Doe v. Noe
Annotate this Case
SIXTH DIVISION
December 26, 1997
Nos. 1-96-3791 and 1-96-3855 (consolidated)
JANE DOE and JOHN DOE, ) Appeal from the
) Circuit Court of
Plaintiffs-Appellants and ) Cook County
Cross-Appellees, )
)
v. )
)
JOHN NOE No. 1, as the Ex'r of the )
Estate of JOHN NOE No. 2, Deceased; )
NOE No. 3, S.C.; JOHN NOE No. 4, )
)
Defendants-Appellees and )
Cross-Appellants )
)
(Noe No. 5, Medical Center; and )
Noe No. 6, Practice Center, ) Honorable
) Patrick E. McGann,
Defendants-Appellees). ) Judge Presiding.
PRESIDING JUSTICE GREIMAN delivered the opinion of the
court:
Plaintiffs Jane Doe (Jane) and her husband John Doe (John)
appeal the dismissal of 14 counts in their 18-count second
amended complaint, asserting several causes of action premised on
the underlying allegation that Jane had been exposed to the human
immunodeficiency virus (HIV) during two gynecological surgeries
by John Noe No. 2 (hereinafter Surgeon), i.e., the doctor who
performed the surgeries and was HIV positive at the time of the
surgeries and subsequently died of acquired immune deficiency
syndrome (AIDS).
The crux of plaintiffs' complaint is that Surgeon knew that
he was HIV positive when he performed two surgeries on Jane, that
he failed to disclose his HIV condition to plaintiffs before the
surgeries, and that the surgeries exposed Jane to HIV, which is
the precursor of AIDS.
In their second amended complaint, plaintiffs directed
various claims against the following defendants: (1) Surgeon
(John Noe No. 2), the doctor, now deceased, who performed the two
surgeries on Jane, and Executor (John Noe No. 1), the executor of
the estate of Surgeon; (2) Corporation (Noe No. 3, S.C.), a
professional corporation in which Surgeon allegedly was an
employee or agent; (3) Partner (John Noe No. 4, M.D.), a medical
doctor who allegedly was Surgeon's partner; and (4) Hospital (Noe
No. 5, Medical Center and Noe No. 6, Practice Center), the
hospital where the surgeries were performed and the health
maintenance organization affiliated with the hospital.
On appeal, plaintiffs contest the dismissal of the counts
asserting claims for battery, lack of informed consent,
intentional infliction of emotional distress, negligent
infliction of emotional distress, conspiracy, and loss of
consortium (counts I through XIV).
On cross-appeal, we address the trial court's decision to
allow the claims directed against Surgeon and Corporation based
on negligent infliction of emotional distress upon Jane (counts
XV and XVI) and derivative claims of loss of consortium for John
(counts XVII to XVIII). In addition, we answer two certified
questions relating to these four counts.
The two certified questions are:
"(a) Whether an HIV positive physician has a duty to disclose his
or her HIV status to a patient when seeking the patient's consent
to perform an invasive medical procedure which exposes the
patient to the risk of HIV transmission; and
(b) If such a duty exists, does a cause of action for the
negligent infliction of mental distress exist where there is no
allegation of actual HIV transmission during the course of the
procedure?"
We answer each certified question in the affirmative and
then determine whether plaintiff's second amended complaint
states causes of action for: (1) battery and loss of consortium
arising out of battery (counts I through IV); (2) lack of
informed consent and loss of consortium arising out of a lack of
informed consent (counts V through VIII); (3) intentional
infliction of emotional distress (count X); (4) negligent
infliction of emotional distress and loss of consortium arising
out of negligent infliction of emotional distress (counts XI
through XIV); and (5) conspiracy (count IX).
In addition, plaintiffs contend that the trial court erred
in dismissing Partner under section 2-1010 of the Illinois Code
of Civil Procedure, which allows for the dismissal of a party who
avers that he or she was not involved in the alleged occurrence
(735 ILCS 5/2-1010 (West 1992)).
Surgeon performed two gynecological surgeries on Jane: a
fractional dilation and curettage (D & C) and a polypectomy on
May 13, 1993, and another polypectomy on March 26, 1993. In
April 1994, plaintiffs filed their original complaint. On
October 27, 1994, plaintiffs filed their first amended complaint,
which asserted 14 counts based on various theories of liability:
COUNT DEFENDANTS CAUSE OF ACTION
I Surgeon Battery on Jane for performing the
surgery in May 1992
II Surgeon Loss of consortium for John based
on the surgery in May 1992
III Surgeon Battery on Jane for performing the
surgery in March 1993
IV Surgeon Loss of consortium for John based
on the surgery in March 1993
V Surgeon Lack of informed consent for Jane
for the surgery in May 1992
VI Surgeon Loss of consortium for John based
on lack of informed consent for the
surgery in May 1992
VII Surgeon Lack of informed consent for Jane
for the surgery in March 1993
VIII Surgeon Loss of consortium for John based
on lack of informed consent for the
surgery in March 1993
IX Surgeon, Partner Conspiracy
and Corporation
X All Defendants Intentional infliction of emotional
distress upon Jane by their failure
to disclose the HIV status of
Surgeon and the material risk of
transmission of the HIV infection
to her
XI Hospital, Partner Negligent infliction of emotional
and Corporation distress upon Jane by their refusal
to answer Jane's inquiries as to
whether Surgeon's death was HIV
related and whether Jane had been
exposed to the HIV virus by Surgeon
XII Hospital, Partner Loss of consortium for John based
and Corporation upon count XI
XIII Hospital, Partner Negligent infliction of emotional
and Corporation distress upon Jane based on their
duty to Jane to know the HIV status
of Surgeon and to advise Jane of
his HIV infection in advance of the
performance of the invasive
surgical procedure
XIV Hospital, Partner Loss of consortium for John based
and Corporation upon count XIII
Surgeon, Partner and Corporation filed a motion to dismiss
plaintiff's first amended complaint pursuant to section 2-615,
among other sections, of the Illinois Code of Civil Procedure
(735 ILCS 5/2-615 (West 1992)). These defendants asserted that
plaintiffs pleaded insufficient facts, unrecognized duties in
law, and unrecognized damages in law. Defendants argued that
plaintiffs' allegations of Surgeon's HIV status and of the
knowledge of Partner and Corporation of Surgeon's HIV status
were unfounded assumptions and conclusions without any factual
support. They further asserted that Illinois law does not
recognize a duty on the part of Partner and Corporation to know
the HIV status of Surgeon, and does not recognize a duty on the
part of Surgeon, Partner, or Corporation to inform Jane of
Surgeon's HIV condition prior to any medical treatment. These
defendants further argued that plaintiff has no recognized
damages in law because she did not allege actual exposure to the
virus.
These defendants also challenged plaintiffs' first amended
complaint under sections 2-619 and 2-622 (735 ILCS 5/2-619, 2-622
(West 1992)), arguing that the affidavit from the health
professional was insufficient, conclusory and failed to identify
with specificity the reasons and basis for the health care
professional's determination that there is a reasonable and
meritorious cause.
The Hospital filed a separate motion to dismiss on similar
grounds under sections 2-615, 2-619, and 2-622 of the Illinois
Code of Civil Procedure. Partner also moved for dismissal
pursuant to section 2-1010 on the grounds that he never provided
medical treatment of any kind to Jane and they never had a
doctor-patient relationship.
On October 11, 1995, the trial court dismissed all of the
counts, some with prejudice and some with leave to replead. The
trial court also issued a memorandum opinion and order, granting
defendants' motions to dismiss under section 2-615. The trial
court found, in relevant part, that Surgeon had a duty to
"disclose any and all risks imposed by his HIV status prior to
performing any invasive procedure on" Jane and that Partner had
no duty to plaintiffs because he had no involvement in Jane's
care under section 2-1010.
