Charleston v. Larson
Annotate this Case
THIRD DIVISION
June 10, 1998
No. 1--97--0470
VITA CHARLESTON, ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) Cook County.
)
v. )
)
JOHN K. LARSON, M.D., )
)
Defendant-Appellee, )
)
and )
)
ANDREW THAIN, ) Honorable
) Kathy M. Flanagan,
Defendant. ) Judge Presiding.
JUSTICE BURKE delivered the opinion of the court:
Plaintiff Vita Charleston appeals from an order of the circuit court
granting defendant Dr. John Larson's section 2--615 motion to dismiss plaintiff's
complaint (735 ILCS 5/2--615 (West 1994)), which alleged that she suffered
injuries as a result of the negligence of defendant and Andrew Thain.[fn1]
Plaintiff also appeals the court's denial of her motion to amend her complaint.
On appeal, plaintiff contends that: (1) the trial court improperly dismissed
plaintiff's action because defendant owed plaintiff a duty of care based on the
theories of a special relationship between plaintiff and defendant or negligent
undertaking to perform services to protect plaintiff or medical/psychological
malpractice; and (2) the trial court improperly denied plaintiff's request for
leave to file a second amended complaint. For the reasons set forth below, we
affirm.
On April 2, 1992, defendant Andrew Thain (Thain) voluntarily admitted
himself on an emergency basis to CPC Streamwood Hospital (CPC), a facility
providing general duty nursing care in Streamwood, Illinois. Defendant was a
duly licensed physician who practiced psychiatry at CPC. Plaintiff was a nurse
at CPC. According to plaintiff, on May 3, 1992, Thain attacked and beat her
without provocation, after threatening her on the same day that he "would break
her neck."
Plaintiff filed a complaint against defendant and Thain on May 2, 1994,
alleging claims based on negligence and intentional tort. On November 7, 1994,
defendant filed a motion to dismiss plaintiff's complaint pursuant to section 2--
622(g) of the Code of Civil Procedure (Code) (735 ILCS 5/2--622(g) (West 1994)),
arguing that plaintiff's complaint did not contain a medical provider's
affidavit. On September 19, 1995, the trial court denied defendant's motion and
granted plaintiff leave to file an affidavit. Plaintiff filed the affidavit of
physician/psychiatrist, Dr. Nelson Borelli, which stated that at the time of
Thain's admission to CPC, he was a high risk patient who had a history of
alcohol, drug and sexual abuse, and engaged in self-mutilation. Dr. Borelli
stated that the CPC records did not indicate that an initial complete work up was
performed by defendant. Additionally, there was no indication that the staff at
CPC was informed of Thain's "dangerous condition." Dr. Borelli claimed that
defendant should have prescribed anti-psychotic medication for Thain, and that
during Thain's stay at CPC he "was showing increased agitation." In his
professional opinion, Dr. Borelli claimed that defendant deviated from the
applicable standard of care.
On August 19, 1996, the trial court granted plaintiff's request to file an
amended complaint. On September 10, plaintiff filed a four-count amended
complaint, alleging claims based on common law negligence (count I) and
"medical/psychological negligence" (count II) against defendant.[fn2] More
specifically, plaintiff alleged that defendant, as the medical director at CPC,
"voluntarily undertook" to render services to Thain, and that Thain was under the
care, supervision and control of defendant regarding access to staff, diet, and
treatment; Thain informed CPC staff during his admission that "the last time
someone messed with him, it took six people to hold [him] down"; defendant
ordered plaintiff to observe Thain every 15 minutes, 24 hours a day; and
defendant allegedly knew or should have known that Thain's condition deteriorated
and that he posed a serious risk of danger to those in close proximity to him.
Plaintiff further alleged that defendant failed to follow CPC policy by not
ordering a "complete initial work up" of Thain, not following procedures
regarding treatment of dangerous persons, and not performing a 30-day assessment
of Thain; defendant failed to properly treat Thain, specifically by failing to
prescribe anti-psychotic medications and failing to provide restrictions and
restraints; and defendant did not warn plaintiff or other CPC employees of
Thain's dangerous propensities, nor did he instruct them regarding the proper and
safe ways to approach Thain or to protect themselves from Thain.
On October 11, 1996, defendant filed a motion to dismiss counts I and II
of plaintiff's amended complaint pursuant to section 2--615 of the Code. (735
ILCS 5/2--615 (West 1994)). On December 27, the trial court issued a memorandum
opinion granting defendant s motion to dismiss and denying plaintiff leave to
amend. On January 2, 1997, the trial court issued an amended memorandum of
opinion. In its amended memorandum opinion, the court stated that plaintiff s
amended complaint did not allege facts giving rise to a special relationship
between plaintiff and defendant or showing that Thain s attack was reasonably
foreseeable in order to impose liability on defendant. The court further stated
that there were "absolutely no facts" to support plaintiff's "conclusory"
allegation that defendant knew or should have known that his services to Thain
were necessary for the protection of persons in close proximity to Thain. The
court also found that plaintiff s amended complaint lacked allegations that
defendant voluntarily undertook to perform services for plaintiff sufficient to
create a legal duty owed by defendant to plaintiff. The court specifically
stated that it was unwilling to accept outside authority [relied on by
plaintiff] on an issue which has been clearly defined by Illinois law. With
regard to plaintiff's argument of "medical/psychological negligence," in support
of which plaintiff cited to Eckhardt v. Kirtz, 179 Ill. App. 863, 534 N.E.2d 1339
(1989), the trial court stated that defendant was liable under the standards set
forth in Eckhardt. This appeal followed.[fn3]
Plaintiff contends that defendant's "unique position as a physician and
medical director, "combined with his knowledge, the foreseeability of injury, and
the minimal burden of guarding against certain injury to the plaintiff, warrant
the application of a duty by [defendant] to act reasonably to the plaintiff
related to [defendant]'s involvement with Mr. Thain under recognized Illinois
law. Plaintiff argues that, as a psychiatrist, defendant had specific knowledge
in recognizing, treating and managing Thain s dangerous condition, and that he
alone possessed the means to control and restrict Thain s activities, and warn
or simply inform plaintiff of the danger posed by Thain. Plaintiff further
argues that defendant knew Thain was a ticking bomb and it was more than
reasonably foreseeable that he would explode, and virtually certain that he
would attack a staff nurse such as plaintiff. Plaintiff also asserts that she
was professionally and ethically obligated to follow defendant s instructions,
and that she relied on his instructions in interacting with dangerous persons
such as Thain.
Defendant contends that he owed no duty to protect plaintiff against
criminal attacks by a third person under any theory recognized by Illinois law.
Specifically, defendant argues that under common law negligence defendant owed
plaintiff no duty to act with reasonable care to protect plaintiff from Thain,
and plaintiff failed to allege facts establishing that Thain's attack upon
plaintiff was reasonably foreseeable--a prerequisite to the application of any
of the exceptions to the general rule of duty. Defendant therefore maintains
that, in the absence of a duty, the trial court properly dismissed plaintiff s
amended complaint.
When reviewing the dismissal of a complaint pursuant to section 2--615,
this court must determine whether the complaint, when considered in a light most
favorable to the plaintiff, alleged facts sufficient to state a cause of action.
Ziemba v. Mierzwa, 142 Ill. 2d 42, 46, 566 N.E.2d 1365 (1991). In assessing the
sufficiency of a complaint, we must take as true all well-pleaded facts and
reasonable inferences drawn from those facts. Our review is de novo. Doe v.
McKay, 286 Ill. App. 3d 1020, 1023, 678 N.E.2d 50 (1997).
In order to prevail in a negligence action, a plaintiff s complaint must
set forth facts establishing the existence of a duty owed by defendant to
plaintiff, a breach of that duty and an injury proximately caused by the breach.
The determination of duty, or whether the defendant and the plaintiff stood in
such a relationship to one another that the law imposes an obligation of
reasonable conduct upon the defendant for the benefit of the plaintiff, is a
question of law. Estate of Johnson v. Condell Memorial Hospital, 119 Ill. 2d 496, 503, 520 N.E.2d 37 (1988). However, the legal determination of whether a
duty exists is dependent upon the factual circumstances giving rise to the
litigation. Hernandez v. Rapid Bus Co., 267 Ill. App. 3d 519, 522, 641 N.E.2d 886 (1994). In determining whether a legal duty exists, Illinois courts consider
whether the harm was reasonably foreseeable, the likelihood of injury, the
magnitude of the burden of guarding against harm and the consequences of placing
that burden on the defendant. Ziemba, 142 Ill. 2d at 47.
