author: JUSTICE HARRISON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. JOHNNIE D. HINKLE, Defendant-Appellee.
    Fifth District
    No. 5—91—0288
    Opinion filed September 28, 1992.

      Robert Haida, State’s Attorney, of Belleville (Norbert J. Goetten, Stephen E. Norris, and Scott A. Manuel, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Daniel M. Kirwan and Edwin J. Anderson, both of State Appellate Defender’s Office, of Mt. Vernon, for appellee.
   JUSTICE HARRISON

delivered the opinion of the court:

The State appeals the circuit court’s order granting defendant Johnnie D. Hinkle’s motion to dismiss the charge of aggravated criminal sexual assault for violating his statutory right to a speedy trial (Ill. Rev. Stat. 1989, eh. 38, par. 103 — 5). On appeal, the State argues that the circuit court erred in determining that the delay occasioned by a motion to suppress filed by defendant was not chargeable against him as to the aggravated criminal sexual assault charge.

On October 24, 1990, defendant was arrested and a lineup conducted. The following day, October 25, 1990, defendant was charged by information with unlawful use of weapons by a felon (UUW). (Ill. Rev. Stat. 1989, ch. 38, par. 24 — 1.1(a).) On November 9, 1990, a preliminary hearing was held at which Detective Oliver Fallon of the Centreville police department testified that on October 17, 1990, defendant went to the house of Mr. Lum, produced a weapon and demanded money. Mr. Lum and an individual with him (identified elsewhere in the record as Mr. Pearson) fled the scene. Defendant then entered the house, where he found a 14-year-old girl, who was the niece of Mr. Lum and the stepdaughter of Mr. Pearson. Defendant pointed the weapon at the girl and forced her outside into the weeds, where he sexually assaulted her. Fallon testified that at the lineup held on October 24, defendant was identified by both the 14-year-old girl and her stepfather. At the preliminary hearing, the court asked Detective Fallon if there was “any prosecution of the sexual assault” and was told by Fallon that it was “pending.”

On December 7, 1990, Detective Fallon testified before the grand jury in substantial accord with his preliminary hearing testimony. Detective Fallon indicated that the State’s Attorney had not decided whether to charge defendant with the sexual assault, noting that it was still being reviewed. The grand jury returned an indictment against defendant for UUW on December 14,1990.

Defendant filed a motion to suppress identification on January 18, 1991, alleging that the October 24, 1990, lineup was improperly conducted and deprived him of due process. The court set a hearing on this motion for March 12, 1991. On March 11, 1991, the State filed a two-count information charging defendant with aggravated criminal sexual assault (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 14(a)(l)) and UUW.

On March 12, 1991, the court, over defendant’s objection, granted the State’s motion to continue the hearing on defendant’s motion to suppress to March 20, 1991. Defendant’s motion to suppress identification was denied after a hearing on March 20, 1991. On March 22, 1991, defendant filed his motion to dismiss the aggravated criminal sexual assault charge on speedy trial grounds, and a hearing on this motion was held March 25,1991.

At the hearing, the State argued that defendant’s motion to suppress identification was a substantive motion which determined an issue common to both charges. The State therefore contended that “because the facts are so tied together, Unlawful Use of a Weapon by a man who’s a convicted felon and *** sexual assault by the same man on the same victim,” the delay occasioned by this motion should be credited against defendant on both counts, regardless of when the charges were filed. The circuit court noted that the State had conceded that it had knowledge of the facts underlying both charges “from day one” and, relying on People v. Williams (1981), 94 Ill. App. 3d 241, 418 N.E.2d 840, ruled that the delay occasioned by defendant’s motion to suppress was not attributable to defendant on the charge of aggravated criminal sexual assault. The court therefore granted defendant’s motion to dismiss the sexual assault charge for failure to comply with the “120 day rule.” The court then conducted a bench trial on the remaining UUW count and found defendant not guilty.