On July 22, 1996, plaintiffs filed their second amended
complaint, including the same 14 counts from the first amended
complaint and adding 4 more counts (counts XV through XVIII) that
were directed against Surgeon and Corporation and based on
negligent infliction of emotional distress:
COUNT DEFENDANTS CAUSE OF ACTION
XV Surgeon and Negligent infliction of emotional
Corporation distress upon Jane as to the May
1992 surgery for failure to
disclose Surgeon's HIV status, the
material risks of transmission of
HIV infection during surgery,
available alternative treatment, or
alternative physicians to perform
surgery
XVI Surgeon and Negligent infliction of emotional
Corporation distress upon Jane as to the March
1993 surgery for failure to
disclose the same information as
stated in count XV
XVII Surgeon and Loss of consortium for John based
Corporation on count XV
XVIII Surgeon and Loss of consortium for John based
Corporation on count XVI.
Surgeon, Partner and Corporation filed a motion to dismiss
plaintiffs' second amended complaint based on the same arguments
they advanced in their motion to dismiss the first amended
complaint. The Hospital filed a separate motion to dismiss by
incorporating by reference its previously filed motion to dismiss
the first amended complaint.
On October 21, 1996, the trial court dismissed with
prejudice counts I through XIV. At the hearing on the motions to
dismiss plaintiffs' second amended complaint, the trial court
reiterated and adopted its reasoning on counts I through XIV as
expressed in its memorandum opinion and order dismissing the same
counts in plaintiffs' first amended complaint. Regarding counts
XV through XVIII (negligent infliction of emotional distress),
the trial court denied Surgeon and Corporation's motion to
dismiss and further propounded two questions of law for review in
accordance with Supreme Court Rule 308 (155 Ill. 2d R. 308).
Plaintiffs appealed the dismissal of counts I through XIV
(No. 1-96-3791). Under Rule 308, Surgeon and Corporation filed
leave to appeal the trial court's denial of their motion to
dismiss counts XV through XVIII and to consider the two certified
questions posed by the trial court (No. 1-96-3855). This court
granted their Rule 308 petition and consolidated the appeals.
The first certified question asks this court to decide
"[w]hether an HIV positive physician has a duty to disclose his
or her HIV status to a patient when seeking the patient's consent
to perform an invasive medical procedure which exposes the
patient to the risk of HIV transmission." The trial court found
that such a duty to disclose exists as a matter of law and we
agree.
"A duty is an obligation to conform to a certain standard of
conduct for the protection of another against an unreasonable
risk of harm." Mt. Zion State Bank & Trust v. Consolidated
Communications, Inc., 169 Ill. 2d 110, 116 (1995); O'Hara v. Holy
Cross Hospital, 137 Ill. 2d 332, 337 (1990). Both the existence
and the scope of a duty are questions of law to be determined by
the court. Cullotta v. Cullotta, 287 Ill. App. 3d 967, 973
(1997), citing O'Hara, 137 Ill. 2d at 337.
To resolve whether a duty exists, a court must determine
whether there is a relationship between the parties requiring
that a legal obligation be imposed upon one for the benefit of
the other. Rhodes v. Illinois Central Gulf R.R., 172 Ill. 2d 213, 227 (1996); Bucheleres v. Chicago Park District, 171 Ill. 2d 435, 445 (1996); Kirk v. Michael Reese Hospital & Medical Center,
117 Ill. 2d 507, 525 (1987).
It is well established that the relationship between a
physician and patient imposes certain duties and obligations on
the part of the physician, including the duty to disclose
information. "[T]he physician-patient relationship does create
an affirmative duty to disclose facts." Goldberg v. Ruskin, 128
Ill. App. 3d 1029, 1040 (1984), aff'd in part, 113 Ill. 2d 482
(1986).
A physician's duty to disclose is incorporated and defined
in the doctrine of informed consent. "A physician has a duty to
inform patients of the foreseeable risks and results of a given
surgical procedure, and the reasonable alternatives to such
procedure." Weekly v. Solomon, 156 Ill. App. 3d 1011, 1016
(1987); Hansbrough v. Kosyak, 141 Ill. App. 3d 538, 551 (1986)
(same duty); see also Whittaker v. Honegger, 284 Ill. App. 3d
739, 742 (1996) ("foreseeability of harm, in connection with a
duty, is not a magical concept that ignores common sense").
The highest court in Maryland was presented with virtually
the same question now certified to us: "whether a surgeon
infected with the AIDS virus has a legal duty to inform patients
of that condition before operating on them." Faya v. Almaraz,
329 Md. 435, 438, 620 A.2d 327, 328 (1993). The Faya court found
that such a legal duty existed. Faya, 329 Md. at 448, 620 A.2d
at 333.
In Faya, the defendant surgeon performed breast surgeries on
the two female plaintiffs at a time when he knew he was HIV
positive. Faya, 329 Md. at 440, 620 A.2d at 329. Each plaintiff
filed separate lawsuits alleging various wrongful acts on the
part of the surgeon. The gist of their complaints was that the
surgeon "acted wrongfully in operating on the two women without
first telling them that he was HIV-positive (and, later, ill from
AIDS proper) and that Hopkins [the Hospital] was culpable for
permitting him to do so." Faya, 329 Md. at 441, 620 A.2d at 330.
The plaintiffs contended that by undergoing their operations
without knowing of the surgeon's illness, they were exposed to a
hazard to which they would not have consented, i.e., a risk of
AIDS attendant upon invasive surgery. Faya, 329 Md. at 441-42,
620 A.2d at 330. The trial court dismissed the plaintiffs'
complaint, intermediate appellate review was bypassed, and the
case proceeded to the Court of Appeals, the highest court in
Maryland. Faya, 329 Md. at 443, 620 A.2d at 330-31.
The Faya court explained in detail the nature of the HIV
virus, its transmission from one person to another, and its
causation of AIDS, an invariably fatal disease. The Faya court
further acknowledged studies, reports, and literature examining
these issues in the medical setting. Faya, 329 Md. at 438-39,
440-51, 620 A.2d at 328-29, 331-33. In its discussion of the
concept of legal duty, the Faya court observed that "legal
scholars have long agreed that the seriousness of potential harm,
as well as its probability, contributes to a duty to prevent it."
(Emphasis in original.) Faya, 329 Md. at 449, 620 A.2d at 333.
Considering all of the medical information and the fundamental
principles of a legal duty, the Faya court concluded: "Under the
allegations of the appellants' complaints, taken as true, it was
foreseeable that [the surgeon] might transmit the AIDS virus to
his patients during invasive surgery. Thus, we are unable to
say, as a matter of law, that [the surgeon] owed no duty to the
appellants, either to refrain from performing the surgery or to
warn them of his condition." Faya, 329 Md. at 448, 620 A.2d at
333. In light of this holding, the Faya court reversed the trial
court's dismissal of the plaintiffs' complaint as to both the
surgeon and the hospital. Faya, 329 Md. at 461, 620 A.2d at 339.
We find that the decision in Faya is persuasive and comports
with our already well-established general principles of duty and
our particular doctrine of informed consent. Accordingly, we
answer the first certified question in the affirmative and hold
that a physician should disclose his or her HIV-positive status
to a patient who is going to submit to an invasive surgery.
Having found that a physician has a duty to disclose in the
first certified question, we reach the second certified question
that asks: "If such a duty exists, does a cause of action for the
negligent infliction of mental distress exist where there is no
allegation of actual HIV transmission during the course of the
procedure?"