Generally, Illinois law does not impose a duty to protect another from a
criminal attack by a third person unless the attack was reasonably foreseeable
and the parties stand in one of the following special relationships : (1) common
carrier and passenger; (2) innkeeper and guest; (3) business invitor and invitee;
and (4) voluntary custodian and protectee. Hernandez, 267 Ill. App. 3d at 524.
A second exception exists where there is negligence in the performance of a
voluntary undertaking. Restatement (Second) of Torts 324A (1965). Section 324A
of the Restatement (Second) of Torts (Restatement), states:
One who undertakes, gratuitously or for consideration,
to render services to another which he should recognize
as necessary for the protection of a third person or his
things, is subject to liability to the third person for
physical harm resulting from his failure to exercise
reasonable care to protect his undertaking, if
(a) his failure to exercise reasonable care
increases the risk of such harm, or
(b) he has undertaken to perform a duty owed by
the other to the third person, or
(c) the harm is suffered because of reliance of
the other or the third person upon the undertaking.
Rowe v. State Bank of Lombard, 125 Ill. 2d 203, 217-18,
531 N.E.2d 1358 (1988); Hernandez, 267 Ill. App. 3d at
524.[fn4]
Plaintiff asserts that because "the relationship of a psychiatrist and
patient is a unique one which creates duties toward third persons and "[t]he
relationship of a psychiatrist to his nurse relating to known dangerous persons
is a unique one which creates duties to the nurse," our courts should therefore
"recognize these special relationships and permit the plaintiff to maintain her
cause of action against [defendant]."
Defendant contends that Illinois courts have consistently refused to extend
the "special relationship" exceptions beyond the four limited relationships
recognized in Hernandez and Rowe. For example, in Sicklas v. Ecker Center for
Mental Health, Inc., 248 Ill. App. 3d 124, 617 N.E.2d 507 (1993), the court
rejected the plaintiff s argument that a special relationship existed between the
plaintiff psychiatric patient and the defendant mental health facility which
offered housing services for the mentally ill. In Sicklas, the plaintiff was
placed by the defendant to live in an apartment with another of the defendant s
clients. When the plaintiff was attacked by the defendant s other client, he
sued the defendant for breach of a legal duty. The court held that the plaintiff
did not offer any cogent reasons *** for expanding the scope of the narrow
[special relationship] exceptions. Sicklas, 248 Ill. App. 3d at 130.
Plaintiff concedes that no Illinois court has addressed the extension of
the four special relationships to include the relationship between a
psychiatrist-medical director and his nurse, but argues that the authority of
other jurisdictions, extending the special relationship concept in this area,
provide[s] cogent legal analyses for the extension of a special relationship in
this area. Specifically, plaintiff cites to Turner v. Jordan, 1995 Tenn. App.
Lexis 576, (Tenn. Ct. App. Aug. 30, 1995), reh'g denied, 1996 Tenn. App. Lexis
216 (Tenn. Ct. App. Apr. 10, 1996), where the court held that in today s
environment, the defendant psychiatrist and nurse had the type of special
relationship that can lead to the imposition of a duty when the nurse was
attacked by the psychiatrist s patient and filed an action against the
psychiatrist; and Evans v. Morehead Clinic, 749 S.W.2d 908 (Ky. Ct. App. 1988),
where the court held that the relationship of a psychiatrist and a patient is a
special relationship creating a duty and permitting a cause of action against the
patient s psychiatrist for the victim who was shot by the patient. Plaintiff
further relies on Tarasoff v. Regents of the University of California, 17 Cal. 3d 425, 551 P.2d 334 (1976), a leading case encompassing the issue of special
relationships, where the court imposed a duty on a psychiatrist to warn a third
party concerning a dangerous patient, and which was relied upon by the Turner and
Evans courts.
Plaintiff also cites to Doe and Renslow v. Mennonite Hospital, 67 Ill. 2d 348, 367 N.E.2d 1250 (1977), in support of her assertion that Illinois law has
also examined and expanded the concept of duty in the area of psychiatric
treatment since Sicklas. In Doe, during a child s psychiatric treatment by the
defendant psychiatrists, the child allegedly discovered repressed memories of
alleged sexual abuse by her father. When confronted with this information, the
plaintiff father also entered into a treatment program with the defendants. When
the plaintiff sued the defendants for the loss of his child s society and
companionship based on the alleged negligent treatment of his child (who was not
a party to the suit), the court held that the defendants owed a duty to the
plaintiff regarding their treatment of the child under the doctrine of
transferred negligence. The court held that
in a case such as this involving repressed memories of
sexual abuse, where the parent is brought into the
treatment process by the therapist, a therapist s duty
to the patient to use reasonable care in the treatment
process is extended to the parent. Doe, 286 Ill. App.
3d at 1025.
Plaintiff claims that the Doe holding "evidences a willingness by the court to
expand the definition of 'special relationship' " to apparently include the
relationship between a psychiatrist and his nurse, as in the present case, based
on the Doe court's comments that "duty" is not a sacrosanct concept, but "only
an expression of the sum total of those considerations of policy which lead the
law to say that the plaintiff is entitled to protection." Doe, 286 Ill. App. 3d
at 1025.
In Renslow, the defendant physician negligently transfused the plaintiff's
mother with incompatible blood prior to the plaintiff's birth. The plaintiff's
mother first learned that her blood had been sensitized years later when she was
pregnant with the plaintiff. The plaintiff suffered permanent physical damage
due to the conduct of the defendants. The Renslow court held that the non-
patient plaintiff could nonetheless maintain a cause of action against the
physician and the hospital under the "limited area of transferred negligence"
because of the intimate nature of the relationship between the parties harmed.
Renslow, 67 Ill. 2d at 357-59.
Neither Doe nor Renslow supports plaintiff's assertion that this court
should expand the special relationship exception and find that defendant owed
plaintiff a duty. Both cases turned on the doctrine of transferred negligence.
In the present case, we find plaintiff's contention, that the "unique" nature of
the psychiatrist-nurse relationship warrants application of the special
relationships doctrine, is contrary to well settled law which has narrowly
interpreted the doctrine where the plaintiff did not have a direct physician-
patient relationship with the physician whom he sued, to include only
relationships of such an intimate nature (i.e., between parent and child) that
can give rise to a theory of transferred negligence of the physician's services.
While it cannot be denied that a psychiatrist and his nurse have a relationship
in their mutual interests in their patients and the institution where they are
employed, that relationship does not rise to the level of the intimacy required
by our courts to warrant the application of transferred negligence. We therefore
decline to follow Turner and Evans in light of our own law establishing that
special relationships should be narrowly interpreted in medical malpractice
actions where a direct physician-patient relationship between the doctor and the
patient is absent. Accordingly, we hold that a special relationship did not
exist between plaintiff and defendant sufficient to create a duty on the part of
defendant to protect plaintiff from a third-party criminal attack pursuant to
Rowe and Hernandez.
Plaintiff further contends that Hernandez, Sicklas and Johnson, along with
sections 314, 315, 319, 323 and 324A of the Restatement, stand for the
proposition that a voluntary negligent undertaking, including that related to a
known dangerous person, creates a duty owed by a defendant in favor of third
parties in the context of third-party criminal liability. Plaintiff argues that
she has pleaded facts sufficient to create a duty owed by defendant to plaintiff,
i.e., that defendant voluntarily undertook to treat Thain after his admission
into CPC, coupled with defendant's positions as physician and medical director,
his knowledge of Thain's dangerous propensities and deteriorating condition, his
control of Thain and his opportunity to avoid injury.
In Hernandez, the court held that the plaintiff pleaded a genuine issue of
fact as to whether the defendant school bus company had a duty to foresee
possible harm to the plaintiff's daughter, a special education student who was
raped while she walked unescorted from the school bus into the school. The
incident occurred after the defendant's employee had allegedly agreed to assume
the responsibility of escorting the students, which service was originally
provided by employees of the Chicago Board of Education. In considering section
324A of the Restatement, the Hernandez court held that the defendant was liable
for the criminal acts of a third party because the defendant voluntarily
undertook to provide escort services, and then negligently performed them. The
court stated that "even under circumstances that might arguably give rise to the
application of section 324A, the occurrence for which tort recovery is sought
must be reasonably foreseeable." The court further stated that it is not
necessary that the defendant foresee the precise harm that in fact occurred, as
long as a reasonably prudent person would have foreseen, at the time of the
defendant's action or inaction, that some harm to another was likely to occur.
