sesamoid, “he tried to get around the problem by—he said he was going to release this connective tissue here.”
¶ 19 Dr. Yorath‘s operative report documented the procedure in detail as follows:
“A 7 mm incision was made over the dorsum of first metatarsophalangeal joint, medial to the extensor hallucis longus tendon. The incision was deepened through subcutaneous tissue with care taken to identify and retract all vital neuro-vascular structures. A capsular incision was made at the metatarsophalangeal joint and the capsule/periosteum were reflected off the first metatarsal head. The head of the first metatarsal was exposed medially. The cartilage was white with a dorsal osteophytosis. Power equipment was used to remove the medial emminence from the first metatarsal head, just medial to the sagittal groove. A lateral release was performed severing the tendons of Adductor Hallusis, collateral ligaments, ligamentous attachments of the fibular sesamoid. Using a sagittal saw, a ‘Z’ type osteotomy was performed in the first metatarsal. Internal fixation was obtained with two 18 mm 2.7 mm cortical screws. The wound was irrigated with copious amounts of normal saline
solution. A medial capsulotomy was peformed and then the capsule was closed with a 2-0 vicryl using simple interrupted sutures. The Extensior Hallus Bevis tendon was then released. The wound was closed using Subdermal suture technique with 4-0 Monocryl.”
Following the suturing of the incision site, Dr. Yorath dressed the wound using a four-inch sterile gauze. An Ace bandage was applied to the right foot for compression and protection. Dr. Yorath noted no complications in the operative report.
¶ 20 At the conclusion of the surgery, plaintiff was given discharge instructions to: (1) go directly home and lie down; (2) keep his foot and leg elevated above hip level; (3) not bear weight on the foot any more than necessary; and (4) not remove the surgical bandages and keep the left foot dry. Plaintiff testified that he understood he was supposed to keep his left foot wrapped until he returned for his postoperative appointment. Plaintiff knew that meant “don‘t shower, don‘t wet, you know keep the wound out of the shower.”
¶ 21 Within the first few days following the surgery, plaintiff‘s left foot “became unbearably itchy.” Plaintiff removed the surgical bandages and observed a water blister. He testified that he “tried to use a sponge bath to clean the area without soaking it—I didn‘t soak it in the water because, you know, it‘s too short after the surgery; but I think I sponge bathed to try to clean the area as much as I could to relieve some of the itching.”
¶ 22 Medical records dated February 25, 2003 indicate that four days after the surgery, plaintiff removed the surgical bandages due to intolerable itching and observed a water blister. The records documented that plaintiff redressed the wound with toilet paper and changed the dressing with toilet paper daily. The records reflected plaintiff had been soaking his left foot in a bath with Epsom salt daily since removing the bandages.
¶ 23 Plaintiff testified he used toilet paper to dress the wound because “it‘s available and it‘s sterile.” Plaintiff took the toilet paper from a common bathroom area shared by other tenants of the Covenant Hotel where he resided.
¶ 24 On February 25, 2003, plaintiff walked two miles to his first postoperative appointment. Plaintiff testified Dr. Yorath expressed alarm at the condition of his foot, the itching of the foot, the presence of a blister on the foot, the removal of the bandages and dressing of the wound with toilet paper. Dr. Yorath told plaintiff that he probably had cellulitis, a soft tissue infection. He prescribed Keflex, an antibiotic to treat the infection, instructed plaintiff not to remove the dressings on his foot and to keep the foot elevated until the next appointment in two days. Plaintiff testified he left the Scholl Foot Clinic and walked two miles home. Plaintiff walked to and from the Scholl Foot Clinic for each of his subsequent postoperative appointments.
¶ 25 On February 27, 2003, plaintiff returned for another appointment with Dr. Yorath. Plaintiff did not follow Dr. Yorath‘s instructions to begin taking the antibiotic prescribed to him because he adamantly believed he did not have an infection. The February 27 medical records confirm plaintiff refused to take the Keflex because he “doesn‘t feel that he has an infection.” Plaintiff testified that, following the surgery, he “really lost [his] faith in Dr. Yorath totally after [he] got all these stories from him as to why [his] foot was still not fixed.” Plaintiff further stated, “to the extent if [Dr. Yorath] at all criticized the use of the toilet paper tissue, that would have been further reason to poo poo anything he
¶ 26 Dr. Yorath strongly suggested to plaintiff that he take the antibiotics for the infection in his foot. He also suggested plaintiff go to Cook County Hospital to have the infection treated, but plaintiff refused.
¶ 27 Plaintiff returned to the Scholl Foot Clinic to see Dr. Yorath on March 4, 2003. Dr. Yorath took X-rays of plaintiff‘s left foot, which indicated possible osteomyelitis, an infection in the bone. Plaintiff again refused to take antibiotics and go to Cook County Hospital for treatment of the infection. Plaintiff testified that he had no problems with his foot at that time.
¶ 28 Medical records of the March 4 visit document that plaintiff had “multiple swollen infected bullae on foot which is hot and swollen.” Plaintiff told Dr. Yorath that he had a fever the previous night which had receded by morning. Plaintiff treated the bullae (blisters)
by cutting the tops off and draining the pus. He then scrubbed the lesion with soap and water and wrapped the “oozing wound” in cellophane. Plaintiff had also developed a large bullae on the arch of his foot, which was “open and sore.” Dr. Yorath also observed “significant erythema and edema on the dorsum of the left foot.” Plaintiff was advised to begin taking Keflex immediately and keep his dressing dry and clean.
¶ 29 On March 6, 2003, plaintiff returned to the Scholl Foot Clinic for another follow-up visit with Dr. Yorath. Plaintiff had disregarded the previous March 4 instruction to not change the dressing on the wound. Plaintiff testified he could not deny the accuracy of the instruction not to change the dressing, but stated, “that‘s not relevant.” Plaintiff denied he had a conversation with Dr. Yorath during which the doctor extensively counseled him regarding the need for aggressive control of the infection to prevent a poor outcome from the surgery.
¶ 30 The medical records from the March 6 appointment indicate plaintiff admitted to changing his dressing daily. Plaintiff denied he was having pain in his foot. Dr. Yorath counseled plaintiff for half an hour regarding the need for aggressive control of the infection “to prevent poor outcome from surgery, including potential for bone infection, loss of great toe/limb if he refuses treatment.” Plaintiff again was instructed not to change his dressing and to take the antibiotics for his infection.
¶ 31 Plaintiff testified that, on March 11, 2003, he had chills and thought he might be contracting the flu. Medical records of the same date show plaintiff had an appointment with Dr. Yorath. During this appointment, plaintiff promised to take the antibiotics. The medical records of March 13, 2003 reflect plaintiff was taking the antibiotics as prescribed.
¶ 32 On March 18, 2003, plaintiff went to the Scholl Foot Clinic for a follow-up appointment with Dr. Yorath. The medical records of that date reflect plaintiff decided not to take the antibiotics. Dr. Yorath removed the dressing and documented that significant edema was still present and that erythema surrounded the surgical incision. Dr. Yorath noted additional blisters at the surgical site, which were draining fluid. Plaintiff again was instructed to leave the dressing alone and counseled again at length regarding the need to fight the infection and take the antibiotics as prescribed.