On appeal, the State does not dispute that defendant was in custody in excess of 120 days before being brought to trial on the aggravated criminal sexual assault charge. The State argues that defendant caused delay by filing a pretrial motion and that this delay should suspend the running of the speedy trial statute on both counts. Alternatively, the State argues that the circuit court’s reliance on Williams was misplaced and, therefore, “it cannot be said that new and additional charges must, necessarily, be subject to the same speedy trial term as the original charge.” We find neither of these arguments to be convincing.

In determining whether a defendant has been denied a speedy trial, section 103 — 5(a) states that a defendant who is in custody shall be tried within 120 days from the date he is taken into custody. (Ill. Rev. Stat. 1989, ch. 38, par. 103 — 5(a).) Subsection (f) of section 103— 5 further provides that the 120-day period will be suspended for the time of a delay occasioned by the defendant. (Ill. Rev. Stat. 1989, ch. 38, par. 103 — 5(f).) A delay attributable to the defendant which suspends his right to a speedy trial can result from the defendant filing a motion, from a delay to which the defendant’s affirmative acts contributed, or from a continuance to which the defendant has expressly agreed. (People v. Howard (1990), 205 Ill. App. 3d 702, 708, 563 N.E.2d 1219, 1223.) Whether a delay has been occasioned by a defendant is determined by the circuit court, and absent an abuse of discretion, the circuit court’s decision will be upheld on appeal. 205 Ill. App. 3d at 708-09, 563 N.E.2d at 1224.

In the instant case, we find that the circuit court did not abuse its discretion in refusing to attribute the delay caused by defendant’s motion to suppress filed January 18, 1991, to the charge of aggravated criminal sexual assault filed March 11, 1991. Where, as here, a new and additional charge was filed against defendant, and it is clear that the additional charge arose out of the same facts and circumstances as the original charge and was known to the State at the time of the filing of the original charge, the time in which the trial must begin on the additional charge is subject to the same statutory limitations as the original charge. (Howard, 205 Ill. App. 3d at 710, 563 N.E.2d at 1224; Williams, 94 Ill. App. 3d at 248-49, 418 N.E.2d at 846.) Additionally, the continuances obtained in connection with the trial of the original charge cannot be attributed to the defendant with respect to the new and additional charge because the new charge was not before the court when those continuances were obtained. (Williams, 94 Ill. App. 3d at 249, 418 N.E.2d at 846; Howard, 205 Ill. App. 3d at 710, 563 N.E.2d at 1224; see also People v. Hawkins (1991), 212 Ill. App. 3d 973, 981, 571 N.E.2d 1049, 1054 (where a new charge is subsequently filed, no delay can be attributed to defendant on a new charge until after that charge is filed).) Thus, under the case law, the delay occasioned by defendant’s motion to suppress, which was filed in connection with the original weapons charge, was not attributable to the new and additional sexual assault charge.

The State argues alternatively that the holding in Williams does not apply to the case at bar because Williams was premised on the operation of the compulsory joinder statute and here the charges filed were not subject to compulsory joinder. We initially note that where this argument was not advanced by the State at the hearing on defendant’s motion to dismiss, this court could properly disregard the contention. (People v. Smith (1976), 42 Ill. App. 3d 731, 733, 356 N.E.2d 656, 659.) It is well established that an issue not raised in the trial court is considered waived and that this principle applies equally to the State and the defendant in a criminal case. (People v. Adams (1989), 131 Ill. 2d 387, 395, 546 N.E.2d 561, 564-65; People v. O’Neal (1984), 104 Ill. 2d 399, 407, 472 N.E.2d 441, 444.) However, because we believe this matter requires clarification, we elect to address it despite the waiver. See People v. Krison (1978), 63 Ill. App. 3d 531, 536, 380 N.E.2d 449, 453.

Section 3 — 3(b) of the Criminal Code of 1961 (Ill. Rev. Stat. 1989, ch. 38, par. 3 — 3(b)) states, in pertinent part, as follows: “If the several offenses are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution *** if they are based on the same act.” In People v. Crowe (1990), 195 Ill. App. 3d 212, 552 N.E.2d 5, the court reviewed Williams and its forerunners and concluded that “it appears the basis of the holdings in these cases is the compulsory-joinder provisions of section 3 — 3(b).” (Crowe, 195 Ill. App. 3d at 215-16, 552 N.E.2d at 8.) However, Williams makes no citation to the compulsory joinder statute and, indeed, is not a case where compulsory joinder was involved.

