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1-00-4121     

                                                                                                                                                                                                 FOURTH DIVISION

AUGUST 8, 2002

JUSTICE HARTMAN delivered the opinion of the court:

Plaintiffs, Sandra and Paul Thornton, brought this action againstdefendants, Kumudcha Shah, M.D., and Humana Health Plan, Inc. (Humana), seekingdamages arising out of the in utero death of Alec Dante Thornton. Counts I andII of plaintiffs' fifth amended complaint, which are directed against Dr. Shah andsound in medical malpractice, allege that Dr. Shah failed to treat and respondproperly to Sandra's medical condition after her symptoms were communicated to himvia a January 7, 1994 telephone call from a Humana triage nurse. Counts III, IVand V of the complaint are directed against Humana and sound in contract, allegingthat Humana failed to provide plaintiffs access to a Humana physician, as providedin the Humana Michael Reese HMO Plan (Humana Plan). Count VI of plaintiffs'complaint also is directed against Humana and sets forth a claim of negligentspoliation.

Humana filed a combined motion to dismiss counts III through VI pursuant toCode of Civil Procedure (Code) sections 2-615 (735 ILCS 5/2-615 (West 2000)(section 2-615)) and 2-619(a)(5) (735 ILCS 5/2-619(a)(5) (West 2000) (section 2-619(a)(5))), or alternatively, section 2-619(a)(9) (735 ILCS 5/2-619(a)(9) (West2000) (section 2-619(a)(9))), under section 2-619.1 (735 ILCS 5/2-619.1 (West2000)).

On September 11, 2000, the circuit court of Cook County granted Humana'smotion and dismissed counts III through V with prejudice, pursuant to section 2-619(a)(5), and count VI with prejudice, under sections 2-615 and 2-619(a)(5). Plaintiffs' motion for reconsideration was denied. Plaintiffs appeal.

On appeal, plaintiffs question whether the circuit court (1) properlydismissed counts III through V of plaintiffs' fifth amended complaint as time-barred under section 13-212 (735 ILCS 5/13-212 (West 2000) (section 13-212)) ofthe Code; (2) properly dismissed count VI of plaintiffs' fifth amended complaintas untimely pursuant to section 13-205 (735 ILCS 5/13-205 (West 2000) (section 13-205)) of the Code and for failure to state a cause of action for negligentspoliation under section 2-615; and (3) abused its discretion by denyingplaintiffs leave to file an action for fraud.

Plaintiffs were enrolled in the Humana Plan because Paul, as a United StatesPostal Service employee, contracted with Humana under the Federal Employees HealthBenefits Program. The Humana Plan provided coverage for Paul and his family,which included medical and surgical benefits such as "[c]omplete obstetrical(maternity) care for all covered females, including prenatal, delivery andpostnatal care by a Plan doctor." Guidelines for Humana Plan enrollees requiredpatients to call their primary care doctor in the event of an emergency.

By deposition, Sandra testified that on January 7, 1994, at nine months ofpregnancy, she attended her appointment with Dr. Shah at Humana's Calumet Cityclinic, during which he performed an internal exam and listened for the fetalheartbeat. Dr. Shah informed Sandra that she was dilated one or two centimetersand that everything was normal.

Thereafter, Sandra went to her place of employment, where, at 5:00 p.m., shebegan to experience heavy vaginal bleeding and sporadic contractions that were 15to 20 minutes apart. Sandra paged Paul and notified him of the bleeding, tellinghim that she believed the baby would be delivered that evening. Sandra and Paulthen agreed to meet at their home, where Sandra called her mother and told her,"Well, we're going to have the baby tonight and we're just waiting around now." Sandra told her mother that her vaginal blood flow was heavier than her firstpregnancy. Sandra's mother suggested that she call her doctor.

At 7:00 p.m., Sandra called the Humana after-hours telephone number that shehad received from Dr. Shah during her appointment earlier that day. A womanidentifying herself as a Humana nurse answered Sandra's telephone call. Sandrainformed the nurse about her morning exam, that she was dilated one or twocentimeters, bleeding and experiencing contractions 15 to 20 minutes apart. Shealso told the nurse that during her first pregnancy, she had experienced bleeding,but not as heavy as her current episode, and regular contractions, not sporadiccontractions like the ones occurring for this pregnancy. Sandra asked the nurseto have a doctor call her. The nurse told Sandra that she would speak to Dr. Shahand call her back.