To state a cause of action for the negligent infliction of
emotional distress, a direct victim (as distinguished from a
bystander) needs only allege the same elements as any other cause
of action based on negligence. Corgan v. Muehling, 143 Ill. 2d 296, 306 (1991) (held that a patient plaintiff can allege a cause
of action for negligent infliction of emotional distress against
her psychotherapist for his having sexual relations with her). A
negligence complaint, "to be legally sufficient, must set out
facts that establish the existence of a duty owed by the
defendant to the plaintiff, a breach of that duty, and an injury
proximately caused by that breach." Corgan, 143 Ill. 2d at 306.
To recover for negligent infliction of emotional distress, an
allegation of physical injury, illness, manifestation, or
symptoms as a result of the emotional distress is not required.
Corgan, 143 Ill. 2d at 308-12; Doe v. Roe, 289 Ill. App. 3d 116
(1997); Campbell v. A.C. Equipment Services Corp., 242 Ill. App.
3d 707, 714 (1993). For purposes of the second certified
question, the elements of duty and breach of duty are assumed.
In Faya, the case that found a duty to disclose, the
Maryland court also addressed a question similar to the second
certified question now before us: "whether these are legally
compensable injuries where the appellants have not alleged in
their complaints an actual transmission of the HIV virus into
their bodies during the surgical procedures." Faya, 329 Md. at
451, 620 A.2d at 334. Although their complaints did not
specifically allege a claim of negligent infliction of emotional
distress, the plaintiffs alleged several other causes of action,
including negligent failure to obtain the patients' informed
consent. Faya, 329 Md. at 441, 620 A.2d at 330. The plaintiffs
pleaded that as a result of the surgeon's breach of duty to
disclose, they were put in fear of having contracted HIV and, due
to the derivative consequences of that fear, they suffered
emotional and mental distress, headaches, sleeplessness, and the
pain and expense associated with repeated blood tests. Faya, 329
Md. at 451, 620 A.2d at 334.
The Faya court concluded that "even though the averments of
the complaints did not identify any actual channel of
transmission of the AIDS virus," the plaintiffs could still
recover damages. Faya, 329 Md. at 455, 620 A.2d at 336-37. The
court, however, limited the time period for which recovery was
possible to the "reasonable window of anxiety," i.e., the time
between when the plaintiffs learned of the surgeon's illness and
when the plaintiffs received their HIV negative results. Faya,
329 Md. at 455-56, 620 A.2d at 337; accord Williamson v. Waldman,
150 N.J. 232, 696 A.2d 14 (1997); Tischler v. Dimenna, 160 Misc.
2d 525, 609 N.Y.S.2d 1002 (1994).
Four Illinois cases have addressed the issue of whether a
plaintiff can state a cause of action based on the possible
transmission of HIV in a medical setting. First, in Doe v.
Surgicare of Joliet, Inc., 268 Ill. App. 3d 793 (1994), a
contaminated needle was used to administer anesthetic during
surgery and the court affirmed the section 2-615 dismissal of the
plaintiffs' counts alleging negligent infliction of emotional
distress, finding no legally cognizable claim as a matter of law.
Two months after undergoing surgery, the plaintiff was informed
that during her surgery, a medical technician stuck himself or
herself with a needle and used the same needle to administer
anesthetic to plaintiff. The medical technician refused to
submit to an AIDS test and there was no allegation that the
technician was HIV positive or had AIDS. Due to her exposure to
the contaminated needle, plaintiff had to undergo AIDS testing.
The court found that plaintiff "suffered a physical impact upon
being stuck with an unsterile needle by defendant's medical
technician." Surgicare, 268 Ill. App. 3d at 796. The court,
however, held that absent actual exposure to the virus,
plaintiffs' claim was too speculative to recognize:
"If a suit for damages is based solely upon
plaintiff's fear of acquiring AIDS, but there is no
allegation of an actual exposure to the virus, a
legally compensable claim cannot be recognized. ***
Recovery in this situation should be based on the
likelihood of contracting AIDS, not the fear that it
could have happened, but did not." Surgicare, 268 Ill.
App. 3d at 798-99.
Second, in Doe v. Northwestern University, 289 Ill. App. 3d
39 (1997), pet. for leave to appeal allowed, No. 83886 (December
3, 1997), the plaintiffs' complaint was dismissed, finding no
legally cognizable damages. After receiving dental treatment,
the plaintiffs were informed that an unnamed dental student who
had provided treatment was infected with HIV. Plaintiffs filed
complaints, alleging multiple causes of action, but they did not
allege that any of them ever tested positive for HIV. The
majority in Northwestern adopted this standard: "plaintiffs who
fear that they have contracted AIDS because of a defendant's
negligence should recover damages for the time in which they
reasonably feared a substantial, medically verifiable possibility
of contracting AIDS." Northwestern, 289 Ill. App. 3d at 48-49.
Under this standard, the plaintiffs are required "to present
evidence that they knew facts that showed a substantial,
medically verifiable possibility of contracting the feared
disease." Northwestern, 289 Ill. App. 3d at 50. The court
concluded that the plaintiffs did not suffer legally cognizable
damages because they never faced a medically verified,
substantial risk of contracting HIV, noting that the plaintiffs
did not allege that any dental student bled during their
treatment and that the likelihood of infection was extremely low.
Northwestern, 289 Ill. App. 3d at 50-51.
Third, in Majca v. Beekil, 289 Ill. App. 3d 760 (1997), pet.
for leave to appeal allowed, No. 83677 (December 3, 1997)
(consolidated with Northwestern), the court affirmed summary
judgment for the defendants where the plaintiff had cut her hand
on a used scalpel while disposing of the trash in a medical
office. The court held that any reasonable fear that plaintiff
had about acquiring AIDS was not compensable because she had
already tested negative for HIV before she learned that the
subject physician had AIDS.
Fourth, in Natale v. Gottlieb Memorial Hospital, 292 Ill.
App. 3d 512 (1997), the plaintiff had been invaded by a
contaminated scope during a colonoscopy and filed a complaint
against the surgeon and the hospital. Plaintiff conceded that
his only claims were for emotional distress damages. The court
allowed plaintiff's complaint to withstand a section 2-615
dismissal because the language in the complaint alleged actual
exposure to HIV.
Under Surgicare, an allegation of actual exposure to the
virus is required. Under Northwestern and Majca, the plaintiff
must face a particularly substantial risk of HIV infection to
state a cause of action and the fear, even though reasonable, of
the possibility of contracting AIDS is not sufficient to be
compensable. Notwithstanding the high standards proposed in
these Illinois cases, we believe that the Faya opinion is more
persuasive in allowing plaintiffs to state a cause of action
absent an allegation of any actual channel of transmission of the
AIDS virus and in restricting the recovery of damages to the time
between learning of the surgeon's illness and receiving their
HIV-negative results, i.e., the reasonable window of anxiety.
Accordingly, we answer the second certified question in the
affirmative and find that a cause of action for the negligent
infliction of mental distress exists even where there is no
allegation of actual HIV transmission during the course of the
procedure.
Furthermore, we find Surgicare and Majca factually
distinguishable from the present case. In Surgicare, the
plaintiffs did not allege that the technician who used the
contaminated needle was HIV positive or had AIDS and could not
make such an allegation because the technician refused to submit
to an AIDS test. In Majca, the plaintiff received negative HIV
test results before she first learned that the doctor had died of
AIDS.
We recognize that our decision is at odds with the standards
propounded in Northwestern and Majca by the majority and the
special concurrence. We believe, however, that either standard
would discourage notification to a person who may have been
exposed to HIV because there would be no reason for such
disclosure if no liability obtained in the future. On the other
hand, the rationale in Faya for allowing liability within the
reasonable window of anxiety provides a reason to disclose the
possibility of HIV transmission to avoid liability.
In the present case, the trial court dismissed 14 counts of
plaintiffs' second amended complaint under section 2-615. On
appeal, this court applies a de novo standard of review where the
trial court dismisses a complaint under section 2-615. Brown
Leasing, Inc. v. Stone, 284 Ill. App. 3d 1035, 1044 (1996).
