Miller v. Gupta

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Docket No. 80273--Agenda 22--May 1996.
CINDY MILLER, Appellee, v. DR. NARENDRA K. GUPTA et al. (Dr.
Narendra K. Gupta, Appellant).
Opinion filed October 24, 1996.

JUSTICE HEIPLE delivered the opinion of the court:
Plaintiff, Cindy Miller, filed an action in the circuit court
of Marion County against Dr. Narendra K. Gupta alleging in two
counts medical malpractice and spoliation of evidence. The trial
court dismissed Miller's first-amended complaint in its entirety
with prejudice. The appellate court reversed, finding that the
trial court abused its discretion in dismissing the medical
malpractice count, and remanded so that Miller could amend her
pleadings regarding spoliation of evidence. 275 Ill. App. 3d 539.
We granted Gupta's petition for leave to appeal (155 Ill. 2d R.
315).
In both counts of her first-amended complaint, Miller alleges
that in February 1989, Gupta performed a surgical procedure on her
left foot. In March of 1991, she contacted a podiatrist, Dr.
William Hess, because of additional problems with her left foot,
including stumbling, loss of balance and misalignment of one of her
toes. Hess told Miller that she suffered from a transfer wound and
misalignment of her toe and that these conditions may have resulted
from medical malpractice committed by Gupta. Hess informed Miller
that he would need to see the X rays taken prior to and after the
surgery performed by Gupta to determine if Gupta had committed
malpractice.
In August of 1991, Miller's attorney requested her medical
records from Gupta. On October 30, 1991, Gupta informed the
attorney that Miller's X rays had been inadvertently destroyed by
the St. Mary's Hospital housekeeping department.
Understanding the above facts is not complete without
mentioning two discovery depositions appearing in the record. In
the first, Gupta stated that he took X rays of Miller's foot on an
X-ray machine in his office at the time of her surgery, that the X
rays were obtained from his files in October 1991 in response to
the attorney's request, and that he placed the X rays on the floor
against the wall and behind his chair so that he could take them to
St. Mary's for copying. Gupta admitted that his wastebasket was
approximately three feet from where he placed the X rays. Gupta
stated that his office is located in a building separate from but
adjacent to St. Mary's and that he contracted with St. Mary's for
his office to be cleaned. In the second deposition, Cathy Joliff,
an employee of St. Mary's housekeeping department, testified that
she was assigned to clean Gupta's office and that she regularly
disposed of X-ray jackets which were in the trash or located near
the trash. She believed that Miller's X rays were thrown out when
she cleaned Gupta's office and later destroyed in the hospital's
incinerator.
In the first count (hereinafter, medical malpractice count) of
her first-amended complaint, Miller further alleges that Gupta
performed a procedure on her foot that was not required by
preoperative observations, failed to perform the procedure with
ordinary skill, failed to perform a medically preferred procedure,
and failed to obtain her consent. Miller did not attach a
certificate of merit and written report of a health professional to
her complaint, as required by statute in medical malpractice
actions (735 ILCS 5/2--622 (West 1994)). Rather, Miller's attorney
attached an affidavit to the complaint stating that he had
requested Miller's medical records, that 60 days had passed since
his request, and that Gupta had informed him that the subject
records had been destroyed. See 735 ILCS 5/2--622(a)(3) (West
1994).
In the second count (hereinafter, spoliation of evidence
count), Miller alleges spoliation of evidence in that Gupta
destroyed her X rays in violation of the X-Ray Retention Act and in
that Gupta negligently or intentionally caused or permitted the
destruction of her X rays. Miller then alleges that she was unable
to obtain a certificate of merit and written report because her X
rays had been destroyed, thereby depriving her of any remedy
obtainable under the medical malpractice count.
The trial court granted Gupta's motion to dismiss both counts,
finding that Miller failed to attach the required certificate of
merit and written report and that Gupta did not have a duty to
preserve and maintain the X rays. The appellate court reversed in
part, concluding that the trial court abused its discretion in
dismissing the medical malpractice count for Miller's failure to
file a section 2--622 certificate of merit. In so ruling, the
appellate court stated that as a substitute for the section 2--622
written report, Miller should attach to her complaint a physician's
certificate confirming that the missing X rays are necessary to the
determination of whether Gupta committed malpractice. Regarding the
spoliation of evidence count, the appellate court found that while
Miller could not state a cause of action against Gupta for a
violation of the X-Ray Retention Act, she should have the
opportunity to amend this count to conform with this court's
decision in Boyd v. Travelers Insurance Co., 166 Ill. 2d 188
(1995), which was issued while the instant cause was on appeal.
