FOURTH DIVISION
Plaintiff-Appellant, v. GOTTLIEB MEMORIAL HOSPITAL, Defendant-Appellee. Honorable Sharon Johnson Coleman and Julia
Nowicki, Judges Presiding. JUSTICE SOUTH delivered the opinion of the
court: Plaintiff, Robert Natale, filed a two-count
amended complaint seeking damages for medical negligence and spoliation of
evidence against defendant, Gottlieb Memorial Hospital (Gottlieb). Gottlieb
filed a motion for summary judgment as to count I, medical negligence. The trial
court granted summary judgment on count I. The case was scheduled for trial. Prior to
commencement of trial, Gottlieb filed a motion to dismiss count II, spoliation
of evidence, pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS
5/2-615 (West 1993)). The trial court granted the motion dismissing Natale's
complaint for failure to state a cause of action and thereby dismissed the case
in its entirety. Plaintiff appeals the judgment of dismissal for
count II and the prior summary judgment order for count I. The issues presented for review are (1) whether
the trial court erred in granting summary judgment to Gottlieb Memorial Hospital
on plaintiff's fear-of-infection claim absent any evidence of actual exposure to
infection; and (2) whether the trial court erred in dismissing plaintiff's
spoliation of evidence claim for failure to state a cause of action. On January 13, 1994, Natale underwent a
colonoscopy. The endoscope (scope) used in this procedure had been provided for
the physician's use by Gottlieb. These instruments typically undergo substantial
cleaning and disinfection procedures, both by hand and machine, after every use
in accordance with an established protocol. On January 10, 1994, a water main
break interrupted supply to the hospital and caused it to shut down its
mechanical scope washer. When the water supply was restored, the hospital
personnel flushed the machine of any possibly contaminated water by running it
through a full cycle. Since no scopes were being washed, a timer on one of the
staged disinfection cycles was reduced from 10 minutes to 1 minute. The timer
was not readjusted before the machine was put back into use for scope
cleansing. On January 14, 1994, the improper setting was
detected by a GI Lab technician, who notified Dr. Gerard Sublette, the physician
in charge of the GI Lab. Dr. Sublette directed the hospital staff to clean and
fully disinfect all scopes so that they might be used for upcoming procedures.
Gottlieb's infection control personnel were also
notified, and they assessed the risk of infection. First, Gottlieb determined
who had undergone procedures with incompletely processed scopes. Natale was
identified as one of the involved patients. Next, Gottlieb's infection control
team reviewed the medical records of these patients to determine whether any of
them was a known or likely carrier of any infection. The records disclosed that
none of the patients were known to be positive for HIV, hepatitis or any other
infection. The infection control team, including its medical director, Dr. Donna
Hanlon, a specialist in infectious diseases, considered the risk of transmission
of infection in these circumstances and determined that it was quite small.
However, in follow-up calls to each patient, including Natale, Gottlieb inquired
how they were feeling and the responses revealed no signs of infection in any of
the patients. The primary care physicians for all of the patients were told of
the incident so that they could follow their patients and watch for any signs of
infection. In addition, Gottlieb concluded that the involved patients should be
advised of the incident and offered free blood testing. Natale was contacted by Gottlieb and came in for
the offered testing. In a personal meeting with Madilyn DiSalvo, Infection
Control Coordinator, Natale was advised that the risk of infection was extremely
low. Natale received the blood testing, and the results were negative. DiSalvo
discussed the method of transmission of several infectious diseases with Natale,
and she told him that HIV is sexually transmitted. She advised him about the use
of condoms for "safer sex." Natale stated that DiSalvo told him to conduct his
life as though he had been exposed to hepatitis and/or HIV. Natale underwent periodic blood tests to
determine whether or not he contracted HIV or another infection. To date, Natale
has not tested positive for HIV or any other infection. Plaintiff's original two-count complaint claimed
emotional distress damages as the result of a possible exposure to infection.
