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No. 3--03--0030

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2004

The plaintiff, Matthew Lane, brought this action after hesustained a leak in his small bowel following a laparoscopicappendectomy. Plaintiff originally filed a four-count complaintagainst the following defendants: Dr. Anderson, the attendingphysician; Peoria Surgical Group, Dr. Anderson's employer;Dr. Joo, the chief resident who performed the surgery withDr. Anderson; and OSF Healthcare Systems, ("OSF"), Dr. Joo'semployer. Counts I and II are for medical malpractice againstDr. Anderson and Peoria Surgical Group and are not at issue inthis appeal. Counts III and IV allege medical battery againstDr. Joo and OSF, respectively.

On February 25, 2002, the plaintiff moved to amend hiscomplaint to add count V, a claim for medical battery against Dr. Anderson. On April 24, 2002, the trial court denied theplaintiff's motion to amend and held that the facts as alleged bythe plaintiff did not support a claim for medical battery. OnMay 23, 2002, the trial court granted the plaintiff leave toamend his complaint to add counts VI, VII and VIII, which allegedfraud by Dr. Anderson, Dr. Joo and OSF, respectively. Theplaintiff and the defendants filed various motions on thepleadings.

On October 25, 2002, the trial court denied the plaintiff'smotion for summary judgment on count III of the complaint whichalleged medical battery against Dr. Joo. It granted summaryjudgment in favor of Dr. Joo and OSF Healthcare Systems on countsIII and IV, the medical battery counts. It also granted Dr.Anderson, Dr. Joo and OSF's motions to dismiss counts VI, VII andVIII which alleged fraud against each of them, respectively. Theplaintiff appeals from the trial court's orders entered onApril 24, 2002 and October 25, 2002.

On August 25, 2000, the plaintiff went to see defendantAnderson for recurrent abdominal pain. Dr. Anderson recommendedthat the plaintiff be hospitalized for a period of observationand possible surgery. After the plaintiff was admitted to thehospital he signed a "Consent to Surgery/Procedure" form. Therelevant language of the consent form is as follows:

"I, Matthew Lane, hereby authorize Dr. Rossi,Marshall, DeBord and Anderson and suchassistants and associates as may be selectedby him/her and OSF St. Francis Medical Centerto perform the following procedure(s)/treatment(s)upon myself/the patient:diagnostic laparoscopy, possible laparoscopicappendectomy, possible open appendectomy."

Dr. Anderson testified that on the evening of August 25,2000, he contacted his chief resident at the hospital, Dr. Joo,and asked him to assist with the plaintiff's surgery. The nextmorning, Dr. Joo and Dr. Anderson met with the plaintiff and Dr.Anderson recommended that the plaintiff have the surgery.

Dr. Anderson explained that the procedure performed on theplaintiff, a laparoscopic appendectomy, requires three hands. Two surgeons are needed to elevate the abdominal wall in order toinsert a needle into the abdomen. Additionally, a second surgeonis needed to run the camera while one surgeon works theinstruments.

Dr. Anderson was scrubbed, present and involved during theplaintiff's surgery. He both supervised and directed the entireprocedure. Throughout the surgery, Dr. Anderson was the primarysurgeon and Dr. Joo was his assistant. The primary surgeon isresponsible for the patient before and after the operation andfor any mistakes that occur during surgery.

Dr. Anderson testified that it is not known what portion ofthe operation a resident will perform at the beginning of aprocedure. In this case, Dr. Joo performed a significant part ofthe laparoscopic appendectomy.

Dr. Anderson's dictated report of the operation, as well ashis handwritten operative report, listed him as the surgeon andDr. Joo as the assistant. The perioperative record for surgicalservices listed Dr. Anderson as the primary surgeon and Dr. Jooas the resident. The pathology report contained only Dr.Anderson's name as the physician who performed the surgery.

