Jackson v. Michael Reese Hospital & Medical Center
Annotate this Case
First Division
December 22, 1997
No. 1-96-2395
MICHAEL JACKSON, a Minor, by his Mother and Next
Friend, JEANNE JACKSON, and JEANNE JACKSON,
Individually,
Plaintiffs-Appellants,
v.
MICHAEL REESE HOSPITAL AND MEDICAL CENTER,
Defendant-Appellee. )
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) Appeal from the
Circuit Court of
Cook County
No. 94 L 14720
Honorable
Patrick McGann,
Judge Presiding.
JUSTICE O'MARA FROSSARD delivered the opinion of the court:
This case is on appeal from a motion to dismiss plaintiffs Michael
Jackson (a minor) and Jeanne Jackson's (his mother) complaint against
defendant Michael Reese Hospital and Medical Center for failure to state a
cause of action for negligent spoliation of evidence.
This appeal presents a question of first impression regarding whether a
plaintiff in an action for negligent spoliation of evidence arising from a
medical malpractice claim is required to file an affidavit and medical report
by the Illinois Code of Civil Procedure. 735 ILCS 5/2-622 (West 1994).
The question was raised by defendant as the basis for its section 2-619
(735 ILCS 5/2-619 (West 1994)) motion to dismiss plaintiffs' cause of action.
Defendant also attacked plaintiffs' complaint for negligent spoliation of
evidence on two other grounds: (1) failure to state a cause of action under
the X-Ray Retention Act (210 ILCS 90/0.01 et seq. (West 1994)), and (2)
failure to sufficiently plead facts that state a cause of action for negligent
spoliation of evidence under section 2-615. (735 ILCS 5/2-615 (West 1994)).
We reverse the trial court's order granting the defendant's section 2-
619 motion to dismiss for plaintiffs' failure to attach a section 2-622
"certificate of merit" in a cause of action for spoliation of evidence. We
affirm the trial court's finding that plaintiffs failed to state a cause of
action under the X-Ray Retention Act, and we affirm the trial court's finding
that plaintiffs failed to sufficiently plead a cause of action for negligent
spoliation under section 2-615 standards. However, we remand to the trial
court to allow plaintiffs to replead the negligent spoliation of evidence
claim.
FACTS
Plaintiffs originally filed a medical malpractice action against several
defendants on August 14, 1985. This action alleged negligence based on
injuries suffered by the minor plaintiff in the course of treatment for
serious medical problems, including the absence of an anus. Plaintiffs
voluntarily dismissed their medical malpractice claim against all defendants
and filed an amended complaint on February 21, 1991, alleging negligent
spoliation of evidence against defendant Michael Reese Hospital and Medical
Center. The claim alleged that defendant's loss or destruction of certain X
rays taken of the child caused plaintiffs to be unable to prove their original
medical malpractice claim.
Plaintiffs' first complaint was dismissed, and the trial court granted
leave to file an amended complaint. Plaintiffs' first amended complaint
asserted a claim under the X-Ray Retention Act, which was dismissed by the
trial court on October 23, 1995. In their second amended complaint,
plaintiffs alleged a cause of action for spoliation of evidence under Boyd v.
Travelers Insurance Co., 166 Ill. 2d 188, 652 N.E.2d 267 (1995). Plaintiffs
also filed an emergency motion to reconsider the dismissal of the first
amended complaint.
In its June 3, 1996, order, the trial court denied plaintiffs' motion to
reconsider the dismissal of the first amended complaint, which asserted a
claim under the X-Ray Retention Act. The court granted defendant's section 2-
619 motion to dismiss for failure to attach a certificate of merit under
section 2-622, and granted defendant's section 2-615 motion to dismiss for
failure to state a cause of action for negligent spoliation of evidence.
I
Plaintiffs first contend that the trial court erred in its order of
October 23, 1995, dismissing with prejudice the claim under the X-Ray
Retention Act (Act) (210 ILCS 90/1 (West 1994)) against defendant Michael
Reese Hospital.
Plaintiffs argue that Michael Reese Hospital was responsible for the
maintenance of certain X rays, which were lost or destroyed in a warehouse
flood. Plaintiffs allege that the loss of these X rays was a violation of the
hospital's duty to preserve the X rays under the X-Ray Retention Act.
The X-Ray Retention Act provides in pertinent part:
"Hospitals which produce photographs of human anatomy by the X-ray or
roentgen process on the request of licensed physicians for use by them
in the diagnosis or treatment of a patient's illness or condition shall
retain such photographs or films as part of their regularly maintained
records for a period of 5 years." (Emphasis added.) 210 ILCS 90/1 (West
1994).
The Act further provides "if the hospital has been notified in writing
by an attorney at law before the expiration of the 5[-]year period that there
is a litigation pending in court involving a particular X-ray" then the
hospital shall retain the X ray "for a period of 12 years from the date that
the X[-]ray photograph film was produced." 210 ILCS 90/1 (West 1994).
The plain language of the X-Ray Retention Act only requires a hospital
to maintain X rays for a period of five years. A duty to retain the records
for a longer period of time is only triggered by the receipt of written notice
from an attorney before the expiration of the five-year retention period that
litigation involving the X ray in question is pending. 210 ILCS 90/1 (West
1994).
A private cause of action is implicit in the X-Ray Retention Act.
Rodgers v. St. Mary's Hospital, 149 Ill. 2d 302, 309, 597 N.E.2d 616 (1992).
According to plaintiffs, defendant violated the Act by not preserving certain
X rays beyond the five-year statutory period. Plaintiffs allege that notice,
as required by the X-Ray Retention Act, was given to defendant hospital on
December 10, 1984, when plaintiffs' attorney requested records which pertained
to plaintiff Michael Jackson. The last missing X ray was taken in June of
1980, and under the Act, the hospital's statutory duty to retain this X ray
expired in June of 1985. The record request made by plaintiffs in December of
1984 did not constitute notice as contemplated in the Act, as there was no
litigation pending until August 14, 1985, when the initial lawsuit was filed.
Plaintiffs argue that this interpretation of "notice" circumvents the
purpose of the Act by requiring attorneys to file medical malpractice actions
before they have had the opportunity to have an expert review all the medical
evidence to determine if a valid claim exists. This argument does not change
the fact that the plain language of the statute requires that litigation be
pending before a statutory duty to retain the records is imposed. The
plaintiffs' concerns about the statute's effects on the filing of medical
malpractice actions are more appropriately addressed by the General Assembly
than this court. We can give no other interpretation to this statute than its
plain language requires.
Accordingly, we hold that plaintiffs failed to establish a cause of
action under the X-Ray Retention Act, and find that the trial court was
correct in denying plaintiffs' motion for reconsideration of the order
dismissing this cause of action.
II
We next turn to whether a plaintiff in a negligent spoliation of
evidence claim arising from a medical malpractice action is required to file a
certificate of merit with the complaint.
Defendant based its section 2-619 motion to dismiss on the failure of
plaintiffs' spoliation of evidence complaint to include a certificate of merit
under section 2-622 of the Code of Civil Procedure. 735 ILCS 5/2-622 (West
1994). Under section 2-622, a plaintiff in a medical malpractice claim is
required to file a certificate of merit along with the initial complaint. The
statute requires a certificate of merit "[i]n any action, whether in tort,
contract or otherwise, in which the plaintiff seeks damages for injuries or
death by reason of medical, hospital, or other healing art malpractice." 735
ILCS 5/2-622 (a) (West 1994). The statute indicates that a plaintiff's
attorney is to attach an affidavit stating that he has conferred with a
knowledgeable physician before filing the complaint. Section 2-622 also
requires a written report from the physician indicating that upon a review of
the records, there is a reasonable and meritorious cause of action. 735 ILCS
5/2-622(a)(1)(West 1994).
The legislature may properly impose requirements governing matters of
procedure and the presentation of legal claims, and section 2-622 merely
requires a litigant to submit certification declaring a meritorious basis for
a medical malpractice claim. DeLuna v. St. Elizabeth's Hospital, 147 Ill. 2d 57, 66, 588 N.E.2d 1139 (1992). Though the supreme court in the DeLuna
decision has resolved the issue of the constitutionality of section 2-622, the
scope of the statute is still a developing area of law. We do not interpret
the language in the statute to require a certificate of merit for a negligent
spoliation of evidence claim arising from a medical malpractice action. The
Supreme Court case of Miller v. Gupta, 174 Ill. 2d 120, 672 N.E.2d 1229
(1996), is instructive here.
The Miller case involved a cause of action for medical malpractice, not
spoliation of evidence as in the present case. In Miller, the plaintiff was
unable to file a section 2-622 certificate of merit in support of her medical
malpractice claim as the defendant physician had inadvertently disposed of X
rays necessary to prove the claim, and her claim was dismissed on this basis
by the trial court.