Gottlieb moved to dismiss Natale's claim for emotional distress damages for
failure to state a cause of action. The court dismissed the emotional distress
damages claims, and, on Gottlieb's subsequent motion, there being no other
damages claimed, dismissed the entire complaint. Plaintiff appealed to this
court. Natale v. Gottlieb Memorial Hospital, 292 Ill. App. 3d 512, 685
N.E.2d 971 (1997). We reversed the dismissal of plaintiff's original complaint,
holding that Natale had alleged sufficient facts of actual exposure. On remand, discovery was initiated. Plaintiff
testified at his deposition that he had no evidence that he was actually exposed
to any particular infection, and that his "fear" of possible infection, which
was always related to HIV, ended in 1994, several months before the filing of
his original complaint. After considering the evidence, the lower court found
that Natale had no evidence of actual exposure to any infection and granted the
motion for summary judgment. Prior to Gottlieb's filing of its motion for
summary judgment, plaintiff filed an amended complaint which added a new count
for spoliation. The amended complaint alleged that when Gottlieb discovered that
an endoscope used during plaintiff's procedure had not been properly sterilized,
the scope contained evidence of those foreign microorganisms which were inserted
into plaintiff's colon during the procedure. Plaintiff asserted that Gottlieb
breached a duty owed to him by not identifying the microorganisms and preserving
the evidence. Gottlieb moved for dismissal of count II of
plaintiff's amended complaint, arguing that plaintiff did not and could not
plead and prove the elements of the underlying claim for emotional distress,
requiring dismissal of the spoliation claim. The trial court, after argument,
granted defendant's motion, dismissed count II of plaintiff's amended complaint,
and the cause of action in its entirety. This court's review of the judge's grant of
summary judgment is de novo. Outboard Marine Corp. v. Liberty Mutual
Insurance Co., 154 Ill. 2d 90, 102, 607 N.E.2d 1204 (1992). Summary
judgment is proper "where the pleadings, affidavits, depositions, admissions,
and exhibits on file, when viewed in the light most favorable to the nonmovant,
reveal that there is no genuine issue as to any material fact and that the
movant is entitled to judgment as a matter of law." Busch v. Graphic Color
Corp., 169 Ill. 2d 325, 333, 662 N.E.2d 397, 402 (1996). "Without proof of actual exposure to HIV, a
claim for fear of contracting AIDS is too speculative to be legally cognizable."
Majca v. Beekil, 183 Ill. 2d 407, 420, 701 N.E.2d 1084, 1090 (1998). An
actual exposure requirement prevents an individual from recovering damages for
fear of contracting AIDS when that fear is based on a lack of information or
inaccurate information regarding the transmission of HIV. Majca, 183
Ill. 2d at 420-21, 701 N.E.2d at 1090. Question No. 4 of Gottlieb's request to admit
stated the following: Plaintiff, after objecting to the nature of the
request, admitted that it was true. Plaintiff also testified during his
deposition that he had no evidence that he was actually exposed to HIV,
hepatitis or any other infectious disease. In addition, plaintiff has had a
series of blood tests performed over a number of months testing for the presence
of HIV and other infectious diseases, with negative results. It is clear that
plaintiff has no evidence of actual exposure to any infection at any
time. Plaintiff contends that the precautions that
DiSalvo told him to follow, namely, to live his life as though he had been
exposed to HIV, make changes in his lifestyle, coupled with his attempt to find
out what substances were on the scope distinguishes his case from Majca
and its companion case Doe v. Northwestern University, 183 Ill. 2d
407, 701 N.E.2d 1084 (1998). Therefore, plaintiff argues, this court should
carve out a separate standard for cases such as his. Majca involved an office medical
worker, Eileen Majca, who had been cut by a scalpel that may have been used by a
physician who subsequently died of AIDS-related illness. Eileen did not attempt
to find out whether the doctor knew who had used the scalpel or if he knew on
whom the scalpel had been used. The plaintiff filed a four-count complaint,
alleging under count III negligent infliction of emotional distress, seeking
damages for Eileen's fear of contracting AIDS as a result of the cut. The
defendants filed motions for summary judgment arguing that there was no evidence
to show that Eileen was actually exposed to HIV or AIDS. The judge granted
summary judgment in favor of defendants on plaintiff's claim for fear of
contracting AIDS. The appellate court affirmed but could not agree on the
standard for evaluating plaintiff's claim for fear of contracting AIDS. Our
supreme court held that a plaintiff must plead and prove that he was actually
exposed in order to seek damages for a fear of contracting an infection.
