Illinois Official Reports
Appellate Court
McDonald v. Lipov, 2014 IL App (2d) 130401
Appellate Court MICHELLE EVA McDONALD, Plaintiff-Appellant, v. EUGENE G.
Caption LIPOV, d/b/a Advanced Pain Centers, S.C., d/b/a Alexian Brothers
Medical Center; JAYDEEP JOSHI, d/b/a Advanced Pain Centers,
S.C., d/b/a Alexian Brothers Medical Center; SARAH SANDERS,
d/b/a Advanced Pain Centers, d/b/a Alexian Brothers Medical Center;
VIREN GOHIL, d/b/a Alexian Brothers Medical Center; JEANNIE
YCARRO, d/b/a Alexian Brothers Medical Center; BARRY
BIKSHORN, d/b/a Northwest Neurology, d/b/a Alexian Brothers
Medical Center; JERRY ANDREWS, d/b/a Alexian Brothers Medical
Center, d/b/a IPC-Hospitalists of Chicago; and SZYMON
ROSENBLATT, d/b/a Chicago Institute of Neurosurgery,
Defendants-Appellees.
District & No. Second District
Docket No. 2-13-0401
Filed June 19, 2014
Held Where the initial dismissal of pro se plaintiff’s amended complaint for
(Note: This syllabus the injuries arising from the medical care defendants provided was
constitutes no part of the affirmed by the appellate court due to her failure to comply with the
opinion of the court but requirements that she file an affidavit and a health professional’s
has been prepared by the report pursuant to section 2-622 of the Code of Civil Procedure, but
Reporter of Decisions the appellate court held that the dismissal of the medical battery
for the convenience of allegations with prejudice was an abuse of discretion that required a
the reader.) remand to allow plaintiff to correct the defective allegations, the trial
court’s subsequent dismissal of plaintiff’s second amended complaint
with prejudice was also upheld, since plaintiff still did not comply
with section 2-622 with regard to her medical battery claims, which
involved knowledge, skill, and training in a technical area outside the
comprehension of a layperson, some claims from the original and first
amended complaint were restated or incorporated in the second
amended complaint, even though they had been rejected in plaintiff’s
first appeal, and there was no error in the trial court’s refusal to allow
plaintiff to allege new claims that could have been raised earlier.
Decision Under Appeal from the Circuit Court of Du Page County, No. 09-L-907; the
Review Hon. Hollis L. Webster and the Hon. John T. Elsner, Judges,
presiding.
Judgment Affirmed.
Counsel on Michelle Eva McDonald, of Beach Park, appellant pro se.
Appeal
Robert L. Nora, Lynne M. Damsma, and Taylor V. Nora, all of Nora
& Tanzillo, LLP, of Chicago, for appellee Szymon Rosenblatt.
Deborah M.R. O’Brien, Vito M. Masciopinto, and Jamie Crowley, all
of Lowis & Gellen LLP, for appellee Jeannie Ycarro.
Richard J. Hickey, Thomas A. Rieck, and Scott Stirling, all of Hickey,
Melia & Associates, Chtrd., of Chicago, for appellee Jerry Andrews.
Michael C. Kominiarek, Lisa M. Green, and Michael R. Webber, all of
Kominiarek Bresler Harvick & Gudmundson, LLC, of Chicago, for
appellee Barry Bikshorn.
Brian J. Hickey and Mark A. Sansone, both of Cassiday Schade LLP,
of Naperville, for other appellees.
Panel PRESIDING JUSTICE BURKE delivered the judgment of the court,
with opinion.
Justices Schostok and Spence concurred in the judgment and opinion.
OPINION
¶1 Plaintiff, Michelle Eva McDonald, is a young woman who suffers from back pain and
ailments in her lower extremities. She filed a pro se amended complaint for injuries that
allegedly arose from medical care provided by defendants in 2007. The complaint alleged
medical malpractice and medical battery. The trial court gave plaintiff three extensions of
time to comply with the affidavit and health-professional’s-report requirements of section
2-622 of the Code of Civil Procedure (Code) (735 ILCS 5/2-622 (West 2008)). Defendants
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filed motions to dismiss on the grounds that plaintiff’s filings did not meet the requirements
(see 735 ILCS 5/2-619, 2-622(g) (West 2008)) and that the allegations did not state a claim
(see 735 ILCS 5/2-615 (West 2008)). The court eventually dismissed plaintiff’s amended
complaint with prejudice.