¶ 33 Plaintiff testified that he had a follow-up appointment on March 26, 2003. According to plaintiff, the incision site was draining “a very watery exudate” on that day. The medical records of that date indicate erythema was present to the mid-foot
¶ 34 The medical records dated April 1, 2003, document that plaintiff told Dr. Yorath the pain has been virtually obsolete since his previous appointment. Plaintiff also told Dr. Yorath he completed taking a prescription of Keflex. Plaintiff described a “clear amber drainage” from the wound site when he changed his dressings. The records noted the gauze dressing was intact with “minimal serious drainage.” Dr. Yorath took a number of X-rays from plaintiff that day.
¶ 35 Plaintiff testified that Dr. Yorath advised him to limit his physical activity and wear a
walking brace until April 15, 2003. Plaintiff attempted to run 12 miles sometime in April 2003. Medical records dated April 29, 2003, confirm that plaintiff complained of pain from running and that “he has tried foot massages with his electric tooth brush to help with the pain and swelling.” Plaintiff testified that he used an electric toothbrush to stimulate circulation “every day or once a week.”
¶ 36 On May 1, 2003, plaintiff returned to the Scholl Foot Clinic for an appointment with Dr. Yorath. Plaintiff again refused to take the prescribed antibiotics. Plaintiff again complained of an increase in pain while running. The medical records of the same date indicated that “edema persists.”
¶ 37 Plaintiff testified that, by May 6, 2003, he was running six miles per day. He stated that sometime in May of 2003, his transverse arch collapsed. Plaintiff stated that he could not put any weight on the front of his foot “without a lot of pain—and it just collapsed.” According to plaintiff, “[t]he only way that could have happened is if he cut the abductor hallucis muscle.” Plaintiff stated that he confronted Dr. Yorath about whether he cut the abductor hallucis muscle in May of 2003 and Dr. Yorath said that he did. Plaintiff told Dr. Yorath that he wanted surgical repair of the tendon and the collapsed arch. Dr. Yorath responded that the abductor hallus muscle has nothing to do with the transverse arch. Plaintiff accused Dr. Yorath of lying “because he was hiding what he had done to me, because he was clearly told he couldn‘t cut tendons and he cut those tendons.”
¶ 38 Dr. Yorath‘s medical records of that date confirm that plaintiff was running up to six miles per day. The medical records do not include a discussion regarding the cutting of the abductor hallucis muscle, a collapsed transverse arch or a request for additional surgery. At his next follow-up appointment on May 20, 2003, plaintiff indicated he was still running six miles per day. The May 20 medical records stated that plaintiff‘s gait was steady and unassisted with no limp. The edema in the forefoot had decreased since the previous appointment. Dr. Yorath discussed the need for “modifying splinting of hallux with bunion splint.” Plaintiff was advised to continue normal activity.
¶ 39 Plaintiff requested and received a copy of his medical records in June of 2003. Plaintiff denied that he had a follow-up appointment on June 12, 2003, and denied that he went to the Scholl Foot Clinic on that date. Medical records from June 12 indicate he was seen walking out of the Scholl Foot Clinic. The records document that plaintiff told Dr. Yorath he was feeling okay, but had suffered from a fever a few days ago. Plaintiff complained his leg was swollen and that “blood came out to surface of leg.” Plaintiff refused to
¶ 40 On June 26, 2003, plaintiff returned to the Scholl Foot Clinic for a follow-up visit with Dr. Yorath. Plaintiff recalled telling Dr. Yorath he took issue with “never releasing the fused fibula sesmoid.” He told Dr. Yorath that he wanted another surgical procedure to reverse the cutting of the tendon. He complained his arch collapsed. Plaintiff stated, “I just wanted him to correct the anatomy of my foot so it was properly functioning and to undo every single
thing that he did in my foot except for obviously cutting the bone and screwing it back together again.”
¶ 41 The June 26, 2003, medical records document that plaintiff was still running six miles per day. Plaintiff expressed concern regarding swelling in his foot and localized pain. Dr. Yorath noted in the records plaintiff “almost absolutely has osteomyelitis of 1st metatarsal.” Dr. Yorath recommended antibiotics and treatment at Cook County Hospital, which plaintiff again refused. The records indicate plaintiff saw no need for antibiotics or treatment at the hospital, and that he was doing “OK.” Plaintiff requested that his foot pain be resolved and “is considering having lateral 1st MPT sesamoid removed” by surgery. Dr. Yorath noted that plaintiff brought a lot of Internet literature regarding possible surgical procedure options.
¶ 42 On July 15, 2003, plaintiff saw Dr. Yorath for another follow-up appointment. During that visit, Dr. Yorath told plaintiff he had osteomyelitis in his left foot and first metatarsal, which was also reflected in the medical records of the same date. Plaintiff was taking the antibiotics as directed. Plaintiff told Dr. Yorath that he was running and that “his running times have improved.” Dr. Yorath advised plaintiff to limit his physical activity. Plaintiff testified he continued running and saw no reason to follow Dr. Yorath‘s instructions because they “made no sense.” Plaintiff filed a complaint against Dr. Yorath with the IDPR on July 18, 2003.
¶ 43 Plaintiff returned to Dr. Yorath on July 22, 2003, and informed Dr. Yorath that he was continuing to run. Dr. Yorath again advised plaintiff to limit his physical activity and suggested that plaintiff wear a surgical shoe. Plaintiff told Dr. Yorath that he wore a wedge in between his first and second toe while he ran. Plaintiff testified that he refused to follow Dr. Yorath‘s advice.
¶ 44 By August 12, 2003, plaintiff was running 12 miles according to the medical records. Plaintiff testified that he would run 12 miles once a week, but otherwise ran 6 miles daily. He told Dr. Yorath during his visit on the same date that he was doing very well with no pain in his left foot except for some localized pain. The medical records also show plaintiff refused to continue taking antibiotics for the osteomyelitis.
¶ 45 Plaintiff testified that during the August 12 appointment, Dr. Yorath cut orthotics for him to wear in his running shoes. Plaintiff tried to use the orthotics, but said they caused more pain at the arch of his foot. Instead, plaintiff took the padded part of the orthotics, cut them and packed them under the heel of his foot, which caused the pain to go away. Plaintiff told Dr. Yorath at his next appointment on September 11, 2003, that the orthotics were not working and that he repositioned
¶ 46 The medical records of October 14, 2003, reflect that plaintiff was running up to 12 miles per day consecutively. Dr. Yorath instructed plaintiff to limit his running to no more than five miles per day. Plaintiff testified he did not follow Dr. Yorath‘s advice because “[h]e‘s pretty clueless as to everything having to do with the foot.” Plaintiff stated Dr. Yorath was “pathetic as a doctor. He‘s embarrassing. He‘s an embarrassment to the profession.”
¶ 47 Plaintiff continued to see Dr. Yorath on December 2, 2003, during which plaintiff discussed additional surgical options for his left foot. Plaintiff testified, “I wanted to have
what he did reversed and all the surgical options were toward that end.”