The appellate court reversed, holding that the plaintiff should not be
held to the "technical requirements" of section 2-622 as it was impossible for
a reviewing physician to make a determination under section 2-622 due to the
missing X rays. Miller v. Gupta, 275 Ill. App. 3d 539, 543-544, 656 N.E.2d 461 (1995). However, the appellate court required the plaintiff to attach a
report from a physician in place of the certificate confirming that the
missing X rays are necessary to the determination of whether medical
malpractice was committed. Miller v. Gupta, 275 Ill. App. 3d at 544.
Upon review of the case, the supreme court held that the trial court
properly dismissed the medical malpractice claim for lack of a certificate
under section 2-622. The supreme court, recognizing the plaintiff's inability
to procure a certificate of merit, nevertheless remanded the case to the trial
court indicating the appropriate remedy was to pursue a cause of action for
spoliation, not medical malpractice. Miller v. Gupta, 275 Ill. App. 3d 539,
656 N.E.2d 461 (1995), aff'd in part & rev'd in part, 174 Ill. 2d 120, 672 N.E.2d 1229 (1996).
In granting the defendant's section 2-619 motion to dismiss the second
amended complaint, the trial court in this case cited plaintiffs' failure to
attach a "certificate of merit" pursuant to section 2-622. In support of this
dismissal, the trial court relied on the following language from the appellate
court decision in Miller: "We do not believe that it is unreasonable to
require plaintiff to attach a *** physician's certificate confirming that the
missing X rays are necessary to the determination of whether malpractice was
committed." Miller v. Gupta, 275 Ill. App. 3d at 544. The trial court
interpreted the appellate court ruling in the Miller medical malpractice case
as requiring an "alternate" certificate for the plaintiffs' cause of action
for spoliation of evidence in this case.
The alternate certificate discussed in the appellate court's opinion
applied only to the Miller plaintiff's medical malpractice action. Whether a
plaintiff in a cause of action for spoliation of evidence is required to file
a certificate of merit was not addressed by either the appellate or supreme
court in the Miller case. There is no indication in either the appellate or
supreme court opinion that the section 2-622 certificate or some alternate
certificate is required in an action for the negligent spoliation of evidence.
Defendant argues that such a certificate of merit should be required for
the spoliation of evidence claim. It asserts that because the damages sought
in plaintiffs' spoliation action are the same damages for injuries "by reason
of medical, hospital or other healing art malpractice," a certificate of merit
should be required for a spoliation claim arising from a medical malpractice
action.
We will not expand the scope of section 2-622 by requiring compliance
with statutory certification under section 2-622 in a cause of action for
spoliation of evidence. Section 2-622 was part of the medical malpractice
reform legislation enacted by the General Assembly in 1985 in response to what
was perceived to be a crisis in the area of medical malpractice. DeLuna v.
St. Elizabeth's Hospital, 147 Ill. 2d 57, 66, 588 N.E.2d 1139 (1992). The
provision is designed to reduce the number of frivolous medical malpractice
suits that are filed and to eliminate such actions at an early stage, before
the expenses of litigation have mounted. DeLuna, 147 Ill. 2d at 66. We do
not interpret the statute as mandating a certificate of merit in a spoliation
of evidence claim arising from a medical malpractice action. It is the
function of the legislature, not the judiciary, to broaden the scope of this
statute to include other types of legal actions.
An examination of the supreme court decision in Miller v. Gupta
involving this statute supports our conclusion that section 2-622 compliance
should not be required for a cause of action for spoliation of evidence. On
June 3, 1996, at the time the trial court granted the order of dismissal, it
did not have the benefit of the supreme court's ruling, which was filed on
October 24, 1996. The supreme court in Miller not only recognized the
inability of the plaintiff in her medical malpractice case to provide a
section 2-622 certificate of merit, but indicated that the proper remedy for
plaintiff was to pursue a cause of action for spoliation of evidence and
remanded the case for that purpose. The supreme court in Miller recognized the
viability of a spoliation claim where section 2-622 compliance would be
impossible. The supreme court noted "[i]t is the legislature's, and not this
court's, responsibility to create exceptions to the section 2-622
requirements." Miller v. Gupta, 174 Ill. 2d at 128.
The complaint before this court is not a medical malpractice action, but
an action for the negligent spoliation of evidence. It is not within the
authority of this court to expand the scope of section 2-622 to include claims
for spoliation of evidence, nor is such an expansion supported by the supreme
court ruling in the Miller case.
We agree with the trial court that it is not unreasonable to require a
plaintiff to attach a physician's certificate confirming that the missing X
rays are necessary to the determination of whether malpractice was committed.
Where possible such certification is recommended and may very well help the
spoliation complaint survive a section 2-615 attack for failure to plead
causation. However, we do not agree that failure to attach such an
"alternate" certificate is cause for dismissal, since no such certification is
required either by statute or case law for a cause of action for spoliation of
evidence.
Therefore, we find the trial court erred in its order granting the
defendant's section 2-619 motion to dismiss for plaintiffs' failure to attach
a certificate of merit pursuant to section 2-622 of the Code of Civil
Procedure. We conclude that this statute does not apply to claims for the
spoliation of evidence.
III
We next turn to the trial court's order granting defendant's section 2-
615 motion to dismiss plaintiffs' second amended complaint for failure to
state a cause of action for negligent spoliation of evidence. In reviewing an
order on a section 2-615 motion to dismiss, the court shall apply a de novo
standard of review. Board of Library Trustees v. Cinco Construction, Inc.,
276 Ill. App. 3d 417, 658 N.E.2d 473 (1995). The standard of review for a
section 2-615 motion to dismiss is whether the complaint sufficiently states a
cause of action, and the merits of the case are not considered. Saunders v.
Michigan Avenue National Bank, 278 Ill. App. 3d 307, 662 N.E.2d 602 (1996).
The question presented by a section 2-615 motion to dismiss is whether,
taking all well-pleaded facts as true and considering them in the light most
favorable to the plaintiff, the plaintiff has alleged sufficient facts which,
if proved, would entitle the plaintiff to relief. Urbaitis v. Commonwealth
Edison, 143 Ill. 2d 458, 475, 575 N.E.2d 548 (1991).
Whether a complaint sufficiently stated a cause of action for spoliation
of evidence was recently addressed by the supreme court in Boyd v. Traveler's
Insurance Co., 166 Ill. 2d 188, 652 N.E.2d 267 (1995). In Boyd, the plaintiff
was injured when a propane heater exploded at his place of employment. The
plaintiff filed a workers' compensation claim against his employer and his
employer's insurance company. Employees of Traveler's Insurance took
possession of the heater to test it, lost it, and admitted never testing the
heater.
The plaintiff filed suit against the manufacturer of the heater and
later joined Traveler's as a defendant, claiming that Traveler's loss of the
heater prejudiced the products liability action against the manufacturer.
After dismissing the spoliation of evidence claim as premature, the trial
court certified the question of whether a spoliation action can be brought at
the same time as the underlying action.
The Illinois Supreme Court in Boyd refused to recognize an independent
tort of spoliation, but held that an action for negligent spoliation of
evidence can be established under existing negligence theories. Boyd, 166 Ill. 2d at 192-93. The supreme court went on to discuss how to plead a cause
of action for spoliation of evidence.
To state a cause of action for the negligent spoliation of evidence, a
plaintiff must plead the existence of a duty owed by the defendant to the
plaintiff, a breach of that duty, an injury proximately caused by the breach,
and damages. Boyd, 166 Ill. 2d at 194-95. In reviewing the section 2-615
dismissal in the present case, we must address whether the complaint properly
pled each of these elements.
(1) Duty
To determine if a defendant owes a duty to a plaintiff, we must decide
whether their relationship was such that the law imposed upon the defendant an
obligation of reasonable conduct for the benefit of the plaintiff. This is a
question of law for the determination of the court. W. Prosser, Torts, 37,
at 206 (4th ed. 1971). See also see Restatement (Second) of Torts 328B,
Comment b (1964).
The Boyd court reiterated the general rule that there is no common law
duty to preserve evidence, but it noted that such a duty may arise through an
agreement, a contract, a statute or other special circumstances, or a
defendant may voluntarily assume such a duty by affirmative conduct. Boyd,
166 Ill. 2d at 195. In any of the foregoing instances, a defendant owes a
duty of care to preserve evidence "if a reasonable person in the defendant's
position should have foreseen that the evidence was material to a potential
civil action." Boyd, 166 Ill. 2d at 195.
The Boyd decision delineated for the first time circumstances that give
rise to a duty to preserve evidence, and on appeal, we must determine whether
plaintiffs in this case sufficiently alleged facts that give rise to this duty
under Boyd. While a defendant may assume a duty by affirmative conduct, the
pleadings must allege facts describing that conduct. Nelson v. Union Wire
Rope Corp., 31 Ill. 2d 69, 74, 199 N.E.2d 769 (1964). A complaint may not
rest on conclusions not supported by specific facts. J. Eck & Sons, Inc. v.