Sandra stated that an hour later, the Humana nurse called back and told herthat Dr. Shah said the bleeding was normal, due to the internal exam from theearlier appointment, and to call the after-hours number when the contractionsbecome 10 minutes apart. The nurse did not advise Sandra that if her problemscontinued, she should go to the hospital. Although Sandra's vaginal bleeding andcontractions persisted from Friday, January 7, 1994, through Monday, January 10,1994, the contractions never became 10 minutes apart and, following the medicaladvice given to her, Sandra did not go to the hospital.

Sandra called Dr. Shah on January 12, 1994, to request a verification letterexcusing her husband from attending work the previous weekend. Sandra told Dr.Shah that she did not stop bleeding until Monday and that her contractions neverbecame 10 minutes apart, to which Dr. Shah responded that her condition was"normal," and that he would see her on Friday for her next appointment.

On Friday, January 14, 1994, during her examination with Dr. Shah, Sandranoticed her file had a note attached to it which stated that Dr. Shah had spokento her on Wednesday regarding a letter of substantiation for her husband. Sandraagain asked Dr. Shah whether her heavy vaginal bleeding over the weekend wasnormal and Dr. Shah responded that her symptoms were normal so long as hercontractions did not become 10 minutes apart. Dr. Shah then attempted to checkthe fetal heartbeat, but could not detect any fetal heart tones. Dr. Shah askedSandra whether she had felt any movement by her baby the night before. Sandraresponded that she did not know whether she had felt any movement. An ultrasoundprocedure confirmed that the fetal heart chambers were not moving.

Sandra testified that she went to the hospital that evening to deliver thefetus by induction. After the delivery, Sandra's other obstetrician, Dr. ImreHidvegi, showed both her and Paul that the fetus had died as a result ofstrangulation from the umbilical cord, which was wrapped five times around thefetus' neck.

In a letter to plaintiffs' counsel, dated February 14, 1997, Humanaidentified the two triage nurses who would have answered the after-hours telephoneline on the night of January 7, 1994, as Jean Holcomb, R.N., and PatriceEberhardt, R.N.

By deposition, Holcomb testified that she began working as a telephonetriage nurse handling obstetrical/gynecological calls for Humana in 1989, forwhich she received 40 hours of training. Triage nurses followed a proceduremanual and were required to fill out a form for each call, which included thepatient's name, medical record, date of birth, telephone number, health center,doctor, date and time of call. The original form would be sent to the medicalrecords department of the patient's health center and the telephone triage centerwould retain a duplicate copy of the form for four months.

Holcomb stated that she had no recollection of any conversation with Sandraon January 7, 1994. If a particular patient demanded to speak to a doctor,Holcomb would call the doctor and say that the patient has requested to speak onlyto a physician. Presented with a hypothetical scenario, Holcomb testified thatif she had received a telephone call from a woman with Sandra's symptoms, shewould have advised that woman to go to the emergency room.

Eberhardt testified in her deposition that the telephone triage formincluded a section regarding whether a physician was notified and the results ofthe patient's assessment. If a physician is contacted by a triage nurse regardinga patient, it is the physician's decision as to whether he or she personallyreturns the patient's telephone call. A nurse has the authority to convey his orher own advice without calling a physician. According to Eberhardt, a triage callalways is documented in the patient's record.

Eberhardt stated that she had no recollection of speaking to Sandra on thenight of January 7, 1994, however, if she had received a telephone call from awoman with Sandra's symptoms, she "definitely" would have advised that the womanneeded to see a physician.

Dr. Shah testified by deposition that he first saw Sandra on December 7,1993. He did not perform an internal examination on Sandra on January 7, 1994. Internal examinations may cause spotting of blood, but not heavy bleeding. Asymptom of heavy bleeding at nine months of pregnancy is considered to be anobstetrical emergency.

For after-hours telephone consultations, Dr. Shah stated that patients wouldcall the telephone number provided by the Humana clinic and then would betransferred to the doctor on-call. While working for Humana, Dr. Shah neverexperienced a problem when a patient attempted to contact him. When contacted bythe triage nurse, Dr. Shah personally returned telephone calls immediately. Ifa patient called the after-hours service, a record of the call was put in thepatient's medical chart.

Dr. Shah stated that he did not receive a call from the Humana triage nurseon January 7, 1994, reporting that Sandra was bleeding. Sandra's medical chartdid not list a January 7, 1994 telephone call. If a patient with Sandra'ssymptoms called the after-hours telephone number, a triage nurse would have calledDr. Shah immediately, and Dr. Shah would have advised the patient to go to thehospital.