The question presented by a section 2-615 motion to dismiss
for failure to state a cause of action is whether sufficient
facts are contained in the pleadings which, if established would
entitle the plaintiff to relief. Wright v. City of Danville, 174 Ill. 2d 391, 398 (1996). Thus, the only question on appeal is
whether the dismissed counts stated a cause of action upon which
the plaintiffs can recover. Brown Leasing, 284 Ill. App. 3d at
1044; Majumdar v. Lurie, 274 Ill. App. 3d 267, 268 (1995).
BATTERY (Counts I through IV)
First, plaintiffs contend that Surgeon's performance of the
surgeries constituted a battery because his failure to reveal
that he was HIV positive vitiated the presurgery consent given by
plaintiff and, in turn, his performance of the surgeries amounted
to harmful and offensive contact. We disagree.
Under Illinois law, a claim for battery requires a lack of
consent for a touching. See Bernesak v. Catholic Bishop of
Chicago, 87 Ill. App. 3d 681, 688 (1980). In contrast, a claim
alleging a failure to disclose potential risks of an agreed
treatment is a medical negligence cause of action based on lack
of informed consent. Mink v. University of Chicago, 460 F. Supp. 713, 717 (N.D. Ill. 1978) (discusses the distinction);
Northwestern, 289 Ill. App. 3d at 44. In Northwestern, this
court held that the plaintiffs could not recover for battery
where they consented to the dental procedures that were performed
but did not know about the risks associated with the procedures
because the dentist was HIV positive. Northwestern University,
289 Ill. App. 3d at 44.
Plaintiffs cannot state a cause of action for battery. The
law distinguishes between a total lack of consent for the
contested act (battery) and the lack of informed consent
(negligence). There is no dispute that Jane consented to the
surgeries and that Surgeon performed the same procedures to which
Jane consented. Like the plaintiffs in Northwestern, the only
contested element of the surgery is the unknown risk involved
because the physician was HIV positive. Accordingly, we affirm
the dismissal of the counts for battery and for the derivative
loss of consortium alleged by John (counts I through IV).
INFORMED CONSENT (Counts V through VII)
Next, plaintiffs alleged causes of action premised on the
doctrine of informed consent. "To succeed in a malpractice
action based on the doctrine of informed consent, the plaintiff
must plead and ultimately prove four essential elements: (1) the
physician had a duty to disclose material risks; (2) he failed to
disclose or inadequately disclosed those risks; (3) as a direct
and proximate result of the failure to disclose, the patient
consented to treatment she otherwise would not have consented to;
and (4) plaintiff was injured by the proposed treatment."
Coryell v. Smith, 274 Ill. App. 3d 543, 546 (1995). "An
unrevealed risk that should have been made known must
materialize, for otherwise the omission, however, unpardonable,
is legally without consequence." Canterbury v. Spence, 464 F.2d 772, 790 (D.D.C. 1972).
As we previously held in our answer to the first certified
question, Surgeon had a duty to disclose his HIV-positive status
to Jane before the operations. However, plaintiffs' second
amended complaint fails to plead the requisite injury from this
unrevealed risk, i.e., the transmission of the HIV infection to
Jane during the surgeries. Thus, we affirm the dismissal of the
claims for informed consent and the derivative loss of consortium
(counts V through VII).
CONSPIRACY (Count IX)
The next count in the complaint (count IX) is directed
against Surgeon, Partner and Corporation and appears, in part, to
allege an agreement to commit a battery upon Jane by its
allegations of "the physical touching" by Surgeon that "was
harmful, offensive, and unauthorized." To the extent the count
is based on a conspiracy to commit a battery, it was properly
dismissed as the battery count was properly dismissed.
This count also alleges that they (Surgeon, Partner and
Corporation) "knowingly conspired and agreed among themselves to
not reveal the HIV status of [Surgeon] so as to gain consent to
care and treatment that the plaintiff would otherwise decline."
A civil conspiracy "consists of a combination of two or more
persons for the purpose of accomplishing by some concerted action
either an unlawful purpose or a lawful purpose by unlawful
means." Adcock v. Brakegate, Ltd., 164 Ill. 2d 54, 62 (1994).
The gist of plaintiffs' conspiracy count appears to be that the
"lawful act" was the surgeries, but the "unlawful means" was the
failure to disclose Surgeon's HIV-positive status. The duty to
disclose risks to a patient, however, rests exclusively with the
doctor in a physician-patient relationship. No independent duty
is imposed upon others. Accordingly, no conspiracy can be stated
and we affirm the dismissal of this conspiracy count (count IX).
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS (Count X)
The next count (count X) is directed against all defendants
by Jane for intentional infliction of emotional distress. Three
elements are required to establish the tort of intentional
infliction of emotional distress: "(1) the defendant's conduct
was truly extreme and outrageous; (2) the defendant either
intended that his conduct inflict severe emotional distress, or
knew that there was at least a high probability that his conduct
would cause severe emotional distress; and (3) the defendant's
conduct did in fact cause severe emotional distress." Sutherland
v. Illinois Bell, 254 Ill. App. 3d 983, 994 (1993). "'The law
intervenes only where the distress inflicted is so severe that no
reasonable man could be expected to endure it.'" Campbell, 242
Ill. App. 3d at 713, quoting McGrath v. Fahey, 126 Ill. 2d 78, 86
(1988), quoting Restatement (Second) of Torts sec. 46, Comment J,
at 77-78 (1965).
In their second amended complaint, plaintiffs premise this
cause of action on the specific allegations that each defendant
respectively (the Hospital, Corporation, Partner, and Surgeon)
"owed a duty to the plaintiff JANE DOE, to know the HIV status of
[Surgeon], and to advise plaintiff of his HIV infection in
advance of the performance of the invasive surgical procedure."
(Emphasis added.) No such duty "to know" exists. Thus, we
affirm the dismissal of count X.
NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS (Counts XI through
XIV)
The next four counts (counts XI through XIV) allege
negligent infliction of emotional distress counts against
Hospital, Partner and Corporation based on their alleged refusal
to answer Jane's question as to the cause of Surgeon's death,
their duty to know the HIV status of Surgeon, and their duty to
advise Jane of Surgeon's HIV infection before surgery. The trial
court dismissed these counts based on the AIDS Confidentiality
Act, which precludes disclosure of the HIV status of a person.
410 ILCS 305/9 (West 1992).
As we found in the previous count alleging intentional
infliction of emotional distress (count X), there is no
independent duty on the part of the Hospital, Partner or
Corporation to know the HIV status of Surgeon. Thus, we affirm
the dismissal of counts XI through XIV.
NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS (Counts XV through
XVIII)
The remaining four counts (counts XV through XVIII) are
directed against Surgeon and Corporation alleging negligent
infliction of emotional distress premised on informed consent and
the failure to disclose Surgeon's HIV-positive status. These
counts were not dismissed by the trial court and were the subject
of the two certified questions. We affirm the trial court's
decision to deny the dismissal of these counts for the reasons
stated in our discussion of the two certified questions. We also
observe that the derivative claims for loss of consortium for
John are particularly appropriate here given the very real
restriction on a marital relationship when one party may have
HIV.
In conclusion, we answer both certified questions in the
affirmative, finding that a physician has a duty to disclose his
or her HIV-positive status to a patient when seeking the
patient's consent to perform an invasive medical procedure which
exposes the patient to the risk of HIV transmission and that a
cause of action for the negligent infliction of mental distress
exists where there is no allegation of actual HIV transmission
during the course of the procedure. We affirm the dismissal of
counts I through XIV and the denial of dismissal of counts XV
through XVIII. In addition, we need not address the trial
court's dismissal of Partner under section 2-1010 because the
counts that remain are not directed against Partner.
Certified questions answered and judgment affirmed.