The issues before this court are whether the appellate court
erred in (1) finding that the trial court abused its discretion in
dismissing the medical malpractice count and (2) allowing Miller
the opportunity to amend the spoliation of evidence count to
conform with this court's decision in Boyd.

ANALYSIS
Section 2--622(a)(1) of the Code of Civil Procedure requires
that the plaintiff in a medical malpractice action attach an
affidavit to the complaint stating that a health professional has
been consulted and that the health professional has determined
"that there is a reasonable and meritorious cause" for filing the
action. Further, a copy of the health professional's written
report, indicating the basis for the "meritorious" determination,
must be attached to the affidavit. 735 ILCS 2--622(a)(1) (West
1994). Section 2--622(a)(3) provides that a plaintiff can file an
affidavit stating that a request for the examination and copying of
medical records has been made and that the party responsible for
complying with the request has failed to produce the requested
medical records within 60 days. Section 2--622(a)(3) allows a
plaintiff 90 days from the receipt of the requested medical records
to file the certificate and written report required by section 2--
622(a)(1). The Code further provides that the failure to file a
certificate of merit "shall be grounds for dismissal." 735 ILCS
5/2--622(g) (West 1994).
In the instant cause, Gupta asserts that a trial court's
decision to dismiss an action for the plaintiff's failure to file
a section 2--622 certificate of merit should not be overturned
absent a manifest abuse of discretion. See Winters v. Podzamsky,
252 Ill. App. 3d 821, 827 (1993); Peterson v. Hinsdale Hospital,
233 Ill. App. 3d 327, 330 (1992). Gupta argues that the trial court
did not abuse its discretion in dismissing the instant medical
malpractice count because section 2--622 requires a certificate of
merit and Miller failed to attach one. Gupta further argues that
the appellate court's decision effectively allows Miller to proceed
with her medical malpractice claim without requiring her to show
that the action is meritorious as contemplated by section 2--622.
Miller counters that a pleading requirement, such as the filing of
a 2--622 certificate of merit, should not be turned into a
substantive defense which forever bars a decision on the merits.
In spite of Miller's argument, the legislature has made the
filing of a section 2--622 certificate of merit a condition of
proceeding with a meritorious medical malpractice action. 735 ILCS
5/2--622 (West 1994). Here, the trial court did not abuse its
discretion in dismissing the medical malpractice count for Miller's
failure to file a certificate of merit. In her complaint, Miller
specifically alleges that "the accuracy of Dr. Gupta's observations
and an assessment of his judgment and skill could not be determined
with certainty absent review of the subject x-rays." In addition,
in her brief before this court Miller concedes that she will never
be able to comply with the section 2--622 certificate of merit
requirement without the destroyed X rays and that the allegations
of medical malpractice "cannot be established with certainty
without the x-rays."
From Miller's admissions and the specific facts of this case,
we conclude that Miller will never be able to file a certificate of
merit as contemplated and required by section 2--622 and may not be
able to prove her medical malpractice claim without the missing X
rays. In fact, the appellate court acknowledged as much when it
stated that Miller should attach to her complaint a physician's
certificate stating that the X rays are necessary to a
determination of whether malpractice was committed. What the
appellate court failed to acknowledge, however, is that without the
X rays Miller cannot assert a "meritorious" cause of action. Since
Miller did not and will never be able to comply with section 2--
622, Miller cannot proceed with her medical malpractice claim. The
particular facts and circumstances of this case show that the trial
court properly dismissed the medical malpractice count. 735 ILCS
5/2--622(g) (West 1994). Thus, the appellate court erred in ruling
that the trial court abused its discretion in dismissing this
count.
Miller suggests that this court apply principles of equity and
allow her to pursue the medical malpractice action, notwithstanding
her inability to comply with section 2--622, because she did not
destroy the X rays. While we acknowledge that Miller was not at
fault for the X rays' destruction, the simple fact remains that
without the X rays, Miller cannot file a certificate of merit and
written report and may not be able to prove the medical malpractice
claim in a court of law. The appropriate remedy in this cause is
not for Miller to pursue a medical malpractice action, but rather
for Miller to pursue a cause of action against Gupta for spoliation
of evidence.
