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Medical Malpractice Motion 14 - motion for leave to amend

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Plaintiff's Memorandum of Law in Support of His Motion for Leave to Amend

William A. Allison, Attorney for Plaintiff.


Plaintiff seeks leave to amend his Complaint by adding Count V, a copy of which is attached to the motion. In Count V, Plaintiff alleges a cause of action for medical battery and seeks punitive as well as compensatory damages.

Medical battery first found definition in Illinois through Pratt v. Davis , 224 Ill. 300, 305, 79 N.E. 562 (1906). As stated in Curtis v. Jaskey, 326 Ill. App. 3d. 90, 259 Ill. Dec. 901, 903, “No right is held more sacred, or is more carefully guarded by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.” In the same opinion, the court noted that the Illinois Legislature has recognized this right at 755 ILCS 40/5 ;

All persons have a fundamental right to make decisions relating to their own medical treatment, including the right to forego life sustaining treatment.

It is to enforce these basic human rights that Plaintiff seeks to add Count V to the Complaint.


Plaintiff's surgery took place at St. Francis Medical Center in Peoria, a teaching hospital for the University of Illinois College of Medicine in Peoria. (See page 6, Dept of Surgery Residency Handbook of Information, attached hereto.) Dr. Joo, one of the Defendants, was a fifth year resident in the surgery curriculum. Defendant Anderson, the physician that Plaintiff contracted to do the surgery, is also an Assistant Clinical Professor of Surgery in the University Illinois College of Medicine at Peoria. (Anderson dep., Exhibit B attached, p. 4). Dr. Joo was the Chief Resident for Defendant Anderson at the time of Plaintiff's surgery (Anderson dep., Exhibit B, p. 16).

As team leader and Assistant Clinical Professor of Surgery, it was Defendant Anderson's job to clarify the role of Dr. Joo in the surgery. Defendant Anderson told Dr. Joo that he expected Joo to do the majority of the operation and Defendant Anderson would assist Dr. Joo. (Anderson dep., Exhibit B, p. 27, 36, 54). In order for residents to qualify for board certification, they must do more than 50% of the procedure in order for that procedure to count toward the experience requirements. (Anderson dep., Exhibit B, p. 39).

Defendant Anderson also admitted by interrogatory that he “delegated the performance of certain aspects of the Plaintiff's appendectomy to Dr. Joo.” (See Answer to Interrogatory #23, Exhibit C attached).

When a physician in the position of Defendant Anderson switches roles with a resident, and allows the resident to become the operating surgeon and Dr. Anderson to assume the role of assistant, that exceeds the authority of the written consent in this case. Guebard v. Jabaay, 117 Ill. App. 3d 1, Ill. Dec. 498, 502-503 (2nd Dist., 1983). Under facts and circumstances similar to those in the case at bar, the court in Guebard held as follows:

It would not appear, however, that the jury could properly decide that plaintiff had been informed and consented to the extent of Dr. Angel's (the resident) participation. Guebard, 72 Ill. Dec. 498, 503.

  • 1. Consent form read “patient authorized Drs. Main, Blair, Jaabay, Huncke,” and such assistants as are assigned to the case to perform a Hauser procedure right knee. (Jabaay 72 Ill. Dec. at 501).
  • 2. The attending physician defined assistant as “helper” (id.).
  • 3. The report of the surgery noted that the surgery was done by the resident with other typewritten references indicating that Dr. Jabaay (the attending physician) was the assistant. (72 Ill. Dec. 502).
  • 4. Dr. Jabaay (the attending physician) observed and supervised the entire procedure. (Guebard, 72 Ill. Dec. 502).
  • 1. Patient authorized “Dr. Rossi, Marshall, DeBord, and Anderson and such assisants and associates as maybe selected by him/her and OSF St. Francis Medical Center to perform diagnostic laparoscopy, possible laparoscopic appendectomy, possible open appendectomy.
  • 2. Dr. Anderson says that to assist in surgery means to help perform the procedure.
  • 3. Dr. Anderson expected Dr. Joo to do the majority of the surgery and Dr. Anderson would assist him. That places Dr. Joo in the category of the operating surgeon. (Anderson dep., p. 36).
  • 4. Dr. Anderson was present throughout the entire procedure and supervising Dr. Joo. (Anderson dep., Exhibit B, p. 31, 36.).

In Guebard, the court went on to hold as follows:

The authorities appear uniformly to agree that where an unauthorized surgeon operates, he commits a technical trespass to the patient resulting the intentional tort of battery. (Citing Pratt v. Davis, 224 Ill. 300). Guebard v. Jabaay, 72 Ill. Dec. 498, 503.