THEIS and QUINN, JJ., concur.
December 26, 1997
Nos. 1-96-3791 and 1-96-3855 (consolidated)
JANE DOE and JOHN DOE, ) Appeal from the
) Circuit Court of
Plaintiffs-Appellants and ) Cook County
Cross-Appellees, )
)
v. )
)
JOHN NOE No. 1, as the Ex'r of the )
Estate of JOHN NOE No. 2, Deceased; )
NOE No. 3, S.C.; JOHN NOE No. 4, )
)
Defendants-Appellees and )
Cross-Appellants )
)
(Noe No. 5, Medical Center; and )
Noe No. 6, Practice Center, ) Honorable
) Patrick E. McGann,
Defendants-Appellees). ) Judge Presiding.
PRESIDING JUSTICE GREIMAN delivered the opinion of the
court:
Plaintiffs Jane Doe (Jane) and her husband John Doe (John)
appeal the dismissal of 14 counts in their 18-count second
amended complaint, asserting several causes of action premised on
the underlying allegation that Jane had been exposed to the human
immunodeficiency virus (HIV) during two gynecological surgeries
by John Noe No. 2 (hereinafter Surgeon), i.e., the doctor who
performed the surgeries and was HIV positive at the time of the
surgeries and subsequently died of acquired immune deficiency
syndrome (AIDS).
The crux of plaintiffs' complaint is that Surgeon knew that
he was HIV positive when he performed two surgeries on Jane, that
he failed to disclose his HIV condition to plaintiffs before the
surgeries, and that the surgeries exposed Jane to HIV, which is
the precursor of AIDS.
In their second amended complaint, plaintiffs directed
various claims against the following defendants: (1) Surgeon
(John Noe No. 2), the doctor, now deceased, who performed the two
surgeries on Jane, and Executor (John Noe No. 1), the executor of
the estate of Surgeon; (2) Corporation (Noe No. 3, S.C.), a
professional corporation in which Surgeon allegedly was an
employee or agent; (3) Partner (John Noe No. 4, M.D.), a medical
doctor who allegedly was Surgeon's partner; and (4) Hospital (Noe
No. 5, Medical Center and Noe No. 6, Practice Center), the
hospital where the surgeries were performed and the health
maintenance organization affiliated with the hospital.
On appeal, plaintiffs contest the dismissal of the counts
asserting claims for battery, lack of informed consent,
intentional infliction of emotional distress, negligent
infliction of emotional distress, conspiracy, and loss of
consortium (counts I through XIV).
On cross-appeal, we address the trial court's decision to
allow the claims directed against Surgeon and Corporation based
on negligent infliction of emotional distress upon Jane (counts
XV and XVI) and derivative claims of loss of consortium for John
(counts XVII to XVIII). In addition, we answer two certified
questions relating to these four counts.
The two certified questions are:
"(a) Whether an HIV positive physician has a duty to disclose his
or her HIV status to a patient when seeking the patient's consent
to perform an invasive medical procedure which exposes the
patient to the risk of HIV transmission; and
(b) If such a duty exists, does a cause of action for the
negligent infliction of mental distress exist where there is no
allegation of actual HIV transmission during the course of the
procedure?"
We answer each certified question in the affirmative and
then determine whether plaintiff's second amended complaint
states causes of action for: (1) battery and loss of consortium
arising out of battery (counts I through IV); (2) lack of
informed consent and loss of consortium arising out of a lack of
informed consent (counts V through VIII); (3) intentional
infliction of emotional distress (count X); (4) negligent
infliction of emotional distress and loss of consortium arising
out of negligent infliction of emotional distress (counts XI
through XIV); and (5) conspiracy (count IX).
In addition, plaintiffs contend that the trial court erred
in dismissing Partner under section 2-1010 of the Illinois Code
of Civil Procedure, which allows for the dismissal of a party who
avers that he or she was not involved in the alleged occurrence
(735 ILCS 5/2-1010 (West 1992)).
Surgeon performed two gynecological surgeries on Jane: a
fractional dilation and curettage (D & C) and a polypectomy on
May 13, 1993, and another polypectomy on March 26, 1993. In
April 1994, plaintiffs filed their original complaint. On
October 27, 1994, plaintiffs filed their first amended complaint,
which asserted 14 counts based on various theories of liability:
COUNT DEFENDANTS CAUSE OF ACTION
I Surgeon Battery on Jane for performing the
surgery in May 1992
II Surgeon Loss of consortium for John based
on the surgery in May 1992
III Surgeon Battery on Jane for performing the
surgery in March 1993
IV Surgeon Loss of consortium for John based
on the surgery in March 1993
V Surgeon Lack of informed consent for Jane
for the surgery in May 1992
VI Surgeon Loss of consortium for John based
on lack of informed consent for the
surgery in May 1992
VII Surgeon Lack of informed consent for Jane
for the surgery in March 1993
VIII Surgeon Loss of consortium for John based
on lack of informed consent for the
surgery in March 1993
IX Surgeon, Partner Conspiracy
and Corporation
X All Defendants Intentional infliction of emotional
distress upon Jane by their failure
to disclose the HIV status of
Surgeon and the material risk of
transmission of the HIV infection
to her
XI Hospital, Partner Negligent infliction of emotional
and Corporation distress upon Jane by their refusal
to answer Jane's inquiries as to
whether Surgeon's death was HIV
related and whether Jane had been
exposed to the HIV virus by Surgeon
XII Hospital, Partner Loss of consortium for John based
and Corporation upon count XI
XIII Hospital, Partner Negligent infliction of emotional
and Corporation distress upon Jane based on their
duty to Jane to know the HIV status
of Surgeon and to advise Jane of
his HIV infection in advance of the
performance of the invasive
surgical procedure
XIV Hospital, Partner Loss of consortium for John based
and Corporation upon count XIII
Surgeon, Partner and Corporation filed a motion to dismiss
plaintiff's first amended complaint pursuant to section 2-615,
among other sections, of the Illinois Code of Civil Procedure
(735 ILCS 5/2-615 (West 1992)). These defendants asserted that
plaintiffs pleaded insufficient facts, unrecognized duties in
law, and unrecognized damages in law. Defendants argued that
plaintiffs' allegations of Surgeon's HIV status and of the
knowledge of Partner and Corporation of Surgeon's HIV status
were unfounded assumptions and conclusions without any factual
support. They further asserted that Illinois law does not
recognize a duty on the part of Partner and Corporation to know
the HIV status of Surgeon, and does not recognize a duty on the
part of Surgeon, Partner, or Corporation to inform Jane of
Surgeon's HIV condition prior to any medical treatment. These
defendants further argued that plaintiff has no recognized
damages in law because she did not allege actual exposure to the
virus.
These defendants also challenged plaintiffs' first amended
complaint under sections 2-619 and 2-622 (735 ILCS 5/2-619, 2-622
(West 1992)), arguing that the affidavit from the health
professional was insufficient, conclusory and failed to identify
with specificity the reasons and basis for the health care
professional's determination that there is a reasonable and
meritorious cause.
The Hospital filed a separate motion to dismiss on similar
grounds under sections 2-615, 2-619, and 2-622 of the Illinois
Code of Civil Procedure. Partner also moved for dismissal
pursuant to section 2-1010 on the grounds that he never provided
medical treatment of any kind to Jane and they never had a
doctor-patient relationship.
On October 11, 1995, the trial court dismissed all of the
counts, some with prejudice and some with leave to replead. The
trial court also issued a memorandum opinion and order, granting
defendants' motions to dismiss under section 2-615. The trial
court found, in relevant part, that Surgeon had a duty to
"disclose any and all risks imposed by his HIV status prior to
performing any invasive procedure on" Jane and that Partner had
no duty to plaintiffs because he had no involvement in Jane's
care under section 2-1010.
