Natale v. Gottlieb Memorial Hospital
Annotate this Case
FIFTH DIVISION
September 19, 1997
No. 1-96-3446
ROBERT D. NATALE, ) APPEAL FROM THE
) CIRCUIT COURT OF
Plaintiff-Appellant, ) COOK COUNTY.
)
v. )
)
GOTTLIEB MEMORIAL HOSPITAL )
and GERARD SUBLETTE, M.D., ) HONORABLE
) PHILIP L. BRONSTEIN,
Defendants-Appellees. ) JUDGE PRESIDING.
JUSTICE SOUTH delivered the opinion of the court:
Plaintiff Robert Natale filed a two-count complaint seeking
damages for emotional distress for his fear of infection due to
the alleged medical negligence of the defendants, Dr. Gerard
Sublette and Gottlieb Memorial Hospital (Gottlieb). Plaintiff's
claims for emotional distress damages were dismissed on June 10,
1996. On September 10, 1996, after plaintiff's counsel admitted
that plaintiff claimed no damages other than emotional distress,
the court dismissed the complaint with prejudice. This appeal
followed.
On January 12, 1996, Natale filed a complaint for healing
arts malpractice against defendants. Count I sought damages
against Dr. Sublette; count II contained the same allegations
found in count I and was directed to the hospital. Plaintiff
alleged that Dr. Sublette performed a colonoscopy procedure on
plaintiff on January 13, 1994, and that, through the negligence
of the defendants, he was "invaded by a non-sterile, contaminated
scope." As a consequence, plaintiff "was exposed to infections
including Hepatitis A, B and C, HIV and other transmissible
diseases." The complaint contended that plaintiff's damages
include "extreme mental anguish."
On February 7, 1996, Gottlieb moved for dismissal in lieu of
answer, pursuant to section 2-615 of the Code of Civil Procedure
(735 ILCS 5/2-615(b)(West 1994)). Citing Doe v. Surgicare of
Joliet, Inc., 268 Ill. App. 3d 793, 643 N.E.2d 1200 (1994),
Gottlieb moved to dismiss plaintiff's claims for emotional
distress due to his purported failure to allege actual exposure
to any infection and a consequent likelihood of contracting an
infection. Dr. Sublette moved subsequently to join Gottlieb's
motion. Plaintiff filed a response, adding his unsigned
affidavit in support of his claims of emotional distress.
Gottlieb replied to plaintiff's arguments and objected to
plaintiff's affidavit and references to facts and other
particulars not found within the four corners of the complaint.
Defendants subsequently moved for dismissal of the entire
complaint. Plaintiff responded, conceding that his only claims
were for emotional distress damages. The court heard the
defendants' motion on September 10, 1996. After confirming that
the only claims plaintiff was pursuing were for emotional
distress and, plaintiff having made no motion for leave to amend
the complaint, the court dismissed the complaint with prejudice
against both defendants.
In considering a motion to dismiss, the trial court must
accept as true all well-pleaded facts in the portion of the
complaint being attacked. A trial court should grant a motion to
dismiss a cause of action only when it is clearly apparent that
no set of facts can be proven which will entitle a plaintiff to
recover. Doe v. Surgicare of Joliet, Inc., 268 Ill. App. 3d 793,
795, 643 N.E.2d 1200, 1202 (1994). This court must determine
whether the facts alleged in the complaint, considered in the
light most favorable to the plaintiff, establish a cause of
action upon which the plaintiffs can recover. Burdinie v.
Village of Glendale Heights, 139 Ill. 2d 501, 504, 565 N.E.2d 654, 657 (1990).
In a negligence action for medical malpractice, there must
be a duty owed by defendant to the plaintiff, a breach of duty,
an injury proximately caused by the breach, and resultant
damages. Reynolds v. Decatur Memorial Hosp., 277 Ill. App. 3d
80, 85, 660 N.E.2d 235, 238 (1996).
This court must determine whether the allegations of the
complaint sufficiently state a cause of action for medical
negligence when the only damages are emotional distress arising
from the fear of contracting the HIV virus. A dispute exists as
to the standard to be applied in determining the circumstances
under which emotional distress damages are recoverable by reason
of a fear of contracting AIDS. The majority in Doe v.