Majca, 183 Ill. 2d at 421, 701 N.E.2d at 1090. Doe v. Northwestern is factually
similar to the present case. In Doe, plaintiffs had received treatment
from a dental student who subsequently tested positive for HIV. Defendant, by
letter, advised plaintiffs of this fact along with explaining that the risk of
infection was extremely low, but strongly recommended that plaintiffs be tested
for the virus. Plaintiffs sued to recover damages for fear of contracting AIDS.
However, they did not allege that they were actually exposed to HIV. The supreme
court found that without an allegation of actual exposure to HIV, plaintiffs had
failed to state a cause of action. Doe, 183 Ill. 2d at 422, 701 N.E.2d
at 1091. Here, plaintiff was told that he underwent a
colonoscopy with a scope which was not disinfected per Gottlieb's protocol.
Plaintiff was advised that the risk of infection was slight, that he should live
his life as if infected until testing proved otherwise. Since all test results
were negative, plaintiff has failed to show any evidence of actual exposure to
HIV or any other infectious disease. With no evidence of actual exposure,
summary judgment was properly granted. Our supreme court has stated that: Plaintiff argues that the affidavit submitted by
Dr. Lewis sufficiently raises the issue of actual exposure, thereby precluding
dismissal of the complaint. In that affidavit, Dr. Lewis states that "the human
colon carries a huge array of pathogens that can be transmitted from one patient
to another by means of an insufficiently disinfected endoscope" and that
"Gottlieb broke Natale's tissue with a contaminated endoscope and exposed him to
a host of microorganisms. It is probable that the endoscope used on Natale was
improperly disinfected and contained numerous kinds of pathogens, including
bacteria, viruses fungi, parasites, and prions. Some of these organisms could
remain dormant and later become active within 10 years or more." He concluded by
stating: "It is my opinion that Gottlieb's conclusion of no actual exposure is
completely without basis in fact and is false." While Dr. Lewis opines that there is a
probability of exposure, he still does not state that there was actual exposure.
He does not state that the scope was in fact infected with pathogens. At most,
he establishes that a scope was used on plaintiff which may have contained
pathogens. The fact remains that plaintiff has presented no evidence of "actual"
exposure. The standard set in Majca and Doe is actual, not
probable or possible exposure. Without that evidence, dismissal was
proper. Plaintiff next contends that the trial court
committed error in dismissing his claim for negligent spoliation of evidence for
failure to state a cause of action. He argues that he has been precluded from
showing actual exposure because the scope is no longer available for examination
and testing based upon Gottlieb's actions. When the legal sufficiency of a complaint is
challenged by a motion to dismiss, all well-pleaded facts in the complaint are
taken as true. Dix Mutual Insurance Co. v. LaFramboise, 149 Ill. 2d
314, 318, 597 N.E.2d 622, 624 (1992). The question presented by a motion to
dismiss for failure to state a cause of action is whether plaintiff has alleged
sufficient facts in the complaint which, if proved, would entitle plaintiff to
relief. Boyd v. Travelers Insurance Co., 166 Ill. 2d 188, 193, 652
N.E.2d 267, 270 (1995). A negligence action for spoliation of evidence
is predicated upon a breach of duty to preserve evidence. Cammon v. West
Suburban Hospital Medical Center, 301 Ill. App. 3d 939, 950, 704 N.E.2d
731, 739 (1998). 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.
Miller v. Gupta, 174 Ill. 2d 120, 129, 672 N.E.2d 1229, 1233 (1996).