Further, we observe that in enacting section 2--622, the
legislature did provide plaintiffs an extension of time within
which to file a certificate of merit and written report when
medical personnel fail to timely provide requested medical records.
735 ILCS 5/2--622(a)(3) (West 1994). However, the legislature did
not provide an exception for those occasions when medical personnel
are incapable of turning over all relevant and necessary medical
records. It is the legislature's, and not this court's,
responsibility to create exceptions to the section 2--622
requirements. Accordingly, we reverse the appellate court's finding
that the trial court abused its discretion in dismissing the
medical malpractice count.
Turning to the spoliation of evidence count of Miller's first-
amended complaint, we initially observe that the count is
inartfully drafted. Miller alleges spoliation of evidence both in
that Gupta destroyed her X rays in violation of the X-Ray Retention
Act and in that Gupta "negligently and/or intentionally caused or
permitted the destruction of plaintiff's x-rays."
Gupta first argues that Miller cannot state a cause of action
against him for the violation of the X-Ray Retention Act because he
does not come under the terms of the Act. We agree. The X-Ray
Retention Act applies only to "[h]ospitals which produce
photographs of the human anatomy." 210 ILCS 90/1 (West 1994). As
Gupta is a physician, the Act does not apply to him. Thus, the
appellate court did not err in concluding that Miller could not
state a cause of action against Gupta for a violation of the X-Ray
Retention Act.
Next, Gupta argues that the appellate court acted beyond its
authority in allowing Miller the opportunity to amend her pleadings
to conform with this court's decision in Boyd. Boyd was issued
while the instant cause was before the appellate court. Generally,
this court's decisions apply retroactively to causes pending at the
time the decision was announced (Lannom v. Kosco, 158 Ill. 2d 535,
539 (1994)), including those causes on direct review in the
appellate court (Moore v. Centreville Township Hospital, 158 Ill. 2d 543, 547 (1994)). Thus, Boyd applies to the instant cause of
action.
In Boyd, this court held that an action for negligent
spoliation of evidence can be stated under existing negligence law.
Boyd, 166 Ill. 2d at 194. A plaintiff claiming negligent spoliation
of evidence 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. This court acknowledged for the first time in Boyd that a
duty to preserve evidence can arise only through an agreement, a
contract, a statute, or another special circumstance or the
defendant's affirmative conduct. Boyd, 166 Ill. 2d at 195.
Miller alleges that Gupta negligently destroyed or permitted
the destruction of the X rays, resulting in her failure to obtain
a section 2--622 certificate of merit, which in turn deprived her
of a remedy under the medical malpractice count. As Boyd was the
first decision of this court to specifically delineate that a claim
of spoliation of evidence exists under negligence law, Miller
should be allowed the opportunity to amend her spoliation of
evidence count to conform with Boyd.
In allowing Miller the opportunity to amend, we are cognizant
of Gupta's arguments that Miller did not seek leave to amend in the
trial court and that she failed to allege a duty by Gupta to
preserve the X rays independent of the X-Ray Retention Act. As the
trial court ruled that Gupta did not have a duty to preserve the X
rays, Miller could not seek leave to amend the spoliation of
evidence count in the trial court. In addition, since Boyd for the
first time delineated those instances which give rise to a duty to
preserve evidence, Miller should not be penalized for failing to
allege facts which, under Boyd, can give rise to a duty to preserve
evidence. Accordingly, we find that the appellate court did not err
in allowing Miller the opportunity to amend the spoliation of
evidence count of her first-amended complaint to conform with this
court's decision in Boyd.
For the above stated reasons, we reverse in part and affirm in
part the judgments of the appellate and circuit courts, and remand
this cause to the circuit court for further proceedings consistent
with this opinion.

Appellate court judgment affirmed in part
and reversed in part;
circuit court judgment affirmed in part
and reversed in part;
cause remanded.

CHIEF JUSTICE BILANDIC, specially concurring:
I agree with the majority's conclusion that the medical
malpractice count must be dismissed because the plaintiff, Cindy
Miller, failed to file a certificate of merit as required by
statute (735 ILCS 5/2--622 (West 1994)). I also agree with the
majority's holding that this cause be remanded to give Miller the
opportunity to state a spoliation claim under Boyd v. Travelers
Insurance Co., 166 Ill. 2d 188 (1995).