After the January 7, 1994 appointment, Dr. Shah did not speak to Sandrauntil her next appointment on January 14, 1994, during which he failed to detecta fetal heart tone. When Dr. Shah asked Sandra whether she felt the fetus movethe night before, she responded affirmatively, but said she was not sure about thebaby's movement on January 14. Dr. Shah recorded in Sandra's medical chart thatshe had felt the baby move the night before. He also recorded the performance ofan ultrasound, which showed no fetal movements and no cardiac motion, indicatingintrauterine fetal death. According to Dr. Shah, when he examined Sandra onJanuary 14, he did not have a conversation with her regarding any prior bleedingthat she had been experiencing.

Plaintiffs filed their initial medical malpractice complaint against Dr.Shah on February 23, 1995. Plaintiffs did not name Humana as a defendant untilfiling their second amended complaint on January 5, 1999.

Plaintiffs' fifth amended complaint, filed June 26, 2000, alleged in countsIII through V, that Humana breached its contract with plaintiffs to providenecessary and appropriate medical care, including access to an obstetrical primarycare physician on January 7, 1994. Plaintiffs pled that as a direct and proximateresult of the breaches of contract, Alec Dante Thornton died on or about January14, 1994, and that both Sandra and Paul sustained damages.

In count VI of their complaint, a negligent spoliation claim, plaintiffsalleged that Humana had a duty to retain all records relating to Sandra's medicalcare, including all records of telephone messages and telephone conversationsbetween Sandra and the after-hours Humana nurse who answered the telephone triageline, between said nurse and Dr. Shah and between Sandra and Dr. Shah,⁽¹⁾particularly in view of the severe and emergency nature of Sandra's condition onJanuary 7, 1994.⁽²⁾ Plaintiffs asserted that Humana negligently and/or willfullylost or destroyed records of telephone conversations from January 7, 1994, andJanuary 12, 1994. Plaintiffs pled that as a direct and proximate result ofHumana's loss or destruction of the aforesaid records of telephone calls, whichwere a part of Sandra's medical records, plaintiffs are missing key evidencerelevant to prove a case of medical negligence against Dr. Shah and Humana,thereby sustaining injury.

On July 7, 2000, Humana moved to dismiss counts III through VI ofplaintiffs' fifth amended complaint. Humana contended that counts III through Vof the complaint should be dismissed pursuant to section 2-619(a)(5) and section13-212 of the Code because plaintiffs' claims were time-barred by the statute oflimitations and repose for medical malpractice claims. Humana argued that countsIII through V should be dismissed pursuant to section 2-615 of the Code becauseplaintiffs failed to allege a breach of contract. Also, Humana insisted dismissalof counts III through V was appropriate, pursuant to section 2-619(a)(9), due toplaintiffs' failure to attach either an affidavit from an attorney or a reportfrom a health care provider setting forth that a reasonable and meritorious claimfor medical malpractice exists, in contravention of section 2-622 (735 ILCS 5/2-622 (West 2000)) of the Code.

For count VI, Humana asserted that plaintiffs' negligent spoliation claimwas insufficient at law, pursuant to section 2-615 of the Code. In addition,Humana argued that plaintiffs' claims in counts III through VI were preempted bythe Employee Retirement Income Security Act (ERISA) and, thereby, should bedismissed under section 2-619(a)(9) of the Code.

On September 11, 2000, the circuit court dismissed counts III through V ofplaintiffs' fifth amended complaint with prejudice, pursuant to Code section 2-619(a)(5) and count VI with prejudice, under Code sections 2-615 and 2-619(a)(5). The court found that counts III through V of the complaint arose out of medicalnegligence rather than a breach of contract and, therefore, plaintiffs' claimsunder those counts were time-barred. The court ruled that the negligentspoliation count was not timely filed and that plaintiffs failed to plead theelements of the claim.

On October 10, 2000, plaintiffs filed an amended motion to reconsider thecircuit court's dismissal of Humana, which the court denied. Plaintiffs appeal.

Plaintiffs initially assert that the circuit court improperly dismissedcounts III through V of their fifth amended complaint because those counts pledactions for breach of contract, not medical malpractice. Therefore, plaintiffscontend their breach of contract action was timely filed within the statutorylimitation period for both oral and written contracts pursuant to sections 13-205(735 ILCS 5/13-205 (West 2000)) and 13-206 (735 ILCS 5/13-206 (West 2000)) of theCode. Because Humana is not a physician, dentist, registered nurse or hospitallicensed under Illinois law, plaintiffs argue the court erred by applying section13-212 in support of its dismissal of counts III through V.