In his deposition testimony, Dr. Joo stated that inAugust 2000 he was a fifth year resident in the surgery residencyprogram at St. Francis Medical Center. On August 26, 2000, heexamined the plaintiff. Dr. Joo said it was his habit tointroduce himself to a patient as the chief resident and as Dr.Anderson's assistant. Shortly before the operation, he and Dr.Anderson met with the plaintiff and recommended that he have thesurgery. Dr. Joo said that it was probably after this meetingthat he told Dr. Anderson that he would like to assist him in thesurgery.

Dr. Joo testified that it was his habit to be waiting forthe patient when he was brought into the operating room. Hewould have then spoken to the plaintiff to reassure him. Immediately before the operation, Dr. Joo signed the bottom ofthe plaintiff's consent form which identified the plaintiff asthe patient and confirmed the procedure to be performed.

Dr. Joo testified that the laparoscopic appendectomyprocedure which the plaintiff underwent required the use of threehands during the procedure. It is not possible for a singlesurgeon to perform the procedure. Typically, both thesupervising surgeon and the resident participate in almost allaspects of the surgery.

1. Plaintiff's Motion for Summary Judgment

On appeal, the plaintiff argues that the trial court erredin denying his motion for summary judgment on count III of hiscomplaint which alleged medical battery against Dr. Joo. Thedenial of a motion for summary judgment is not a final andappealable order. Blott v. Hanson, 283 Ill. App. 3d 656, 670N.E.2d 345 (1996). The denial of the plaintiff's motion forsummary judgment as to count III is not appealable as a matter oflaw.

2. Defendants Joo and OSF's Motionsfor Summary Judgment

Next, the plaintiff argues that the trial court erred in granting summary judgment in favor of Dr. Joo and OSF on countsIII and IV of the complaint which alleged medical battery againsteach of them. The plaintiff argues that Dr. Joo committedmedical battery when the treatment plaintiff received variedsubstantially with the consent that he gave when he signed the"Consent to Surgery/Procedure" form. Specifically, he arguesthat Dr. Joo performed a majority of the surgery and he did notconsent to that degree of participation by a doctor notspecifically listed on the consent form. As support for hiscontention, he cites to Guebard v. Jabbay, 117 Ill. App. 3d 1,452 N.E.2d 751 (1983). Finally, he claims that OSF, as Dr. Joo'semployer, is vicariously liable.

A motion for summary judgment will be granted when thepleadings, depositions and admissions on file, together with theaffidavits, if any, show that there is no genuine issue ofmaterial fact and that the movant is entitled to judgment as amatter of law. 735 ILCS 5/2--1005(c)(West 2000); Purtill v.Hess, 111 Ill. 2d 229, 489 N.E.2d 867 (1986). An appellate court will review the grant of a motion for summary judgment on a denovo basis. Kellner v. Bartman, 250 Ill. App. 3d 1030, 620N.E.2d 607 (1993).

In a medical battery case, a plaintiff may recover byestablishing the following: (1) a total lack of consent to theprocedure performed; (2) the treatment was contrary to thepatient's will; or (3) the treatment was at substantial variancewith the consent granted. Curtis v. Jaskey, 326 Ill. App. 3d 90,759 N.E.2d 962 (2001).

Here, the facts do not show that the treatment the plaintiffreceived was at substantial variance with the consent theplaintiff granted. The "Consent to Surgery/Procedure" form thatthe plaintiff executed stated that he authorized "Dr. Rossi,Marshall, DeBord, and Anderson and such assistants and associatesas may be selected by him/her and OSF St. Francis Medical Center"(emphasis added) to perform upon him a laparoscopic appendectomy. It is undisputed that more than one surgeon is needed to performthis procedure. It is typical for both the supervising surgeonand the resident to participate in virtually all aspects of theprocedure. Dr. Anderson was scrubbed, present and involvedduring the entire procedure. He was the primary surgeon, and Dr.Joo was his assistant. As the primary surgeon, Dr. Anderson wasresponsible for the plaintiff during the entire operation,including being responsible for any mistakes that occurred duringthe procedure. Dr. Anderson guided Dr. Joo throughout the entireprocedure and made all of the decisions and necessary judgments. Everything Dr. Joo did was subject to Dr. Anderson's approval. Further, all pertinent operative reports, including Dr.Anderson's dictated report of operation, his handwrittenoperative report and the perioperative record for surgicalservices listed Dr. Anderson as the surgeon and Dr. Joo as theassistant. The pathology report was sent to Dr. Anderson as thephysician who performed the surgery and contained only his name. Dr. Anderson was the operating surgeon in this case, regardlessof the degree to which Dr. Joo participated. The plaintiffconsented to Dr. Anderson and his assistant to perform thesurgery, and that is what was done.