Reuben H. Donnelley Corp., 213 Ill. App. 3d 510, 572 N.E.2d 1090 (1991).
In the present case, an examination of the pleadings indicates
plaintiffs failed to plead specific facts that establish the existence of a
duty to preserve the evidence in question.
Plaintiffs allege that defendant hospital voluntarily assumed a duty to
maintain Michael Jackson's X rays by affirmative conduct based on: (1)
defendant's retention of the X rays along with other medical records beyond
the statutory period delineated in the X-Ray Retention Act, (2) defendant's
ongoing treatment of plaintiff, and (3) defendant's agreement to follow the
Accreditation Manual for Hospitals promulgated by the Joint Commission for the
Accreditation of Hospitals regarding medical records.
A review of the complaint, however, indicates that the pleadings lack
facts as to the nature of the alleged voluntary undertaking. The complaint
fails to sufficiently describe what affirmative conduct was voluntarily
undertaken by the hospital regarding the retention, preservation and
maintenance of the X rays. The complaint fails to allege fact specific conduct
by which the defendant hospital voluntarily assumed a duty to maintain Michael
Jackson's X rays.
In the record, there is evidence that indicates that, under the specific
facts of this case, the hospital may have voluntarily assumed a duty to
maintain the X rays beyond the statutory period. While the complaint
generally alleges that the defendant hospital was under a duty to segregate
these X rays and keep them in a safe environment, the complaint fails to
describe what conduct was voluntarily undertaken by the hospital regarding the
safekeeping of the X rays. For example, there is evidence that the defendant
hospital had notice of litigation and took affirmative conduct by segregating
the X rays into a special litigation file but failed to safely segregate at a
time when the defendant hospital knew the X rays would be needed for
litigation. These facts may support a voluntary assumption of duty to retain
the X rays. Under these facts, it could be argued that a reasonable person in
defendant's position should have foreseen that the X rays would be evidence
material to future litigation. However, these facts are not pled in the
complaint.
In the Boyd case, the plaintiff alleged he suffered personal injuries at
his workplace due to a malfunctioning heater, which was subsequently lost by
the defendant. In his complaint, the plaintiff alleged that employees from
the defendant insurance company indicated that they needed possession of the
heater to investigate Boyd's workers' compensation claim, clearly aware that
the heater would be evidence material to future litigation. Boyd, 166 Ill. 2d
at 191-192. In the instant case, the segregation of the X rays into a special
litigation file is analogous. Under facts contained in the record but not
pled, it could be alleged that defendant, knowing the X rays were material to
future litigation, chose to treat the X rays in a specific manner because of
the pending litigation. By such conduct defendant may have voluntarily
assumed a duty to preserve the X rays and breached its duty by losing them,
not unlike the employees who lost the heater in the Boyd case.
A further review of the pleadings indicates a failure to allege that on
December 10, 1984, while plaintiff Michael Jackson was still being treated at
Michael Reese Hospital, plaintiffs' attorneys made a request through Record
Copy Services for all of Michael's medical records from January 26, 1980,
through December 10, 1984. The pleadings further fail to allege what, if any,
affirmative conduct the defendant hospital voluntarily undertook in response
to this record request. Specifically, the pleadings omit such pertinent
information as what affirmative conduct the hospital voluntarily undertook
regarding the retention, preservation and maintenance of the X rays from
December 10, 1984, until August 14, 1985, when the lawsuit was filed, and how
this conduct changed once the hospital was served with notice of the lawsuit
on October 18, 1985. Additionally missing from the complaint are facts that
describe the actual course of voluntary conduct chosen by the hospital after
November of 1985 when Anthony Boyle, manager of the radiological records
department at the defendant hospital, received notice of the request to locate
and produce the X rays.
In the second amended complaint, plaintiffs assert other grounds in
support of the existence of a duty of ordinary care to maintain the X rays.
Plaintiffs allege that the ongoing treatment of the minor plaintiff created a
duty to retain his medical records, which again is not pled in any fact
specific manner and fails to meet the basic requirements under section 2-615.
While the pleadings contain the general statement that Michael was
subject to a continuing course of treatment from January of 1980 through
November of 1980 in an effort to provide him with a functioning bowel, no
mention is made of his further treatment for the same condition in 1982 and
1984. The record, not the pleadings, indicates that on November 11, 1980,
Michael had out-patient surgery at Michael Reese for dilation of the anus.
The record also indicates that in December of 1982 and February of 1984,
Michael returned to Michael Reese for further surgery. None of these facts are
alleged in the complaint. More importantly, no factual connection is alleged
between the continuing course of treatment and the X rays.
The complaint also alleges a duty to keep the X rays in a fireproof and
flood-proof environment arising from defendant's agreement to follow the
Accreditation Manual for Hospitals promulgated by the Joint Commission for the
Accreditation of Hospitals. However, plaintiffs fail to specifically plead
what the manual recommends regarding standards related to the retention,
preservation and maintenance of X rays.
All well-pled facts and reasonable inferences that could be drawn from
those facts are accepted as true (Talbert v. Home Savings Bank of America, 265
Ill. App. 3d 376, 638 N.E.2d 354 (1994)), but conclusions of law or
conclusions of fact unsupported by allegations of specific facts will not meet
the minimal pleading requirements under section 2-615. Groenings v. City of
St. Charles, 215 Ill. App. 3d 295, 574 N.E.2d 1316 (1991).
As outlined above, numerous facts relevant to the duty to preserve the X
rays are not included in the complaint. Accordingly, we hold that plaintiffs
failed to properly plead the element of duty necessary to state a cause of
action for negligence.
(2) Breach of Duty
With regard to the breach of duty element, we find that plaintiff
sufficiently pled the loss or destruction of the missing X rays, which is a
breach of the duty the plaintiff unsuccessfully attempted to plead.
Plaintiffs' allegation that defendant failed to guard the x-rays against flood
or fire, viewed in the light most favorable to plaintiffs, is sufficient for
purposes of a section 2-615 analysis regarding breach of duty.
(3) Proximate Cause
The complaint is further deficient with regard to the issue of proximate
cause. A plaintiff must allege that an injury proximately resulted from a
breach of a duty when pleading causation. Moudy v. New York, Chicago & St.
Louis R.R. Co., 385 Ill. 446, 453-54, 53 N.E.2d 406 (1944). The supreme
court in Boyd clarified the standard for pleading proximate cause in a
negligent spoliation case:
"Therefore, in a negligence action involving the loss or destruction of
evidence, a plaintiff must allege sufficient facts to support a claim
that the loss or destruction of the evidence caused the plaintiff to be
unable to prove an underlying lawsuit." Boyd, 166 Ill. 2d at 196.
The court further stated that a plaintiff need not show that, but for
the loss or destruction of evidence, the plaintiff would have prevailed in the
underlying action. The court said that this was too difficult a burden, as it
may be impossible to know what the missing evidence would have shown. The
court added:
"A plaintiff must demonstrate, however, that but for the defendant's
loss or destruction of the evidence, the plaintiff had a reasonable
probability of succeeding in the underlying suit." Boyd, 166 Ill. 2d at
196 n. 2.
In pleading causation, plaintiffs allege that the missing X rays forced
plaintiffs to nonsuit the medical malpractice action, as they were unable to
obtain an expert opinion regarding negligence on the part of the physicians
who treated the child. This does not meet the pleading requirements for
proximate cause as set out in Boyd.
In arriving at a standard for pleading causation in cases alleging
spoliation of evidence the supreme court, in Boyd, recognized the difference
between factually alleging that the spoliation caused plaintiff to be unable
to prove the underlying lawsuit and the more difficult burden of factually
alleging that but for the spoliation the plaintiff would have prevailed in the
underlying lawsuit. Boyd, 166 Ill. 2d at 196. Under the Boyd standard, a
plaintiff must show that but for the spoliation there was a reasonable
probability of succeeding in the underlying lawsuit. Boyd, 166 Ill. 2d at 196
n.2.
Though the trial court judge in the instant case found plaintiffs'
second amended complaint factually deficient because it failed to allege "what
these missing films would have shown," the Boyd case indicated that this is
too difficult a burden for a plaintiff in a spoliation case, as it may be
impossible to know exactly what the missing evidence would have shown. Boyd,
166 Ill. 2d at 196 n.2. Thus the trial court in this case imposed too
stringent a causation burden on plaintiffs when it found the complaint
deficient for its failure to allege what the missing X rays would have shown.
We understand that, because plaintiffs do not have access to the missing
X rays, they cannot specifically state exactly what these X rays would have
shown. Also, plaintiffs need not factually plead that but for the loss or
destruction of the X rays they would have prevailed in the underlying medical
malpractice action. However, the trial court was correct in finding the
complaint deficient for failing to show how the missing X rays would have
impacted on plaintiffs' ability to prove the underlying lawsuit for medical
malpractice.