Northwestern University, No. 1-96-0067 (1st Dist. June 17, 1997),
and one justice in Majca v. Beekil, No. 1-95-3232 (1st Dist. June
24, 1997) (McNulty, J.) have held that emotional distress damages
are available for the time during which a plaintiff reasonably
feared a substantial, medically verifiable possibility of
contracting the infection. The majority in Doe v. Surgicare of
Joliet, Inc., 268 Ill. App. 3d 793, 643 N.E.2d 1200), and one
justice in both Northwestern, No. 1-96-0067 (DiVito, P.J.,
specially concurring) and Majca, No. 1-95-3232 (DiVito, P.J.,
specially concurring), require actual exposure to the virus
before a plaintiff may recover emotional distress damages based
solely upon a fear of contracting AIDS. This case does not
require us to choose between these two standards, however, as
actual exposure to HIV clearly satisfies the condition precedent
to recovery as articulated by the majority in Northwestern.
In moving to dismiss, the defendants charged that the
plaintiff failed to allege that he was "actually exposed to any
infection or virus." However, paragraph 6 of count I of the
plaintiff's complaint and paragraph 16 of count II both allege:
"Plaintiff was invaded by a non-sterile,
contaminated scope and was exposed to
infections including Hepatitis A, B and
C, and HIV and other transmissible
diseases." (Emphasis added.)
It is clear from the language in plaintiff's complaint that he
has alleged actual exposure to HIV and that the allegation must
be taken as true in deciding whether he stated a good and
sufficient cause of action.
Whether plaintiff can prove that he was exposed to HIV is
not the question before this court. If defendants had wished to
question whether facts exist to support plaintiff's allegations,
they should have filed a motion for summary judgment under
section 2-1005 of the Code (735 ILCS 5/2-1005 (West 1994)).
However, this is not the course that defendants chose. They
challenged the legal sufficiency of plaintiff's complaint under
section 2-615 of the Code, and thus, admitted plaintiff's factual
allegations for the purpose of their motion.
We find that plaintiff's complaint states a cause of action
for emotional distress. We reverse the lower court's dismissal
of plaintiff's complaint for failure to state a cause of action.
Reversed and remanded.
HOFFMAN and HOURIHANE, JJ., concur.
September 19, 1997
No. 1-96-3446
ROBERT D. NATALE, ) APPEAL FROM THE
) CIRCUIT COURT OF
Plaintiff-Appellant, ) COOK COUNTY.
)
v. )
)
GOTTLIEB MEMORIAL HOSPITAL )
and GERARD SUBLETTE, M.D., ) HONORABLE
) PHILIP L. BRONSTEIN,
Defendants-Appellees. ) JUDGE PRESIDING.
JUSTICE SOUTH delivered the opinion of the court:
Plaintiff Robert Natale filed a two-count complaint seeking
damages for emotional distress for his fear of infection due to
the alleged medical negligence of the defendants, Dr. Gerard
Sublette and Gottlieb Memorial Hospital (Gottlieb). Plaintiff's
claims for emotional distress damages were dismissed on June 10,
1996. On September 10, 1996, after plaintiff's counsel admitted
that plaintiff claimed no damages other than emotional distress,
the court dismissed the complaint with prejudice. This appeal
followed.
On January 12, 1996, Natale filed a complaint for healing
arts malpractice against defendants. Count I sought damages
against Dr. Sublette; count II contained the same allegations
found in count I and was directed to the hospital. Plaintiff
alleged that Dr. Sublette performed a colonoscopy procedure on
plaintiff on January 13, 1994, and that, through the negligence
of the defendants, he was "invaded by a non-sterile, contaminated
scope." As a consequence, plaintiff "was exposed to infections
including Hepatitis A, B and C, HIV and other transmissible
diseases." The complaint contended that plaintiff's damages
include "extreme mental anguish."
On February 7, 1996, Gottlieb moved for dismissal in lieu of
answer, pursuant to section 2-615 of the Code of Civil Procedure
(735 ILCS 5/2-615(b)(West 1994)). Citing Doe v. Surgicare of
Joliet, Inc., 268 Ill. App. 3d 793, 643 N.E.2d 1200 (1994),
Gottlieb moved to dismiss plaintiff's claims for emotional
distress due to his purported failure to allege actual exposure
to any infection and a consequent likelihood of contracting an
infection. Dr. Sublette moved subsequently to join Gottlieb's
motion. Plaintiff filed a response, adding his unsigned
affidavit in support of his claims of emotional distress.