Hernandez, 267 Ill. App. 3d at 524-26.
In Sicklas, while the court held that the plaintiff patient could not
recover against the defendant institution on his theory that a special
relationship existed between the plaintiff and the defendant, it did find that
the defendant voluntarily undertook to perform services for the plaintiff,
thereby giving rise to a duty by the defendant to exercise reasonable care in
providing such services. In reaching its decision, the Sicklas court relied on
section 323 of the Restatement, which provides:
"One who undertakes, gratuitously or for consideration,
to render services to another which he should recognize
as necessary for the protection of the other's person or
things, is subject to liability to the other for
physical harm resulting from his failure to exercise
reasonable care to perform his undertaking, if
(a) his failure to exercise such care increases
the risk of such harm, or
(b) the harm is suffered because of the other's
reliance upon the undertaking." Restatement (Second) of
Torts 323 (1965); Sicklas, 248 Ill. App. 3d at 131.
The Sicklas court also held that "the scope of an assumed duty is limited by the
extent of the undertaking." Sicklas, 248 Ill. App. 3d at 131.
In Johnson, a patient of the defendant mental institution obtained a knife
and escaped from the facility. After the victim was killed during a police chase
of the patient, her estate sued the defendant, arguing that section 319 of the
Restatement gave rise to a duty owed her by the defendant institution. Pursuant
to section 319,
"[o]ne who takes charge of a third person whom he knows
or should know to be likely to cause bodily harm to
others if not controlled is under a duty to exercise
reasonable care to control the third person to prevent
him from doing such harm." Restatement (Second) of
Torts 319 (1965).
The Johnson court held that a mental hospital has a duty to control dangerous
persons committed to its custody, and that in cases where it was held there was
a duty imposed on medical institutions to protect third parties from harm, the
institutions had custody of the dangerous persons through a court order or
adjudication that gave them actual control over the individuals. Johnson, 119 Ill. 2d at 507-08. Because the Johnson plaintiff's complaint did not allege that
the patient was either involuntarily committed to the institution, or that she
was voluntarily admitted but had subsequently lost her right to request discharge
because the institution had filed a petition to detain her, the court held that
the defendant did not have a duty to control the patient that would extend to
include a duty to the decedent. Johnson, 119 Ill. 2d 496 507-09.
In the instant case, defendant argues that neither sections 323 nor 324A
is applicable because both of those sections require that the defendant render
services to the plaintiff directly, and that the defendant who undertakes to
render services to the other person "recognizes the services as necessary for the
protection of" that other person. Defendant further argues that plaintiff does
not allege specific facts which demonstrate why defendant should have recognized
that his treatment of Thain was necessary for the protection of plaintiff.
Defendant asserts that "certainly" a doctor does not treat patients with the
understanding or purpose of protecting the medical staff working with the doctor.
More specifically, defendant argues that section 324A, subsection (a), does not
apply because nothing that defendant did or omitted to do increased the risk of
harm to plaintiff since the attack was a violent outburst which was unexpected
and unpredictable; subsection (b) does not apply because defendant never
undertook to perform the duty of care that Thain owed to plaintiff to exercise
reasonable care and not to injure plaintiff; and subsection (c) does not apply
because it requires that the harm is suffered because of the reliance on the
undertaking by the other person (Thain) or the third party (plaintiff), and
plaintiff cannot allege in good faith that either Thain's conduct resulted from
Thain's reliance on defendant, or that Thain's conduct resulted from plaintiff's
reliance on defendant.
We find that plaintiff's voluntary undertaking theory of defendant's
liability in this case fails at the outset because plaintiff never alleged that
defendant undertook services for plaintiff, but rather, that defendant undertook
to protect Thain. Therefore, the facts of this case are distinguishable from
those of both Hernandez and Sicklas based on the nature of plaintiff's and
defendant's relationship. The rationale of Hernandez is premised upon a third
party's duty to protect a plaintiff which duty defendant then voluntarily
assumes. In this case, because no one assumed a duty to protect plaintiff,
defendant could not have voluntarily assumed the duty to perform the duties of
another for the protection of plaintiff. Sicklas is also distinguishable
because, unlike the plaintiff in that case, plaintiff here was not defendant's
patient, but rather, an employee of the institution where the patient was
hospitalized. Additionally, unlike the Sicklas defendant, defendant in this case
did not care for, treat or provide services for plaintiff. Johnson is also
distinguishable from the case at bar because plaintiff has not alleged facts
sufficient to establish that Thain was a patient committed to the custody and
control of defendant by either court ordered involuntary admission or a petition
filed by CPC restricting the voluntary status of Thain's admission.
With the exception of Hernandez, Sicklas and Johnson, which are
distinguishable from the present case, plaintiff fails to cite to authority in
support of her argument that sections 323 and 324A are applicable to the facts
she alleges in this action. Furthermore, because plaintiff fails to cite to
authority or make specific argument in support of her assertion that sections 314
and 315 apply, she has therefore waived those arguments. When an appellant seeks
reversal, "theories not pursued nor advanced with citation of authorities are
deemed waived." Saldana v. Wirtz Cartage Co., 74 Ill. 2d 379, 385 N.E.2d 664
(1978).
We briefly observe that even if we were to find that defendant owed
plaintiff a duty in this case under either the special relationship or voluntary
undertaking theory, plaintiff's amended complaint simply does not allege facts
establishing that Thain's attack on plaintiff was reasonably foreseeable, as
required to prevail on her claim that defendant owed her a duty. Plaintiff's
allegations regarding defendant's knowledge of Thain's violent propensities, as
correctly determined by the trial court, were nothing more than improper
conclusions. The only specific threats that were alleged to have been made to
plaintiff by Thain occurred on the same day of the attack, and plaintiff never
alleged that defendant had knowledge of these threats directed to plaintiff. The
only other fact plaintiff pleads regarding foreseeability of injury is Thain's
comment that "the last time someone messed with him, it took six people to hold
[him] down." The trial court did not find these facts sufficient to show
foreseeability, and neither does this court. In the absence of factual
allegations establishing reasonable foreseeability of Thain's attack on
plaintiff, her negligence action against defendant fails. Because we affirm the
trial court's order granting defendant's motion to dismiss based on the issue of
duty that was fully briefed in the trial court, we need not address the issue,
raised by defendant on appeal but not in the trial court, of whether the trial
court's order can be affirmed on the ground that plaintiff's complaint did not
contain allegations sufficient to show proximate causation.
Plaintiff's next argument is based on her prior argument that "an entire
body of law," both in Illinois and other jurisdictions, has emerged regarding a
failure to warn and a failure to control dangerous patients. She contends that
"this evolution of the law suggests that under the facts of this matter, Illinois
courts will recognize a duty [owed] by a psychiatric physician to his nurse
within the context of professional medical negligence." Plaintiff relies on
Eckhardt in support of her contention that Illinois law recognizes a cause of
action against a psychiatrist for the psychiatrist's failure to warn a plaintiff
of the patient's threats against the plaintiff.
In Eckhardt, after the decedent's husband, a patient of the defendant, shot
her in her sleep, the decedent's administrator filed a malpractice action against
the defendant psychiatrist, alleging that the defendant failed to warn the
decedent of her husband's violent propensities. The Eckhardt court stated that
a non-patient plaintiff, who alleges that a psychiatrist owed the plaintiff a
duty to warn, must establish three elements in order to sustain her cause of
action. "First, the patient must make specific threat(s) of violence; second,
the threat(s) must be directed at a specific and identified victim; and, third,
a direct physician-patient relationship between the doctor and the plaintiff or
a special relationship between the patient and the plaintiff." Eckhardt, 179
Ill. App. 3d at 872-73.
In the present case, plaintiff asserts that she has "complied with the
requirements of Eckhardt." Defendant contends that because no physician-patient
relationship existed between plaintiff and defendant, defendant owed no duty to
plaintiff under a medical negligence theory. Defendant further maintains that
Eckhardt does not support plaintiff's argument because, consistent with Illinois
precedent, the Eckhardt case presupposes a physician-patient relationship or a
special relationship between the patient and the plaintiff in order to impose a
duty to warn upon the psychiatrist. Defendant also argues that even if plaintiff
were able to allege facts supporting the first two elements in Eckhardt, she has
not and cannot show the existence of either the patient-physician relationship
or a special relationship.