¶ 48 In January of 2004, plaintiff followed up on the complaint he filed against Dr. Yorath in July of 2003. Plaintiff testified that he filed the IDPR complaint because Dr. Yorath “wasn‘t doing anything to help resolve my problem.” Plaintiff claimed Dr. Yorath made false entries in the medical records by not recording the stuck sesamoid in the operative report. Plaintiff stated he was getting no cooperation from the Scholl Foot Clinic and “needed another set of eyes” for an investigation.
¶ 49 On January 15, 2004, plaintiff returned to the Scholl Foot Clinic for an appointment with Dr. Yorath. The medical records document that Dr. Yorath was aware of the IDPR complaint. According to the medical records, plaintiff stated “his whole premise for IDPR to review the records is because he wants an independent review to see if a lateral release was warranted.” Dr. Yorath noted plaintiff “states that his understanding of the consent/procedure (procedure, specifically) was that he was to have an osteotomy.” Dr. Yorath explained to plaintiff that a lateral release is an inherent part of the overall osteotomy/bunionectomy procedure. Plaintiff did not comment in response to Dr. Yorath‘s explanation. Dr. Yorath further explained that attempting to free a fused sesamoid is going to have very little to no effect on the present situation as plaintiff saw it, and that it would simply result in re-fusion of the sesamoid at a subsequent date. Dr. Yorath presented plaintiff with three options to consider, including: (1) a further osteotomy of the first metatarsal; (2) removal of a bone at the first metatarsal; or (3) possible excision of the sesamoid. Dr. Yorath also suggested that a “time out” was necessary in light of the IDPR complaint. He presented to plaintiff options to see other physicians, but plaintiff responded, “You are the head of surgery, so there isn‘t anyone else I need to see.” Plaintiff then told Dr. Yorath that he was seeing another podiatrist.
¶ 50 Plaintiff testified that some time between his surgery and January of 2004, he attempted to contact three other podiatrists, Drs. Young, Weil and Zygmunt, for a second opinion. None of the podiatrists agreed to see plaintiff or to provide him with a second opinion.
¶ 51 On February 19, 2004, plaintiff returned to Dr. Yorath to discuss possible further treatment. The medical records of the same date document that plaintiff was still running. Plaintiff remained adamant that his lateral sesamoid needed to be freed. Plaintiff was of the “very strong opinion” that since the sesamoid did not move during the surgery, the remainder of the procedure should not have been completed, particularly any cutting of the tendons or ligaments at the sesamoid complex. Dr. Yorath attempted to explain to plaintiff that it is accepted practice to release the ligaments around the sesamoid
¶ 52 Plaintiff‘s last appointment with Dr. Yorath occurred in April 2004. Plaintiff testified that he was never obligated to pay Dr. Yorath for the surgery or any of the postoperative
appointments. Plaintiff incurred a total of $80 in out-of-pocket costs for blood work prior to the surgery. He testified that he was going to tell a jury, “just as a sucker punch is done free, this is getting mugged in the alley done free. This doctor did to me free, under the guise of being a doctor.”
¶ 53 Plaintiff testified that, in May of 2004, he saw a podiatrist, Dr. Litdke, for a gait analysis. Plaintiff described to Dr. Litdke the procedure performed by Dr. Yorath. Dr. Litdke offered no criticisms of the care and treatment rendered by Dr. Yorath. According to plaintiff, Dr. Litdke “shrugged his shoulders and didn‘t say anything.”
¶ 54 Plaintiff agreed that no physician has ever provided an opinion to a reasonable degree of medical certainty that Dr. Yorath deviated from the standard of care and treatment of his foot. Plaintiff explained that the medical community refused to provide him with a report because they were collectively “refusing to cooperate because they want to keep their collective medical malpractice costs to a very extreme minimum.” Plaintiff characterized the refusal of another podiatrist to provide him with an opinion as “a very, very effective boycott.” Plaintiff also attempted to contact three podiatrists outside of Illinois for an opinion. Plaintiff testified that when he tried to continue correspondence with these podiatrists, “they knew I was going to get too dicey, so they just kind of dropped out.”
¶ 55 Plaintiff testified regarding the results of the IDPR investigation. The IDPR closed plaintiff‘s file on June 15, 2004, because there was no cause of action contained in his complaint. Plaintiff believed the IDPR failed to investigate his complaint, which consisted of five lines. Plaintiff stated that the substance contained in his five-line complaint “reflects gross medical malpractice.”
¶ 56 Plaintiff also testified that he was not seeking damages from lost wages. He wanted his foot to be “put back to where it was before it was touched with a scalpel.” Prior to filing his initial complaint, plaintiff contacted 25 attorneys to discuss bringing a lawsuit against Dr. Yorath. Plaintiff was unable to find an attorney willing to take the case.
¶ 57 According to Dr. Yorath, plaintiff‘s surgery was complicated by a postoperative wound infection, which was caused and exacerbated by his failure to follow postoperative instructions and properly attend to the wound. Dr. Yorath believes plaintiff‘s use of unorthodox and unsanitary means of dressing the wound also contributed to the infection. Dr. Yorath stated in his Rule 213 disclosures that “[a]ny deficits experienced today by [plaintiff] were a result of the post-operative wound infection and [plaintiff‘s] failure to comply with physician orders.” During the approximately 14-month period following plaintiff‘s surgery, Dr. Yorath told plaintiff repeatedly that the infection he had in his left foot was causing the deformity and function
¶ 58 On February 18, 2005, plaintiff filed a pro se complaint in the circuit court. He alleged medical malpractice and medical battery against Dr. Yorath in count I. He claimed medical malpractice and medical battery under the doctrine of respondeat superior against CMS and FACA in counts II and III. Plaintiff alleged general violations of antitrust law against the AMA in count IV. In count V, plaintiff claimed negligence by the IDPR in its handling of the complaint he filed against Dr. Yorath. The court dismissed without prejudice all counts
of the complaint, but granted plaintiff leave to amend.
¶ 59 Plaintiff filed an amended complaint on June 17, 2005. Plaintiff alleged medical battery against Dr. Yorath in count I and claimed $2 million in damages. Plaintiff again alleged liability against CMS and FACA in counts II and III, claiming $1 million in damages from CMS and $2 million from FACA. Count III against the AMA alleged violations of the Antitrust Act for “cartel-like violations” and “monopolistic behavior.” Count V still alleged negligence against the IDPR, but requested mandamus relief instead of damages. Newly added counts VI through IX alleged fraudulent concealment, gross negligence and res ipsa loquitor against Dr. Yorath. Plaintiff sought a total of $6 million in damages for these counts.
¶ 60 On July 5, 2006, the circuit court dismissed count IV of the first amended complaint directed against the AMA. The court granted plaintiff leave to amend his complaint and add two new defendants on September 6, 2006.