In Williams, the defendants were alleged to have committed, in sequence, an unlawful restraint, a kidnapping, an aggravated battery, a sexual assault, and then further aggravated batteries and sexual assaults against the victim. Although the defendants in Williams were tried for the various offenses in a single prosecution, the State was not required to do so because the offenses did not arise from the same act. See People v. Thompson (1967), 87 Ill. App. 2d 426, 230 N.E.2d 889 (under section 3 — 3(b) the State was not required to prosecute charges of attempted rape and battery together, where first two batteries suffered by complaining witness and later attempt to commit rape did not arise from same act).

Therefore, the State’s argument that Williams is inapplicable to cases in which the charges are not subject to compulsory joinder must fail, where Williams itself does not meet this requirement. While the origins of the law stated in Williams may stem from the provisions of section 3 — 3(b) (see People v. King (1972), 8 Ill. App. 3d 2, 288 N.E.2d 672), Williams focuses on knowledge by the State that new and additional charges arose from “the same facts as did the original charges” (Williams, 94 Ill. App. 3d at 248, 418 N.E.2d at 846), rather than on whether “the several offenses *** are based on the same act,” for compulsory joinder purposes. Ill. Rev. Stat. 1989, ch. 38, par. 3 — 3(b).

However, even if we were to adopt the view expressed in Crowe and limit application of Williams to cases where the compulsory joinder statute applied, given the record, we cannot say that the crimes charged herein were not subject to compulsory joinder. Although the State now argues that the basis for the original UUW charge was the attempted robbery of Mr. Lum and Mr. Pearson, nothing of record supports this contention. At the hearing on defendant’s motion to dismiss, the State argued that the UUW and sexual assault charges were “tied together” because they were committed “by the same man on the same victim.” Additionally, Detective Fallon testified that the 14-year-old girl alleged that the weapon was used during the sexual assault, and the information charged defendant with aggravated criminal sexual assault in that “defendant, while displaying a dangerous weapon, a gun, knowingly committed a criminal sexual assault.” (See Ill. Rev. Stat. 1989, ch. 38, par. 12 — 14(a)(l).) Therefore, where it appears that the UUW charge was based on the sexual assault, the- offenses were subject to compulsory joinder under section 3 — 3(b). See King, 8 Ill. App. 3d at 5, 288 N.E.2d at 674.

Thus, under any interpretation of Williams, defendant was denied his speedy trial rights where the State had knowledge of the facts underlying both the charges at the time the original UUW charge was filed in October 1990 but did not file the aggravated criminal sexual assault charge until March 1991. The judgment of the circuit court dismissing the aggravated criminal sexual assault charge is therefore affirmed.

Affirmed.

GOLDENHERSH, P.J., and WELCH, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    THOMAS LEWIS, Plaintiff-Appellee, v. ILLINOIS CENTRAL RAILROAD COMPANY, Defendant and Third-Party Plaintiff-Appellant (Matsushita Electric Corporation, d/b/a Panasonic, et al., Third-Party Defendants-Appellees).
    Fifth District
    No. 5—91—0176
    Opinion filed September 17, 1992.
    Rehearing denied October 23, 1992.

      Paul M. Brown, Bruce D. Ryder, Kathy A. Wisniewski, and Robert T. Mills, all of Coburn, Croft & Putzell, of St. Louis, Missouri, for appellant.
    Michael J. Reagan, of Kassly, Bone, Becker, Dix, Reagan & Young, P.C., of Belleville (John Long, of counsel), for appellee Thomas Lewis.
    John L. McMullin, of Brown & James, P.C., of Belleville and of St. Louis, Missouri, for appellee Transportation Labor, Inc.