Gottlieb replied to plaintiff's arguments and objected to
plaintiff's affidavit and references to facts and other
particulars not found within the four corners of the complaint.
Defendants subsequently moved for dismissal of the entire
complaint. Plaintiff responded, conceding that his only claims
were for emotional distress damages. The court heard the
defendants' motion on September 10, 1996. After confirming that
the only claims plaintiff was pursuing were for emotional
distress and, plaintiff having made no motion for leave to amend
the complaint, the court dismissed the complaint with prejudice
against both defendants.
In considering a motion to dismiss, the trial court must
accept as true all well-pleaded facts in the portion of the
complaint being attacked. A trial court should grant a motion to
dismiss a cause of action only when it is clearly apparent that
no set of facts can be proven which will entitle a plaintiff to
recover. Doe v. Surgicare of Joliet, Inc., 268 Ill. App. 3d 793,
795, 643 N.E.2d 1200, 1202 (1994). This court must determine
whether the facts alleged in the complaint, considered in the
light most favorable to the plaintiff, establish a cause of
action upon which the plaintiffs can recover. Burdinie v.
Village of Glendale Heights, 139 Ill. 2d 501, 504, 565 N.E.2d 654, 657 (1990).
In a negligence action for medical malpractice, there must
be a duty owed by defendant to the plaintiff, a breach of duty,
an injury proximately caused by the breach, and resultant
damages. Reynolds v. Decatur Memorial Hosp., 277 Ill. App. 3d
80, 85, 660 N.E.2d 235, 238 (1996).
This court must determine whether the allegations of the
complaint sufficiently state a cause of action for medical
negligence when the only damages are emotional distress arising
from the fear of contracting the HIV virus. A dispute exists as
to the standard to be applied in determining the circumstances
under which emotional distress damages are recoverable by reason
of a fear of contracting AIDS. The majority in Doe v.
Northwestern University, No. 1-96-0067 (1st Dist. June 17, 1997),
and one justice in Majca v. Beekil, No. 1-95-3232 (1st Dist. June
24, 1997) (McNulty, J.) have held that emotional distress damages
are available for the time during which a plaintiff reasonably
feared a substantial, medically verifiable possibility of
contracting the infection. The majority in Doe v. Surgicare of
Joliet, Inc., 268 Ill. App. 3d 793, 643 N.E.2d 1200), and one
justice in both Northwestern, No. 1-96-0067 (DiVito, P.J.,
specially concurring) and Majca, No. 1-95-3232 (DiVito, P.J.,
specially concurring), require actual exposure to the virus
before a plaintiff may recover emotional distress damages based
solely upon a fear of contracting AIDS. This case does not
require us to choose between these two standards, however, as
actual exposure to HIV clearly satisfies the condition precedent
to recovery as articulated by the majority in Northwestern.
In moving to dismiss, the defendants charged that the
plaintiff failed to allege that he was "actually exposed to any
infection or virus." However, paragraph 6 of count I of the
plaintiff's complaint and paragraph 16 of count II both allege:
"Plaintiff was invaded by a non-sterile,
contaminated scope and was exposed to
infections including Hepatitis A, B and
C, and HIV and other transmissible
diseases." (Emphasis added.)
It is clear from the language in plaintiff's complaint that he
has alleged actual exposure to HIV and that the allegation must
be taken as true in deciding whether he stated a good and
sufficient cause of action.
Whether plaintiff can prove that he was exposed to HIV is
not the question before this court. If defendants had wished to
question whether facts exist to support plaintiff's allegations,
they should have filed a motion for summary judgment under
section 2-1005 of the Code (735 ILCS 5/2-1005 (West 1994)).
However, this is not the course that defendants chose. They
challenged the legal sufficiency of plaintiff's complaint under
section 2-615 of the Code, and thus, admitted plaintiff's factual
allegations for the purpose of their motion.
We find that plaintiff's complaint states a cause of action
for emotional distress. We reverse the lower court's dismissal
of plaintiff's complaint for failure to state a cause of action.
Reversed and remanded.
HOFFMAN and HOURIHANE, JJ., concur.
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