¶ 61 Plaintiff filed his second amended complaint on October 10, 2006. The second amended complaint remained largely the same as the amended complaint but added counts X and XI against the APMA and IPMA for violations of the Antitrust Act. Plaintiff also repleaded count V, with his prayer for relief requesting “compliance with Contested Case provisions of the Administrative Procedure Act (
¶ 62 In a memorandum opinion and order issued on March 21, 2007, the circuit court disposed of all pending matters. First, the court dismissed the medical malpractice and medical battery claims against Dr. Yorath, along with the respondeat superior claims against CMS and FACA under section 2-615 of the Code of Civil Procedure (Code) (
¶ 63 Plaintiff moved to reconsider the dismissal of all counts of the second amended complaint. Plaintiff also sought an interlocutory appeal of the dismissal of counts V through IX pursuant to
¶ 65 Plaintiff filed his third amended complaint on August 22, 2007, realleging all 11 counts of the second amended complaint, including count I claiming medical battery against Dr. Yorath. On December 14, 2007, the circuit court dismissed with prejudice counts II through XI of the third amended complaint, which disposed of all counts directed against CMS,
FACA, AMA, IDPR, APMA and IPMA.
¶ 66 Plaintiff moved for leave to amend his third amended complaint on February 14, 2008. He sought to add a claim for punitive damages against Dr. Yorath. The circuit court denied plaintiff‘s motion to amend on July 28, 2008.
¶ 67 Also on July 28, 2008, the circuit court ordered plaintiff to disclose any expert witness by October 1, 2008. In an October 31, 2008, order, the court barred plaintiff‘s Rule 213(f) witnesses listed in his answers to discovery. The court granted plaintiff a final extension to name an expert witness before December 15, 2008.
¶ 68 On December 15, 2008, plaintiff submitted Rule 213(f) disclosures listing himself as an expert witness. Plaintiff stated in his disclosures that he “very likely has at least as much formal education in the combination of Histology (tissue study), Anatomy, Kinesiology [sic], and the Biomechanics of human movement as does Defendant Yorath, with supporting formal studies contributing to Plaintiff‘s minor equivalents in physics, zoology, and chemistry.”
¶ 69 On December 26, 2008, plaintiff moved to enforce the X-Ray Retention Act (
¶ 70 On August 23, 2010, the circuit court transferred the case to another trial judge for release into the “Black Line Pool” by agreement of the parties. On the same date, plaintiff moved to have the case assigned a trial date and to amend his complaint to add counts XII, XIII and XIV for negligent credentialing against CMS, FACA and the IDPR. The court denied plaintiff‘s motion for leave to amend on August 30, 2010, because the case was too close to the trial date. On September 13, 2010, the court ordered the case set for trial on November 17, 2010.
¶ 71 Dr. Yorath moved for summary judgment on the sole remaining medical battery claim on October 19, 2010. Dr. Yorath asserted plaintiff failed to disclose any expert testimony regarding causation and damages, nor offered any expert testimony on how the Z scarf osteotomy procedure was substantially different from the procedure to which he consented. Dr. Yorath argued, as a result, no genuine issue of material fact existed and summary judgment was appropriate.
¶ 72 On November 8, 2010, the circuit court heard argument on Dr. Yorath‘s summary judgment motion. Plaintiff insisted that he could serve as an expert medical witness. The court explained to plaintiff, “You understand, sir, that basically the literature, whatever it says, says—has
¶ 73 Following argument, the circuit court granted summary judgment in favor of Dr. Yorath,
finding that medical testimony was necessary and that plaintiff failed to prove his case. In its memorandum opinion and order, the court found plaintiff‘s consent to the surgery precluded a claim for medical battery or failure to give consent. According to the court, “[w]hether the surgical procedure performed by Yorath substantially deviated from the consent given by [plaintiff] requires a medical expert witness. Inherent in such a determination is a medical judgment whether there was a substantial deviation from the consent and his current medical condition.” The court also found plaintiff failed to demonstrate proximate cause, which “can only be established by expert testimony to a reasonable degree of medical certainty, and the causal connection must not be contingent, speculative or merely possible.” Plaintiff “was required to disclose a medical expert to establish liability and proximate cause. He has done neither and is barred from disclosure of such experts.”
¶ 74 Plaintiff moved to reconsider the circuit court‘s grant of summary judgment, which was denied by the court on December 15, 2010. Plaintiff timely appeals.
ANALYSIS
¶ 75 Before addressing the merits of plaintiff‘s claims, we note that his brief egregiously fails to comply with several of the requirements of
¶ 76 A pro se litigant such as plaintiff here is not entitled to more lenient treatment than attorneys. In Illinois, parties choosing to represent themselves without a lawyer must comply with the same rules and are held to the same standards as licensed attorneys. People v. Richardson, 2011 IL App (4th) 100358, ¶ 12 (“Finally, where a defendant elects to proceed pro se, he is responsible for his representation and is held to the same standards as an attorney.“); In re Estate of Pellico, 394 Ill. App. 3d 1052, 1067 (2009) (“Further, we note that pro se litigants are presumed to have full knowledge of applicable court rules and procedures and must comply with the same rules and procedures as would be required of litigants represented by attorneys.“). Illinois courts have strictly adhered to this principle, noting a ”pro se litigant must comply with the rules of procedure required of attorneys, and a court will not apply a more lenient standard to pro se litigants.” People v. Fowler, 222 Ill. App. 3d 157, 163 (1991); see also Steinbrecher v. Steinbrecher, 197 Ill. 2d 514, 528 (2001); People v. Vilces, 321 Ill. App. 3d 937, 939 (2001).
¶ 77 Plaintiff‘s brief contains a statement of facts that, to put it mildly, provides little to no understanding of the case and instead features rambling medical jargon, argument and confusing statements such as, “A metaphor being counterweighted chains attached on either
side from above being derailed when their windowpane is raised to abruptly requiring them to be put back on their pulley wheels to again allow lowering their pane rather than cutting their chains behind where they became stuck to cause the windowpane to come crashing down if the derailed chains were ever later dislodged.” The deficiencies of plaintiff‘s brief are also exhibited in the argument section, which is nearly impossible to follow.
¶ 78 We find plaintiff‘s statement of facts and argument to be grossly inadequate. We are dismayed that none of the six defendants, who are each represented by counsel, moved to strike plaintiff‘s brief. This court is not a depository in which the burden of argument and research may be dumped. Gandy v. Kimbrough, 406 Ill. App. 3d 867, 875 (2010); People v. Hood, 210 Ill. App. 3d 743, 746 (1991) (“A reviewing court is entitled to have the issues clearly defined with pertinent authority cited and is not simply a depository into which the appealing party may dump the burden of argument and research.“). Despite the deficiency of plaintiff‘s brief, we choose to address the merits of his appeal in the interests of justice because it raises an issue of first impression. See Alderson, 321 Ill. App. 3d at 845 (addressing an appeal on the merits despite appellant‘s “grossly inadequate” statement of facts, because the interests of justice so required).
¶ 79 Medical Battery Claim
¶ 80 Summary judgment was granted in favor of Dr. Yorath on count I of plaintiff‘s medical battery claim. Summary judgment “shall be rendered without delay if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”
¶ 81 Illinois recognizes claims for medical battery. Sekerez v. Rush University Medical Center, 2011 IL App (1st) 090889, ¶ 43; Hernandez v. Schittek, 305 Ill. App. 3d 925, 930 (1999); Gaskin v. Goldwasser, 166 Ill. App. 3d 996, 1012 (1988). A plaintiff claiming
¶ 82 Regarding the first two elements of medical battery, the record establishes
unquestionably that plaintiff consented to the procedure performed by Dr. Yorath and, therefore, the surgery could not have been contrary to plaintiff‘s will. Plaintiff‘s deposition and the medical records confirm plaintiff was aware that the Z scarf osteotomy surgery included cutting of the tendons. Despite this knowledge, plaintiff did not request a change in the consent form to prohibit cutting of the tendons. By signing the consent form, plaintiff affirmed that all of his questions were answered and that he agreed to have the surgery that was described in the consent, a “Scarf ‘Z’ bunionectomy of the Left foot.”