Humana responds that section 13-212 applies because the action is based uponbreach of contract for damages of injury or death "arising out of patient care." Humana argues that the facts upon which the breach of contract action are premisedare the same as those which form the basis for claims against Dr. Shah, namely,Sandra's alleged telephone call to a Humana triage nurse and the nurse's and Dr.Shah's responses. According to Humana, plaintiffs' allegations reveal that theconduct with which Humana is charged is the failure to provide proper medical careand services to Sandra, thereby constituting a medical malpractice claim. Further, Humana asserts that the duty and damages plaintiffs claim sound in tortrather than contract because plaintiffs alleged that Humana's agents failed toadhere to a standard of care for Sandra's treatment and sought damages for thedeath of Alec Thornton, not compensation to recover for the "benefit of theirbargain."

The purpose of a motion to dismiss is to provide a means to dispose ofissues of law or easily proved issues of fact. Timberline, Inc. v. Towne, 225Ill. App. 3d 433, 438, 587 N.E.2d 1149 (1992). Dismissal pursuant to section 2-619 is warranted only where it clearly is apparent that no set of facts can beproved which would entitle a plaintiff to recover. Milder v. Van Alstine, 230Ill. App. 3d 869, 871, 595 N.E.2d 693 (1992) (Milder). Because all properlypleaded facts are accepted as true, a reviewing court is concerned only with thequestion of law presented by the pleadings. Milder, 230 Ill. App. 3d at 871. Inruling on a section 2-619 motion to dismiss, a court may consider pleadings,affidavits and deposition evidence. Zedella v. Gibson, 165 Ill. 2d 181, 185, 650N.E.2d 1000 (1995). Dismissal pursuant to a section 2-619 motion based uponcertain defects or defenses is reviewed de novo. Lowe v. Ford Motor Co., 313 Ill.App. 3d 418, 420, 730 N.E.2d 58 (2000).

Plaintiffs rely on Solich v. George and Anna Portes Cancer Prevention Centerof Chicago, Inc., 158 Ill. 2d 76, 630 N.E.2d 820 (1994) (Solich) in arguing thatsection 13-212 does not apply to Humana, a health maintenance organization (HMO),because HMOs are not one of the specifically described entities identified in thelimitations statute. Two recently decided cases by the supreme court areinstructive in determining whether to apply section 13-212 to HMOs. First, inPetrovich v. Share Health Plan of Illinois, Inc., 188 Ill. 2d 17, 33, 46, 719N.E.2d 756 (1999) (Petrovich), the court found that an HMO could be heldvicariously liable for the medical malpractice of its independent contractorphysicians under apparent and implied authority principles. Next, in Jones v.Chicago HMO Limited of Illinois, 191 Ill. 2d 278, 293, 730 N.E.2d 1119 (2000)(Jones), the court held that an HMO could be held liable for medical malpracticeunder the theory of institutional negligence.

In applying legal theories of liability to HMOs, the supreme court noted"[t]he principle that organizations are accountable for their tortious actions andthose of their agents is fundamental to our justice system." Petrovich, 188 Ill.2d at 29. Further, "HMO accountability is essential to counterbalance the HMOgoal of cost-containment" and, because HMOs are profit-making entities,"accountability is also needed to counterbalance the inherent drive to achieve alarge and ever-increasing profit margin." Petrovich, 188 Ill. 2d at 29. TheJones court noted Pennsylvania authority that expanded the theory of hospitalinstitutional negligence to HMOs due to a recognition that "HMOs, like hospitals,consist of an amalgam of many individuals who play various roles in order toprovide comprehensive health care services to their members." 191 Ill. 2d at 293,citing Shannon v. McNulty, 718 A.2d 828, 835-36 (Pa. Super. Ct. 1998).

The supreme court's findings of HMO liability for medical malpractice inPetrovich and Jones expanded the holding in Solich to include HMOs as a class ofhealth care providers afforded consideration under section 13-212. Where an HMOcan be held liable for medical malpractice under various theories ofaccountability, a plaintiff must file his or her cause of action within the timeconstraints set forth in section 13-212.

Here, plaintiffs filed their breach of contract action against Humana almostfive years from the date of the subject occurrence on January 7, 1994. Section13-212 provides a limitation of two years in which to file a breach of contractaction for damages resulting in injury or death and arising out of patient care. 735 ILCS 5/13-212 (West 2000). Accordingly, extending the supreme court'sfindings in Solich to include HMOs for consideration under section 13-212,plaintiffs' breach of contract actions against Humana under counts III through Vare time-barred.

