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Docket No. 87445-Agenda 30-May 2000.

THERESE NEADE, as Independent Adm'r of the Estate of 
Anthony Robert Neade, Deceased, Appellee, v. STEVEN PORTES et al., Appellants.

Opinion filed October 26, 2000.

JUSTICE McMORROW delivered the opinion of the court:

Plaintiff filed a three-count complaint in the circuit court ofLake County, two counts of which were directed againstdefendants Steven Portes and Primary Care Family Center. Incount I, plaintiff alleged that defendants were liable for medicalnegligence, and in count II, plaintiff charged defendants with abreach of fiduciary duty. The principle issue in this appeal iswhether, in a complaint alleging medical negligence, a patient hasa cause of action for breach of fiduciary duty against a physicianfor that physician's failure to disclose incentives that exist underthe physician's arrangement with the patient's health maintenanceorganization (HMO). We hold that a patient may not bring abreach of fiduciary duty claim against a physician under thesecircumstances.

BACKGROUND 

According to the allegations in plaintiff Therese Neade'scomplaint, plaintiff's husband, Anthony Neade, had a familyhistory of heart disease, suffered from hypertension and a highcholesterol count, smoked heavily and was overweight. In 1990,at age 37, Mr. Neade began to exhibit symptoms of coronary arteryblockage. Specifically, Mr. Neade experienced chest painextending into his arm and shortness of breath. Mr. Neade'sprimary care physician, Steven Portes, M.D., hospitalized Mr.Neade from August 10 through August 13, 1990. During thishospitalization, Mr. Neade received several tests, including athallium stress test and an electrocardiogram (EKG). Dr. ThomasEngel (not a party to this appeal) found the results of the tests tobe normal and diagnosed Mr. Neade with hiatal hernia and/oresophagitis. Mr. Neade was thereafter discharged.

After his hospitalization, Mr. Neade visited Dr. Portes onAugust 17, August 28 and September 24, 1990, at the PrimaryCare Family Center (Primary Care), complaining of continuedchest pain radiating to his neck and arm. Relying on the results ofthe thallium stress test and EKG taken during Mr. Neade'shospitalization, Dr. Portes informed Mr. Neade that his chest painwas not cardiac related. In October 1990, Mr. Neade returned toDr. Portes, this time complaining of stabbing chest pain. At therequest of Dr. Portes, his associate, Dr. Huang, examined Mr.Neade. Dr. Huang recommended that Mr. Neade undergo anangiogram-a test that is more specific for diagnosing coronaryartery disease than a thallium stress test. Dr. Huang was employedon a part-time basis at Primary Care and had no hospitalprivileges. Dr. Portes, as Mr. Neade's primary care physician, wasresponsible for ordering any necessary hospitalization oradditional tests. Despite Dr. Huang's recommendation, Dr. Portesdid not authorize an angiogram for Mr. Neade.

Mr. Neade again returned to Primary Care in June 1991,complaining of chest pain. Dr. Portes asked Dr. Schlager, anotherpart-time physician at Primary Care, to examine Mr. Neade. Afterthis examination, Dr. Schlager also recommended that Mr. Neadeundergo an angiogram, but Dr. Portes, relying on the thalliumstress test, did not authorize the angiogram and advised Dr.Schlager that Mr. Neade's chest pain was not cardiac related.Subsequently, on September 16, 1991, Mr. Neade suffered amassive myocardial infarction caused by coronary artery blockage.Nine days later, Mr. Neade died.

Plaintiff's complaint alleges that Dr. Portes was the presidentof Primary Care and, as such, negotiated contracts with variousorganizations on behalf of himself and the clinic. Chicago HMO,of which Mr. Neade was a member, was one of the organizationswith which Dr. Portes had contracted for the provision of services.According to plaintiff's complaint, Dr. Portes personallynegotiated with Chicago HMO in 1990 and 1991 and agreed thatDr. Portes and his group would receive from Chicago HMO, interalia, $75,000 annually. The $75,000 was to be used by Dr. Portesand his group to cover costs for patient referrals and outsidemedical tests prescribed for Chicago HMO members. This fundwas termed the "Medical Incentive Fund."

Pursuant to the contract between Dr. Portes, Primary Care andChicago HMO, any portion of the Medical Incentive Fund thatwas not used for referrals or outside tests would be divided at theend of each year between Primary Care's full time physicians andChicago HMO, with the physicians receiving 60% of theremaining money and Chicago HMO receiving 40%. If theMedical Incentive Fund was exhausted prior to the end of the year,Dr. Portes and his group would be required to fund any additionalconsultant fees and outside tests. Plaintiff and Mr. Neade were notinformed of this arrangement between Dr. Portes, Primary Careand Chicago HMO.

Count I of plaintiff's amended complaint alleges that Dr.Portes' reliance on the thallium stress test and EKG and his failureto authorize an angiogram constituted medical negligence whichproximately resulted in Mr. Neade's death. In count I, plaintiffalleged facts regarding the Medical Incentive Fund. Count II ofplaintiff's amended complaint alleges that Dr. Portes had afiduciary duty to act in good faith and in the best interest of Mr.Neade, and that he breached that duty by refusing to authorizefurther testing, by refusing to refer Mr. Neade to a specialist andby refusing to disclose to the Neades Dr. Portes' financialrelationship (including the Medical Incentive Fund) with ChicagoHMO. Count II further alleges that Dr. Portes breached hisfiduciary duty by entering into a contract with Chicago HMO thatput his financial well-being in direct conflict with Mr. Neade'sphysical well-being.