¶ 83 Plaintiff insisted repeatedly before the circuit court that the Z scarf osteotomy procedure does not involve cutting the tendons. His third amended complaint alleges Dr. Yorath exceeded the scope of consent by cutting the tendons. Plaintiff‘s complaint is comparable to a person who has an appendectomy and then complains the surgeon cut into his abdomen. Plaintiff, however, is not a physician and the court found that an expert medical opinion was required to support this facet of his medical battery claim.
¶ 84 Illinois courts have not specifically addressed whether compliance with section 2-622 is required in medical battery cases claiming a substantial variance of the procedure from the consent given. Based on the facts of each case, an expert opinion may not always be necessary.
¶ 85 For example, in Lane v. Anderson, 345 Ill. App. 3d 256, 260-61 (2004), the plaintiff claimed medical battery for treatment received that varied substantially with the consent he gave for surgery. The plaintiff argued the defendant, Dr. J.B. Joo, performed the majority of the surgery when he was not specifically listed on the consent form. The consent form that the plaintiff signed, however, authorized Dr. Richard Anderson “and such assistants and associates as may be selected by him/her and OSF St. Francis Medical Center” to perform a laparoscopic appendectomy. Id. at 259. The parties did not dispute that more than one surgeon was needed to perform the procedure. The medical records confirmed Dr. Anderson as the primary surgeon and Dr. Joo as his assistant. As the primary surgeon, Dr. Anderson was responsible for the plaintiff during the entire operation, including responsibility for any mistakes that occurred during the procedure. Dr. Anderson guided Dr. Joo throughout the entire procedure and made all of the decisions and necessary judgments. The Lane court affirmed summary judgment granted in favor of Dr. Joo, finding “the facts do not show that the treatment the plaintiff received was at substantial variance with the consent the plaintiff granted.” Id. at 261. No expert medical testimony was required because the alleged medical battery was not an implicit part of the
¶ 86 In contrast, whether Dr. Yorath exceeded the parameters of the surgery to which plaintiff consented is beyond the ken of a layperson, and it requires a medical expert to opine on whether cutting tendons is part and parcel of the Z scarf osteotomy procedure. See Schindel v. Albany Medical Corp., 252 Ill. App. 3d 389, 397-98 (1993) (“An assessment of what is
required or necessary in light of [a] medical condition is inherently one of medical judgment and, as a result, necessitates expert testimony on the standard of care.“). Compliance with section 2-622 of the Code under the factual circumstances of this case follows logically with the legislature‘s intent to prevent frivolous lawsuits and ensure meritorious claims proceed past the pleading stage when bolstered by expert medical opinion. See Zangara v. Advocate Christ Medical Center, 2011 IL App (1st) 091911, ¶ 26 (“Section 2-622 of the Code was enacted to curtail frivolous medical malpractice lawsuits and to eliminate such actions at the pleading stage before the expenses of litigation mounted.“). A plaintiff challenging an implicit part of the medical treatment should not be able to avoid the requirement of an expert medical opinion simply by claiming medical battery or something other than medical malpractice.
¶ 87 The primary aim of statutory construction is to determine the legislature‘s intent, beginning with the plain language of the statute. General Motors Corp. v. Pappas, 242 Ill. 2d 163, 180 (2011). “Where the language is clear and unambiguous, the statute must be given effect as written without resort to further aids of statutory construction.” Alvarez v. Pappas, 229 Ill. 2d 217, 228 (2008).
¶ 88 Before proceeding with an analysis of the applicability of section 2-622, we must first mention the current legal status of this statute. Public Act 94-677, containing the version of section 2-622 at issue here, has been held unconstitutional on grounds unrelated to the statute. Lebron v. Gottlieb Memorial Hospital, 237 Ill. 2d 217, 250 (2010). Because Public Act 94-677 contained a nonseverability provision, our supreme court held the Act “invalid and void in its entirety.” Id. The supreme court in Cookson v. Price, 239 Ill. 2d 339, 341-42 (2010), explained the effect of various judicial actions and the legislative amendments to section 2-622:
“The effect of declaring a statute unconstitutional is to revert the statute as it existed before the amendment. [Citation.] Thus, following Lebron, section 2-622 reverted to the prior version that went into effect in May 1998, Public Act 90-579. However, in O‘Casek v. Children‘s Home & Aid Society of Illinois, 229 Ill. 2d 421, 424-25, 450 (2008), this court found that the only effect of Public Act 90-579 was to add naprapaths to a list of health professionals set forth in the pre-1995 version of section 2-622(a)(1).
Thus, except for the naprapath language, the statute now reads as it did when amended in 1989 by Public Act 86-646. Id.; 735 ILCS 5/2-622 (West 1994).”
¶ 89 The legislature was in the process of reenacting section 2-622 as it existed before Lebron (see 97th Ill. Gen. Assem., House Bill 2887, 2011 Sess.; 97th Ill. Gen. Assem. Senate Bill 1887, 2011 Sess.), but the proposed legislation expired with the end of the 97th General Assembly. The new 98th General Assembly has not proposed any new legislation as of the date of this appeal. Despite the convoluted procedural history of section 2-622, the specific language that is applicable for disposition of this appeal has not been altered, and so which version of the statute we refer to is immaterial. Nevertheless, as directed by our supreme court, we will use the 1998 version of section 2-622 (
¶ 90 Section 2-622 of the Code requires that a plaintiff filing a medical malpractice claim must supplement the complaint with: (1) an affidavit, either from the plaintiff‘s attorney or
from the plaintiff if proceeding pro se, certifying that the affiant consulted with a qualified health care professional in whose opinion there is a reasonable and meritorious cause for the filing of such action; and (2) a copy of that health professional‘s written report setting forth the reasons for his determination.
¶ 91 Generally, expert testimony is required to support a medical malpractice claim because the assessment of the alleged negligence may require knowledge, skill or training in a technical area outside the comprehension of laypersons. Tierney v. Community Memorial General Hospital, 268 Ill. App. 3d 1050, 1058 (1994); see also Walski v. Tiesenga, 72 Ill. 2d 249, 256 (1978); Edelin v. Westlake Community Hospital, 157 Ill. App. 3d 857, 863 (1987). “In other words, the subject matter is so complicated that lay persons are not in an adequate position to assess whether a breach of duty has occurred.” Schindel, 252 Ill. App. 3d at 395. “Expert testimony is necessary whenever jurors who are not skilled in the practice of medicine would have difficulty, without assistance of medical evidence, in determining any lack of necessary scientific skill on the part of a medical professional.” Id. at 395-96 (citing Walski, 72 Ill. 2d at 256). The plain and unambiguous language of section 2-622 does not limit the requirement of an affidavit and expert medical opinion solely to medical malpractice claims. Illinois courts have held expert medical opinions were necessary in non-medical-malpractice claims.