Applying the Boyd causation standard, the complaint must allege
sufficient facts to support a claim that the spoliation of evidence caused the
plaintiff to be unable to prove the underlying medical malpractice lawsuit and
that, but for the defendant's spoliation, the plaintiff had a reasonable
probability of succeeding in the underlying medical malpractice suit. Boyd,
166 Ill. 2d at 196, 196 n.2.
From the record, we know that plaintiffs allege that at least one of the
missing X rays would have shown the preoperative condition of Michael Jackson,
and thus the X ray was necessary to prove that contraindicated surgery was
performed. But again, facts as to why the loss of the X rays caused the
plaintiffs to be unable to prove the underlying medical malpractice lawsuit
are not contained in the plaintiffs' complaint.
There is evidence in the record that Dr. Basuk acknowledged that he had
made a "mistake" and incorrectly performed a pull-through surgery on September
9, 1980, on the minor plaintiff, Michael Jackson, and the surgery would have
to be repeated. Admissions of negligence by the treating physician are not
pled in the complaint. Such admissions pled with other facts regarding the
significance of the X rays could provide the factual basis to meet the Boyd
standard for pleading causation and show that plaintiffs had a reasonable
probability of succeeding in the underlying medical malpractice suit but for
the spoliation of the X rays. The complaint further fails to allege that the
accuracy of Dr. Basuk's observations and an assessment of his judgment and
skill could not be determined absent review of the missing X rays. These are
additional facts not alleged, but further evidence that the spoliation caused
plaintiffs to be unable to prove the underlying lawsuit for medical
malpractice.
In Miller v. Gupta, 275 Ill. App. 3d 539, 656 N.E.2d 461 (1995), the
supreme court permitted the plaintiff to amend her medical malpractice claim
to state a cause of action for negligent spoliation of evidence. In support
of this claim, the plaintiff pled that her medical problems may have resulted
from the malpractice of defendant Dr. Gupta. The plaintiff further alleged
she contacted a second doctor, Dr. Hess, who indicated that a review of the
missing X rays was crucial to a determination of whether malpractice was
committed. In the Miller pleadings, the opinion of Dr. Hess provided the
factual pleading basis to support a claim that the loss or destruction of the
evidence had caused or could cause the plaintiff to be unable to prove the
underlying medical malpractice suit.
Similar pleading in the present case would substantiate the causation
element of plaintiffs' negligence claim. Plaintiffs generally pled that if
they had access to the missing X rays, they could have obtained an expert
opinion with respect to whether malpractice was committed. However, this is
not pled with enough specificity to meet the section 2-615 pleading hurdle for
the element of causation.
In addition, plaintiffs do not include any allegations regarding their
inability to obtain a certificate of merit under section 2-622 of the Code of
Civil Procedure. The simple fact remains that, without the X rays, plaintiffs
cannot file a certificate of merit and will not be able to plead or prove the
medical malpractice claim in a court of law.
The causation element in a spoliation case cannot be satisfied by proof
that a plaintiff's underlying medical malpractice claim was dismissed for
failure to file a certificate of merit. As recognized by Justice Bilandic in
his specially concurring opinion in the Miller case:
"[P]roof that a plaintiff's underlying medical malpractice claim was
dismissed for failure to file a certificate of merit, standing alone, is
simply not sufficient to fulfill the causation element of a negligent
spoliation claim. This is because the issue of whether the defendant's
loss or destruction of the evidence actually caused the plaintiff to be
unable to prove the underlying malpractice suit remains to be determined
on its merits." Miller, 174 Ill. 2d at 133 (Bilandic, J., specially
concurring).
The inability to file a certificate of merit is, however, certainly a
factor to be considered in deciding whether causation is properly pled in
compliance with section 2-615 standards. Plaintiffs failed to specifically
plead the inability to file a section 2-622 certificate of merit in the
complaint to substantiate the causation element.
Accordingly, we find the complaint fails to provide the factual pleading
basis to support a claim that the loss or destruction of the evidence has
caused plaintiffs to be unable to prove the original medical malpractice suit
and that but for the spoliation, the plaintiff had a reasonable probability of
succeeding in the malpractice suit.
(4) Damages
According to Boyd, actual damages must be alleged in an action for the
negligent spoliation of evidence. A threat of future harm, not yet realized,
is not actionable. Boyd, 166 Ill. 2d at 197. Under a section 2-615 analysis,
plaintiffs have not properly pled actual damages in the present case.
Plaintiffs' complaint states that crucial evidence necessary to the
successful prosecution of the medical malpractice lawsuit was lost or
destroyed, forcing plaintiffs to nonsuit the lawsuit. The complaint further
alleges the plaintiffs were forced to incur additional expenses and lose a
jury award in excess of $1 million. However, plaintiffs' complaint lacks
specific allegations as to the nature of the damages suffered by plaintiffs.
In the Boyd case, which involved a products liability action, the court
held that the plaintiff had sufficiently pled the element of damages. In his
complaint, plaintiff Boyd set forth the facts that gave rise to the products
liability action and asserted that he suffered serious personal injuries when
the product, a defective heater, exploded. He further alleged that
defendant's loss of the heater deprived the plaintiff of the key piece of
evidence in his products liability lawsuit, the product itself. The plaintiff
claimed that as a result, no expert could testify whether the heater was
defective or dangerously designed. It is clear in the Boyd case that the
product at issue, the exploding heater, was necessary to prove the products
liability case. Thus the Boyd plaintiff sufficiently alleged a nexus between
defendants' loss of the evidence and his ability to prove the underlying suit.
Boyd, 166 Ill. 2d at 198.
Such a relationship is not established in the present case. In medical
malpractice cases, the plaintiff has the burden of proving (1) the proper
standard of care against which the physician's conduct is to be measured, (2)
the unskilled or negligent failure to comply with that standard, and (3) the
resulting injury proximately caused by the lack of skill or care. Clingan v.
Rakalla, 252 Ill. App. 3d 786, 624 N.E.2d 1 (1993). According to allegations
in the record, plaintiffs were damaged as the loss of X rays significantly
prejudiced plaintiffs' ability to prove their medical malpractice case at
trial. However, the pleadings do not allege how the loss or destruction of
the X rays caused plaintiffs to be unable to prove each element of their cause
of action, resulting in actual damages. Rather, the pleadings simply contain
vague allegations that the missing X rays caused plaintiffs to be unable to
establish a deviation from the standard of care and thus they were forced to
nonsuit the claim. Missing is the nexus between the X rays and plaintiffs'
ability to prove the underlying suit for medical malpractice as required when
pleading damages in a spoliation of evidence claim under Boyd, 166 Ill. 2d at
198.
As the complaint did not specifically allege how plaintiffs were damaged
by the loss or destruction of the X rays in question, we find the element of
damages was not sufficiently pled under section 2-615.
IV
In the present case, plaintiffs have clearly not met the section 2-615
pleading hurdle. The complaint does not properly plead a cause of action in
negligence, specifically with regard to the elements of duty, proximate cause
and damages.
A complaint should be dismissed for failure to state a cause of action
with no opportunity to replead only if it is clearly apparent that no set of
facts can be proven that would entitle plaintiff to recovery. Illinois
Graphics Co. v. Nickum, 159 Ill. 2d 469, 639 N.E.2d 1282 (1994). Unlike the
trial court, we believe that based on the unique facts of this case, a
complaint could be drafted that would state a cause of action for negligent
spoliation of evidence and would survive a section 2-615 challenge.
As outlined above, such a complaint must clearly delineate the facts
necessary to support the conclusion that the defendant hospital voluntarily
assumed a duty to preserve the X rays under Boyd. The record request, the
segregation of the X rays in question after the lawsuit was filed, the ongoing
treatment of the minor plaintiff, and other evidence in the record provides a
factual basis for pleading the element of duty.
With regard to proximate cause, the complaint must allege sufficient
facts to support a claim that the loss of these X rays caused plaintiffs to be
unable to prove the underlying medical malpractice lawsuit and that but for
the spoliation the plaintiff had a reasonable probability of succeeding in the
underlying suit. Evidence regarding the significance of the X rays, including
expert opinion that a review of the missing X rays would be crucial in proving
medical malpractice, could provide the factual basis for pleading proximate
cause.
The pleading of damages must be specific, alleging how the missing X
rays caused plaintiffs to be unable to prove each element of the plaintiffs'
underlying cause of action for medical malpractice.
Accordingly, we affirm the trial court's finding that plaintiffs failed
to state a cause of action under the X-Ray Retention Act, we reverse the trial
court's order granting the defendant's section 2-619 motion to dismiss for
plaintiffs' failure to attach a section 2-622 certificate of merit in a cause
of action for spoliation of evidence, and we affirm the trial court's finding
that plaintiffs failed to sufficiently plead a cause of action for negligent
spoliation under section 2-615 standards. However, we remand to the trial
court to allow plaintiffs to replead the negligent spoliation of evidence
claim and for further action consistent with this opinion.
Affirmed in part and reversed in part; cause remanded with directions.
MCNULTY, P.J., and RAKOWSKI, J., concur.