Plaintiff must allege sufficient facts to support a claim that the loss or
destruction of evidence caused plaintiff to be unable to prove an otherwise
valid underlying cause of action. Boyd, 166 Ill. 2d at 196, 652 N.E.2d
at 271. Under Boyd, in order to prevail on a
spoliation of evidence claim, plaintiff must prove he suffered compensable
damages as a result of the negligence in the underlying tort. As we have already indicated, plaintiff has
failed to present any evidence of actual exposure to any infectious disease, and
Dr. Lewis' affidavit, although a professional opinion, does not assist him.
Therefore, summary judgment was properly granted to Gottlieb on his fear of
infection claim. Since plaintiff cannot prove his fear of infection claim, he
cannot prevail on his spoliation of evidence count. Therefore, inasmuch as his
fear of infection claim cannot be proven, plaintiff has failed to meet the
requirements of Boyd in order to survive a dismissal for failure to
state a cause of action. Based upon the foregoing analysis, the judgment
of the circuit court is affirmed. Affirmed. HALL, J., concurs. BARTH, J., specially concurs in part and
dissents in part. JUSTICE BARTH, specially concurring in part and
dissenting in part: I concur with the court's affirmance of the
grant of summary judgment as to count I (medical negligence). I disagree,
however, with the court's disposition with respect to count II (spoliation of
evidence). Therefore, I respectfully dissent. Our supreme court has recognized the existence
of a common law cause of action for the negligent spoliation of evidence.
Boyd v. Travelers Insurance Co., 166 Ill. 2d 188, 194 (1995). There,
the court said that while there is generally no duty to preserve evidence, "a
duty of due care to preserve evidence [arises] if a reasonable person in the
defendant's position should have foreseen that the evidence was material to a
potential civil action." Travelers, 166 Ill. 2d at 195. Summary judgment was granted to defendant as to
count I (medical negligence) because of the rule laid down in Majca v.
Beekil, 183 Ill. 2d 407 (1998), that in cases such as this, the plaintiff
must allege and prove actual exposure to pathogens. This case differs
fundamentally from Majca. There, the plaintiff disposed of the possibly
contaminated scalpel herself, rendering it unavailable for examination. Here,
the (at the time, potential) defendant cleansed the scope without examination or
testing, thereby destroying plaintiff's ability to establish the Majca
requirement of actual exposure to pathogens. However, I read nothing in
Majca that bars the cause of action recognized in Boyd. The
court in Boyd held that a plaintiff in a negligence action involving
the loss or destruction of evidence must show that the loss or destruction of
evidence caused the plaintiff to be unable to prove an underlying lawsuit, not
that he would have prevailed. Boyd, 166 Ill. 2d at 196. If Majca requires that plaintiff prove
actual exposure, then surely Boyd requires that defendant preserve the
evidence in the instant case. Long ago, Justice Cardozo stated as a fundamental
principal embodied in our public policy that "no one shall be permitted to take
advantage of his own wrong ." Messersmith v. American Fidelity Co., 232
N.Y. 161, 162, 133 N.E. 432, 433 (1921). Despite defendant's protestations to
the contrary, I do not believe the steps it took in this unfortunate case were
adequate as a matter of law. I believe plaintiff has stated a cause of action
for negligent spoliation of evidence and that he is entitled to have the
questions of liability and damages submitted to a trier of
fact.
ROBERT D. NATALE,
Appeal from the Circuit Court of Cook
County.
"Plaintiff was never told by anyone that the scope used during the
procedure performed by Dr. Gerard Sublette on Robert Natale actually carried
any infectious organism, including any specific or particular virus such as
HIV or hepatitis."
"A requirement of actual exposure is an objective standard by
which to evaluate claims for fear of contracting AIDS. An objective standard
helps to ensure stability, consistency, and predictability in the disposition
of these claims." Majca, 183 Ill. 2d at 421, 701 N.E.2d at 1090.