¶2 Plaintiff appealed, arguing that the trial court erred in determining that (1) all of
plaintiff’s claims sounded in medical malpractice, which required her to comply with section
2-622 of the Code; (2) plaintiff did not substantially comply with section 2-622; (3) all of
defendants’ motions to dismiss could be granted in a combined ruling; (4) the amended
complaint should be dismissed with prejudice; and (5) plaintiff’s motion for summary
judgment was premature.
¶3 We concluded that plaintiff’s claims of medical malpractice required her to comply with
section 2-622, that plaintiff failed to comply with section 2-622, and that the trial court did
not abuse its discretion in dismissing the malpractice claims with prejudice. We also held that
the medical battery allegations failed to state a claim and were subject to dismissal under
section 2-615. However, we concluded that the court abused its discretion in dismissing the
medical battery allegations with prejudice, and we remanded the cause to afford plaintiff the
opportunity to cure the defective allegations. McDonald v. Lipov, No. 2-10-0518 (2011)
(unpublished order under Supreme Court Rule 23) (McDonald I).
¶4 On remand, plaintiff filed a 33-count, second amended complaint, which attempted to
allege the following types of claims against defendants: (1) medical battery, (2) medical
negligence, (3) fraudulent concealment, (4) conspiracy, (5) violations of the Emergency
Medical Treatment and Active Labor Act (42 U.S.C. § 1395dd (2012)), (6) breach of
contract, (7) vicarious liability, and (8) spoliation of evidence. The trial court dismissed the
second amended complaint with prejudice for failing to state a claim.
¶5 Plaintiff appeals again, arguing that (1) section 2-622 does not apply to her medical
battery claims; (2) she satisfied the affidavit requirement of section 2-622(a)(3) (735 ILCS
5/2-622(a)(3) (West 2012)) by verifying the second amended complaint by certification
according to section 1-109 of the Code (735 ILCS 5/1-109 (West 2012)); (3) Dr. Lipov’s
affidavit should have been stricken as “insufficient in law”; (4) the dismissal violates her
right to due process, because it denies her “right to remedy and justice”; (5) a genuine issue
of material fact precludes the dismissal; (6) the statute of limitations or statute of repose does
not bar her medical battery claims; and (7) defendants failed to establish that plaintiff
consented to the intrusions.
¶6 We agree with defendants that the trial court properly dismissed the second amended
complaint with prejudice. First, plaintiff’s medical battery claims, which allege treatment that
substantially varied from the consent granted, require compliance with section 2-622 of the
Code, because an assessment of the claims requires knowledge, skill, or training in a
technical area outside the comprehension of laypersons. Contrary to plaintiff’s assertion, she
has not complied with section 2-622. Second, the second amended complaint restates
explicitly or incorporates by reference certain claims from the original complaint and the
amended complaint, but plaintiff either abandoned those claims or we found them defective
in McDonald I, and our decision is the law of the case. Third, considering the long
procedural history of this matter, we conclude that the trial court did not abuse its discretion
in denying plaintiff leave to assert new claims that she could have pleaded earlier.
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¶7 I. BACKGROUND
¶8 On August 6, 2012, plaintiff filed her second amended complaint, which contains 33
claims that can be sorted into three categories. First, the complaint contains 10 claims labeled
“medical battery,” which plaintiff had the opportunity to cure on remand. The claims allege
various acts and omissions by defendants, but each claim alleges that the conduct was an
unauthorized “deviation from consent.” Dr. Lipov, her treating physician, submitted an
affidavit stating, in part, that plaintiff signed a written consent form agreeing to undergo the
RACZ caudal epidural injection procedure that is the subject of the claims. His affidavit also
states that the Myelotec catheter used in the procedure has been approved by the Food and
Drug Administration for use in the procedure. Over plaintiff’s objection, the court found Dr.
Lipov’s affidavit to be in compliance with Illinois Supreme Court Rule 191 (eff. Jan. 4,
2013). The court dismissed the claims, concluding that (1) without a counteraffidavit
submitted by plaintiff, the court must take as true Dr. Lipov’s statement that plaintiff signed a
consent form; (2) the existence of a signed consent form meant that plaintiff’s claims were
for medical negligence, not medical battery; and (3) plaintiff never obtained a health
professional’s report as required for medical negligence claims.