Illinois law is well settled that a plaintiff cannot maintain a medical
malpractice cause of action absent a direct physician-patient relationship with
the defendant unless a special relationship exists between a patient and the
plaintiff. Kirk v. Michael Reese Hospital & Medical Center, 117 Ill. 2d 507,
531, 513 N.E.2d 387 (1987). In Kirk, the court noted that several jurisdictions
have held that a physician's relationship with a patient was sufficient to impose
a duty to protect unidentifiable third parties endangered by the patient. The
court specifically stated, however, that such a position is inconsistent with
Illinois precedent and public policy. In refusing to extend the physician's duty
of care to an indeterminate class of potential plaintiffs, the Kirk court also
acknowledged that in 1986 the legislature enacted medical malpractice legislation
intended to reduce the burden of litigation against health care professionals.
Kirk, 117 Ill. 2d 507 at 531-32.
In the present case, we find no merit in plaintiff s assertion that she has
complied with the requirements of Eckhardt. Plaintiff has not alleged that
Thain ever threatened to harm her or any other nurse in defendant s presence or
during the course of Thain s treatment. Even if plaintiff were to satisfy the
first two elements of Eckhardt, i.e., that Thain made specific threat(s) of
violence and the threat(s) were specifically directed at her, her argument is
nonetheless without merit because plaintiff cannot establish the existence of a
special relationship between herself and Thain, as discussed above.
Lastly, plaintiff contends that the trial court should have allowed her an
opportunity to replead after it granted defendant s motion to dismiss. Plaintiff
argues that, contrary to the trial court s finding in its amended memorandum of
opinion that her amended complaint lacked allegations that defendant undertook
to perform services for plaintiff, plaintiff did allege in her amended complaint
that defendant, in his capacity as medical director at CPC, ordered her to
observe Thain every 15 minutes and, in such capacity, defendant agreed to
perform a myriad of duties for the staff, including plaintiff. Plaintiff argues
that her amended complaint fairly inferred that she was obligated to comply with
defendant s instructions, guidelines and policies to her detriment, and to the
extent that the court required specific pleadings regarding defendant s
relationship with plaintiff, plaintiff should have been granted leave to file a
second amended complaint. Plaintiff also disagrees with the trial court s
finding that her amended complaint lacked allegations giving rise to a special
relationship or to any reasonable foreseeability of Thain s attack, and argues
that to the extent that the allegations were necessary, she should have been
afforded an opportunity to replead.
Defendant contends that the trial court properly denied plaintiff s leave
to file a second amended complaint because well settled precedent in Illinois
precludes a plaintiff from bringing a medical negligence action against a
defendant where no physician-patient relationship or special relationship exists.
Defendant argues that because no amendment would have cured the absence of a
duty owed by [defendant] to plaintiff, the [trial court] properly denied
[plaintiff's motion for] leave to amend.
A cause of action should not be dismissed on the pleadings unless it
clearly appears that no set of facts can be proven entitling the plaintiff to
recover. People ex rel Daley v. Datacom Systems Corp., 146 Ill. 2d 1, 11, 585 N.E.2d 551 (1991). A trial court has broad discretion in determining whether to
allow an amendment to a complaint, and its ruling on the matter will not be
disturbed on review absent an abuse of that discretion. Braun-Skiba, Ltd., 279
Ill. App. 3d 912, 921-22, 665 N.E.2d 485 (1996). On review by this court, all
facts properly pleaded in the complaint must be taken as true. Daley, 146 Ill. 2d at 11. The following factors are relevant in assessing the propriety of a
trial court s ruling on a motion to amend a pleading: (1) whether the proposed
amendment would cure the defective pleading; (2) whether other parties would be
prejudiced or surprised by the proposed amendment; (3) whether the proposed
amendment is timely; and (4) whether the party seeking amendment had other
opportunities to do so. Winfrey v. Chicago Park District, 274 Ill. App. 3d 939,
947-49, 654 N.E.2d 508 (1995) (the court held that the plaintiff s third amended
complaint suffered from the same deficiencies as his second amended complaint,
and contained bare allegations and conclusions supported by no facts).
In the present case, plaintiff has not demonstrated that the trial court
abused its broad discretion in denying her request to file a second amended
complaint. The trial court specifically addressed plaintiff s argument that
defendant owed plaintiff a duty under theories of special relationship, negligent
undertaking and medical malpractice, and held that the proposed amendment would
not cure the defective pleading under principles of well settled Illinois law
which the trial court was unwilling to expand based on foreign authority.
Plaintiff's "foreseeability argument" also fails for the reasons discussed above.
Additionally, even taking plaintiff s allegations as true, that she was obligated
to comply with defendant s instructions to her detriment, plaintiff has not
pleaded sufficient facts to infer that she and defendant stood in a special
relationship or that defendant voluntarily undertook to perform services on
plaintiff's behalf that would be sufficient under Illinois law to impose a duty
on defendant. Moreover, the trial court had afforded plaintiff one opportunity
to cure her initially defective complaint, prior to her second motion to amend.
Because two of the four Winfrey factors are present in this case, i.e., the
proposed amendment would not cure the defective pleading and plaintiff had an
opportunity to do so, we hold that the trial court did not abuse its discretion
in denying plaintiff's motion to amend her complaint a second time.
Plaintiff also argues that Braun-Skiba, defendant's "leading case" on the
amendment issue, does not specifically address a motion to amend a complaint and
the applicability of a section 2--615 motion to dismiss. According to plaintiff,
the Braun-Skiba court considered whether the plaintiff could file a third amended
complaint in a mechanics lien dispute after the trial had been completed.
Plaintiff asserts that the trial court in this case never addressed any of the
"Braun-Skiba factors" that a court should consider in determining whether to
allow a plaintiff to file an amended complaint, but if it had, plaintiff should
have been allowed to replead her complaint.
We find no merit in plaintiff s argument that Braun-Skiba is inapplicable
to the case at bar. While the facts of that case are distinguishable, it
nonetheless addressed the issue of whether the trial court abused its discretion
in denying a motion to amend a pleading, which is the same issue presented here.
As discussed above, we have determined that the trial court did not abuse its
discretion in denying plaintiff's motion to amend her complaint. Moreover, the
Winfrey case, and not the Braun-Skiba case, was cited by defendant for a
discussion of the relevant factors that a court should consider in allowing an
amendment to pleadings. In Winfrey, the court upheld the trial court's dismissal
of the plaintiff's complaint pursuant to a section 2--615 motion based on its
determination that the amended complaint failed to cure the deficiencies in the
original complaint. See also, People ex rel. Fahner v. Carriage Way West, Inc.,
88 Ill. 2d 300, 308, 430 N.E.2d 1005 (1982) (the court held that, although a
court must liberally construe pleadings, it cannot deny a motion to dismiss when
only conclusions are alleged by the claimant). Additionally, we note that
although the trial court did not specifically identify and outline the Winfrey
factors in its memorandum opinion, plaintiff s assertion that it did not address
them at all lacks merit because the trial court specifically held that it was
clear that plaintiff was incapable of alleging facts sufficient to state a cause
of action, or, as we interpret the trial court's conclusion, the defects in
plaintiff's amended complaint could not be cured by further amendment.
For the reasons stated, we affirm the circuit court's dismissal of
plaintiff's complaint.
Affirmed.
LEAVITT, P.J., and CAHILL, J., concur.
[fn1]Thain is not a party to this appeal.
[fn2]Counts III and IV of plaintiff's amended complaint were against Thain.
[fn3]On April 30, 1997, plaintiff filed a motion with this court to
supplement the record, which we denied on May 12. Defendant simultaneously filed
his brief with this court and a motion to strike matters "beyond" the record,
claiming that plaintiff's statement of facts in her brief improperly incorporated
references to defendant's duties as medical director of CPC, contrary to this
court's denial of plaintiff's motion to supplement the record to include a
document entitled "Director Agreement," which defendant maintained was not before
the trial court. Defendant, however, did not specify which facts plaintiff has
allegedly "improperly incorporated." Accordingly, defendant's motion to strike
is therefore denied. This court will, however, disregard any inappropriate or
unsupported statements upon review of this matter. Fallk v. Martell, 210 Ill.
App. 3d 557, 559, 569 N.E.2d 248 (1991).
[fn4]Plaintiff asserts that a third exception exists when an employee is
in imminent danger and this is known by the employer, and a fourth exception
exists when a principal fails to warn an agent of an unreasonable risk of harm
involved in the agency. Peterson v. U.S. Reduction Co., 267 Ill. App. 3d 775,
779, 641 N.E.2d 845 (1994). Because the record shows and plaintiff concedes that
"only the special relationship and negligent undertaking [exceptions] were
discussed in the trial court," plaintiff is therefore limited to arguing the
first two exceptions on appeal.