The question presented on review of the circuit court's dismissal ofplaintiffs' negligent spoliation claim under section 2-615 is whether plaintiffshave alleged sufficient facts in the complaint which, if proved, would entitlethem to relief. Urbaitis v. Commonwealth Edison, 143 Ill. 2d 458, 475, 575 N.E.2d548 (1991). All well-pleaded facts in the complaint are taken as true. IndeckNorth American Power Fund v. Norweb, PLC, 316 Ill. App. 3d 416, 430-31, 735 N.E.2d649 (2000) (Indeck). Dismissal pursuant to a section 2-615 motion is proper onlywhere the court can determine the relative rights of the parties solely from thepleadings. Indeck, 316 Ill. App. 3d at 430-31. When a complaint is dismissedpursuant to section 2-615, the standard of review is de novo. Vernon v. Schuster,179 Ill. 2d 338, 344, 688 N.E.2d 1172 (1997).

An action for negligent spoliation can be stated under existing negligencelaw, requiring plaintiff to plead the existence of a duty owed by defendant toplaintiff, a breach of that duty, an injury proximately caused by the breach anddamages. Boyd v. Travelers Insurance Co., 166 Ill. 2d 188, 194-95, 652 N.E.2d 267(1995) (Boyd). Generally, there is no duty to preserve evidence, however, a dutymay arise through an agreement, a contract or other special circumstances. Boyd,166 Ill. 2d at 195. A defendant may voluntarily assume a duty by affirmativeconduct. Boyd, 166 Ill. 2d at 195. Also, "plaintiff must allege sufficient factsto support a claim that the loss or destruction of the evidence caused theplaintiff to be unable to prove an underlying lawsuit." (Emphasis in original.) Boyd, 166 Ill. 2d at 196.

In the case sub judice, count VI of plaintiffs' complaint properly pleadsa duty and breach of that duty. It alleged that Humana triage nurses recordedpatient information on forms that become part of a permanent medical record, whichestablishes that Humana voluntarily assumed a duty to preserve patient records byaffirmative conduct. Plaintiffs' complaint charged that Humana breached that dutythrough the loss or destruction of records of the January 7, 1994, and January 12,1994 telephone calls.

For causation, however, paragraph 36 of plaintiffs' negligent spoliationclaim states "[t]hat as a direct and proximate result of Defendant, Humana's lossor destruction of the aforesaid records of telephone calls which were a part ofSandra Thornton's medical records, Plaintiff, Sandra Thornton, is missing keyevidence relevant to prove a case of medical negligence against Kumudcha Shah,M.D., and Defendant, Humana, and Plaintiff [sic] has sustained injury as aresult." Significantly, this paragraph does not assert specific facts explaininghow the missing telephone records caused plaintiffs to be unable to prove anunderlying lawsuit.

Accordingly, the circuit court's dismissal of count VI under section 2-615was appropriate because plaintiffs' complaint fails to allege facts sufficient tostate a cause of action for negligent spoliation. In light of this disposition,the statute of limitations question need not be addressed.

Plaintiffs next argue that the circuit court erred by denying them leave tofile an action for fraud against Humana.

The circuit court has discretion to allow or deny an amendment to a pleadingand its decision will not be reversed absent an abuse of that discretion. Boardof Directors of Bloomfield Club Recreation Association v. Hoffman Group, Inc., 186Ill. 2d 419, 432, 712 N.E.2d 330 (1999) (Hoffman Group). To determine whether toallow an amended pleading, the court considers: "(1) whether the proposedamendment will cure the defective pleading; (2) whether the proposed amendmentwould surprise or prejudice the opposing party; (3) whether the proposed amendmentwas timely filed; and (4) whether the moving party had previous opportunities toamend." Hoffman Group, 186 Ill. 2d at 432. In this case, there is no proposedamendment on record to determine whether the amendment would cure defectivepleadings or whether Humana would sustain surprise or prejudice. No abuse ofdiscretion has been shown.

Based on the foregoing, the circuit court of Cook County properly dismissedcounts III through VI of plaintiffs' fifth amended complaint.

Affirmed.

HOFFMAN, P.J., and THEIS, J., concur.

1. Question 16 of plaintiff's interrogatories to Dr. Shah asked, "[o]n January7, 1994, after approximately 6:00 p.m., did you speak with any individual(s)relative to the medical condition of either Sandra Thornton or the decedent AlecDante Thornton?" Dr. Shah answered, "[d]efendant objects to interrogatory no. 16on the basis that it is unclear as to whether 'individual(s)' is limited to healthprofessionals or includes any person and further seeks a narrative response whichis more appropriately addressed in a deposition."

2. A letter from defense counsel to plaintiffs' counsel, dated August 31,1999, stated that defense counsel was advised by Humana that the log books forpatient contact are retained only for six months and, therefore, no documentationbetween Sandra and Humana or between Humana and Dr. Shah exists.