¶9 Second, the complaint restates nine claims from the amended complaint: four negligence
claims, three alleged violations of the Emergency Medical Treatment and Active Labor Act,
and two claims of breach of contract. (Besides explicitly restating these claims, the second
amended complaint also incorporates by reference all of the claims of the original complaint
and the amended complaint.) In McDonald I, we determined that the trial court properly
dismissed these claims with prejudice. When plaintiff restated the claims, the court dismissed
them again, commenting that “[w]e’ve been over that ground and that has been through the
higher courts.”
¶ 10 Third, the complaint contains 14 new claims: 3 claims of fraudulent concealment, 9
claims of conspiracy, 1 claim of vicarious liability, and 1 claim of spoliation of evidence. The
trial court dismissed these claims with prejudice. The court concluded that allowing plaintiff
to add these claims would violate our mandate in McDonald I. Plaintiff’s timely appeal
followed.
¶ 11 II. ANALYSIS
¶ 12 A. Medical Battery
¶ 13 On appeal, plaintiff asks us to reverse the trial court’s dismissal of the medical battery
claims, entered pursuant to section 2-619 of the Code. 735 ILCS 5/2-619 (West 2012). “A
motion to dismiss, pursuant to section 2-619 of the Code, admits the legal sufficiency of the
plaintiffs’ complaint, but asserts an affirmative defense or other matter that avoids or defeats
the plaintiffs’ claim.” DeLuna v. Burciaga, 223 Ill. 2d 49, 59 (2006); Solaia Technology,
LLC v. Specialty Publishing Co., 221 Ill. 2d 558, 578-79 (2006). For a section 2-619
dismissal, our standard of review is de novo. Solaia Technology, 221 Ill. 2d at 579.
¶ 14 When reviewing a dismissal under section 2-619, a court must accept as true all
well-pleaded facts in the plaintiff’s complaint and all inferences that can reasonably be drawn
in the plaintiff’s favor. Morr-Fitz, Inc. v. Blagojevich, 231 Ill. 2d 474, 488 (2008). In ruling
on a motion to dismiss under section 2-619, the trial court may consider pleadings,
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depositions, and affidavits. Raintree Homes, Inc. v. Village of Long Grove, 209 Ill. 2d 248,
262 (2004). Even if the trial court dismissed on an improper ground, a reviewing court may
affirm the dismissal if the record supports a proper ground for dismissal. Raintree, 209 Ill. 2d
at 261 (when reviewing a section 2-619 dismissal, we can affirm “on any basis present in the
record”).
¶ 15 The trial court dismissed plaintiff’s claims labeled “medical battery” on the grounds that
the claims required compliance with section 2-622 of the Code and that plaintiff still had not
complied with that statute. Section 2-622 was enacted to curtail frivolous medical
malpractice lawsuits and to eliminate such actions at the pleading stage before the expenses
of litigation mount. DeLuna v. St. Elizabeth’s Hospital, 147 Ill. 2d 57, 65 (1992). Section
2-622(a)(1) requires the plaintiff, if proceeding pro se, or his attorney to file with the
complaint an affidavit of merit stating that the affiant has consulted and reviewed the facts of
the case with a health professional who, in a written medical report–after a review of the
medical records and other relevant material–has determined that there is a “reasonable and
meritorious” cause for filing the action. 735 ILCS 5/2-622(a)(1) (West 2012). A copy of the
medical report must be attached to the affidavit and must clearly identify the plaintiff and
“the reasons for the reviewing health professional’s determination that a reasonable and
meritorious cause for the filing of the action exists.” 735 ILCS 5/2-622(a)(1) (West 2012);
see Moyer v. Southern Illinois Hospital Service Corp., 327 Ill. App. 3d 889, 902 (2002).
¶ 16 Section 2-622(a)(2) prescribes a 90-day extension for filing the report, allowing the
plaintiff to file with the complaint an affidavit stating that he was unable to obtain the health
professional’s consultation “because a statute of limitations would impair the action and the
consultation required could not be obtained before the expiration of the statute of
limitations.” 735 ILCS 5/2-622(a)(2) (West 2012). Section 2-622(a)(3) alternatively
authorizes the plaintiff to file an affidavit stating that he or his attorney made a request to
examine and copy records and that the party required to comply with the request failed to
produce those records within 60 days. 735 ILCS 5/2-622(a)(3) (West 2012). If the plaintiff
executes an affidavit under section 2-622(a)(3), the certificate and report required by section
2-622(a)(1) must be filed within 90 days of receiving the records. 735 ILCS 5/2-622(a)(3)
(West 2012).