June 10, 1998
No. 1--97--0470
VITA CHARLESTON, ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) Cook County.
)
v. )
)
JOHN K. LARSON, M.D., )
)
Defendant-Appellee, )
)
and )
)
ANDREW THAIN, ) Honorable
) Kathy M. Flanagan,
Defendant. ) Judge Presiding.
JUSTICE BURKE delivered the opinion of the court:
Plaintiff Vita Charleston appeals from an order of the circuit court
granting defendant Dr. John Larson's section 2--615 motion to dismiss plaintiff's
complaint (735 ILCS 5/2--615 (West 1994)), which alleged that she suffered
injuries as a result of the negligence of defendant and Andrew Thain.[fn1]
Plaintiff also appeals the court's denial of her motion to amend her complaint.
On appeal, plaintiff contends that: (1) the trial court improperly dismissed
plaintiff's action because defendant owed plaintiff a duty of care based on the
theories of a special relationship between plaintiff and defendant or negligent
undertaking to perform services to protect plaintiff or medical/psychological
malpractice; and (2) the trial court improperly denied plaintiff's request for
leave to file a second amended complaint. For the reasons set forth below, we
affirm.
On April 2, 1992, defendant Andrew Thain (Thain) voluntarily admitted
himself on an emergency basis to CPC Streamwood Hospital (CPC), a facility
providing general duty nursing care in Streamwood, Illinois. Defendant was a
duly licensed physician who practiced psychiatry at CPC. Plaintiff was a nurse
at CPC. According to plaintiff, on May 3, 1992, Thain attacked and beat her
without provocation, after threatening her on the same day that he "would break
her neck."
Plaintiff filed a complaint against defendant and Thain on May 2, 1994,
alleging claims based on negligence and intentional tort. On November 7, 1994,
defendant filed a motion to dismiss plaintiff's complaint pursuant to section 2--
622(g) of the Code of Civil Procedure (Code) (735 ILCS 5/2--622(g) (West 1994)),
arguing that plaintiff's complaint did not contain a medical provider's
affidavit. On September 19, 1995, the trial court denied defendant's motion and
granted plaintiff leave to file an affidavit. Plaintiff filed the affidavit of
physician/psychiatrist, Dr. Nelson Borelli, which stated that at the time of
Thain's admission to CPC, he was a high risk patient who had a history of
alcohol, drug and sexual abuse, and engaged in self-mutilation. Dr. Borelli
stated that the CPC records did not indicate that an initial complete work up was
performed by defendant. Additionally, there was no indication that the staff at
CPC was informed of Thain's "dangerous condition." Dr. Borelli claimed that
defendant should have prescribed anti-psychotic medication for Thain, and that
during Thain's stay at CPC he "was showing increased agitation." In his
professional opinion, Dr. Borelli claimed that defendant deviated from the
applicable standard of care.
On August 19, 1996, the trial court granted plaintiff's request to file an
amended complaint. On September 10, plaintiff filed a four-count amended
complaint, alleging claims based on common law negligence (count I) and
"medical/psychological negligence" (count II) against defendant.[fn2] More
specifically, plaintiff alleged that defendant, as the medical director at CPC,
"voluntarily undertook" to render services to Thain, and that Thain was under the
care, supervision and control of defendant regarding access to staff, diet, and
treatment; Thain informed CPC staff during his admission that "the last time
someone messed with him, it took six people to hold [him] down"; defendant
ordered plaintiff to observe Thain every 15 minutes, 24 hours a day; and
defendant allegedly knew or should have known that Thain's condition deteriorated
and that he posed a serious risk of danger to those in close proximity to him.
Plaintiff further alleged that defendant failed to follow CPC policy by not
ordering a "complete initial work up" of Thain, not following procedures
regarding treatment of dangerous persons, and not performing a 30-day assessment
of Thain; defendant failed to properly treat Thain, specifically by failing to
prescribe anti-psychotic medications and failing to provide restrictions and
restraints; and defendant did not warn plaintiff or other CPC employees of
Thain's dangerous propensities, nor did he instruct them regarding the proper and
safe ways to approach Thain or to protect themselves from Thain.
On October 11, 1996, defendant filed a motion to dismiss counts I and II
of plaintiff's amended complaint pursuant to section 2--615 of the Code. (735
ILCS 5/2--615 (West 1994)). On December 27, the trial court issued a memorandum
opinion granting defendant s motion to dismiss and denying plaintiff leave to
amend. On January 2, 1997, the trial court issued an amended memorandum of
opinion. In its amended memorandum opinion, the court stated that plaintiff s
amended complaint did not allege facts giving rise to a special relationship
between plaintiff and defendant or showing that Thain s attack was reasonably
foreseeable in order to impose liability on defendant. The court further stated
that there were "absolutely no facts" to support plaintiff's "conclusory"
allegation that defendant knew or should have known that his services to Thain
were necessary for the protection of persons in close proximity to Thain. The
court also found that plaintiff s amended complaint lacked allegations that
defendant voluntarily undertook to perform services for plaintiff sufficient to
create a legal duty owed by defendant to plaintiff. The court specifically
stated that it was unwilling to accept outside authority [relied on by
plaintiff] on an issue which has been clearly defined by Illinois law. With
regard to plaintiff's argument of "medical/psychological negligence," in support
of which plaintiff cited to Eckhardt v. Kirtz, 179 Ill. App. 863, 534 N.E.2d 1339
(1989), the trial court stated that defendant was liable under the standards set
forth in Eckhardt. This appeal followed.[fn3]
Plaintiff contends that defendant's "unique position as a physician and
medical director, "combined with his knowledge, the foreseeability of injury, and
the minimal burden of guarding against certain injury to the plaintiff, warrant
the application of a duty by [defendant] to act reasonably to the plaintiff
related to [defendant]'s involvement with Mr. Thain under recognized Illinois
law. Plaintiff argues that, as a psychiatrist, defendant had specific knowledge
in recognizing, treating and managing Thain s dangerous condition, and that he
alone possessed the means to control and restrict Thain s activities, and warn
or simply inform plaintiff of the danger posed by Thain. Plaintiff further
argues that defendant knew Thain was a ticking bomb and it was more than
reasonably foreseeable that he would explode, and virtually certain that he
would attack a staff nurse such as plaintiff. Plaintiff also asserts that she
was professionally and ethically obligated to follow defendant s instructions,
and that she relied on his instructions in interacting with dangerous persons
such as Thain.
Defendant contends that he owed no duty to protect plaintiff against
criminal attacks by a third person under any theory recognized by Illinois law.
Specifically, defendant argues that under common law negligence defendant owed
plaintiff no duty to act with reasonable care to protect plaintiff from Thain,
and plaintiff failed to allege facts establishing that Thain's attack upon
plaintiff was reasonably foreseeable--a prerequisite to the application of any
of the exceptions to the general rule of duty. Defendant therefore maintains
that, in the absence of a duty, the trial court properly dismissed plaintiff s
amended complaint.
When reviewing the dismissal of a complaint pursuant to section 2--615,
this court must determine whether the complaint, when considered in a light most
favorable to the plaintiff, alleged facts sufficient to state a cause of action.
Ziemba v. Mierzwa, 142 Ill. 2d 42, 46, 566 N.E.2d 1365 (1991). In assessing the
sufficiency of a complaint, we must take as true all well-pleaded facts and
reasonable inferences drawn from those facts. Our review is de novo. Doe v.
McKay, 286 Ill. App. 3d 1020, 1023, 678 N.E.2d 50 (1997).
In order to prevail in a negligence action, a plaintiff s complaint must
set forth facts establishing the existence of a duty owed by defendant to
plaintiff, a breach of that duty and an injury proximately caused by the breach.
The determination of duty, or whether the defendant and the plaintiff stood in
such a relationship to one another that the law imposes an obligation of
reasonable conduct upon the defendant for the benefit of the plaintiff, is a
question of law. Estate of Johnson v. Condell Memorial Hospital, 119 Ill. 2d 496, 503, 520 N.E.2d 37 (1988). However, the legal determination of whether a
duty exists is dependent upon the factual circumstances giving rise to the
litigation. Hernandez v. Rapid Bus Co., 267 Ill. App. 3d 519, 522, 641 N.E.2d 886 (1994). In determining whether a legal duty exists, Illinois courts consider
whether the harm was reasonably foreseeable, the likelihood of injury, the
magnitude of the burden of guarding against harm and the consequences of placing
that burden on the defendant. Ziemba, 142 Ill. 2d at 47.