¶ 92 In Schindel, the plaintiff brought an action to recover damages stemming from the rupture of her fallopian tubes during an ectopic pregnancy. The plaintiff alleged the defendant, a limited service medical clinic providing outpatient gynecological services, failed to: (1) employ and enforce proper procedures to notify her of abnormal laboratory findings; (2) notify her of abnormal laboratory findings; and (3) notify her of the possibility that she
“There was no testimony at trial as to the degree of likelihood of a tubal pregnancy, the likelihood that such a pregnancy would result in the rupture of the fallopian tube, or the urgency involved in cases with laboratory results such as plaintiff‘s. Although testimony was offered as to the date of plaintiff‘s last menstrual period, there was no testimony indicating whether a tubal pregnancy can rupture the fallopian tube from the time of
conception, or whether the danger arises at a certain point in the pregnancy. There was no testimony as to whether the danger was imminent. Such information requires technical, medical knowledge which is not within the common knowledge of jurors untrained in the medical profession. [Citation.] Without such knowledge it is not possible for jurors, without the aid of medical experts, to reach any meaningful conclusions as to the extent of defendant‘s duty to notify, i.e., how soon notification must normally be made to likely avert harm and how extensive defendant‘s attempts to notify must be.” Id. at 398-99.
Because no medical testimony was presented to establish the standard of care regarding notification by the defendant, the jury verdict was reversed. Id. at 402.
¶ 93 The plaintiff in Bloom v. Guth, 164 Ill. App. 3d 475, 477 (1987), appealed from the dismissal of her complaint for failure to comply with section 2-622. Her complaint alleged that the defendant physician failed to perform a hysterectomy and failed to repair her bladder. The plaintiff contended section 2-622 did not apply to her case because she did not allege a medical malpractice claim and instead filed an action sounding in contract. The Bloom court found the plaintiff‘s argument was “contrary to the plain language of section 2-622(a), which states that an affidavit of plaintiff or plaintiff‘s attorney is required ‘[i]n any action, whether in tort, contract, or otherwise, in which the plaintiff seeks damages for injuries or death by reason of medical, hospital, or other healing art malpractice.’ ” Bloom, 164 Ill. App. 3d at 477-78 (quoting Ill. Rev. Stat. 1985, ch. 110, ¶ 2-622(a)).
¶ 94 Plaintiff‘s medical battery action, which sounds in tort, requests damages for injuries arising from a medical procedure he claims went beyond the scope of a Z scarf osteotomy. Whether the cutting of the tendons exceeded the scope of the surgery is a “subject matter *** so complicated that lay persons are not in an adequate position to assess whether a breach of duty has occurred.” Schindel, 252 Ill. App. 3d at 395. Similarly, a court cannot simply
¶ 95 The Remaining Negligence and Gross Negligence Claims
¶ 96 Counts II and III of plaintiff‘s second amended complaint allege vicarious liability based
on the doctrine of respondeat superior against RFU, Scholl College, CMS1 and FACA. Count VII alleges gross negligence against Dr. Yorath. Count VIII alleges “medical malpractice gross negligence in violation of the informed consent doctrine” against Dr. Yorath. Plaintiff asserted against Dr. Yorath a gross negligence claim pursuant to the res ipsa loquitur doctrine in count IX.¶ 99 In short, counts II, III, VII, VIII and IX all are grounded in the theory of medical negligence. The circuit court granted the defendants’ motions to dismiss on each of these counts pursuant to Code sections
¶ 100 The purpose of a section
¶ 101 As previously stated, by requiring a litigant to obtain, at an early stage, the opinion of a medical expert indicating his cause of action is meritorious, section
¶ 102 In Wasielewski v. Gilligan, 189 Ill. App. 3d 945 (1989), the plaintiff voluntarily dismissed his first medical malpractice action because he was unable to obtain a health professional‘s report. He later filed a second action, attaching an affidavit from his attorney stating that the statute of limitations would soon expire, and seeking the statutory 90-day extension. Wasielewski, 189 Ill. App. 3d at 946-47. After 120 days, the plaintiff still had not filed the required affidavit or written report and, as a result, the circuit court dismissed the case with prejudice. The Wasielewski court affirmed, finding no abuse of discretion. Id. at 951. The court held the plaintiff had received sufficient opportunity to meet the documentation requirements of section
¶ 103 Similarly, in Mueller, the circuit court dismissed the plaintiff‘s medical negligence complaint after finding the physician‘s report failed to comply with section
¶ 104 In this case, the circuit court provided plaintiff ample opportunity to comply with section
¶ 105 Despite a three-year search, plaintiff was unable to find a qualified “health professional” who would issue a written report in compliance with section
¶ 106 Plaintiff additionally claims that section
¶ 107 In sum, we find as a matter of law that the circuit court properly dismissed counts II, III, VII, VIII and IX of plaintiff‘s second amended complaint pursuant to sections
¶ 108 Fraudulent Concealment
¶ 109 Plaintiff alleged that Dr. Yorath committed fraudulent concealment of medical battery in count VI of his second amended complaint. Plaintiff claimed he would not have subjected himself to the surgical procedure but for Dr. Yorath “silently disregard[ing] any patient requests that no tendons be snipped,” citing Williams v. Chicago Osteopathic Health Systems, 274 Ill. App. 3d 1039 (1995). The circuit
¶ 110 Initially, it should be noted that “[f]raudulent concealment, as codified in [Code] section
¶ 111 To establish the alleged concealment amounted to a fraudulent misrepresentation, a plaintiff must prove: “(1) the concealment of a material fact, (2) the concealment was intended to induce a false belief, under circumstances creating a duty to speak [citation], (3) the innocent party could not have discovered the truth through a reasonable inquiry or inspection, or was prevented from making a reasonable inquiry or inspection, and relied upon the silence as a representation that the fact did not exist, (4) the concealed information was such that the injured party would have acted differently had it been aware of it, and (5) the reliance by the person from whom the fact was concealed led to his injury.” Williams, 274 Ill. App. 3d at 1052.
¶ 112 A review of the second amended complaint demonstrates that plaintiff did not properly plead a claim for fraudulent misrepresentation. Plaintiff claims that January 21, 2003 “was the first and only time anything resembling a discussion was conducted regarding the proposed operative procedure” and “the surgeon expressed his contemplation of cutting (releasing) the tendon to the extensor hallucis brevis muscle, which contemplation Plaintiff initially thought was made in jest.” Plaintiff alleges he told Dr. Yorath, “don‘t do that,” to which Dr. Yorath remained silent. The second amended complaint states that, in the January 28, 2003 appointment, Dr. Yorath again discussed the surgical procedure “where the surgeon hardly did more than again allude to contemplating cutting (releasing) the extensor hallucis brevis tendon, to which Plaintiff again said ‘don‘t do that,’ to which the surgeon again responded with silence, causing Plaintiff to now think the surgeon was not necessarily contemplating a tenotomy (cutting of a tendon) in jest.” Plaintiff alleged he specifically told Dr. Yorath not to cut the tendons on February 13, 2003. Plaintiff claims the consent form specifically prohibited “surgical treatment of any perceived soft-tissue deformities.”