¶ 17 Plaintiff argues that section 2-622(a) does not apply to her medical battery claims and
that therefore any noncompliance with the statute is not grounds for involuntary dismissal.
The health-professional’s-report and affidavit requirements of section 2-622(a) apply to “any
action, whether in tort, contract or otherwise, in which the plaintiff seeks damages for
injuries or death by reason of medical, hospital, or other healing art malpractice.” 735 ILCS
5/2-622(a) (West 2012).
¶ 18 It is well established that a claim that a health professional acted without the informed
consent of the patient is a type of medical malpractice claim. Corollaries to the consent
requirement are that a patient has the right to refuse medical treatment, even if the patient’s
life is in jeopardy (In re Estate of Longeway, 133 Ill. 2d 33, 45 (1989)), and that a
common-law battery is the unauthorized touching of the person of another (In re Estate of
Allen, 365 Ill. App. 3d 378, 385 (2006)).
¶ 19 At the crossroads of these well-established medical malpractice principles exists the tort
of medical battery. In a medical battery case, an injured party can recover by establishing that
(1) there was no consent to the medical treatment performed, (2) the treatment was against
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the injured party’s will, or (3) the treatment substantially varied from the consent granted.
Estate of Allen, 365 Ill. App. 3d at 385. Under such circumstances, a battery has occurred
because the person administering the medical care intentionally touched the person of
another without authorization. Estate of Allen, 365 Ill. App. 3d at 385.
¶ 20 This court has held that lack of consent to medical procedures gives rise to two causes of
action: one based on negligence and the other based on battery. Gragg v. Calandra, 297 Ill.
App. 3d 639, 645 (1998); see also Doe v. Noe, 293 Ill. App. 3d 1099, 1113 (1997) (“The law
distinguishes between a total lack of consent for the contested act (battery) and the lack of
informed consent (negligence).”). Where an unauthorized surgeon operates, he commits a
technical trespass to the patient resulting in the intentional tort of battery. It is not the hostile
intent of the defendant but rather the absence of consent by the plaintiff that is at the core of
an action for battery. Gragg, 297 Ill. App. 3d at 645.
¶ 21 The second amended complaint contains several claims labeled “medical battery.” The
claims do not allege a lack of consent or treatment administered against plaintiff’s will.
Rather, the claims allege a “deviation from [the] consent” that plaintiff provided, which can
be liberally construed as alleging that the treatment substantially varied from the consent
granted. See Estate of Allen, 365 Ill. App. 3d at 385.
¶ 22 Plaintiff asserted repeatedly in the trial court that her consent to the RACZ procedure did
not authorize the use of a Myelotec-brand catheter through the caudal canal of her spinal
cord. However, Dr. Lipov stated in his affidavit that “[t]he Myelotec catheter [he] used in the
procedure is a brand name of a particular catheter that has been approved by the FDA for use
in the RACZ procedure,” suggesting that consent to the procedure implies consent to the use
of the catheter. Dr. Lipov is a physician with relevant specialized expertise, while plaintiff is
not. The trial court found that plaintiff needed an expert medical opinion to support this facet
of her medical battery claims. 735 ILCS 5/2-622 (West 2012).
¶ 23 Recently, in Holzrichter v. Yorath, 2013 IL App (1st) 110287, ¶ 96, the appellate court
affirmed a summary judgment entered against a medical battery plaintiff who failed to file a
health professional’s report pursuant to section 2-622. The plaintiff had repeatedly insisted
that the bunionectomy procedure to which he consented did not involve the cutting of
tendons, which allegedly had caused his injury. He claimed that the defendant committed
medical battery by exceeding the scope of his consent by cutting the tendons. Holzrichter,