Generally, Illinois law does not impose a duty to protect another from a
criminal attack by a third person unless the attack was reasonably foreseeable
and the parties stand in one of the following special relationships : (1) common
carrier and passenger; (2) innkeeper and guest; (3) business invitor and invitee;
and (4) voluntary custodian and protectee. Hernandez, 267 Ill. App. 3d at 524.
A second exception exists where there is negligence in the performance of a
voluntary undertaking. Restatement (Second) of Torts 324A (1965). Section 324A
of the Restatement (Second) of Torts (Restatement), states:
One who undertakes, gratuitously or for consideration,
to render services to another which he should recognize
as necessary for the protection of a third person or his
things, is subject to liability to the third person for
physical harm resulting from his failure to exercise
reasonable care to protect his undertaking, if
(a) his failure to exercise reasonable care
increases the risk of such harm, or
(b) he has undertaken to perform a duty owed by
the other to the third person, or
(c) the harm is suffered because of reliance of
the other or the third person upon the undertaking.
Rowe v. State Bank of Lombard, 125 Ill. 2d 203, 217-18,
531 N.E.2d 1358 (1988); Hernandez, 267 Ill. App. 3d at
524.[fn4]
Plaintiff asserts that because "the relationship of a psychiatrist and
patient is a unique one which creates duties toward third persons and "[t]he
relationship of a psychiatrist to his nurse relating to known dangerous persons
is a unique one which creates duties to the nurse," our courts should therefore
"recognize these special relationships and permit the plaintiff to maintain her
cause of action against [defendant]."
Defendant contends that Illinois courts have consistently refused to extend
the "special relationship" exceptions beyond the four limited relationships
recognized in Hernandez and Rowe. For example, in Sicklas v. Ecker Center for
Mental Health, Inc., 248 Ill. App. 3d 124, 617 N.E.2d 507 (1993), the court
rejected the plaintiff s argument that a special relationship existed between the
plaintiff psychiatric patient and the defendant mental health facility which
offered housing services for the mentally ill. In Sicklas, the plaintiff was
placed by the defendant to live in an apartment with another of the defendant s
clients. When the plaintiff was attacked by the defendant s other client, he
sued the defendant for breach of a legal duty. The court held that the plaintiff
did not offer any cogent reasons *** for expanding the scope of the narrow
[special relationship] exceptions. Sicklas, 248 Ill. App. 3d at 130.
Plaintiff concedes that no Illinois court has addressed the extension of
the four special relationships to include the relationship between a
psychiatrist-medical director and his nurse, but argues that the authority of
other jurisdictions, extending the special relationship concept in this area,
provide[s] cogent legal analyses for the extension of a special relationship in
this area. Specifically, plaintiff cites to Turner v. Jordan, 1995 Tenn. App.
Lexis 576, (Tenn. Ct. App. Aug. 30, 1995), reh'g denied, 1996 Tenn. App. Lexis
216 (Tenn. Ct. App. Apr. 10, 1996), where the court held that in today s
environment, the defendant psychiatrist and nurse had the type of special
relationship that can lead to the imposition of a duty when the nurse was
attacked by the psychiatrist s patient and filed an action against the
psychiatrist; and Evans v. Morehead Clinic, 749 S.W.2d 908 (Ky. Ct. App. 1988),
where the court held that the relationship of a psychiatrist and a patient is a
special relationship creating a duty and permitting a cause of action against the
patient s psychiatrist for the victim who was shot by the patient. Plaintiff
further relies on Tarasoff v. Regents of the University of California, 17 Cal. 3d 425, 551 P.2d 334 (1976), a leading case encompassing the issue of special
relationships, where the court imposed a duty on a psychiatrist to warn a third
party concerning a dangerous patient, and which was relied upon by the Turner and
Evans courts.
Plaintiff also cites to Doe and Renslow v. Mennonite Hospital, 67 Ill. 2d 348, 367 N.E.2d 1250 (1977), in support of her assertion that Illinois law has
also examined and expanded the concept of duty in the area of psychiatric
treatment since Sicklas. In Doe, during a child s psychiatric treatment by the
defendant psychiatrists, the child allegedly discovered repressed memories of
alleged sexual abuse by her father. When confronted with this information, the
plaintiff father also entered into a treatment program with the defendants. When
the plaintiff sued the defendants for the loss of his child s society and
companionship based on the alleged negligent treatment of his child (who was not
a party to the suit), the court held that the defendants owed a duty to the
plaintiff regarding their treatment of the child under the doctrine of
transferred negligence. The court held that
in a case such as this involving repressed memories of
sexual abuse, where the parent is brought into the
treatment process by the therapist, a therapist s duty
to the patient to use reasonable care in the treatment
process is extended to the parent. Doe, 286 Ill. App.
3d at 1025.
Plaintiff claims that the Doe holding "evidences a willingness by the court to
expand the definition of 'special relationship' " to apparently include the
relationship between a psychiatrist and his nurse, as in the present case, based
on the Doe court's comments that "duty" is not a sacrosanct concept, but "only
an expression of the sum total of those considerations of policy which lead the
law to say that the plaintiff is entitled to protection." Doe, 286 Ill. App. 3d
at 1025.
In Renslow, the defendant physician negligently transfused the plaintiff's
mother with incompatible blood prior to the plaintiff's birth. The plaintiff's
mother first learned that her blood had been sensitized years later when she was
pregnant with the plaintiff. The plaintiff suffered permanent physical damage
due to the conduct of the defendants. The Renslow court held that the non-
patient plaintiff could nonetheless maintain a cause of action against the
physician and the hospital under the "limited area of transferred negligence"
because of the intimate nature of the relationship between the parties harmed.
Renslow, 67 Ill. 2d at 357-59.
Neither Doe nor Renslow supports plaintiff's assertion that this court
should expand the special relationship exception and find that defendant owed
plaintiff a duty. Both cases turned on the doctrine of transferred negligence.
In the present case, we find plaintiff's contention, that the "unique" nature of
the psychiatrist-nurse relationship warrants application of the special
relationships doctrine, is contrary to well settled law which has narrowly
interpreted the doctrine where the plaintiff did not have a direct physician-
patient relationship with the physician whom he sued, to include only
relationships of such an intimate nature (i.e., between parent and child) that
can give rise to a theory of transferred negligence of the physician's services.
While it cannot be denied that a psychiatrist and his nurse have a relationship
in their mutual interests in their patients and the institution where they are
employed, that relationship does not rise to the level of the intimacy required
by our courts to warrant the application of transferred negligence. We therefore
decline to follow Turner and Evans in light of our own law establishing that
special relationships should be narrowly interpreted in medical malpractice
actions where a direct physician-patient relationship between the doctor and the
patient is absent. Accordingly, we hold that a special relationship did not
exist between plaintiff and defendant sufficient to create a duty on the part of
defendant to protect plaintiff from a third-party criminal attack pursuant to
Rowe and Hernandez.
Plaintiff further contends that Hernandez, Sicklas and Johnson, along with
sections 314, 315, 319, 323 and 324A of the Restatement, stand for the
proposition that a voluntary negligent undertaking, including that related to a
known dangerous person, creates a duty owed by a defendant in favor of third
parties in the context of third-party criminal liability. Plaintiff argues that
she has pleaded facts sufficient to create a duty owed by defendant to plaintiff,
i.e., that defendant voluntarily undertook to treat Thain after his admission
into CPC, coupled with defendant's positions as physician and medical director,
his knowledge of Thain's dangerous propensities and deteriorating condition, his
control of Thain and his opportunity to avoid injury.
In Hernandez, the court held that the plaintiff pleaded a genuine issue of
fact as to whether the defendant school bus company had a duty to foresee
possible harm to the plaintiff's daughter, a special education student who was
raped while she walked unescorted from the school bus into the school. The
incident occurred after the defendant's employee had allegedly agreed to assume
the responsibility of escorting the students, which service was originally
provided by employees of the Chicago Board of Education. In considering section
324A of the Restatement, the Hernandez court held that the defendant was liable
for the criminal acts of a third party because the defendant voluntarily
undertook to provide escort services, and then negligently performed them. The
court stated that "even under circumstances that might arguably give rise to the
application of section 324A, the occurrence for which tort recovery is sought
must be reasonably foreseeable." The court further stated that it is not
necessary that the defendant foresee the precise harm that in fact occurred, as
long as a reasonably prudent person would have foreseen, at the time of the
defendant's action or inaction, that some harm to another was likely to occur.
Hernandez, 267 Ill. App. 3d at 524-26.