On July 22, 1996, plaintiffs filed their second amended
complaint, including the same 14 counts from the first amended
complaint and adding 4 more counts (counts XV through XVIII) that
were directed against Surgeon and Corporation and based on
negligent infliction of emotional distress:
COUNT DEFENDANTS CAUSE OF ACTION
XV Surgeon and Negligent infliction of emotional
Corporation distress upon Jane as to the May
1992 surgery for failure to
disclose Surgeon's HIV status, the
material risks of transmission of
HIV infection during surgery,
available alternative treatment, or
alternative physicians to perform
surgery
XVI Surgeon and Negligent infliction of emotional
Corporation distress upon Jane as to the March
1993 surgery for failure to
disclose the same information as
stated in count XV
XVII Surgeon and Loss of consortium for John based
Corporation on count XV
XVIII Surgeon and Loss of consortium for John based
Corporation on count XVI.
Surgeon, Partner and Corporation filed a motion to dismiss
plaintiffs' second amended complaint based on the same arguments
they advanced in their motion to dismiss the first amended
complaint. The Hospital filed a separate motion to dismiss by
incorporating by reference its previously filed motion to dismiss
the first amended complaint.
On October 21, 1996, the trial court dismissed with
prejudice counts I through XIV. At the hearing on the motions to
dismiss plaintiffs' second amended complaint, the trial court
reiterated and adopted its reasoning on counts I through XIV as
expressed in its memorandum opinion and order dismissing the same
counts in plaintiffs' first amended complaint. Regarding counts
XV through XVIII (negligent infliction of emotional distress),
the trial court denied Surgeon and Corporation's motion to
dismiss and further propounded two questions of law for review in
accordance with Supreme Court Rule 308 (155 Ill. 2d R. 308).
Plaintiffs appealed the dismissal of counts I through XIV
(No. 1-96-3791). Under Rule 308, Surgeon and Corporation filed
leave to appeal the trial court's denial of their motion to
dismiss counts XV through XVIII and to consider the two certified
questions posed by the trial court (No. 1-96-3855). This court
granted their Rule 308 petition and consolidated the appeals.
The first certified question asks this court to decide
"[w]hether an HIV positive physician has a duty to disclose his
or her HIV status to a patient when seeking the patient's consent
to perform an invasive medical procedure which exposes the
patient to the risk of HIV transmission." The trial court found
that such a duty to disclose exists as a matter of law and we
agree.
"A duty is an obligation to conform to a certain standard of
conduct for the protection of another against an unreasonable
risk of harm." Mt. Zion State Bank & Trust v. Consolidated
Communications, Inc., 169 Ill. 2d 110, 116 (1995); O'Hara v. Holy
Cross Hospital, 137 Ill. 2d 332, 337 (1990). Both the existence
and the scope of a duty are questions of law to be determined by
the court. Cullotta v. Cullotta, 287 Ill. App. 3d 967, 973
(1997), citing O'Hara, 137 Ill. 2d at 337.
To resolve whether a duty exists, a court must determine
whether there is a relationship between the parties requiring
that a legal obligation be imposed upon one for the benefit of
the other. Rhodes v. Illinois Central Gulf R.R., 172 Ill. 2d 213, 227 (1996); Bucheleres v. Chicago Park District, 171 Ill. 2d 435, 445 (1996); Kirk v. Michael Reese Hospital & Medical Center,
117 Ill. 2d 507, 525 (1987).
It is well established that the relationship between a
physician and patient imposes certain duties and obligations on
the part of the physician, including the duty to disclose
information. "[T]he physician-patient relationship does create
an affirmative duty to disclose facts." Goldberg v. Ruskin, 128
Ill. App. 3d 1029, 1040 (1984), aff'd in part, 113 Ill. 2d 482
(1986).
A physician's duty to disclose is incorporated and defined
in the doctrine of informed consent. "A physician has a duty to
inform patients of the foreseeable risks and results of a given
surgical procedure, and the reasonable alternatives to such
procedure." Weekly v. Solomon, 156 Ill. App. 3d 1011, 1016
(1987); Hansbrough v. Kosyak, 141 Ill. App. 3d 538, 551 (1986)
(same duty); see also Whittaker v. Honegger, 284 Ill. App. 3d
739, 742 (1996) ("foreseeability of harm, in connection with a
duty, is not a magical concept that ignores common sense").
The highest court in Maryland was presented with virtually
the same question now certified to us: "whether a surgeon
infected with the AIDS virus has a legal duty to inform patients
of that condition before operating on them." Faya v. Almaraz,
329 Md. 435, 438, 620 A.2d 327, 328 (1993). The Faya court found
that such a legal duty existed. Faya, 329 Md. at 448, 620 A.2d
at 333.
In Faya, the defendant surgeon performed breast surgeries on
the two female plaintiffs at a time when he knew he was HIV
positive. Faya, 329 Md. at 440, 620 A.2d at 329. Each plaintiff
filed separate lawsuits alleging various wrongful acts on the
part of the surgeon. The gist of their complaints was that the
surgeon "acted wrongfully in operating on the two women without
first telling them that he was HIV-positive (and, later, ill from
AIDS proper) and that Hopkins [the Hospital] was culpable for
permitting him to do so." Faya, 329 Md. at 441, 620 A.2d at 330.
The plaintiffs contended that by undergoing their operations
without knowing of the surgeon's illness, they were exposed to a
hazard to which they would not have consented, i.e., a risk of
AIDS attendant upon invasive surgery. Faya, 329 Md. at 441-42,
620 A.2d at 330. The trial court dismissed the plaintiffs'
complaint, intermediate appellate review was bypassed, and the
case proceeded to the Court of Appeals, the highest court in
Maryland. Faya, 329 Md. at 443, 620 A.2d at 330-31.
The Faya court explained in detail the nature of the HIV
virus, its transmission from one person to another, and its
causation of AIDS, an invariably fatal disease. The Faya court
further acknowledged studies, reports, and literature examining
these issues in the medical setting. Faya, 329 Md. at 438-39,
440-51, 620 A.2d at 328-29, 331-33. In its discussion of the
concept of legal duty, the Faya court observed that "legal
scholars have long agreed that the seriousness of potential harm,
as well as its probability, contributes to a duty to prevent it."
(Emphasis in original.) Faya, 329 Md. at 449, 620 A.2d at 333.
Considering all of the medical information and the fundamental
principles of a legal duty, the Faya court concluded: "Under the
allegations of the appellants' complaints, taken as true, it was
foreseeable that [the surgeon] might transmit the AIDS virus to
his patients during invasive surgery. Thus, we are unable to
say, as a matter of law, that [the surgeon] owed no duty to the
appellants, either to refrain from performing the surgery or to
warn them of his condition." Faya, 329 Md. at 448, 620 A.2d at
333. In light of this holding, the Faya court reversed the trial
court's dismissal of the plaintiffs' complaint as to both the
surgeon and the hospital. Faya, 329 Md. at 461, 620 A.2d at 339.
We find that the decision in Faya is persuasive and comports
with our already well-established general principles of duty and
our particular doctrine of informed consent. Accordingly, we
answer the first certified question in the affirmative and hold
that a physician should disclose his or her HIV-positive status
to a patient who is going to submit to an invasive surgery.
Having found that a physician has a duty to disclose in the
first certified question, we reach the second certified question
that asks: "If such a duty exists, does a cause of action for the
negligent infliction of mental distress exist where there is no
allegation of actual HIV transmission during the course of the
procedure?"
To state a cause of action for the negligent infliction of
emotional distress, a direct victim (as distinguished from a
bystander) needs only allege the same elements as any other cause
of action based on negligence. Corgan v. Muehling, 143 Ill. 2d 296, 306 (1991) (held that a patient plaintiff can allege a cause
of action for negligent infliction of emotional distress against
her psychotherapist for his having sexual relations with her). A
negligence complaint, "to be legally sufficient, must set out
facts that establish the existence of a duty owed by the
defendant to the plaintiff, a breach of that duty, and an injury
proximately caused by that breach." Corgan, 143 Ill. 2d at 306.