2013 IL App (1st) 110287, ¶ 85.
¶ 24 The Holzrichter court observed that the plain and unambiguous language of section 2-622
does not limit the requirement of an affidavit and expert medical opinion solely to medical
malpractice claims. Holzrichter, 2013 IL App (1st) 110287, ¶¶ 92-93. The court explained
that the plaintiff’s medical battery action, based in tort, requested damages for injuries arising
from a medical procedure that he claimed went beyond the scope of the procedure to which
he consented. Holzrichter, 2013 IL App (1st) 110287, ¶ 96. “Whether the cutting of the
tendons exceeded the scope of the surgery is a ‘subject matter *** so complicated that lay
persons are not in an adequate position to assess whether a breach of duty has occurred.’ ”
Holzrichter, 2013 IL App (1st) 110287, ¶ 96 (quoting Schindel v. Albany Medical Corp., 252
Ill. App. 3d 389, 395 (1993)). The court held that “the plain and unambiguous language of
section 2-622 of the Code, requiring an affidavit and health professional’s written report ‘[i]n
any action, whether in tort, contract or otherwise, in which plaintiff seeks damages for
injuries or death by reason of medical, hospital, or other healing art malpractice,’ is
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applicable in this case.” Holzrichter, 2013 IL App (1st) 110287, ¶ 96 (quoting 735 ILCS
5/2-622(a) (West 1998)). Emphasizing that its holding was limited to the facts of the case,
the court affirmed the summary judgment entered for the defendant, because the plaintiff
failed to comply with section 2-622. Holzrichter, 2013 IL App (1st) 110287, ¶ 96 (“we need
not decide here whether the requirements of section 2-622 are applicable to all medical
battery claims”).
¶ 25 The Holzrichter court pointed out that expert medical opinions previously had been
required in non-medical-malpractice actions. Holzrichter, 2013 IL App (1st) 110287, ¶ 93. In
Schindel, a patient brought an action for damages from the rupture of her fallopian tubes
during an ectopic pregnancy, but she alleged that the jury could decide her case on principles
of “ordinary negligence” so that testimony of an expert medical witness was not necessary.
The Schindel court concluded that the case required “expert analysis of [the] plaintiff’s
medical condition in order to fully define the proper standard of care.” Schindel, 252 Ill. App.
3d at 398. Because no medical testimony was presented to establish the standard of care, the
jury verdict was reversed. Schindel, 252 Ill. App. 3d at 402.
¶ 26 Similarly, in Bloom v. Guth, 164 Ill. App. 3d 475, 477 (1987), a patient brought an action
for damages from her doctor’s failure to perform a hysterectomy and repair her bladder, but
she alleged that her claim was for breach of contract, not medical malpractice, so that
testimony of an expert medical witness was not necessary. The Bloom court rejected the
patient’s argument and affirmed the dismissal of the complaint based on the plain language
of section 2-622(a).
¶ 27 In McDonald I, we stated that “[s]ection 2-622 does not apply to medical battery claims,
and therefore, that statute is not a proper basis for dismissing those claims [in the amended
complaint].” McDonald I, No. 2-10-0518, slip op. at 10. After reviewing the specific
allegations of medical battery in this case, we agree with the reasoning of the First District in
Holzrichter that section 2-622(a) can potentially apply to medical battery claims. Holzrichter,
2013 IL App (1st) 110287, ¶ 96. Plaintiff’s medical battery claims turn on whether
defendants exceeded the parameters of the surgery to which plaintiff consented. Thus, the
issue is beyond the ken of a layperson and requires a medical expert to opine on whether the
use of the Myelotec catheter is within the scope of the RACZ procedure. Consistent with
Holzrichter, Schindel, and Bloom, we hold that, to sustain her medical battery claims,
plaintiff was required to submit an affidavit and a health professional’s report pursuant to
section 2-622(a). See Holzrichter, 2013 IL App (1st) 110287, ¶ 96; see also Schindel, 252 Ill.
App. 3d at 397-98 (“An assessment of what is required or necessary in light of [a] medical
condition is inherently one of medical judgment and, as a result, necessitates expert
testimony on the standard of care.”).
¶ 28 Requiring compliance with section 2-622(a) of the Code under these facts follows
logically from the legislature’s intent to prevent frivolous lawsuits and ensure that
meritorious claims, bolstered by expert medical opinion, proceed past the pleading stage. See
Holzrichter, 2013 IL App (1st) 110287, ¶ 88. “A plaintiff challenging an implicit part of the
medical treatment should not be able to avoid the requirement of an expert medical opinion
simply by claiming medical battery or something other than medical malpractice.”
Holzrichter, 2013 IL App (1st) 110287, ¶ 88.
¶ 29 Plaintiff does not dispute that she has not submitted an affidavit and a health
professional’s report as mandated by section 2-622(a)(1). However, plaintiff argues that she
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has substantially complied with the affidavit requirement of section 2-622(a)(3) (735 ILCS
5/2-622(a)(3) (West 2012)) by verifying the second amended complaint by certification
according to section 1-109 of the Code (735 ILCS 5/1-109 (West 2012)). The second
amended complaint contains a section labeled “Affidavit Pursuant to 735 ILCS
5/2-622(a)(3)” and provides in relevant part as follows:
“The undersigned, Michelle Eva McDonald, under penalties provided by law
pursuant to Section 1-109 of the Code of Civil Procedure, certifies that the statements
set forth in this instrument are true and correct, except as to matters therein stated to
be on information and belief and as to such matters, the undersigned certifies as
aforesaid that she verily believes the same to be true.”