The plaintiff cites to the Second District's opinion inGuebard v. Jabbay, 117 Ill. App. 3d 1, 452 N.E.2d 751 (1983), asauthority for the proposition that a medical battery occurred inthis case. Specifically, the plaintiff alleges: (1) the facts inthe Guebard case are nearly identical to the instant case; and(2) Guebard held, as a matter of law, that the resident in thatcase had committed medical battery. See Guebard, 117 Ill. App.3d 1, 452 N.E.2d 751. We disagree with both of the plaintiff'sallegations.

In Guebard, the plaintiff sued her surgeon, Dr. Jabbay,after two failed knee surgeries. She alleged that Dr. Jabbayviolated the doctrine of informed consent when he failed toinform her that a resident would perform the first surgery. Shealso filed a battery claim, but withdrew it before the case wentto the jury. Guebard, 117 Ill. App. 3d 1, 2, 452 N.E.2d 751,754. The jury returned a verdict for Dr. Jabbay. On appeal, theSecond District held that the doctrine of informed consent didnot apply in this case. Guebard, 117 Ill. App. 3d 1, 7, 452N.E.2d 751, 756. However, in dicta, the court noted that theplaintiff may have had a cause of action for battery. Guebard,117 Ill. App. 3d 1, 8, 452 N.E.2d 756. However, the plaintiffhad no recourse since she had withdrawn her battery claim.

Although the facts in Guebard are similar to the instantcase, they contain some important distinctions. In Guebard, thehandwritten report of the operation indicated that the surgerywas performed by the resident. Further, other typewritten notesindicated that Dr. Jabbay was the assistant. Conversely, in theinstant case, all pertinent operative reports listed Dr. Andersonas the surgeon and Dr. Joo as the assistant.

Further, Guebard did not hold, as a matter of law, that theresident in that case had committed medical battery. See Guebardv. Jabbay, 117 Ill. App. 3d 1, 452 N.E.2d 751 (1983). Batterywas not an issue in Guebard. The only issue before the court waswhether the plaintiff could recover on her informed consentcount. The parties did not brief the medical battery issue, nordid the court decide the issue in ruling for Dr. Jabbay on theinformed consent count. Therefore, the ruling in the Guebardcase does not affect the disposition of the instant case. SeeGuebard v. Jabbay, 117 Ill. App. 3d 1, 452 N.E.2d 751 (1983). The trial court properly granted summary judgment in favor ofdefendants Joo and OSF on counts III and IV of the complaint.

The plaintiff next argues that the facts he alleged incount V of his complaint were sufficient to state a cause ofaction for medical battery against Dr. Anderson. In essence, theplaintiff is arguing that the trial court erred in denying hismotion for leave to amend his complaint to add count V. Theplaintiff acknowledges that if this court finds summary judgmentin favor of Dr. Joo was proper, then we need not reach this issuebecause count V is predicated on Dr. Anderson's vicariousliability for the alleged medical battery committed by Dr. Joo.

Since the trial court properly granted summary judgment forDr. Joo and OSF on the medical battery counts, we find that thefacts alleged in count V of the complaint do not sufficientlysupport a claim for medical battery against Dr. Anderson.