December 22, 1997
No. 1-96-2395
MICHAEL JACKSON, a Minor, by his Mother and Next
Friend, JEANNE JACKSON, and JEANNE JACKSON,
Individually,
Plaintiffs-Appellants,
v.
MICHAEL REESE HOSPITAL AND MEDICAL CENTER,
Defendant-Appellee. )
)
)
)
)
)
)
)
)
)
) Appeal from the
Circuit Court of
Cook County
No. 94 L 14720
Honorable
Patrick McGann,
Judge Presiding.
JUSTICE O'MARA FROSSARD delivered the opinion of the court:
This case is on appeal from a motion to dismiss plaintiffs Michael
Jackson (a minor) and Jeanne Jackson's (his mother) complaint against
defendant Michael Reese Hospital and Medical Center for failure to state a
cause of action for negligent spoliation of evidence.
This appeal presents a question of first impression regarding whether a
plaintiff in an action for negligent spoliation of evidence arising from a
medical malpractice claim is required to file an affidavit and medical report
by the Illinois Code of Civil Procedure. 735 ILCS 5/2-622 (West 1994).
The question was raised by defendant as the basis for its section 2-619
(735 ILCS 5/2-619 (West 1994)) motion to dismiss plaintiffs' cause of action.
Defendant also attacked plaintiffs' complaint for negligent spoliation of
evidence on two other grounds: (1) failure to state a cause of action under
the X-Ray Retention Act (210 ILCS 90/0.01 et seq. (West 1994)), and (2)
failure to sufficiently plead facts that state a cause of action for negligent
spoliation of evidence under section 2-615. (735 ILCS 5/2-615 (West 1994)).
We reverse the trial court's order granting the defendant's section 2-
619 motion to dismiss for plaintiffs' failure to attach a section 2-622
"certificate of merit" in a cause of action for spoliation of evidence. We
affirm the trial court's finding that plaintiffs failed to state a cause of
action under the X-Ray Retention Act, and we affirm the trial court's finding
that plaintiffs failed to sufficiently plead a cause of action for negligent
spoliation under section 2-615 standards. However, we remand to the trial
court to allow plaintiffs to replead the negligent spoliation of evidence
claim.
FACTS
Plaintiffs originally filed a medical malpractice action against several
defendants on August 14, 1985. This action alleged negligence based on
injuries suffered by the minor plaintiff in the course of treatment for
serious medical problems, including the absence of an anus. Plaintiffs
voluntarily dismissed their medical malpractice claim against all defendants
and filed an amended complaint on February 21, 1991, alleging negligent
spoliation of evidence against defendant Michael Reese Hospital and Medical
Center. The claim alleged that defendant's loss or destruction of certain X
rays taken of the child caused plaintiffs to be unable to prove their original
medical malpractice claim.
Plaintiffs' first complaint was dismissed, and the trial court granted
leave to file an amended complaint. Plaintiffs' first amended complaint
asserted a claim under the X-Ray Retention Act, which was dismissed by the
trial court on October 23, 1995. In their second amended complaint,
plaintiffs alleged a cause of action for spoliation of evidence under Boyd v.
Travelers Insurance Co., 166 Ill. 2d 188, 652 N.E.2d 267 (1995). Plaintiffs
also filed an emergency motion to reconsider the dismissal of the first
amended complaint.
In its June 3, 1996, order, the trial court denied plaintiffs' motion to
reconsider the dismissal of the first amended complaint, which asserted a
claim under the X-Ray Retention Act. The court granted defendant's section 2-
619 motion to dismiss for failure to attach a certificate of merit under
section 2-622, and granted defendant's section 2-615 motion to dismiss for
failure to state a cause of action for negligent spoliation of evidence.
I
Plaintiffs first contend that the trial court erred in its order of
October 23, 1995, dismissing with prejudice the claim under the X-Ray
Retention Act (Act) (210 ILCS 90/1 (West 1994)) against defendant Michael
Reese Hospital.
Plaintiffs argue that Michael Reese Hospital was responsible for the
maintenance of certain X rays, which were lost or destroyed in a warehouse
flood. Plaintiffs allege that the loss of these X rays was a violation of the
hospital's duty to preserve the X rays under the X-Ray Retention Act.
The X-Ray Retention Act provides in pertinent part:
"Hospitals which produce photographs of human anatomy by the X-ray or
roentgen process on the request of licensed physicians for use by them
in the diagnosis or treatment of a patient's illness or condition shall
retain such photographs or films as part of their regularly maintained
records for a period of 5 years." (Emphasis added.) 210 ILCS 90/1 (West
1994).
The Act further provides "if the hospital has been notified in writing
by an attorney at law before the expiration of the 5[-]year period that there
is a litigation pending in court involving a particular X-ray" then the
hospital shall retain the X ray "for a period of 12 years from the date that
the X[-]ray photograph film was produced." 210 ILCS 90/1 (West 1994).
The plain language of the X-Ray Retention Act only requires a hospital
to maintain X rays for a period of five years. A duty to retain the records
for a longer period of time is only triggered by the receipt of written notice
from an attorney before the expiration of the five-year retention period that
litigation involving the X ray in question is pending. 210 ILCS 90/1 (West
1994).
A private cause of action is implicit in the X-Ray Retention Act.
Rodgers v. St. Mary's Hospital, 149 Ill. 2d 302, 309, 597 N.E.2d 616 (1992).
According to plaintiffs, defendant violated the Act by not preserving certain
X rays beyond the five-year statutory period. Plaintiffs allege that notice,
as required by the X-Ray Retention Act, was given to defendant hospital on
December 10, 1984, when plaintiffs' attorney requested records which pertained
to plaintiff Michael Jackson. The last missing X ray was taken in June of
1980, and under the Act, the hospital's statutory duty to retain this X ray
expired in June of 1985. The record request made by plaintiffs in December of
1984 did not constitute notice as contemplated in the Act, as there was no
litigation pending until August 14, 1985, when the initial lawsuit was filed.
Plaintiffs argue that this interpretation of "notice" circumvents the
purpose of the Act by requiring attorneys to file medical malpractice actions
before they have had the opportunity to have an expert review all the medical
evidence to determine if a valid claim exists. This argument does not change
the fact that the plain language of the statute requires that litigation be
pending before a statutory duty to retain the records is imposed. The
plaintiffs' concerns about the statute's effects on the filing of medical
malpractice actions are more appropriately addressed by the General Assembly
than this court. We can give no other interpretation to this statute than its
plain language requires.
Accordingly, we hold that plaintiffs failed to establish a cause of
action under the X-Ray Retention Act, and find that the trial court was
correct in denying plaintiffs' motion for reconsideration of the order
dismissing this cause of action.
II
We next turn to whether a plaintiff in a negligent spoliation of
evidence claim arising from a medical malpractice action is required to file a
certificate of merit with the complaint.
Defendant based its section 2-619 motion to dismiss on the failure of
plaintiffs' spoliation of evidence complaint to include a certificate of merit
under section 2-622 of the Code of Civil Procedure. 735 ILCS 5/2-622 (West
1994). Under section 2-622, a plaintiff in a medical malpractice claim is
required to file a certificate of merit along with the initial complaint. The
statute requires a certificate of merit "[i]n any action, whether in tort,
contract or otherwise, in which the plaintiff seeks damages for injuries or
death by reason of medical, hospital, or other healing art malpractice." 735
ILCS 5/2-622 (a) (West 1994). The statute indicates that a plaintiff's
attorney is to attach an affidavit stating that he has conferred with a
knowledgeable physician before filing the complaint. Section 2-622 also
requires a written report from the physician indicating that upon a review of
the records, there is a reasonable and meritorious cause of action. 735 ILCS
5/2-622(a)(1)(West 1994).
The legislature may properly impose requirements governing matters of
procedure and the presentation of legal claims, and section 2-622 merely
requires a litigant to submit certification declaring a meritorious basis for
a medical malpractice claim. DeLuna v. St. Elizabeth's Hospital, 147 Ill. 2d 57, 66, 588 N.E.2d 1139 (1992). Though the supreme court in the DeLuna
decision has resolved the issue of the constitutionality of section 2-622, the
scope of the statute is still a developing area of law. We do not interpret
the language in the statute to require a certificate of merit for a negligent
spoliation of evidence claim arising from a medical malpractice action. The
Supreme Court case of Miller v. Gupta, 174 Ill. 2d 120, 672 N.E.2d 1229
(1996), is instructive here.
The Miller case involved a cause of action for medical malpractice, not
spoliation of evidence as in the present case. In Miller, the plaintiff was
unable to file a section 2-622 certificate of merit in support of her medical
malpractice claim as the defendant physician had inadvertently disposed of X
rays necessary to prove the claim, and her claim was dismissed on this basis
by the trial court.