¶ 30 Rejecting plaintiff’s assertion that the certification satisfies section 2-622, the trial court
commented, “I understand, Ms. McDonald, that you disagree with the statements of [Dr.
Lipov’s] affidavit. But from a legal point of view, I can’t consider your disagreement. You
needed–or you needed to supply me with something that under the law I can consider. An
affidavit from a qualified expert in the field[.] I understand that you disagree with that but
that doesn’t allow me to make a different decision.”
¶ 31 Plaintiff’s verification of the second amended complaint by certification under section
1-109 of the Code is not a substitute for compliance with section 2-622(a)(3) (735 ILCS
5/2-622(a)(3) (West 2012)). Section 2-622(a)(3) allowed an affidavit stating that plaintiff
made a request to examine and copy records and that defendants failed to produce those
records within 60 days, but plaintiff’s verification contains no such statement. Even if
plaintiff’s verification had satisfied section 2-622(a)(3), that statute authorizes a plaintiff to
file an affidavit only to delay compliance with section 2-622(a)(1). 735 ILCS 5/2-622(a)(3)
(West 2012). Thus, even if plaintiff had executed a proper affidavit under section
2-622(a)(3), section 2-622(a)(1) still required her to file the certificate and written report
within 90 days of receiving the records. 735 ILCS 5/2-622(a)(3) (West 2012).
¶ 32 Since plaintiff is proceeding pro se, section 2-622(a) required an affidavit stating that she
consulted and reviewed the facts of the case with a health professional who reviewed the
medical records and prepared a written medical report finding that there is a “reasonable and
meritorious” cause for filing the action. See 735 ILCS 5/2-622(a)(1) (West 2012). Section
2-622(a) further requires the professional’s report to clearly identify the plaintiff and “the
reasons for the reviewing health professional’s determination that a reasonable and
meritorious cause for the filing of the action exists.” 735 ILCS 5/2-622(a)(1) (West 2012).
Plaintiff does not claim to be an expert health professional or that she obtained a health
professional’s report. Plaintiff’s certification does not comply with section 2-622(a).
¶ 33 We further reject plaintiff’s argument that the trial court erred in accepting Dr. Lipov’s
affidavit. Affidavits in support of motions under section 2-619 are controlled by Rule 191.
Elliott v. LRSL Enterprises, Inc., 226 Ill. App. 3d 724, 732 (1992). Rule 191(a) provides that
“affidavits submitted in connection with a motion for involuntary dismissal under section
2-619 of the Code of Civil Procedure *** shall be made on the personal knowledge of the
affiants; shall set forth with particularity the facts upon which the claim, counterclaim, or
defense is based; shall have attached thereto sworn or certified copies of all documents upon
which the affiant relies; shall not consist of conclusions but of facts admissible in evidence;
and shall affirmatively show that the affiant, if sworn as a witness, can testify competently
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thereto. If all of the facts to be shown are not within the personal knowledge of one person,
two or more affidavits shall be used.” Ill. S. Ct. R. 191(a) (eff. Jan. 4, 2013).
¶ 34 If the document as a whole shows that the affidavit is based upon the personal knowledge
of the affiant and there is a reasonable inference that the affiant could competently testify to
its contents at trial, Rule 191 is satisfied. Doria v. Village of Downers Grove, 397 Ill. App. 3d
752, 756 (2009). “Prima facie authorship of a document may include a showing that the
writing contains knowledge of a matter sufficiently obscure so as to be known to only a small
group of individuals.” People v. Downin, 357 Ill. App. 3d 193, 203 (2005). It is the function
of a trial court to determine the admissibility of evidence, and its rulings will not be disturbed
absent an abuse of discretion. Independent Trust Corp. v. Hurwick, 351 Ill. App. 3d 941, 952
(2004). Here, Dr. Lipov performed the RACZ procedure at issue; his affidavit consists of
facts within his personal knowledge and is therefore in compliance with Rule 191.