¶ 114 Plaintiff also did not plead that the concealment was intended to induce a false belief. Plaintiff cannot claim he had a false belief the tendons would be cut when he concedes in his complaint that Dr. Yorath “was not necessarily contemplating a tenotomy (cutting of a tendon) in jest.” In other words, plaintiff took Dr. Yorath‘s contemplation seriously enough to tell him more than once, “don‘t do that.”
¶ 115 Further, plaintiff failed to plead he could not have discovered the truth—that cutting of the tendons was part and parcel of the Z scarf osteotomy procedure—through reasonable inquiry. Indeed, the consent form he signed prior to the surgery acknowledges, “All questions that I have were answered fully to my satisfaction. Alternatives, including not having surgery, have been explained to me, along with their potential risks and benefits. I have decided upon the surgery described herein.”
¶ 116 Next, plaintiff cannot claim that he would have acted differently had he been aware of the alleged concealment. Plaintiff concedes he was aware of Dr. Yorath‘s contemplation to cut the tendons during the procedure.
¶ 117 Finally, plaintiff has not properly pled the final element of fraudulent misrepresentation because there were no facts in the second amended complaint alleging the concealment of a material fact upon which plaintiff could rely. Plaintiff was required to set forth facts claiming he relied on the concealment by Dr. Yorath to cut the tendons. Plaintiff acknowledges and the record confirms throughout repeatedly that there was no concealment of the fact plaintiff‘s tendons would be cut during the surgery.
¶ 118 Accordingly, we find the circuit court properly dismissed count VI of plaintiff‘s second amended complaint. In addition, no abuse of discretion was shown as to the dismissal with prejudice of count VI of the third amended complaint.
¶ 119 Antitrust Claims
¶ 120 Count IV of plaintiff‘s amended complaint alleged against the AMA violations of the Illinois Antitrust Act for cartel-like violations (
¶ 121 Plaintiff alleged exactly the same antitrust violations against the AMA in count IV of his second amended complaint
¶ 122 On March 21, 2007, the circuit court granted the PMAs’ motion to dismiss. The court noted plaintiff did not identify in counts X and XI the nature of the alleged conspiracy or the persons or entities who entered into an illicit agreement to fix or control prices or services. According to the court, plaintiff asserted “in conclusory fashion that the failure of the medical professionals to assist him in his malpractice action constitutes a violation of the anti-trust statutes.” The court found counts X and XI factually insufficient to state a cause of action under the Antitrust Act. Nevertheless, plaintiff again alleged the same antitrust violations against the AMA and PMAs in this third amended complaint. The court dismissed with prejudice counts IV, X and XI on December 14, 2007.
¶ 123 On appeal, plaintiff contends the AMA violated section 3 of the Antitrust Act through “[c]ontrol over medical malpractice insurance,” restricting medical school admissions and “the cult of silence.” He asserts the AMA has contributed to “an unhealthy marketplace and citizenry.” Plaintiff provides no further detail in his briefs to explain what he means by these conclusory assertions. Against the PMAs, plaintiff simply reasserts in his brief the same allegations that warranted a dismissal of counts X and XI for failure to state a proper claim.
¶ 124 A dismissal of a section
¶ 125 Under the Antitrust Act, it is unlawful for a person to:
“(1) Make any contract with, or engage in any combination or conspiracy with, any other person who is, or but for a prior agreement would be, a competitor of such person:
a. for the purpose or with the effect of fixing, controlling or maintaining the price or rate charged for any commodity sold or bought by the parties thereto, or the fee charged or paid for any service performed or received by the parties thereto;
b. fixing, controlling, maintaining, limiting, or discontinuing the production, manufacture, mining, sale or supply of any commodity, or the sale or supply of any service, for the purpose or with the effect stated in paragraph a. of subsection (1);
c. allocating or dividing customers, territories, supplies, sales, or markets, functional or geographical, for any commodity or service; or (2) By contract, combination, or conspiracy with one or more other persons unreasonably restrain trade or commerce; or
(3) Establish, maintain, use, or attempt to acquire monopoly power over any substantial part of trade or commerce of this State for the purpose of excluding competition or of controlling, fixing, or maintaining prices in such trade or commerce[.]”
740 ILCS 10/3 (West 2004).
Violation of the act requires a combination or conspiracy between competitors or potential competitors to accomplish an anticompetitive objective. Adkins v. Sarah Bush Lincoln Health Center, 129 Ill. 2d 497, 521 (1989).
¶ 126 Plaintiff‘s antitrust claims that he alleges here are quite similar to those that have been reviewed and disposed of previously by this court in Holzrichter v. County of Cook, 231 Ill. App. 3d 256 (1992). In that case, the basis for this same plaintiff‘s lawsuit also arose from underlying medical malpractice claims. He was injured in an automobile accident and spent three months recovering at Cook County Hospital. He underwent a bilateral craniotomy. Plaintiff filed a pro se complaint charging Cook County Hospital, its agents and employees with negligence for losing or failing to restore ” ‘one roughly four square-inch cranial-bone tissue specimen from above [his] left ear resulting in a craniectomy being performed.’ ” Holzrichter, 231 Ill. App. 3d at 259. Plaintiff joined the AMA in his amended complaint, alleging the AMA of “promulgating or encouraging practices among its member physicians that led to a conspiracy of silence which in turn prevented plaintiff from learning about his possible causes of action against the doctors for medical malpractice.” Id. at 260. The circuit court dismissed the antitrust claims against the AMA pursuant to section
¶ 127 On appeal, the Holzrichter court noted the AMA‘s influence over its members and its lobbying for changes in the law does not automatically equate with antitrust violations. “As we understand plaintiff‘s position, he deplores the growing trend toward specialization and what he perceives as a resulting erosion of the doctor-patient relationship. His conclusory charge that the AMA has fostered such a situation for illegal purposes under the antitrust laws, however, does not withstand analysis.” Id. at 265. The court further questioned whether the plaintiff even had standing to bring such a claim. Id. Under section 7(2) of the Antitrust Act, a person may bring a civil action if he ” ‘has been injured in his business or property, or is threatened with such injury, by a violation of section 3 of this Act.’ ” Id. at 266 (quoting
“Clearly, plaintiff‘s physical and mental suffering, however severe and unfortunate,
is not the type of ‘marketplace’ injury normally compensable under the antitrust laws. His damages are for personal injuries and he does not set forth any solid factual link between the doctors’ supposed concealment of plaintiff‘s inchoate malpractice claims and specific acts of the AMA as an organization. The public interest in more efficient and less expensive health care is great; however, the AMA‘s stance with respect to doctor specialization or malpractice insurance is not legally relevant either to plaintiff‘s physical injuries or to his claim that certain of his treating physicians concealed matters that would sustain a medical malpractice action.” Id. at 267.