      William S. Daniel, of Daniel Law Offices, P.C., of Collinsville, for appellee Matsushita Electric Corporation.
    Shaun McFarland Baldwin, of Tressler, Soderstrom, Maloney & Priess, of Chicago, for amicus curiae Illinois Association of Defense Trial Counsel.
    Kevin J. Conway, of Cooney & Conway, of Chicago, for amicus curiae Illinois Trial Lawyers Association.
   JUSTICE HARRISON

delivered the opinion of the court:

Thomas Lewis brought an action in the circuit court of St. Clair County based on the Federal Employers’ Liability Act (45 U.S.C.A. §51 et seq. (West 1986)) and common law premises liability to recover damages for personal injuries he sustained while working for the Illinois Central Railroad (the Railroad). The Railroad, in turn, filed third-party actions for contribution against Matsushita Electric Corporation, d/b/a Panasonic (Panasonic), and TLI, Inc. A jury returned a general verdict in favor of Lewis and assessed a total of $3,935,700 in damages against the Railroad. The Railroad recovered nothing on its third-party claims. Judgment was entered on the jury’s verdict. The Railroad’s post-trial motion was denied, and it now appeals.

The basic questions presented for our review are: (1) whether the circuit court abused its discretion when it barred certain medical evidence under authority of Petrillo v. Syntex Laboratories, Inc. (1986), 148 Ill. App. 3d 581, 499 N.E.2d 952, cert, denied (1987), 483 U.S. 1007, 97 L. Ed. 2d 738, 107 S. Ct. 3232, based on the Railroad’s ex parte communications with Lewis’ medical providers, and (2) whether the court committed reversible error when it held that settlement agreements between Lewis and Panasonic and TLI had been made in “good faith” within the meaning of the Contribution Act (Ill. Rev. Stat. 1987, ch. 70, par. 301 et seq.) and could not be disclosed to the jury.

Although the record in this case is voluminous, the trial itself was reasonably straightforward and the facts are not complex. At all times relevant to this dispute, Lewis worked at the Railroad’s Venice, Illinois, train yard as a “piggybacked” His responsibilities included helping to remove truck trailers containing freight from the Railroad’s flatcars. On occasion-he would also drive those trailers from the train yard to their ultimate destinations. One such occasion was February 26, 1985, when Lewis was directed by the Railroad to deliver one of its trailers containing television sets to Panasonic’s warehouse in St. Louis, Missouri. The trailer was sealed shut with an Illinois Central seal, and there was no evidence that anyone other than the Railroad had had access to its interior.

Upon reaching Panasonic’s warehouse, Lewis broke the seal and began unloading the televisions himself, which his orders required him to do. Panasonic, for its part, provided only a forklift carrying a pallet and a forklift operator. The forklift was driven into the rear of the trailer, and Lewis stacked the televisions on the pallet there. In the course of this procedure, Lewis slipped on a patch of heavy oil and fell. In its third-party action, the Railroad argued that Panasonic should be held liable for this accident on the theory that the oil patch was deposited by the forklift. The evidence established, however, that the forklift was electric and used no such heavy oil. The Railroad also theorized that Lewis himself may have tracked the oil into the trailer from the train yard on his boots, but this theory was challenged by testimony, which the jury apparently found more persuasive, showing that the oil patch was located under a stack of television cartons and must therefore have already been present when Lewis first entered the trailer.

The fall injured Lewis’ back, but not significantly. After resting for a short time, he was able to finish unloading the trailer and went on his way. Although he subsequently sought medical attention, he missed no work and experienced no real impairment as a result of this accident. What happened the following year was quite a different matter. On February 25, 1986, the Railroad assigned Lewis to work as a “tie-down” man. His job this time was to loosen and lower the stanchions by which truck trailers were secured to the flatcars on which they were transported. Lewis went from flatcar to flatcar performing this operation until he reached a stanchion which was stuck fast. Substantial evidence was presented which indicated that there were only two possible reasons why the stanchion would not move. Either it had been improperly overtightened by Railroad personnel when the trailer was loaded onto the flatcar at the point of embarkation or else it had been improperly maintained.