¶ 35 Plaintiff contends that she was precluded from cross-examining Dr. Lipov regarding the
statements in his affidavit, but she never requested his deposition when the affidavit was
filed. If a party believes that additional discovery is necessary to adequately respond to a
motion to dismiss, the party may seek a continuance and obtain discovery by filing an
affidavit under Rule 191(b), but plaintiff failed to do so. Failure to file a Rule 191(b) affidavit
in the trial court results in forfeiture of a potential appellate argument that additional
discovery was needed. By failing to file a Rule 191(b) affidavit, plaintiff has forfeited any
claim that she was not permitted to cross-examine Dr. Lipov for the purposes of challenging
his affidavit and establishing a reasonable and meritorious cause for filing her action.
¶ 36 B. Old Claims
¶ 37 The second amended complaint restates nine claims from the amended complaint: four
negligence claims, three alleged violations of the Emergency Medical Treatment and Active
Labor Act, and two claims of breach of contract. Besides explicitly restating these claims, the
second amended complaint incorporates by reference all of the claims of the original
complaint and the amended complaint.
¶ 38 Plaintiff’s amended complaint did not incorporate the original complaint. “ ‘Where an
amendment is complete in itself and does not refer to or adopt the prior pleading, the earlier
pleading ceases to be a part of the record for most purposes, being in effect abandoned and
withdrawn.’ ” Foxcroft Townhome Owners Ass’n v. Hoffman Rosner Corp., 96 Ill. 2d 150,
154 (1983) (quoting Bowman v. County of Lake, 29 Ill. 2d 268, 272 (1963)). Thus, plaintiff
abandoned the claims in the original complaint when she filed the amended complaint
without referring to the original complaint.
¶ 39 Moreover, in McDonald I, we determined that the trial court properly dismissed with
prejudice these nine claims from the amended complaint. When plaintiff restated the claims
in the second amended complaint, the court dismissed them again, commenting that “[w]e’ve
been over that ground and that has been through the higher courts.”
¶ 40 The law-of-the-case doctrine limits relitigation of a previously decided issue in the same
case. Village of Ringwood v. Foster, 2013 IL App (2d) 111221, ¶ 33 (citing Krautsack v.
Anderson, 223 Ill. 2d 541, 552 (2006)). The doctrine encompasses not only the reviewing
court’s explicit decisions, but those issues decided by necessary implication. Reich v.
Gendreau, 308 Ill. App. 3d 825, 829 (1999). The doctrine applies to questions of law on
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remand to the trial court as well as on subsequent appeals. Radwill v. Manor Care of
Westmont, IL, LLC, 2013 IL App (2d) 120957, ¶ 8.
¶ 41 In McDonald I, we found these nine claims to be defective. Our decision is the law of the
case, and the trial court correctly dismissed them with prejudice.
¶ 42 C. New Claims
¶ 43 On remand, plaintiff filed the second amended complaint with new claims besides the
repleaded medical battery claims. Among the new claims are three claims of fraudulent
concealment, nine claims of conspiracy, one claim of vicarious liability, and one claim of
spoliation of evidence. The trial court dismissed the new claims with prejudice on the ground
that they fell “outside the directive” of our holding in McDonald I.
¶ 44 It is well recognized that a reviewing court’s mandate vests a trial court with jurisdiction
only to take action that complies with the reviewing court’s mandate. Fleming v. Moswin,
2012 IL App (1st) 103475-B, ¶ 28. A trial court lacks the authority to exceed the scope of the
mandate and must obey precise and unambiguous directions on remand. Furthermore, the
correctness of the trial court’s action on remand is to be determined from the appellate
court’s mandate, as opposed to the appellate court opinion. However, if the direction is to
proceed in conformity with the opinion, then, of course, the content of the opinion is
significant. Fleming, 2012 IL App (1st) 103475-B, ¶ 28. If specific directions are not given,
the trial court should examine the opinion and determine what further proceedings would be
consistent with the opinion. Any other order issued by the trial court is outside the scope of
its authority and void for lack of jurisdiction. Fleming, 2012 IL App (1st) 103475-B, ¶ 28.
¶ 45 In this case, our mandate following our initial order contained no specific instructions
and, therefore, we look to that order to determine the scope of the trial court’s authority on
remand. In McDonald I, we held that, although the medical battery allegations had been
properly dismissed under section 2-615, the trial court abused its discretion in dismissing
those allegations with prejudice and should have afforded plaintiff the opportunity to cure the
defects. Specifically, we directed the trial court to afford plaintiff “the opportunity to replead
her medical battery claims.”