The plaintiff contends that the trial court erred ingranting Dr. Anderson's motion to dismiss count VI of thecomplaint. In count VI, the plaintiff alleges that Dr. Andersoncommitted fraud when he: (1) represented to the plaintiff that hewould be performing the surgery when he knew that Dr. Joo had theoption to be the operating surgeon; and (2) later concealed thefact that Dr. Joo had chosen to do the surgery and Dr. Anderson instead assisted Dr. Joo. In the alternative, the plaintiffargues that the trial court erred in dismissing count VI of thecomplaint because it contained genuine issues of material fact. In ruling upon a motion to dismiss, a trial court accepts astrue all well-pled facts, as well as all reasonable inferencesfavorable to the party opposing the motion which may be drawnfrom the facts. Richardson v. Dunbar, 95 Ill. App. 3d 254, 419N.E.2d 1205 (1981). The court does not, however, accept as truemere conclusions of law or fact. Payne v. Mill Race Inn, 152Ill. App. 3d 269, 504 N.E.2d 193 (1987). The grant of a motionto dismiss will be reviewed on a de novo basis. Ramos v. City ofPeru, 333 Ill. App. 3d 75, 775 N.E.2d 184 (2002).

To prove that a concealment constituted a fraudulentmisrepresentation, a plaintiff must prove: (1) the concealmentwas of a material fact; (2) the concealment was intended toinduce a false belief; (3) the innocent party could not havediscovered the truth through a reasonable inquiry or inspectionand relied upon the silence as a representation that the fact didnot exist; (4) the concealed information was such that theinjured party would have acted differently if he had been awareof it; and (5) the reliance by the person from whom the fact wasconcealed led to his injury. Williams v. Chicago OsteopathicHealth Systems, 274 Ill. App. 3d 1039, 654 N.E.2d 613 (1995).

Here, the plaintiff argues that Dr. Anderson fraudulentlyconcealed that Dr. Joo would be the operating surgeon. Thedeposition testimony is clear, however, that Dr. Anderson, notDr. Joo, was the operating surgeon in this case. Dr. Andersonwas present for and participated in all aspects of the surgery. He directed all of Dr. Joo's movements, and he alone wasresponsible for the plaintiff throughout the surgery. The degreeof Dr. Joo's participation did not change his role from assistingphysician to operating surgeon.

In the alternative, the plaintiff contends that count VIshould not have been dismissed because genuine issues of materialfact exist regarding which physician acted as the operatingsurgeon and which physician acted as the assistant during theplaintiff's procedure. We have reviewed the pleadings and findno genuine issue of material fact that would preclude thedismissal of count VI. The undisputed facts show that theplaintiff executed a broad consent form which authorized foursurgeons and "such associates and assistants" as they selected to"perform" the procedure. There was no limitation on the consentgiven. Dr. Anderson was the operating surgeon regardless of thedegree to which Dr. Joo participated. The allegations raised bythe plaintiff are simply contrary to those facts. See Burton v.County of Jackson, 246 Ill. App. 3d 677, 616 N.E.2d 662 (1993)(allegations in a complaint are insufficient to raise a genuineissue of material fact where the affidavits and depositions whichsupport a motion for summary judgment set forth facts to thecontrary). Therefore, the trial court properly dismissed countVI of the complaint.

The plaintiff next argues that Dr. Joo and OSF are liablefor the fraud allegedly committed by Dr. Anderson. Since we havefound that Dr. Anderson was not liable for fraud under count VI,we likewise find that the trial court properly dismissed countsVII and VIII of the complaint alleging fraud against Dr. Joo andOSF, respectively.

Finally, the plaintiff argues that if the pleadings incounts VI, VII and VIII state a cause of action for fraud, thenhe is entitled to recover punitive damages. Counts VI, VII andVIII do not state a cause of action for fraud. Therefore, weneed not determine whether the plaintiff is entitled to punitivedamages on those counts.

The judgment of the circuit court of Peoria County isaffirmed.

Affirmed.

BARRY and LYTTON, J.J., concurs.