The appellate court reversed, holding that the plaintiff should not be
held to the "technical requirements" of section 2-622 as it was impossible for
a reviewing physician to make a determination under section 2-622 due to the
missing X rays. Miller v. Gupta, 275 Ill. App. 3d 539, 543-544, 656 N.E.2d 461 (1995). However, the appellate court required the plaintiff to attach a
report from a physician in place of the certificate confirming that the
missing X rays are necessary to the determination of whether medical
malpractice was committed. Miller v. Gupta, 275 Ill. App. 3d at 544.
Upon review of the case, the supreme court held that the trial court
properly dismissed the medical malpractice claim for lack of a certificate
under section 2-622. The supreme court, recognizing the plaintiff's inability
to procure a certificate of merit, nevertheless remanded the case to the trial
court indicating the appropriate remedy was to pursue a cause of action for
spoliation, not medical malpractice. Miller v. Gupta, 275 Ill. App. 3d 539,
656 N.E.2d 461 (1995), aff'd in part & rev'd in part, 174 Ill. 2d 120, 672 N.E.2d 1229 (1996).
In granting the defendant's section 2-619 motion to dismiss the second
amended complaint, the trial court in this case cited plaintiffs' failure to
attach a "certificate of merit" pursuant to section 2-622. In support of this
dismissal, the trial court relied on the following language from the appellate
court decision in Miller: "We do not believe that it is unreasonable to
require plaintiff to attach a *** physician's certificate confirming that the
missing X rays are necessary to the determination of whether malpractice was
committed." Miller v. Gupta, 275 Ill. App. 3d at 544. The trial court
interpreted the appellate court ruling in the Miller medical malpractice case
as requiring an "alternate" certificate for the plaintiffs' cause of action
for spoliation of evidence in this case.
The alternate certificate discussed in the appellate court's opinion
applied only to the Miller plaintiff's medical malpractice action. Whether a
plaintiff in a cause of action for spoliation of evidence is required to file
a certificate of merit was not addressed by either the appellate or supreme
court in the Miller case. There is no indication in either the appellate or
supreme court opinion that the section 2-622 certificate or some alternate
certificate is required in an action for the negligent spoliation of evidence.
Defendant argues that such a certificate of merit should be required for
the spoliation of evidence claim. It asserts that because the damages sought
in plaintiffs' spoliation action are the same damages for injuries "by reason
of medical, hospital or other healing art malpractice," a certificate of merit
should be required for a spoliation claim arising from a medical malpractice
action.
We will not expand the scope of section 2-622 by requiring compliance
with statutory certification under section 2-622 in a cause of action for
spoliation of evidence. Section 2-622 was part of the medical malpractice
reform legislation enacted by the General Assembly in 1985 in response to what
was perceived to be a crisis in the area of medical malpractice. DeLuna v.
St. Elizabeth's Hospital, 147 Ill. 2d 57, 66, 588 N.E.2d 1139 (1992). The
provision is designed to reduce the number of frivolous medical malpractice
suits that are filed and to eliminate such actions at an early stage, before
the expenses of litigation have mounted. DeLuna, 147 Ill. 2d at 66. We do
not interpret the statute as mandating a certificate of merit in a spoliation
of evidence claim arising from a medical malpractice action. It is the
function of the legislature, not the judiciary, to broaden the scope of this
statute to include other types of legal actions.
An examination of the supreme court decision in Miller v. Gupta
involving this statute supports our conclusion that section 2-622 compliance
should not be required for a cause of action for spoliation of evidence. On
June 3, 1996, at the time the trial court granted the order of dismissal, it
did not have the benefit of the supreme court's ruling, which was filed on
October 24, 1996. The supreme court in Miller not only recognized the
inability of the plaintiff in her medical malpractice case to provide a
section 2-622 certificate of merit, but indicated that the proper remedy for
plaintiff was to pursue a cause of action for spoliation of evidence and
remanded the case for that purpose. The supreme court in Miller recognized the
viability of a spoliation claim where section 2-622 compliance would be
impossible. The supreme court noted "[i]t is the legislature's, and not this
court's, responsibility to create exceptions to the section 2-622
requirements." Miller v. Gupta, 174 Ill. 2d at 128.
The complaint before this court is not a medical malpractice action, but
an action for the negligent spoliation of evidence. It is not within the
authority of this court to expand the scope of section 2-622 to include claims
for spoliation of evidence, nor is such an expansion supported by the supreme
court ruling in the Miller case.
We agree with the trial court that it is not unreasonable to require a
plaintiff to attach a physician's certificate confirming that the missing X
rays are necessary to the determination of whether malpractice was committed.
Where possible such certification is recommended and may very well help the
spoliation complaint survive a section 2-615 attack for failure to plead
causation. However, we do not agree that failure to attach such an
"alternate" certificate is cause for dismissal, since no such certification is
required either by statute or case law for a cause of action for spoliation of
evidence.
Therefore, we find the trial court erred in its order granting the
defendant's section 2-619 motion to dismiss for plaintiffs' failure to attach
a certificate of merit pursuant to section 2-622 of the Code of Civil
Procedure. We conclude that this statute does not apply to claims for the
spoliation of evidence.
III
We next turn to the trial court's order granting defendant's section 2-
615 motion to dismiss plaintiffs' second amended complaint for failure to
state a cause of action for negligent spoliation of evidence. In reviewing an
order on a section 2-615 motion to dismiss, the court shall apply a de novo
standard of review. Board of Library Trustees v. Cinco Construction, Inc.,
276 Ill. App. 3d 417, 658 N.E.2d 473 (1995). The standard of review for a
section 2-615 motion to dismiss is whether the complaint sufficiently states a
cause of action, and the merits of the case are not considered. Saunders v.
Michigan Avenue National Bank, 278 Ill. App. 3d 307, 662 N.E.2d 602 (1996).
The question presented by a section 2-615 motion to dismiss is whether,
taking all well-pleaded facts as true and considering them in the light most
favorable to the plaintiff, the plaintiff has alleged sufficient facts which,
if proved, would entitle the plaintiff to relief. Urbaitis v. Commonwealth
Edison, 143 Ill. 2d 458, 475, 575 N.E.2d 548 (1991).
Whether a complaint sufficiently stated a cause of action for spoliation
of evidence was recently addressed by the supreme court in Boyd v. Traveler's
Insurance Co., 166 Ill. 2d 188, 652 N.E.2d 267 (1995). In Boyd, the plaintiff
was injured when a propane heater exploded at his place of employment. The
plaintiff filed a workers' compensation claim against his employer and his
employer's insurance company. Employees of Traveler's Insurance took
possession of the heater to test it, lost it, and admitted never testing the
heater.
The plaintiff filed suit against the manufacturer of the heater and
later joined Traveler's as a defendant, claiming that Traveler's loss of the
heater prejudiced the products liability action against the manufacturer.
After dismissing the spoliation of evidence claim as premature, the trial
court certified the question of whether a spoliation action can be brought at
the same time as the underlying action.
The Illinois Supreme Court in Boyd refused to recognize an independent
tort of spoliation, but held that an action for negligent spoliation of
evidence can be established under existing negligence theories. Boyd, 166 Ill. 2d at 192-93. The supreme court went on to discuss how to plead a cause
of action for spoliation of evidence.
To state a cause of action for the negligent spoliation of evidence, a
plaintiff must plead the existence of a duty owed by the defendant to the
plaintiff, a breach of that duty, an injury proximately caused by the breach,
and damages. Boyd, 166 Ill. 2d at 194-95. In reviewing the section 2-615
dismissal in the present case, we must address whether the complaint properly
pled each of these elements.
(1) Duty
To determine if a defendant owes a duty to a plaintiff, we must decide
whether their relationship was such that the law imposed upon the defendant an
obligation of reasonable conduct for the benefit of the plaintiff. This is a
question of law for the determination of the court. W. Prosser, Torts, 37,
at 206 (4th ed. 1971). See also see Restatement (Second) of Torts 328B,
Comment b (1964).
The Boyd court reiterated the general rule that there is no common law
duty to preserve evidence, but it noted that such a duty may arise through an
agreement, a contract, a statute or other special circumstances, or a
defendant may voluntarily assume such a duty by affirmative conduct. Boyd,
166 Ill. 2d at 195. In any of the foregoing instances, a defendant owes a
duty of care to preserve evidence "if a reasonable person in the defendant's
position should have foreseen that the evidence was material to a potential
civil action." Boyd, 166 Ill. 2d at 195.
The Boyd decision delineated for the first time circumstances that give
rise to a duty to preserve evidence, and on appeal, we must determine whether
plaintiffs in this case sufficiently alleged facts that give rise to this duty
under Boyd. While a defendant may assume a duty by affirmative conduct, the
pleadings must allege facts describing that conduct. Nelson v. Union Wire
Rope Corp., 31 Ill. 2d 69, 74, 199 N.E.2d 769 (1964). A complaint may not
rest on conclusions not supported by specific facts. J. Eck & Sons, Inc. v.
Reuben H. Donnelley Corp., 213 Ill. App. 3d 510, 572 N.E.2d 1090 (1991).