In Sicklas, while the court held that the plaintiff patient could not
recover against the defendant institution on his theory that a special
relationship existed between the plaintiff and the defendant, it did find that
the defendant voluntarily undertook to perform services for the plaintiff,
thereby giving rise to a duty by the defendant to exercise reasonable care in
providing such services. In reaching its decision, the Sicklas court relied on
section 323 of the Restatement, which provides:
"One who undertakes, gratuitously or for consideration,
to render services to another which he should recognize
as necessary for the protection of the other's person or
things, is subject to liability to the other for
physical harm resulting from his failure to exercise
reasonable care to perform his undertaking, if
(a) his failure to exercise such care increases
the risk of such harm, or
(b) the harm is suffered because of the other's
reliance upon the undertaking." Restatement (Second) of
Torts 323 (1965); Sicklas, 248 Ill. App. 3d at 131.
The Sicklas court also held that "the scope of an assumed duty is limited by the
extent of the undertaking." Sicklas, 248 Ill. App. 3d at 131.
In Johnson, a patient of the defendant mental institution obtained a knife
and escaped from the facility. After the victim was killed during a police chase
of the patient, her estate sued the defendant, arguing that section 319 of the
Restatement gave rise to a duty owed her by the defendant institution. Pursuant
to section 319,
"[o]ne who takes charge of a third person whom he knows
or should know to be likely to cause bodily harm to
others if not controlled is under a duty to exercise
reasonable care to control the third person to prevent
him from doing such harm." Restatement (Second) of
Torts 319 (1965).
The Johnson court held that a mental hospital has a duty to control dangerous
persons committed to its custody, and that in cases where it was held there was
a duty imposed on medical institutions to protect third parties from harm, the
institutions had custody of the dangerous persons through a court order or
adjudication that gave them actual control over the individuals. Johnson, 119 Ill. 2d at 507-08. Because the Johnson plaintiff's complaint did not allege that
the patient was either involuntarily committed to the institution, or that she
was voluntarily admitted but had subsequently lost her right to request discharge
because the institution had filed a petition to detain her, the court held that
the defendant did not have a duty to control the patient that would extend to
include a duty to the decedent. Johnson, 119 Ill. 2d 496 507-09.
In the instant case, defendant argues that neither sections 323 nor 324A
is applicable because both of those sections require that the defendant render
services to the plaintiff directly, and that the defendant who undertakes to
render services to the other person "recognizes the services as necessary for the
protection of" that other person. Defendant further argues that plaintiff does
not allege specific facts which demonstrate why defendant should have recognized
that his treatment of Thain was necessary for the protection of plaintiff.
Defendant asserts that "certainly" a doctor does not treat patients with the
understanding or purpose of protecting the medical staff working with the doctor.
More specifically, defendant argues that section 324A, subsection (a), does not
apply because nothing that defendant did or omitted to do increased the risk of
harm to plaintiff since the attack was a violent outburst which was unexpected
and unpredictable; subsection (b) does not apply because defendant never
undertook to perform the duty of care that Thain owed to plaintiff to exercise
reasonable care and not to injure plaintiff; and subsection (c) does not apply
because it requires that the harm is suffered because of the reliance on the
undertaking by the other person (Thain) or the third party (plaintiff), and
plaintiff cannot allege in good faith that either Thain's conduct resulted from
Thain's reliance on defendant, or that Thain's conduct resulted from plaintiff's
reliance on defendant.
We find that plaintiff's voluntary undertaking theory of defendant's
liability in this case fails at the outset because plaintiff never alleged that
defendant undertook services for plaintiff, but rather, that defendant undertook
to protect Thain. Therefore, the facts of this case are distinguishable from
those of both Hernandez and Sicklas based on the nature of plaintiff's and
defendant's relationship. The rationale of Hernandez is premised upon a third
party's duty to protect a plaintiff which duty defendant then voluntarily
assumes. In this case, because no one assumed a duty to protect plaintiff,
defendant could not have voluntarily assumed the duty to perform the duties of
another for the protection of plaintiff. Sicklas is also distinguishable
because, unlike the plaintiff in that case, plaintiff here was not defendant's
patient, but rather, an employee of the institution where the patient was
hospitalized. Additionally, unlike the Sicklas defendant, defendant in this case
did not care for, treat or provide services for plaintiff. Johnson is also
distinguishable from the case at bar because plaintiff has not alleged facts
sufficient to establish that Thain was a patient committed to the custody and
control of defendant by either court ordered involuntary admission or a petition
filed by CPC restricting the voluntary status of Thain's admission.
With the exception of Hernandez, Sicklas and Johnson, which are
distinguishable from the present case, plaintiff fails to cite to authority in
support of her argument that sections 323 and 324A are applicable to the facts
she alleges in this action. Furthermore, because plaintiff fails to cite to
authority or make specific argument in support of her assertion that sections 314
and 315 apply, she has therefore waived those arguments. When an appellant seeks
reversal, "theories not pursued nor advanced with citation of authorities are
deemed waived." Saldana v. Wirtz Cartage Co., 74 Ill. 2d 379, 385 N.E.2d 664
(1978).
We briefly observe that even if we were to find that defendant owed
plaintiff a duty in this case under either the special relationship or voluntary
undertaking theory, plaintiff's amended complaint simply does not allege facts
establishing that Thain's attack on plaintiff was reasonably foreseeable, as
required to prevail on her claim that defendant owed her a duty. Plaintiff's
allegations regarding defendant's knowledge of Thain's violent propensities, as
correctly determined by the trial court, were nothing more than improper
conclusions. The only specific threats that were alleged to have been made to
plaintiff by Thain occurred on the same day of the attack, and plaintiff never
alleged that defendant had knowledge of these threats directed to plaintiff. The
only other fact plaintiff pleads regarding foreseeability of injury is Thain's
comment that "the last time someone messed with him, it took six people to hold
[him] down." The trial court did not find these facts sufficient to show
foreseeability, and neither does this court. In the absence of factual
allegations establishing reasonable foreseeability of Thain's attack on
plaintiff, her negligence action against defendant fails. Because we affirm the
trial court's order granting defendant's motion to dismiss based on the issue of
duty that was fully briefed in the trial court, we need not address the issue,
raised by defendant on appeal but not in the trial court, of whether the trial
court's order can be affirmed on the ground that plaintiff's complaint did not
contain allegations sufficient to show proximate causation.
Plaintiff's next argument is based on her prior argument that "an entire
body of law," both in Illinois and other jurisdictions, has emerged regarding a
failure to warn and a failure to control dangerous patients. She contends that
"this evolution of the law suggests that under the facts of this matter, Illinois
courts will recognize a duty [owed] by a psychiatric physician to his nurse
within the context of professional medical negligence." Plaintiff relies on
Eckhardt in support of her contention that Illinois law recognizes a cause of
action against a psychiatrist for the psychiatrist's failure to warn a plaintiff
of the patient's threats against the plaintiff.
In Eckhardt, after the decedent's husband, a patient of the defendant, shot
her in her sleep, the decedent's administrator filed a malpractice action against
the defendant psychiatrist, alleging that the defendant failed to warn the
decedent of her husband's violent propensities. The Eckhardt court stated that
a non-patient plaintiff, who alleges that a psychiatrist owed the plaintiff a
duty to warn, must establish three elements in order to sustain her cause of
action. "First, the patient must make specific threat(s) of violence; second,
the threat(s) must be directed at a specific and identified victim; and, third,
a direct physician-patient relationship between the doctor and the plaintiff or
a special relationship between the patient and the plaintiff." Eckhardt, 179
Ill. App. 3d at 872-73.
In the present case, plaintiff asserts that she has "complied with the
requirements of Eckhardt." Defendant contends that because no physician-patient
relationship existed between plaintiff and defendant, defendant owed no duty to
plaintiff under a medical negligence theory. Defendant further maintains that
Eckhardt does not support plaintiff's argument because, consistent with Illinois
precedent, the Eckhardt case presupposes a physician-patient relationship or a
special relationship between the patient and the plaintiff in order to impose a
duty to warn upon the psychiatrist. Defendant also argues that even if plaintiff
were able to allege facts supporting the first two elements in Eckhardt, she has
not and cannot show the existence of either the patient-physician relationship
or a special relationship.