Based on these facts, Plaintiff did not authorize the resident to do the majority of the surgery. Contrary to Defendant's contention, Plaintiff has alleged an offensive touching in paragraph 7 of Count V in that J. B. Joo, unauthorized by the Plaintiff, performed the work of the operating surgeon. Based on the holding in Guebard v. Jabaay, the “offensive touching” is probably presumed under the circumstances of this case when there is no consent for the resident. As to Defendant Anderson's responsibility for Dr. Joo's tort, Plaintiff alleges that Defendant Anderson “directed, requested or allowed J. B. Joo to be the operating surgeon,” in paragraph 8 of the Complaint.

In Answer to Interrogatory #25, Defendant Anderson acknowledges that he delegated certain aspects of the Plaintiff's appendectomy to Dr. Joo and that he is the one that authorized or selected Dr. Joo to be the assistant in the surgery performed on Plaintiff. By these actions, he assumes responsibility for the tort committed while he was supervising the surgery of the Plaintiff. Not only is Count V proper; Plaintiff is probably entitled to summary judgment based on the facts.

It is the absence of consent that supports the action for battery. In Gragg v. Calandra , (2nd Dist. 1998) 196 Ill.App.3d 669, 231 Ill.Dec. 711, 716, the court quoted Guebard v. Jabaay for the following holding:

(T)he court held that 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 that the core of an action for battery.

Plaintiff Matthew Lane was never told or informed that Dr. Joo would be doing the majority of his surgery. He did not consent to Dr. Joo, a resident, doing the majority of his surgery. Dr. Joo committed a battery which was what he was directed to do by Defendant Anderson.


A claim for medical battery is not medical malpractice or “healing art malpractice.” In Gragg v. Calandra, (2nd Dist, 1998). 196 Ill. App. 3d 669, 231 Ill. Dec. 711 at 716, the Second District stated as follows:

By stating that surgery and treatment were performed without consent, plaintiff has stated a claim for medical battery. (Citations omitted). Moreover, it is clear that plaintiff does not allege any deviation from the appropriate medical standards. Plaintiff's claim under Count I against the hospital is not based on medical malpractice. Consequently, it is unnecessary to provide a Section 2-622 report.

Under Section 5/2-1115 of the Civil Practice Act, punitive damages are not recoverable in “healing art and legal malpractice case.” However, since a medical battery action is not a healing art malpractice case within the decision cited above, the law relating to punitive damages in medical battery actions prior to the Healing Art Malpractice Act of 1986 would still be binding precedent.

In Kenner v. Northern Illinois Medical Center, (2nd Dist, 1987), 164 Ill. App. 3d 366, 115 Ill. Dec. 451, the court was considering an action for medical battery and false imprisonment. The court stated that punitive damages would be allowed under the following circumstances:

Punitive damages may be recovered when the wrongful act complained of is characterized by fraud, malice, oppression, willfulness or wantonness. 115 Ill. Dec. 451 at 458.

In paragraph 14 of the Amended Complaint, Plaintiff makes specific allegations of fact that would amount to willful and wanton conduct or fraudulent conduct. For purposes of Defendant's Motion, those allegations should be taken as true.

The case cited by Defendants, Williams v. Chicago Osteopathic Medical Center, 173 Ill. App. 3d 125, 122 Ill. Dec. 911, (1st Dist, 1988) is not authority to the contrary. The trial court in Williams certified the following question for appeal:

Does the statutory prohibition of punitive damages in healing art malpractice cases (Section 5/2-1115, ILCS) apply to an intentional fraud action arising from the provision of medical services by health care providers? 122 Ill. Dec. at 912.

Based on the wording of the certified question, the court felt compelled to answer the question in the affirmative. The court felt that the phrase “provision of medical services by healthcare providers” contained in the certified question, came within the phrase “healing art malpractice ” used in Section 2-1115. In reaching that decision, the court relied on Lyon v. Hasbro Industries, Inc., 156 Ill. App. 3d 649 at 655, 109 Ill. Dec. 41 (1987, for the proposition that the nature of the act alleged should determine whether the act is healing art malpractice. The court defined malpractice as incorrect or negligent treatment of the patient by a person responsible for his healthcare. In Count V, the allegations relate not to negligent or incorrect treatment but failing to obtain consent and allowing Dr. Joo, an unauthorized surgeon, to perform surgery. This is not an issue of medical treatment; it is an issue of law and ethics of the medical profession. Paragraph 8. 16 of the Current Opinions of the Council on Ethical and Judicial Affairs of the American Medical Association (cited in paragraph 14A of the amendment), it is stated as follows:

A surgeon who allows a substitute to operate on his or her patient without the patient's knowledge and consent is deceitful. The patient is entitled to choose his or her physician and should be permitted acquiesce to or refuse the substitution.


Plaintiff prays that his Motion to Amend be allowed; if allowed, Plaintiff prays that summary judgment be entered in his favor and against the Defendant on Count V; further, that the word “negligence” appearing in the first line of paragraph 13 of the Amended Complaint be stricken and that the word “conduct” be substituted therefore.

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