In the present case, an examination of the pleadings indicates
plaintiffs failed to plead specific facts that establish the existence of a
duty to preserve the evidence in question.
Plaintiffs allege that defendant hospital voluntarily assumed a duty to
maintain Michael Jackson's X rays by affirmative conduct based on: (1)
defendant's retention of the X rays along with other medical records beyond
the statutory period delineated in the X-Ray Retention Act, (2) defendant's
ongoing treatment of plaintiff, and (3) defendant's agreement to follow the
Accreditation Manual for Hospitals promulgated by the Joint Commission for the
Accreditation of Hospitals regarding medical records.
A review of the complaint, however, indicates that the pleadings lack
facts as to the nature of the alleged voluntary undertaking. The complaint
fails to sufficiently describe what affirmative conduct was voluntarily
undertaken by the hospital regarding the retention, preservation and
maintenance of the X rays. The complaint fails to allege fact specific conduct
by which the defendant hospital voluntarily assumed a duty to maintain Michael
Jackson's X rays.
In the record, there is evidence that indicates that, under the specific
facts of this case, the hospital may have voluntarily assumed a duty to
maintain the X rays beyond the statutory period. While the complaint
generally alleges that the defendant hospital was under a duty to segregate
these X rays and keep them in a safe environment, the complaint fails to
describe what conduct was voluntarily undertaken by the hospital regarding the
safekeeping of the X rays. For example, there is evidence that the defendant
hospital had notice of litigation and took affirmative conduct by segregating
the X rays into a special litigation file but failed to safely segregate at a
time when the defendant hospital knew the X rays would be needed for
litigation. These facts may support a voluntary assumption of duty to retain
the X rays. Under these facts, it could be argued that a reasonable person in
defendant's position should have foreseen that the X rays would be evidence
material to future litigation. However, these facts are not pled in the
complaint.
In the Boyd case, the plaintiff alleged he suffered personal injuries at
his workplace due to a malfunctioning heater, which was subsequently lost by
the defendant. In his complaint, the plaintiff alleged that employees from
the defendant insurance company indicated that they needed possession of the
heater to investigate Boyd's workers' compensation claim, clearly aware that
the heater would be evidence material to future litigation. Boyd, 166 Ill. 2d
at 191-192. In the instant case, the segregation of the X rays into a special
litigation file is analogous. Under facts contained in the record but not
pled, it could be alleged that defendant, knowing the X rays were material to
future litigation, chose to treat the X rays in a specific manner because of
the pending litigation. By such conduct defendant may have voluntarily
assumed a duty to preserve the X rays and breached its duty by losing them,
not unlike the employees who lost the heater in the Boyd case.
A further review of the pleadings indicates a failure to allege that on
December 10, 1984, while plaintiff Michael Jackson was still being treated at
Michael Reese Hospital, plaintiffs' attorneys made a request through Record
Copy Services for all of Michael's medical records from January 26, 1980,
through December 10, 1984. The pleadings further fail to allege what, if any,
affirmative conduct the defendant hospital voluntarily undertook in response
to this record request. Specifically, the pleadings omit such pertinent
information as what affirmative conduct the hospital voluntarily undertook
regarding the retention, preservation and maintenance of the X rays from
December 10, 1984, until August 14, 1985, when the lawsuit was filed, and how
this conduct changed once the hospital was served with notice of the lawsuit
on October 18, 1985. Additionally missing from the complaint are facts that
describe the actual course of voluntary conduct chosen by the hospital after
November of 1985 when Anthony Boyle, manager of the radiological records
department at the defendant hospital, received notice of the request to locate
and produce the X rays.
In the second amended complaint, plaintiffs assert other grounds in
support of the existence of a duty of ordinary care to maintain the X rays.
Plaintiffs allege that the ongoing treatment of the minor plaintiff created a
duty to retain his medical records, which again is not pled in any fact
specific manner and fails to meet the basic requirements under section 2-615.
While the pleadings contain the general statement that Michael was
subject to a continuing course of treatment from January of 1980 through
November of 1980 in an effort to provide him with a functioning bowel, no
mention is made of his further treatment for the same condition in 1982 and
1984. The record, not the pleadings, indicates that on November 11, 1980,
Michael had out-patient surgery at Michael Reese for dilation of the anus.
The record also indicates that in December of 1982 and February of 1984,
Michael returned to Michael Reese for further surgery. None of these facts are
alleged in the complaint. More importantly, no factual connection is alleged
between the continuing course of treatment and the X rays.
The complaint also alleges a duty to keep the X rays in a fireproof and
flood-proof environment arising from defendant's agreement to follow the
Accreditation Manual for Hospitals promulgated by the Joint Commission for the
Accreditation of Hospitals. However, plaintiffs fail to specifically plead
what the manual recommends regarding standards related to the retention,
preservation and maintenance of X rays.
All well-pled facts and reasonable inferences that could be drawn from
those facts are accepted as true (Talbert v. Home Savings Bank of America, 265
Ill. App. 3d 376, 638 N.E.2d 354 (1994)), but conclusions of law or
conclusions of fact unsupported by allegations of specific facts will not meet
the minimal pleading requirements under section 2-615. Groenings v. City of
St. Charles, 215 Ill. App. 3d 295, 574 N.E.2d 1316 (1991).
As outlined above, numerous facts relevant to the duty to preserve the X
rays are not included in the complaint. Accordingly, we hold that plaintiffs
failed to properly plead the element of duty necessary to state a cause of
action for negligence.
(2) Breach of Duty
With regard to the breach of duty element, we find that plaintiff
sufficiently pled the loss or destruction of the missing X rays, which is a
breach of the duty the plaintiff unsuccessfully attempted to plead.
Plaintiffs' allegation that defendant failed to guard the x-rays against flood
or fire, viewed in the light most favorable to plaintiffs, is sufficient for
purposes of a section 2-615 analysis regarding breach of duty.
(3) Proximate Cause
The complaint is further deficient with regard to the issue of proximate
cause. A plaintiff must allege that an injury proximately resulted from a
breach of a duty when pleading causation. Moudy v. New York, Chicago & St.
Louis R.R. Co., 385 Ill. 446, 453-54, 53 N.E.2d 406 (1944). The supreme
court in Boyd clarified the standard for pleading proximate cause in a
negligent spoliation case:
"Therefore, in a negligence action involving the loss or destruction of
evidence, a plaintiff must allege sufficient facts to support a claim
that the loss or destruction of the evidence caused the plaintiff to be
unable to prove an underlying lawsuit." Boyd, 166 Ill. 2d at 196.
The court further stated that a plaintiff need not show that, but for
the loss or destruction of evidence, the plaintiff would have prevailed in the
underlying action. The court said that this was too difficult a burden, as it
may be impossible to know what the missing evidence would have shown. The
court added:
"A plaintiff must demonstrate, however, that but for the defendant's
loss or destruction of the evidence, the plaintiff had a reasonable
probability of succeeding in the underlying suit." Boyd, 166 Ill. 2d at
196 n. 2.
In pleading causation, plaintiffs allege that the missing X rays forced
plaintiffs to nonsuit the medical malpractice action, as they were unable to
obtain an expert opinion regarding negligence on the part of the physicians
who treated the child. This does not meet the pleading requirements for
proximate cause as set out in Boyd.
In arriving at a standard for pleading causation in cases alleging
spoliation of evidence the supreme court, in Boyd, recognized the difference
between factually alleging that the spoliation caused plaintiff to be unable
to prove the underlying lawsuit and the more difficult burden of factually
alleging that but for the spoliation the plaintiff would have prevailed in the
underlying lawsuit. Boyd, 166 Ill. 2d at 196. Under the Boyd standard, a
plaintiff must show that but for the spoliation there was a reasonable
probability of succeeding in the underlying lawsuit. Boyd, 166 Ill. 2d at 196
n.2.
Though the trial court judge in the instant case found plaintiffs'
second amended complaint factually deficient because it failed to allege "what
these missing films would have shown," the Boyd case indicated that this is
too difficult a burden for a plaintiff in a spoliation case, as it may be
impossible to know exactly what the missing evidence would have shown. Boyd,
166 Ill. 2d at 196 n.2. Thus the trial court in this case imposed too
stringent a causation burden on plaintiffs when it found the complaint
deficient for its failure to allege what the missing X rays would have shown.
We understand that, because plaintiffs do not have access to the missing
X rays, they cannot specifically state exactly what these X rays would have
shown. Also, plaintiffs need not factually plead that but for the loss or
destruction of the X rays they would have prevailed in the underlying medical
malpractice action. However, the trial court was correct in finding the
complaint deficient for failing to show how the missing X rays would have
impacted on plaintiffs' ability to prove the underlying lawsuit for medical
malpractice.