¶ 46 Our disposition was silent as to whether plaintiff could allege additional claims on
remand; nothing in the record suggested that she might wish to do so. One could argue that to
allow plaintiff to plead new claims would have been outside the scope of the trial court’s
authority and void for lack of jurisdiction. See Fleming, 2012 IL App (1st) 103475-B, ¶ 28.
¶ 47 Even if the pleading of new claims were within our directive and consistent with the
disposition, the trial court did not abuse its discretion in dismissing those new claims with
prejudice. Section 2-616(a) of the Code governs the amendment of pleadings and provides
that “[a]t any time before final judgment amendments may be allowed on just and reasonable
terms *** changing the cause of action or defense or adding new causes of action or
defenses, and in any matter, either of form or substance, in any process, pleading, bill of
particulars or proceedings, which may enable the plaintiff to sustain the claim for which it
was intended to be brought or the defendant to make a defense or assert a cross claim.” 735
ILCS 5/2-616(a) (West 2012). Amendments should be liberally allowed to permit parties to
fully present their cases and to further the interests of justice. Rusch v. Leonard, 399 Ill. App.
3d 1026, 1037 (2010). The right to amend, however, is neither absolute nor unlimited. Hayes
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Mechanical, Inc. v. First Industrial, L.P., 351 Ill. App. 3d 1, 6 (2004). The decision to grant
leave to amend a complaint rests within the sound discretion of the trial court and we will not
reverse such a decision absent an abuse of that discretion. Hayes Mechanical, Inc., 351 Ill.
App. 3d at 7.
¶ 48 Four factors determine whether amendments to pleadings should be permitted under
section 2-616(a): (1) whether the proposed amendment would cure a defective pleading; (2)
whether the proposed amendment would surprise or prejudice the opposing party; (3)
whether the proposed amendment was timely filed; and (4) whether the moving party had
previous opportunities to amend. Sheth v. SAB Tool Supply Co., 2013 IL App (1st) 110156,
¶ 101. The most important factor is prejudice to the opposing party, such as where an
amendment leaves the party unprepared to respond to a new theory at trial. Sheth, 2013 IL
App (1st) 110156, ¶ 101.
¶ 49 The plaintiff must meet all four factors, and “if the proposed amendment does not state a
cognizable claim, and thus, fails the first factor, courts of review will often not proceed with
further analysis.” Hayes Mechanical, Inc., 351 Ill. App. 3d at 7. Accordingly, “[w]here it is
apparent even after amendment that no cause of action can be stated, leave to amend should
be denied.” Hayes Mechanical, Inc., 351 Ill. App. 3d at 7. “[W]hen ruling on a motion to
amend, the court may consider the ultimate efficacy of a claim as stated in a proposed
amended pleading” and it is not necessary for the plaintiff to file an amended complaint and
the defendant to test the sufficiency of that complaint through a motion to dismiss. Hayes
Mechanical, Inc., 351 Ill. App. 3d at 7.
¶ 50 In this case, we remanded the cause to afford plaintiff the opportunity to cure the defects
in her medical battery claims, and the trial court repeatedly informed plaintiff of the need to
comply with section 2-622 to preserve those claims. The new claims of fraudulent
concealment, conspiracy, vicarious liability, and spoliation of evidence were not timely filed.
Plaintiff had several previous opportunities to amend her pleading. In fact, in dismissing the
second amended complaint with prejudice, the court commented that “I think the procedural
history of this case will reflect that I bent over backwards to give you every opportunity to
file the best pleading that you could file, to obtain legal counsel if you chose to do so, and
you proceeded on your own.” Under these circumstances, the trial court did not abuse its
discretion in dismissing plaintiff’s new claims with prejudice.
¶ 51 Plaintiff also argues that the dismissal violates her right to due process, because it denies
her “right to remedy and justice,” and that a genuine issue of material fact precludes the
dismissal. She also claims that the statute of limitations or statute of repose does not bar her
medical battery claims and that defendants failed to establish that plaintiff consented to the
intrusions. Plaintiff’s arguments are not developed or supported by citation to relevant
authority (see Ill. S. Ct. R. 341(h)(7) (eff. Feb. 6, 2013)) and otherwise lack merit.
¶ 52 III. CONCLUSION
¶ 53 For the reasons stated, we affirm the order of the circuit court of Du Page County
dismissing the second amended complaint with prejudice.
¶ 54 Affirmed.
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