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Medical Malpractice Motion 10 - plaintiff's response to defendants 615 motion to dismiss

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Defendants' Combined Motion to Dismiss

Michael F. Henrick, Stacey L. Seneczko, Hinshaw & Culbertson LLP, 103 S. Greenleaf Avenue, Suite E, Gurnee, IL 60031, 847-249-0300.

Now Come Defendants, MARTIN P. LANOFF, M.D., and ADULT AND PEDIATRIC ORTHOPEDICS, S.C., by and through their attorneys, HINSHAW & CULBERTSON LLP, pursuant to Section 2-619.1 of the Code of Civil Procedure ( 735 ILCS 5/2-619.1 ), and move to dismiss Plaintiff's Complaint at Law. In support thereof, Defendants state as follows:


1. Plaintiff, Maria W. Evaristo, filed a seven-count Complaint at Law against Defendants, Martin P. Lanoff, M.D., and Adult and Pediatric Orthopedics, S.C., seeking damages for personal injuries allegedly suffered during the course of medical treatment on August 25, 2009.

2. Specifically, Plaintiff alleges that due to ongoing neck and arm pain, she scheduled to receive a cortisone injection at Defendants' facility. Plaintiff alleges that during the course of that treatment, Defendant Dr. Lanoff made inappropriate comments and engaged in physical conduct that violated the standards and regulations that govern the medical profession and the physician-patient relationship. (see paragraphs 10, 11, and 12 of Plaintiff's Complaint attached hereto as Exhibit A.) Plaintiff alleges that she suffered emotional injuries as a result thereof.

3. Plaintiff fails to attach a Section 2-622 Certificate to her Complaint.

4. Section 2-622 requires Plaintiff's attorney to file an affidavit of a licensed physician “[i]n any action, whether in tort, contract or otherwise, in which the plaintiff seeks damages for injuries or death by reason of a medical, hospital or other healing art malpractice.” 735 ILCS 5/2-622(a).

5. In the case at bar, Plaintiff alleges that Defendants had a “duty to comply with the standards and regulations of the medical profession, as well as common law standards of care” (see paragraph 10), that defendant had a duty “pursuant to the standards and regulations that govern medical practice” (paragraph 11), and that defendant violated “the standards and regulations that govern his conduct.” (paragraph 12)

6. Because Plaintiff's Complaint is premised upon the standards and regulations of the medical profession, it falls within the broad realm of medical practice and, thus, a Section 2-622 Certificate is required. Plaintiff's failure to comply with Section 2-622 is grounds for dismissal under Section 2-619. 735 ILCS 5/2-622(g).


7. Plaintiff's seven-count Complaint seeks to state causes of action for intentional and negligent infliction of emotional distress and battery as to Dr. Lanoff. As to Adult and Pediatric Orthopedics, Plaintiff seeks to impose liability under the doctrine of respondent superior and also under a failure to train and supervise theory.

Intentional Infliction of Emotional Distress (Counts I and IV)

8. To state a cause of cation for intentional infliction of emotional distress, a plaintiff must allege that: (1) the defendant's conduct was extreme and outrageous; (2) the defendant either intended to inflict severe emotional distress or knew that there was a high probability that his conduct could do so; and (3) the defendant's conduct actually caused severe emotional distress. Welsh v. Commonwealth Edison Co., 306 Ill.App.3d 148, 154, 713 N.E.2d 679 (1st Dist. 1999).

9. The intensity and duration of the distress are factors to be considered in determining its severity. Brackett v. Galesburg Clinic Assoc., 293 Ill.App.3d 867, 871, 689 N.E.2d 406, 409 (3rd Dist. 1997). The tort does not encompass acts that are only inconsiderate, rude, vulgar, uncooperative, unprofessional, or unfair. Cook v. Winfrey, 975 F.Supp. 1045, 1054 (N.D. Ill. 1997); Irving v. J.L. Marsh, Inc., 46 Ill.App.3d 162, 360 N.E.2d 983, 986 (3rd Dist. 1977).

10. To state an action for intentional infliction of emotional distress the complaint must be “specific, and detailed beyond what is normally considered permissible in pleading a tort action.” Welsh, 306 Ill.App.3d at 155, 713 N.E.2d at 684. Merely paraphrasing the elements of a cause of action in conclusory terms is insufficient. Welsh, 306 Ill.App.3d at 155, 713 N.E.2d at 684.