¶ 128 In this case, plaintiff‘s claims against the AMA and PMAs are simply conclusory and utterly fail to state a cause of action for violations of the Antitrust Act. As in Holzrichter, plaintiff‘s damages are for personal injuries and he has failed to plead any facts establishing an alleged antitrust conspiracy in the podiatric medical community to prevent him from obtaining a section
¶ 129 We conclude the circuit court properly dismissed count IV of plaintiff‘s amended complaint. We find no abuse of discretion in the dismissal with prejudice of counts IV, X and XI of plaintiff‘s third amended complaint. See Ahmed v. Pickwick Place Owners’ Ass‘n, 385 Ill. App. 3d 874, 882 (2008) (denying the plaintiff‘s numerous requests for leave to amend where he had several opportunities to amend the complaint and had already done so twice); Weidner v. Midcon Corp., 328 Ill. App. 3d 1056, 1061 (2002) (finding the allowance of additional amendments would not further the ends of justice where the plaintiff had several opportunities to amend to state a claim upon which relief could be granted, and the series of complaints filed did not substantially differ from one another).
¶ 130 Mandamus Claim
¶ 131 Count V of plaintiff‘s amended complaint requested mandamus relief against the IDPR. On September 30, 2005, the circuit court dismissed count V with prejudice pursuant to Code section
¶ 132 On March 21, 2007, the circuit court denied plaintiff‘s motion to reconsider the dismissal of count V of the amended complaint. The court held that the IDPR is an agency within the State and is granted sovereign immunity by statute. The court found no basis to reconsider the order of September 30, 2005. Plaintiff repled count V in his third amended complaint, which count was dismissed with prejudice on December 14, 2007. The court‘s decision to dismiss count V of the amended complaint pursuant to section
¶ 133 The IDPR argues that we should uphold the dismissal of count V of the third amended complaint on the ground that plaintiff failed to state a cause of action for mandamus against it.
¶ 134 A mandamus order will issue only to compel a public official to perform a clear, nondiscretionary, official duty. People ex rel. Birkett v. Konetski, 233 Ill. 2d 185, 192-93 (2009). Such relief will not be granted to direct the exercise of discretion. Id. To state a cause of action for mandamus, a plaintiff must establish a clear right to relief, the defendant‘s clear duty to provide that relief, and the defendant‘s clear authority to comply with the relief sought. Id.
¶ 135 The Podiatric Medical Practice Act of 1987 (
¶ 136 Not every informal complaint filed with the IDPR by a private citizen develops into a “contested case” under section 10-25 of the Administrative Procedure Act (
¶ 137 Plaintiff‘s allegations against Dr. Yorath in his IDPR complaint never developed into a contested case. On June 15, 2004, IDPR Chief of Health-Related Prosecutions Mary E. Doherty advised plaintiff his case was closed because an investigation “has disclosed no provable violation of the [Podiatric Medical Practice] Act.” In the absence of any contested case, section 10-25 of the Procedure Act did not apply. Thus, plaintiff failed to establish a clear right to compel the IDPR with the contested case provisions of the Procedure Act in his case against Dr. Yorath.
¶ 138 Nor could plaintiff compel the IDPR to institute a contested case against Dr. Yorath. Mandamus cannot be used to direct the IDPR‘s exercise of discretion. See Konetski, 233 Ill. 2d at 193. Here, under the Podiatric Medical Practice Act and the Procedure Act, the determination of whether an investigation has revealed enough evidence for the chief of prosecutions to issue a complaint is a discretionary decision.
¶ 139 Moreover, even if a contested case had been instituted against Dr. Yorath, plaintiff still would have no right, much less a clear right, to participate in the IDPR hearing. The contested case provisions of the Procedure Act provide only parties with the opportunity for a hearing.
¶ 140 Accordingly, even if the case against Dr. Yorath had proceeded to the contested case stage, plaintiff still would have no clear right to mandamus relief against the IDPR. Because he was not a party, he had no clear right to participate in any hearing.
¶ 141 Punitive Damages Claims
¶ 142 Plaintiff asserts the circuit court erred by denying him leave to amend his complaint to add punitive damages claims against Dr. Yorath. In his brief, plaintiff refers to his motion to add claims of punitive damages filed on March 14, 2007, prior to the dismissal of his second amended complaint. The court denied plaintiff‘s motion on April 27, 2007. “The determination of whether the facts of a given case justify the imposition of punitive damages is a question of law; however, it has been uniformly held that an abuse of discretion standard will be applied on review.” Stojkovich v. Monadnock Building, 281 Ill. App. 3d 733, 742 (1996).
¶ 143 Section
¶ 144 In Grant, the plaintiff appealed the denial of her motion for leave to file a third amended complaint to add a count seeking punitive damages for willful and wanton battery. Grant, 291 Ill. App. 3d at 804. The plaintiff claimed the defendant physician performed a tubal ligation without her consent. The circuit court considered the plaintiff‘s entire complaint, which included medical malpractice claims, and found the definition of malpractice to be broad and encompassing of the alleged battery. The Grant court reversed the circuit court‘s decision to deny leave to file a punitive damages claim for medical battery, finding the battery claim arose “independently of the alleged healing art of malpractice.” Id. at 805. “The allegations constituting a cause of action for battery stem from an unconsented-to touching. Just because plaintiff has a separate malpractice claim where nonconsent was an issue does not mean that an independent claim for battery should be precluded.” Id.
¶ 145 In contrast to Grant, the record conclusively establishes that plaintiff in this case consented to the procedure performed by Dr. Yorath. We earlier found that plaintiff‘s medical battery claim was not independent from his medical negligence claims because he is challenging an implicit part of the surgical procedure, which requires a medical opinion pursuant to Code section
¶ 146 Here, plaintiff cannot assert punitive damages without first properly pleading the underlying claims for medical battery and fraudulent misrepresentation. Accordingly, the circuit court did not abuse its discretion by denying plaintiff leave to file a fourth amended complaint to add his punitive damages claims.
¶ 147 Denial of Leave to Amend to Add Various Additional Claims
¶ 148 On December 26, 2008, plaintiff sought leave to amend his complaint to add claims for spoliation and violations of the X-Ray Retention Act (
¶ 149 As to this issue, we begin by noting that plaintiff‘s brief largely consists of an amalgamation of paragraphs, taken from the pleadings, that have not been joined in any coherent manner. “A reviewing court is entitled to have the issues clearly defined and supported by pertinent authority and cohesive arguments ***.” U.S. Bank v. Lindsey, 397 Ill. App. 3d 437, 459 (2009) (citing
¶ 150 Even if we were to review this issue, nothing in the record below suggests the circuit court abused its discretion by denying plaintiff‘s motions to amend his complaint. See Sexton, 2012 IL App (1st) 100010, ¶ 79; see also Ahmed, 385 Ill. App. 3d at 882 (denying the plaintiff‘s numerous requests for leave to amend where he had several opportunities to amend the complaint and had already done so twice); Weidner, 328 Ill. App. 3d at 1061 (finding the allowance of additional amendments would not further the ends of justice where the plaintiff had several opportunities to amend to state a claim upon which relief could be granted, and the series of complaints filed did not substantially differ from one another).
¶ 151 CONCLUSION
¶ 152 For all the aforementioned reasons, we affirm the decision of the circuit
The court properly disposed of all pending matters in plaintiff‘s case.
¶ 153 Affirmed.