To recover for negligent infliction of emotional distress, an
allegation of physical injury, illness, manifestation, or
symptoms as a result of the emotional distress is not required.
Corgan, 143 Ill. 2d at 308-12; Doe v. Roe, 289 Ill. App. 3d 116
(1997); Campbell v. A.C. Equipment Services Corp., 242 Ill. App.
3d 707, 714 (1993). For purposes of the second certified
question, the elements of duty and breach of duty are assumed.
In Faya, the case that found a duty to disclose, the
Maryland court also addressed a question similar to the second
certified question now before us: "whether these are legally
compensable injuries where the appellants have not alleged in
their complaints an actual transmission of the HIV virus into
their bodies during the surgical procedures." Faya, 329 Md. at
451, 620 A.2d at 334. Although their complaints did not
specifically allege a claim of negligent infliction of emotional
distress, the plaintiffs alleged several other causes of action,
including negligent failure to obtain the patients' informed
consent. Faya, 329 Md. at 441, 620 A.2d at 330. The plaintiffs
pleaded that as a result of the surgeon's breach of duty to
disclose, they were put in fear of having contracted HIV and, due
to the derivative consequences of that fear, they suffered
emotional and mental distress, headaches, sleeplessness, and the
pain and expense associated with repeated blood tests. Faya, 329
Md. at 451, 620 A.2d at 334.
The Faya court concluded that "even though the averments of
the complaints did not identify any actual channel of
transmission of the AIDS virus," the plaintiffs could still
recover damages. Faya, 329 Md. at 455, 620 A.2d at 336-37. The
court, however, limited the time period for which recovery was
possible to the "reasonable window of anxiety," i.e., the time
between when the plaintiffs learned of the surgeon's illness and
when the plaintiffs received their HIV negative results. Faya,
329 Md. at 455-56, 620 A.2d at 337; accord Williamson v. Waldman,
150 N.J. 232, 696 A.2d 14 (1997); Tischler v. Dimenna, 160 Misc.
2d 525, 609 N.Y.S.2d 1002 (1994).
Four Illinois cases have addressed the issue of whether a
plaintiff can state a cause of action based on the possible
transmission of HIV in a medical setting. First, in Doe v.
Surgicare of Joliet, Inc., 268 Ill. App. 3d 793 (1994), a
contaminated needle was used to administer anesthetic during
surgery and the court affirmed the section 2-615 dismissal of the
plaintiffs' counts alleging negligent infliction of emotional
distress, finding no legally cognizable claim as a matter of law.
Two months after undergoing surgery, the plaintiff was informed
that during her surgery, a medical technician stuck himself or
herself with a needle and used the same needle to administer
anesthetic to plaintiff. The medical technician refused to
submit to an AIDS test and there was no allegation that the
technician was HIV positive or had AIDS. Due to her exposure to
the contaminated needle, plaintiff had to undergo AIDS testing.
The court found that plaintiff "suffered a physical impact upon
being stuck with an unsterile needle by defendant's medical
technician." Surgicare, 268 Ill. App. 3d at 796. The court,
however, held that absent actual exposure to the virus,
plaintiffs' claim was too speculative to recognize:
"If a suit for damages is based solely upon
plaintiff's fear of acquiring AIDS, but there is no
allegation of an actual exposure to the virus, a
legally compensable claim cannot be recognized. ***
Recovery in this situation should be based on the
likelihood of contracting AIDS, not the fear that it
could have happened, but did not." Surgicare, 268 Ill.
App. 3d at 798-99.
Second, in Doe v. Northwestern University, 289 Ill. App. 3d
39 (1997), pet. for leave to appeal allowed, No. 83886 (December
3, 1997), the plaintiffs' complaint was dismissed, finding no
legally cognizable damages. After receiving dental treatment,
the plaintiffs were informed that an unnamed dental student who
had provided treatment was infected with HIV. Plaintiffs filed
complaints, alleging multiple causes of action, but they did not
allege that any of them ever tested positive for HIV. The
majority in Northwestern adopted this standard: "plaintiffs who
fear that they have contracted AIDS because of a defendant's
negligence should recover damages for the time in which they
reasonably feared a substantial, medically verifiable possibility
of contracting AIDS." Northwestern, 289 Ill. App. 3d at 48-49.
Under this standard, the plaintiffs are required "to present
evidence that they knew facts that showed a substantial,
medically verifiable possibility of contracting the feared
disease." Northwestern, 289 Ill. App. 3d at 50. The court
concluded that the plaintiffs did not suffer legally cognizable
damages because they never faced a medically verified,
substantial risk of contracting HIV, noting that the plaintiffs
did not allege that any dental student bled during their
treatment and that the likelihood of infection was extremely low.
Northwestern, 289 Ill. App. 3d at 50-51.
Third, in Majca v. Beekil, 289 Ill. App. 3d 760 (1997), pet.
for leave to appeal allowed, No. 83677 (December 3, 1997)
(consolidated with Northwestern), the court affirmed summary
judgment for the defendants where the plaintiff had cut her hand
on a used scalpel while disposing of the trash in a medical
office. The court held that any reasonable fear that plaintiff
had about acquiring AIDS was not compensable because she had
already tested negative for HIV before she learned that the
subject physician had AIDS.
Fourth, in Natale v. Gottlieb Memorial Hospital, 292 Ill.
App. 3d 512 (1997), the plaintiff had been invaded by a
contaminated scope during a colonoscopy and filed a complaint
against the surgeon and the hospital. Plaintiff conceded that
his only claims were for emotional distress damages. The court
allowed plaintiff's complaint to withstand a section 2-615
dismissal because the language in the complaint alleged actual
exposure to HIV.
Under Surgicare, an allegation of actual exposure to the
virus is required. Under Northwestern and Majca, the plaintiff
must face a particularly substantial risk of HIV infection to
state a cause of action and the fear, even though reasonable, of
the possibility of contracting AIDS is not sufficient to be
compensable. Notwithstanding the high standards proposed in
these Illinois cases, we believe that the Faya opinion is more
persuasive in allowing plaintiffs to state a cause of action
absent an allegation of any actual channel of transmission of the
AIDS virus and in restricting the recovery of damages to the time
between learning of the surgeon's illness and receiving their
HIV-negative results, i.e., the reasonable window of anxiety.
Accordingly, we answer the second certified question in the
affirmative and find that a cause of action for the negligent
infliction of mental distress exists even where there is no
allegation of actual HIV transmission during the course of the
procedure.
Furthermore, we find Surgicare and Majca factually
distinguishable from the present case. In Surgicare, the
plaintiffs did not allege that the technician who used the
contaminated needle was HIV positive or had AIDS and could not
make such an allegation because the technician refused to submit
to an AIDS test. In Majca, the plaintiff received negative HIV
test results before she first learned that the doctor had died of
AIDS.
We recognize that our decision is at odds with the standards
propounded in Northwestern and Majca by the majority and the
special concurrence. We believe, however, that either standard
would discourage notification to a person who may have been
exposed to HIV because there would be no reason for such
disclosure if no liability obtained in the future. On the other
hand, the rationale in Faya for allowing liability within the
reasonable window of anxiety provides a reason to disclose the
possibility of HIV transmission to avoid liability.
In the present case, the trial court dismissed 14 counts of
plaintiffs' second amended complaint under section 2-615. On
appeal, this court applies a de novo standard of review where the
trial court dismisses a complaint under section 2-615. Brown
Leasing, Inc. v. Stone, 284 Ill. App. 3d 1035, 1044 (1996).