Applying the Boyd causation standard, the complaint must allege
sufficient facts to support a claim that the spoliation of evidence caused the
plaintiff to be unable to prove the underlying medical malpractice lawsuit and
that, but for the defendant's spoliation, the plaintiff had a reasonable
probability of succeeding in the underlying medical malpractice suit. Boyd,
166 Ill. 2d at 196, 196 n.2.
From the record, we know that plaintiffs allege that at least one of the
missing X rays would have shown the preoperative condition of Michael Jackson,
and thus the X ray was necessary to prove that contraindicated surgery was
performed. But again, facts as to why the loss of the X rays caused the
plaintiffs to be unable to prove the underlying medical malpractice lawsuit
are not contained in the plaintiffs' complaint.
There is evidence in the record that Dr. Basuk acknowledged that he had
made a "mistake" and incorrectly performed a pull-through surgery on September
9, 1980, on the minor plaintiff, Michael Jackson, and the surgery would have
to be repeated. Admissions of negligence by the treating physician are not
pled in the complaint. Such admissions pled with other facts regarding the
significance of the X rays could provide the factual basis to meet the Boyd
standard for pleading causation and show that plaintiffs had a reasonable
probability of succeeding in the underlying medical malpractice suit but for
the spoliation of the X rays. The complaint further fails to allege that the
accuracy of Dr. Basuk's observations and an assessment of his judgment and
skill could not be determined absent review of the missing X rays. These are
additional facts not alleged, but further evidence that the spoliation caused
plaintiffs to be unable to prove the underlying lawsuit for medical
malpractice.
In Miller v. Gupta, 275 Ill. App. 3d 539, 656 N.E.2d 461 (1995), the
supreme court permitted the plaintiff to amend her medical malpractice claim
to state a cause of action for negligent spoliation of evidence. In support
of this claim, the plaintiff pled that her medical problems may have resulted
from the malpractice of defendant Dr. Gupta. The plaintiff further alleged
she contacted a second doctor, Dr. Hess, who indicated that a review of the
missing X rays was crucial to a determination of whether malpractice was
committed. In the Miller pleadings, the opinion of Dr. Hess provided the
factual pleading basis to support a claim that the loss or destruction of the
evidence had caused or could cause the plaintiff to be unable to prove the
underlying medical malpractice suit.
Similar pleading in the present case would substantiate the causation
element of plaintiffs' negligence claim. Plaintiffs generally pled that if
they had access to the missing X rays, they could have obtained an expert
opinion with respect to whether malpractice was committed. However, this is
not pled with enough specificity to meet the section 2-615 pleading hurdle for
the element of causation.
In addition, plaintiffs do not include any allegations regarding their
inability to obtain a certificate of merit under section 2-622 of the Code of
Civil Procedure. The simple fact remains that, without the X rays, plaintiffs
cannot file a certificate of merit and will not be able to plead or prove the
medical malpractice claim in a court of law.
The causation element in a spoliation case cannot be satisfied by proof
that a plaintiff's underlying medical malpractice claim was dismissed for
failure to file a certificate of merit. As recognized by Justice Bilandic in
his specially concurring opinion in the Miller case:
"[P]roof that a plaintiff's underlying medical malpractice claim was
dismissed for failure to file a certificate of merit, standing alone, is
simply not sufficient to fulfill the causation element of a negligent
spoliation claim. This is because the issue of whether the defendant's
loss or destruction of the evidence actually caused the plaintiff to be
unable to prove the underlying malpractice suit remains to be determined
on its merits." Miller, 174 Ill. 2d at 133 (Bilandic, J., specially
concurring).
The inability to file a certificate of merit is, however, certainly a
factor to be considered in deciding whether causation is properly pled in
compliance with section 2-615 standards. Plaintiffs failed to specifically
plead the inability to file a section 2-622 certificate of merit in the
complaint to substantiate the causation element.
Accordingly, we find the complaint fails to provide the factual pleading
basis to support a claim that the loss or destruction of the evidence has
caused plaintiffs to be unable to prove the original medical malpractice suit
and that but for the spoliation, the plaintiff had a reasonable probability of
succeeding in the malpractice suit.
(4) Damages
According to Boyd, actual damages must be alleged in an action for the
negligent spoliation of evidence. A threat of future harm, not yet realized,
is not actionable. Boyd, 166 Ill. 2d at 197. Under a section 2-615 analysis,
plaintiffs have not properly pled actual damages in the present case.
Plaintiffs' complaint states that crucial evidence necessary to the
successful prosecution of the medical malpractice lawsuit was lost or
destroyed, forcing plaintiffs to nonsuit the lawsuit. The complaint further
alleges the plaintiffs were forced to incur additional expenses and lose a
jury award in excess of $1 million. However, plaintiffs' complaint lacks
specific allegations as to the nature of the damages suffered by plaintiffs.
In the Boyd case, which involved a products liability action, the court
held that the plaintiff had sufficiently pled the element of damages. In his
complaint, plaintiff Boyd set forth the facts that gave rise to the products
liability action and asserted that he suffered serious personal injuries when
the product, a defective heater, exploded. He further alleged that
defendant's loss of the heater deprived the plaintiff of the key piece of
evidence in his products liability lawsuit, the product itself. The plaintiff
claimed that as a result, no expert could testify whether the heater was
defective or dangerously designed. It is clear in the Boyd case that the
product at issue, the exploding heater, was necessary to prove the products
liability case. Thus the Boyd plaintiff sufficiently alleged a nexus between
defendants' loss of the evidence and his ability to prove the underlying suit.
Boyd, 166 Ill. 2d at 198.
Such a relationship is not established in the present case. In medical
malpractice cases, the plaintiff has the burden of proving (1) the proper
standard of care against which the physician's conduct is to be measured, (2)
the unskilled or negligent failure to comply with that standard, and (3) the
resulting injury proximately caused by the lack of skill or care. Clingan v.
Rakalla, 252 Ill. App. 3d 786, 624 N.E.2d 1 (1993). According to allegations
in the record, plaintiffs were damaged as the loss of X rays significantly
prejudiced plaintiffs' ability to prove their medical malpractice case at
trial. However, the pleadings do not allege how the loss or destruction of
the X rays caused plaintiffs to be unable to prove each element of their cause
of action, resulting in actual damages. Rather, the pleadings simply contain
vague allegations that the missing X rays caused plaintiffs to be unable to
establish a deviation from the standard of care and thus they were forced to
nonsuit the claim. Missing is the nexus between the X rays and plaintiffs'
ability to prove the underlying suit for medical malpractice as required when
pleading damages in a spoliation of evidence claim under Boyd, 166 Ill. 2d at
198.
As the complaint did not specifically allege how plaintiffs were damaged
by the loss or destruction of the X rays in question, we find the element of
damages was not sufficiently pled under section 2-615.
IV
In the present case, plaintiffs have clearly not met the section 2-615
pleading hurdle. The complaint does not properly plead a cause of action in
negligence, specifically with regard to the elements of duty, proximate cause
and damages.
A complaint should be dismissed for failure to state a cause of action
with no opportunity to replead only if it is clearly apparent that no set of
facts can be proven that would entitle plaintiff to recovery. Illinois
Graphics Co. v. Nickum, 159 Ill. 2d 469, 639 N.E.2d 1282 (1994). Unlike the
trial court, we believe that based on the unique facts of this case, a
complaint could be drafted that would state a cause of action for negligent
spoliation of evidence and would survive a section 2-615 challenge.
As outlined above, such a complaint must clearly delineate the facts
necessary to support the conclusion that the defendant hospital voluntarily
assumed a duty to preserve the X rays under Boyd. The record request, the
segregation of the X rays in question after the lawsuit was filed, the ongoing
treatment of the minor plaintiff, and other evidence in the record provides a
factual basis for pleading the element of duty.
With regard to proximate cause, the complaint must allege sufficient
facts to support a claim that the loss of these X rays caused plaintiffs to be
unable to prove the underlying medical malpractice lawsuit and that but for
the spoliation the plaintiff had a reasonable probability of succeeding in the
underlying suit. Evidence regarding the significance of the X rays, including
expert opinion that a review of the missing X rays would be crucial in proving
medical malpractice, could provide the factual basis for pleading proximate
cause.
The pleading of damages must be specific, alleging how the missing X
rays caused plaintiffs to be unable to prove each element of the plaintiffs'
underlying cause of action for medical malpractice.
Accordingly, we affirm the trial court's finding that plaintiffs failed
to state a cause of action under the X-Ray Retention Act, we reverse the trial
court's order granting the defendant's section 2-619 motion to dismiss for
plaintiffs' failure to attach a section 2-622 certificate of merit in a cause
of action for spoliation of evidence, and we affirm the trial court's finding
that plaintiffs failed to sufficiently plead a cause of action for negligent
spoliation under section 2-615 standards. However, we remand to the trial
court to allow plaintiffs to replead the negligent spoliation of evidence
claim and for further action consistent with this opinion.
Affirmed in part and reversed in part; cause remanded with directions.
MCNULTY, P.J., and RAKOWSKI, J., concur.
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