Illinois law is well settled that a plaintiff cannot maintain a medical
malpractice cause of action absent a direct physician-patient relationship with
the defendant unless a special relationship exists between a patient and the
plaintiff. Kirk v. Michael Reese Hospital & Medical Center, 117 Ill. 2d 507,
531, 513 N.E.2d 387 (1987). In Kirk, the court noted that several jurisdictions
have held that a physician's relationship with a patient was sufficient to impose
a duty to protect unidentifiable third parties endangered by the patient. The
court specifically stated, however, that such a position is inconsistent with
Illinois precedent and public policy. In refusing to extend the physician's duty
of care to an indeterminate class of potential plaintiffs, the Kirk court also
acknowledged that in 1986 the legislature enacted medical malpractice legislation
intended to reduce the burden of litigation against health care professionals.
Kirk, 117 Ill. 2d 507 at 531-32.
In the present case, we find no merit in plaintiff s assertion that she has
complied with the requirements of Eckhardt. Plaintiff has not alleged that
Thain ever threatened to harm her or any other nurse in defendant s presence or
during the course of Thain s treatment. Even if plaintiff were to satisfy the
first two elements of Eckhardt, i.e., that Thain made specific threat(s) of
violence and the threat(s) were specifically directed at her, her argument is
nonetheless without merit because plaintiff cannot establish the existence of a
special relationship between herself and Thain, as discussed above.
Lastly, plaintiff contends that the trial court should have allowed her an
opportunity to replead after it granted defendant s motion to dismiss. Plaintiff
argues that, contrary to the trial court s finding in its amended memorandum of
opinion that her amended complaint lacked allegations that defendant undertook
to perform services for plaintiff, plaintiff did allege in her amended complaint
that defendant, in his capacity as medical director at CPC, ordered her to
observe Thain every 15 minutes and, in such capacity, defendant agreed to
perform a myriad of duties for the staff, including plaintiff. Plaintiff argues
that her amended complaint fairly inferred that she was obligated to comply with
defendant s instructions, guidelines and policies to her detriment, and to the
extent that the court required specific pleadings regarding defendant s
relationship with plaintiff, plaintiff should have been granted leave to file a
second amended complaint. Plaintiff also disagrees with the trial court s
finding that her amended complaint lacked allegations giving rise to a special
relationship or to any reasonable foreseeability of Thain s attack, and argues
that to the extent that the allegations were necessary, she should have been
afforded an opportunity to replead.
Defendant contends that the trial court properly denied plaintiff s leave
to file a second amended complaint because well settled precedent in Illinois
precludes a plaintiff from bringing a medical negligence action against a
defendant where no physician-patient relationship or special relationship exists.
Defendant argues that because no amendment would have cured the absence of a
duty owed by [defendant] to plaintiff, the [trial court] properly denied
[plaintiff's motion for] leave to amend.
A cause of action should not be dismissed on the pleadings unless it
clearly appears that no set of facts can be proven entitling the plaintiff to
recover. People ex rel Daley v. Datacom Systems Corp., 146 Ill. 2d 1, 11, 585 N.E.2d 551 (1991). A trial court has broad discretion in determining whether to
allow an amendment to a complaint, and its ruling on the matter will not be
disturbed on review absent an abuse of that discretion. Braun-Skiba, Ltd., 279
Ill. App. 3d 912, 921-22, 665 N.E.2d 485 (1996). On review by this court, all
facts properly pleaded in the complaint must be taken as true. Daley, 146 Ill. 2d at 11. The following factors are relevant in assessing the propriety of a
trial court s ruling on a motion to amend a pleading: (1) whether the proposed
amendment would cure the defective pleading; (2) whether other parties would be
prejudiced or surprised by the proposed amendment; (3) whether the proposed
amendment is timely; and (4) whether the party seeking amendment had other
opportunities to do so. Winfrey v. Chicago Park District, 274 Ill. App. 3d 939,
947-49, 654 N.E.2d 508 (1995) (the court held that the plaintiff s third amended
complaint suffered from the same deficiencies as his second amended complaint,
and contained bare allegations and conclusions supported by no facts).
In the present case, plaintiff has not demonstrated that the trial court
abused its broad discretion in denying her request to file a second amended
complaint. The trial court specifically addressed plaintiff s argument that
defendant owed plaintiff a duty under theories of special relationship, negligent
undertaking and medical malpractice, and held that the proposed amendment would
not cure the defective pleading under principles of well settled Illinois law
which the trial court was unwilling to expand based on foreign authority.
Plaintiff's "foreseeability argument" also fails for the reasons discussed above.
Additionally, even taking plaintiff s allegations as true, that she was obligated
to comply with defendant s instructions to her detriment, plaintiff has not
pleaded sufficient facts to infer that she and defendant stood in a special
relationship or that defendant voluntarily undertook to perform services on
plaintiff's behalf that would be sufficient under Illinois law to impose a duty
on defendant. Moreover, the trial court had afforded plaintiff one opportunity
to cure her initially defective complaint, prior to her second motion to amend.
Because two of the four Winfrey factors are present in this case, i.e., the
proposed amendment would not cure the defective pleading and plaintiff had an
opportunity to do so, we hold that the trial court did not abuse its discretion
in denying plaintiff's motion to amend her complaint a second time.
Plaintiff also argues that Braun-Skiba, defendant's "leading case" on the
amendment issue, does not specifically address a motion to amend a complaint and
the applicability of a section 2--615 motion to dismiss. According to plaintiff,
the Braun-Skiba court considered whether the plaintiff could file a third amended
complaint in a mechanics lien dispute after the trial had been completed.
Plaintiff asserts that the trial court in this case never addressed any of the
"Braun-Skiba factors" that a court should consider in determining whether to
allow a plaintiff to file an amended complaint, but if it had, plaintiff should
have been allowed to replead her complaint.
We find no merit in plaintiff s argument that Braun-Skiba is inapplicable
to the case at bar. While the facts of that case are distinguishable, it
nonetheless addressed the issue of whether the trial court abused its discretion
in denying a motion to amend a pleading, which is the same issue presented here.
As discussed above, we have determined that the trial court did not abuse its
discretion in denying plaintiff's motion to amend her complaint. Moreover, the
Winfrey case, and not the Braun-Skiba case, was cited by defendant for a
discussion of the relevant factors that a court should consider in allowing an
amendment to pleadings. In Winfrey, the court upheld the trial court's dismissal
of the plaintiff's complaint pursuant to a section 2--615 motion based on its
determination that the amended complaint failed to cure the deficiencies in the
original complaint. See also, People ex rel. Fahner v. Carriage Way West, Inc.,
88 Ill. 2d 300, 308, 430 N.E.2d 1005 (1982) (the court held that, although a
court must liberally construe pleadings, it cannot deny a motion to dismiss when
only conclusions are alleged by the claimant). Additionally, we note that
although the trial court did not specifically identify and outline the Winfrey
factors in its memorandum opinion, plaintiff s assertion that it did not address
them at all lacks merit because the trial court specifically held that it was
clear that plaintiff was incapable of alleging facts sufficient to state a cause
of action, or, as we interpret the trial court's conclusion, the defects in
plaintiff's amended complaint could not be cured by further amendment.
For the reasons stated, we affirm the circuit court's dismissal of
plaintiff's complaint.
Affirmed.
LEAVITT, P.J., and CAHILL, J., concur.
[fn1]Thain is not a party to this appeal.
[fn2]Counts III and IV of plaintiff's amended complaint were against Thain.
[fn3]On April 30, 1997, plaintiff filed a motion with this court to
supplement the record, which we denied on May 12. Defendant simultaneously filed
his brief with this court and a motion to strike matters "beyond" the record,
claiming that plaintiff's statement of facts in her brief improperly incorporated
references to defendant's duties as medical director of CPC, contrary to this
court's denial of plaintiff's motion to supplement the record to include a
document entitled "Director Agreement," which defendant maintained was not before
the trial court. Defendant, however, did not specify which facts plaintiff has
allegedly "improperly incorporated." Accordingly, defendant's motion to strike
is therefore denied. This court will, however, disregard any inappropriate or
unsupported statements upon review of this matter. Fallk v. Martell, 210 Ill.
App. 3d 557, 559, 569 N.E.2d 248 (1991).
[fn4]Plaintiff asserts that a third exception exists when an employee is
in imminent danger and this is known by the employer, and a fourth exception
exists when a principal fails to warn an agent of an unreasonable risk of harm
involved in the agency. Peterson v. U.S. Reduction Co., 267 Ill. App. 3d 775,
779, 641 N.E.2d 845 (1994). Because the record shows and plaintiff concedes that
"only the special relationship and negligent undertaking [exceptions] were
discussed in the trial court," plaintiff is therefore limited to arguing the
first two exceptions on appeal.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