I write separately, however, to clarify that this court is not
suggesting that anytime a plaintiff in a medical malpractice action
fails to file a certificate of merit while claiming that certain
evidence has been lost or destroyed, then, ipso facto, the
plaintiff has a cause of action for spoliation of evidence. Rather,
the dismissal of a medical malpractice claim for failure to file a
certificate of merit establishes only that the plaintiff has failed
to file the required certificate of merit. It does not satisfy the
causation element of an action for negligent spoliation of
evidence.
A majority of this court set forth the elements of a cause of
action for negligent spoliation of evidence in Boyd. We explained
there that to establish causation in such an action, a plaintiff
must show that the defendant's loss or destruction of the evidence
caused the plaintiff to be unable to prove an underlying lawsuit.
Boyd, 166 Ill. 2d at 196. We further explained that a plaintiff
must demonstrate that, but for the 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. As elaborated
on in Boyd, the causation element requires a plaintiff to
demonstrate how the missing evidence is critical to the plaintiff's
inability to prove the underlying suit, and it prevents a plaintiff
from recovering where the underlying suit is meritless. Boyd, 166 Ill. 2d at 196 n.2, 200. Boyd's discussions concerning the
causation element represent a careful balancing of the rights of
plaintiffs and defendants. The causation element is intended to
ensure that plaintiffs do not wrongfully benefit from the
spoliation of evidence. In particular, courts must guard against
plaintiffs who may be tempted to manufacture a spoliation claim out
of an insignificant piece of missing evidence because they know
that they cannot win their underlying suit.
The record in this case reveals that Miller filed a two-count
complaint against Dr. Narendra K. Gupta, charging him with medical
malpractice and spoliation of evidence. Among other things,
Miller's first-amended complaint alleged that a podiatrist named
Dr. William Hess told Miller that her foot problems may have
resulted from medical malpractice committed by Gupta, and that he
would need to see the X rays taken before and after her earlier
surgery to determine if Gupta had committed malpractice. Miller's
complaint further alleged that she was not able to obtain a
certificate of merit for her medical malpractice action because the
subject X rays had been destroyed. She therefore asserted that the
destruction of the X rays had deprived her of any remedy obtainable
under the medical malpractice count.
Gupta moved to dismiss the malpractice count pursuant to
section 2--619 of the Civil Practice Law (735 ILCS 5/2--619 (West
1994)) because Miller failed to attach the required certificate of
merit. Gupta also moved to dismiss the spoliation count under
section 2--615 of the Civil Practice Law (735 ILCS 5/2--615 (West
1994)), claiming that he owed no duty to preserve the X rays. The
trial court granted both motions, and this appeal followed. This
concurrence addresses only the section 2--619 motion.
One of the enumerated grounds for a section 2--619 motion to
dismiss is that the claim is barred by affirmative matter which
avoids the legal effect of or defeats the claim (Illinois Graphics
Co. v. Nickum, 159 Ill. 2d 469, 485-86 (1994)), such as for the
failure to file a certificate of merit in a medical malpractice
action (see 735 ILCS 5/2--622(g) (West 1994)). For purposes of
deciding a section 2--619 motion, the court must accept as true all
well-pleaded facts in the complaint and may consider all pleadings,
depositions, and affidavits submitted by the parties. See Zedella
v. Gibson, 165 Ill. 2d 181, 185 (1995).
Although the majority opinion does not clarify this point, for
purposes of this appeal, we accepted as true all well-pleaded facts
in Miller's complaint. It is important to note, however, that the
allegations in Miller's complaint have never been subjected to
adversarial testing and have never been adjudicated on the merits.
As a result, in any subsequent action for negligent spoliation of
evidence, Miller still bears the burden of establishing all the
elements of that cause of action, including causation, and Gupta
remains entitled to present relevant arguments and evidence in
response.
In this appeal, Gupta mentions arguments that he may raise in
a spoliation action against him. For example, Gupta suggests that
other X rays of Miller's foot are available from another physician
who treated Miller shortly before Gupta did. If this is indeed
true, and those X rays can substitute for those taken by Gupta
himself, then the destruction of the subject X rays has not caused
Miller to be unable to prove her underlying malpractice suit
against Gupta. Gupta further submits that some of Miller's claims,
e.g., that Gupta failed to obtain Miller's consent to perform a
certain medical procedure, have no relevance to the missing X rays.
As noted above, Gupta is entitled to raise relevant arguments such
as these in an action for negligent spoliation of evidence.
In summary, proof 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.