The question presented by a section 2-615 motion to dismiss
for failure to state a cause of action is whether sufficient
facts are contained in the pleadings which, if established would
entitle the plaintiff to relief. Wright v. City of Danville, 174 Ill. 2d 391, 398 (1996). Thus, the only question on appeal is
whether the dismissed counts stated a cause of action upon which
the plaintiffs can recover. Brown Leasing, 284 Ill. App. 3d at
1044; Majumdar v. Lurie, 274 Ill. App. 3d 267, 268 (1995).
BATTERY (Counts I through IV)
First, plaintiffs contend that Surgeon's performance of the
surgeries constituted a battery because his failure to reveal
that he was HIV positive vitiated the presurgery consent given by
plaintiff and, in turn, his performance of the surgeries amounted
to harmful and offensive contact. We disagree.
Under Illinois law, a claim for battery requires a lack of
consent for a touching. See Bernesak v. Catholic Bishop of
Chicago, 87 Ill. App. 3d 681, 688 (1980). In contrast, a claim
alleging a failure to disclose potential risks of an agreed
treatment is a medical negligence cause of action based on lack
of informed consent. Mink v. University of Chicago, 460 F. Supp. 713, 717 (N.D. Ill. 1978) (discusses the distinction);
Northwestern, 289 Ill. App. 3d at 44. In Northwestern, this
court held that the plaintiffs could not recover for battery
where they consented to the dental procedures that were performed
but did not know about the risks associated with the procedures
because the dentist was HIV positive. Northwestern University,
289 Ill. App. 3d at 44.
Plaintiffs cannot state a cause of action for battery. The
law distinguishes between a total lack of consent for the
contested act (battery) and the lack of informed consent
(negligence). There is no dispute that Jane consented to the
surgeries and that Surgeon performed the same procedures to which
Jane consented. Like the plaintiffs in Northwestern, the only
contested element of the surgery is the unknown risk involved
because the physician was HIV positive. Accordingly, we affirm
the dismissal of the counts for battery and for the derivative
loss of consortium alleged by John (counts I through IV).
INFORMED CONSENT (Counts V through VII)
Next, plaintiffs alleged causes of action premised on the
doctrine of informed consent. "To succeed in a malpractice
action based on the doctrine of informed consent, the plaintiff
must plead and ultimately prove four essential elements: (1) the
physician had a duty to disclose material risks; (2) he failed to
disclose or inadequately disclosed those risks; (3) as a direct
and proximate result of the failure to disclose, the patient
consented to treatment she otherwise would not have consented to;
and (4) plaintiff was injured by the proposed treatment."
Coryell v. Smith, 274 Ill. App. 3d 543, 546 (1995). "An
unrevealed risk that should have been made known must
materialize, for otherwise the omission, however, unpardonable,
is legally without consequence." Canterbury v. Spence, 464 F.2d 772, 790 (D.D.C. 1972).
As we previously held in our answer to the first certified
question, Surgeon had a duty to disclose his HIV-positive status
to Jane before the operations. However, plaintiffs' second
amended complaint fails to plead the requisite injury from this
unrevealed risk, i.e., the transmission of the HIV infection to
Jane during the surgeries. Thus, we affirm the dismissal of the
claims for informed consent and the derivative loss of consortium
(counts V through VII).
CONSPIRACY (Count IX)
The next count in the complaint (count IX) is directed
against Surgeon, Partner and Corporation and appears, in part, to
allege an agreement to commit a battery upon Jane by its
allegations of "the physical touching" by Surgeon that "was
harmful, offensive, and unauthorized." To the extent the count
is based on a conspiracy to commit a battery, it was properly
dismissed as the battery count was properly dismissed.
This count also alleges that they (Surgeon, Partner and
Corporation) "knowingly conspired and agreed among themselves to
not reveal the HIV status of [Surgeon] so as to gain consent to
care and treatment that the plaintiff would otherwise decline."
A civil conspiracy "consists of a combination of two or more
persons for the purpose of accomplishing by some concerted action
either an unlawful purpose or a lawful purpose by unlawful
means." Adcock v. Brakegate, Ltd., 164 Ill. 2d 54, 62 (1994).
The gist of plaintiffs' conspiracy count appears to be that the
"lawful act" was the surgeries, but the "unlawful means" was the
failure to disclose Surgeon's HIV-positive status. The duty to
disclose risks to a patient, however, rests exclusively with the
doctor in a physician-patient relationship. No independent duty
is imposed upon others. Accordingly, no conspiracy can be stated
and we affirm the dismissal of this conspiracy count (count IX).
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS (Count X)
The next count (count X) is directed against all defendants
by Jane for intentional infliction of emotional distress. Three
elements are required to establish the tort of intentional
infliction of emotional distress: "(1) the defendant's conduct
was truly extreme and outrageous; (2) the defendant either
intended that his conduct inflict severe emotional distress, or
knew that there was at least a high probability that his conduct
would cause severe emotional distress; and (3) the defendant's
conduct did in fact cause severe emotional distress." Sutherland
v. Illinois Bell, 254 Ill. App. 3d 983, 994 (1993). "'The law
intervenes only where the distress inflicted is so severe that no
reasonable man could be expected to endure it.'" Campbell, 242
Ill. App. 3d at 713, quoting McGrath v. Fahey, 126 Ill. 2d 78, 86
(1988), quoting Restatement (Second) of Torts sec. 46, Comment J,
at 77-78 (1965).
In their second amended complaint, plaintiffs premise this
cause of action on the specific allegations that each defendant
respectively (the Hospital, Corporation, Partner, and Surgeon)
"owed a duty to the plaintiff JANE DOE, to know the HIV status of
[Surgeon], and to advise plaintiff of his HIV infection in
advance of the performance of the invasive surgical procedure."
(Emphasis added.) No such duty "to know" exists. Thus, we
affirm the dismissal of count X.
NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS (Counts XI through
XIV)
The next four counts (counts XI through XIV) allege
negligent infliction of emotional distress counts against
Hospital, Partner and Corporation based on their alleged refusal
to answer Jane's question as to the cause of Surgeon's death,
their duty to know the HIV status of Surgeon, and their duty to
advise Jane of Surgeon's HIV infection before surgery. The trial
court dismissed these counts based on the AIDS Confidentiality
Act, which precludes disclosure of the HIV status of a person.
410 ILCS 305/9 (West 1992).
As we found in the previous count alleging intentional
infliction of emotional distress (count X), there is no
independent duty on the part of the Hospital, Partner or
Corporation to know the HIV status of Surgeon. Thus, we affirm
the dismissal of counts XI through XIV.
NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS (Counts XV through
XVIII)
The remaining four counts (counts XV through XVIII) are
directed against Surgeon and Corporation alleging negligent
infliction of emotional distress premised on informed consent and
the failure to disclose Surgeon's HIV-positive status. These
counts were not dismissed by the trial court and were the subject
of the two certified questions. We affirm the trial court's
decision to deny the dismissal of these counts for the reasons
stated in our discussion of the two certified questions. We also
observe that the derivative claims for loss of consortium for
John are particularly appropriate here given the very real
restriction on a marital relationship when one party may have
HIV.
In conclusion, we answer both certified questions in the
affirmative, finding that a physician has a duty to disclose his
or her HIV-positive status to a patient when seeking the
patient's consent to perform an invasive medical procedure which
exposes the patient to the risk of HIV transmission and that a
cause of action for the negligent infliction of mental distress
exists where there is no allegation of actual HIV transmission
during the course of the procedure. We affirm the dismissal of
counts I through XIV and the denial of dismissal of counts XV
through XVIII. In addition, we need not address the trial
court's dismissal of Partner under section 2-1010 because the
counts that remain are not directed against Partner.
Certified questions answered and judgment affirmed.
THEIS and QUINN, JJ., concur.
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