The trial court agreed with defendants' argument thatfinancial motive was not relevant to whether Dr. Portes violatedthe applicable standard of care in treating Mr. Neade. The trialcourt therefore struck the allegations relating to the MedicalIncentive Fund from count I. With respect to count II, the trialcourt found that there existed no cause of action against aphysician for breach of fiduciary duty and granted defendants'motion to dismiss. Plaintiff thereafter filed a motion to reconsider,to which she attached her own affidavit and portions of thedeposition of plaintiff's expert, Dr. Jay Schapira. Plaintiff'saffidavit stated that, if she had known of the Medical IncentiveFund, she would have sought a second opinion from a physicianoutside of Dr. Portes' group concerning the necessity of anangiogram. In his deposition, Dr. Schapira stated that both theapplicable standard of care and ethical considerations obligate adoctor to disclose his financial interest in withholding care.According to Dr. Schapira, a patient can then make an informeddecision concerning the quality of care he is receiving and hisdoctor's motivations in treating him. Defendants filed a motion tostrike the affidavit and deposition excerpts from plaintiff's motionto reconsider. The trial court denied defendants' motion to strikeand also denied plaintiff's motion to reconsider.

On appeal, plaintiff argued that allegations concerning theMedical Incentive Fund are relevant to count I of plaintiff'scomplaint, in which plaintiff alleged medical negligence, to showthat Dr. Portes deviated from the standard of care. The appellatecourt determined that allegations relating to financial motive arenot appropriate in a medical negligence claim, and affirmed thetrial court's holding on this issue. However, the appellate courtheld that evidence relating to the Medical Incentive Fund may berelevant at trial to attack Dr. Portes' credibility if he testifies. Theappellate court reversed the trial court's dismissal of count II andheld that plaintiff stated a cause of action for breach of fiduciaryduty against Dr. Portes for Dr. Portes' failure to disclose theMedical Incentive Fund. 303 Ill. App. 3d 799.

On appeal to this court, defendants argue for reversal of theappellate court's finding that: (1) a cause of action for breach offiduciary duty exists for Dr. Portes' failure to disclose the MedicalIncentive Fund; and (2) evidence of the Medical Incentive Fund isrelevant in plaintiff's medical negligence action if Dr. Portestestifies at trial. We allowed the Illinois Trial Lawyers Associationto file an amicus curiae brief in support of plaintiff and the IllinoisState Medical Society and American Medical Association to filean amicus curiae brief in support of defendant.

ANALYSIS

A motion to dismiss under section 2-615 of the Code of CivilProcedure (735 ILCS 5/2-615 (West 1998)) is properly grantedwhere the plaintiff fails to state a cause of action upon which reliefcan be granted. Abbasi v. Paraskevoulakos, 187 Ill. 2d 386, 391(1999). We review a section 2-615 motion to dismiss de novo.Abbasi, 187 Ill. 2d at 391, citing Vernon v. Schuster, 179 Ill. 2d338, 344 (1997).

I. Breach of Fiduciary Duty

The primary issue in this appeal is whether plaintiff can statea cause of action for breach of fiduciary duty against Dr. Portes forDr. Portes' failure to disclose his interest in the Medical IncentiveFund. A fiduciary relationship imposes a general duty on thefiduciary to refrain from "seeking a selfish benefit during therelationship." Kurtz v. Solomon, 275 Ill. App. 3d 643, 651 (1995),citing Collins v. Nugent, 110 Ill. App. 3d 1026, 1036 (1982).Illinois courts have recognized a fiduciary relationship between aphysician and his patient (Witherell v. Weimer, 118 Ill. 2d 321, 331(1987); Petrillo v. Syntex Laboratories, Inc., 148 Ill. App. 3d 581,587 (1986)), but Illinois courts have never recognized a cause ofaction for breach of fiduciary duty against a physician.

Though Illinois courts have never addressed the issue ofwhether a plaintiff can state a cause of action for breach offiduciary duty against a physician, courts have rejected breach offiduciary duty claims brought against attorneys on the basis thatthey are duplicative of negligence or malpractice claims. Forexample, our appellate court has held that where a claim for legalmalpractice and a claim for breach of fiduciary duty are based onthe same operative facts and result in the same injury to theplaintiff, the breach of fiduciary duty claim should be dismissed asduplicative. Majumdar v. Lurie, 274 Ill. App. 3d 267, 273-74(1995); Calhoun v. Rane, 234 Ill. App. 3d 90, 95 (1992).

Courts in other jurisdictions have dismissed claims for breachof fiduciary duty when those claims are duplicative of medicalnegligence claims. Such claims for breach of fiduciary duty havealso been dismissed where they constitute an impermissiblerecasting of a medical negligence claim, even though plaintiff'scomplaint did not include a medical negligence claim. Theappellate court in the case at bar discussed decisions fromMinnesota, Colorado, Arizona and New Mexico. Each of thesejurisdictions held that a breach of fiduciary duty claim isduplicative of a negligence claim. 303 Ill. App. 3d at 809-10,citing Hales v. Pittman, 118 Ariz. 305, 309, 576 P.2d 493, 497(1978)); D.A.B. v. Brown, 570 N.W.2d 168 (Minn. App. 1997);Garcia v. Coffman, 124 N.M. 12, 19, 946 P.2d 216, 223 (App.1997); Awai v. Kotin, 872 P.2d 1332, 1337 (Colo. App. 1993);Spoor v. Serota, 852 P.2d 1292, 1294-95 (Colo. App. 1992). Forexample, in Brown, the defendant physician prescribed the drugProtopin to a group of patients. Subsequently, the defendant andthe distributor of Protopin were indicted for violating theMedicaid/Medicare Anti Kickback statute (42 U.S.C.