11. In the case at bar, Plaintiff fails to allege any facts from which the level of severity of the emotional distress could be inferred. The distress must be so severe that no reasonable person could be expected to endure it, and merely characterizing emotional distress as severe is not sufficient. Welsh, 306 Ill.App.3d at 155, 713 N.E.2d at 684. Plaintiff does not allege she was hospitalized or required to seek medical care, or that she was afflicted with a physical or mental condition rendering her particularly vulnerable to emotional distress. Id. Rather, Plaintiff merely concludes that she “suffered severe and permanent emotional injury.” Plaintiff's allegations are insufficient to state a claim, and, thus, Counts I and IV should be dismissed.

Negligent Infliction of Emotional Distress (Counts III and VI)

12. Similarly, Plaintiff's claim for negligent infliction of emotional distress should be dismissed as well. To state a cause of action for the tort of negligent infliction of emotional distress, a plaintiff must allege that the infliction of emotion distress arose out of the negligent acts of a defendant. Brackett v. Galesburg Clinic Assoc., 293 Ill.App.3d 867, 872, 689 N.E.2d 406, 410 (3rd Dist. 1997). “Where the purported emotional distress has been caused byintentional acts committed by a defendant, the plaintiff does not state a cause of action for negligent infliction of emotional distress.” Id.

13. Plaintiff's Complaint in the case at bar alleges inappropriate comments made and actions taken which were naturally knowing when done and, thus, Plaintiff's claim must fail.

Battery (Counts II and V)

14. Plaintiff attempts to state a claim for battery, alleging in a conclusory fashion that Defendant Dr. Lanoff touched, pinched or squeezed her buttocks and that such contact was unprovoked, uninvited, offensive, and without her consent. However, Plaintiff clearly consented to the exam and cortisone injection, and her Complaint provides no facts from which it can be discerned what treatment and contact may have been permissible in connection with same and how the contact that allegedly occurred was substantially at variance thereto. Accordingly, the claims premised upon same must fail.

Failure to Train and Supervise (Count VII)

15. Finally, Plaintiff attempts to state a cause of action premised upon Defendant Adult and Pediatric Orthopedics, S.C.'s alleged failure to train and supervise Dr. Lanoff. Again, the count is wholly conclusory in its allegations and woefully deficient.

16. To establish such a claim, Plaintiff must allege facts establishing that (1) the employer knew or should have known that the employee had a particular unfitness for the position so as to create a danger or harm to third persons; (2) that such particular unfitness was known or should have been known at the time of the employee's hiring or retention; (3) that this particular unfitness caused the plaintiff's injury; and (4) that Adult and Pediatric Orthopedics, S.C. knew or should have known that the injury was foreseeable and their negligence was a proximate cause of Plaintiff's injury. Helfers-Beitz v. Degelman, 939 N.E.2d 1087, 1091 (3rd Dist. 2010); Zahl v. Krupa, 399 Ill.App.3d 993, 1018, 927 N.E.2d 262, 283 (2nd Dist. 2010). Plaintiff fails to do so in the case at bar. Instead, Plaintiff merely alleges that as employer of Dr. Lanoff, Adult and Pediatric Orthopedics, S.C. owed a duty “to train and supervise its employees, agents and representatives to avoid conduct toward and treatment of patients of a sexual nature, that might or could cause patients to suffer emotional distress and to monitor the conduct of and complaints against its employees for the protection of its patients.”

17. Plaintiff alleges that Defendant breached its duty by “failing to train and supervise Dr. Lanoff “so that he would not commit battery against and engage in conduct that caused emotional distress of Plaintiff.” (See paragraph 15 of Count VII.)

18. Clearly, the allegations are conclusory and deficient. Although pleadings are to be liberally construed, this rule does not relieve a plaintiff of the duty to include substantial factual allegations in her complaint. Campbell v. Haiges, 152 Ill.App.3d 246, 251, 504 N.E.2d 200, 204 (2nd Dist. 1987). The requisite allegations are absent from Plaintiff's Complaint, and no cause of action has therefore been stated. Accordingly, the Complaint should be dismissed.

WHEREFORE, Defendants, MARTIN P. LANOFF, M.D., and ADULT AND PEDIATRIC ORTHOPEDICS, S.C., pray this Honorable Court dismiss Plaintiff's Complaint at Law and for such additional relief as it deems just.


By: <<signature>>

Stacey L. Seneczko, ARDC No. 06201924,

One of Defenants' Attorney

Michael F. Henrick

Stacey L. Seneczko


103 S. Greenleaf Avenue, Suite E

Gurnee, IL 60031


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