The Railroad denied that its maintenance was deficient, but the records which would have shown whether the stanchion had been properly cleaned and lubricated no longer existed. They were deliberately destroyed by the Railroad shortly before the case was set for trial. All the Railroad had left was the testimony of a supervisor who claimed that all stanchions were subject to a systematic lubrication and cleaning program. That supervisor conceded, however, that he had no personal knowledge of whether the stanchions were, in fact, properly and timely lubricated, and those workers who had actual experience with the flatcars stated unequivocally that the lubrication and maintenance did not take place as scheduled. According to them, lubrication and cleaning at the train yard were routinely compromised in the interest of keeping cars in service so that the Railroad could meet its shipping obligations.

The Railroad had men whose responsibility it was to inspect the cars in the yard, but the most those inspectors did was to check the cars visually, and this was not the kind of problem one could detect merely by looking. A manual inspection was necessary. Had the inspectors made such an inspection of the flatcar in question, the defective condition of the stanchion would have been obvious to them. No such inspection was made. Indeed, the evidence suggests that no such inspections were ever made. This was so even though improperly maintained stanchions were commonplace. According to one Railroad worker, if all the cars needing service were taken for maintenance, the Railroad would not have had enough rolling stock left to make up its trains.

To help workers loosen stuck stanchions, the Railroad sometimes made electric wrenches available to them, but when these could be found at all they were often inoperable. In any case, they were normally not powerful enough to do the job. Testimony was also presented that some stanchions could be loosened by having a crane lift up and shake the trailer which the stanchion was holding in place. That procedure, however, was ineffective for the particular type of stanchion involved here. Yet a third possibility was to call in maintenance workers known as “car men” to cut the stanchion with welding equipment. This worked on all types of stanchions but was to be used only as a last resort, as it meant that the flatcar had to be removed from service for repair before it could be used again.

The preferred and customary remedy employed at the Venice train yard for loosening stuck stanchions was simply for the worker to brace himself against the car and push on the stanchion with his foot. That is the method Lewis was taught, it was the method his coworkers routinely followed, and it was the method Lewis employed here. The procedure worked, as it usually did, but when the stanchion finally gave way under the force of his pushing, Lewis fell hard on his back. Somehow Lewis was able to get up and complete his work that day, but he was never fit to work again. The accident proved so serious that Lewis had to have two discs removed from his spine and replaced with steel plates. The neurosurgeon who operated on Lewis’ back opined that Lewis was now “physically disabled beyond light or sedentary work.” He attributed this disability primarily to the stanchion incident, as opposed to the fall at the Panasonic warehouse.

When Lewis’ pain persisted after the surgery, he consulted a neurologist named Schreiber, who provided an even more bleak assessment. Schreiber testified that Lewis has progressive and permanent nerve damage which causes loss of sensation and muscle weakness. His condition is worsening, and he “absolutely cannot engage in gainful employment.” According to Schreiber, the best-case scenario is that Lewis will never work again. The worst-case scenario is that he may ultimately become paraplegic. Schreiber attributed part of Lewis’ condition to the fall he suffered at the Panasonic warehouse, but, as with the neurosurgeon, he believed that it was chiefly due to the stanchion incident.

At trial, the Railroad took little issue with the damages Lewis claimed. Rather, one of its primary defenses was that it should not be held liable for those damages because Lewis was not its “employee” within the meaning of the Federal Employers’ Liability Act (FELA) (45 U.S.C.A. §51 et seq. (West 1986)). According to the Railroad, Lewis was actually employed by third-party defendant TLI. As a preliminary matter, we note that with respect to the stanchion incident, Lewis sought recovery from the Railroad not only under the FELA but also on grounds of common law premises liability. Given that the jury returned a general verdict, one cannot be sure of the particular theory it ultimately relied upon. If the theory was premises liability, whether Lewis was a statutory employee was of no consequence.

In any case, there was ample support in the record for the conclusion that Lewis did, in fact, qualify as an employee of the Railroad for FELA purposes. Although Lewis received his paychecks from TLI and was denominated as an employee of TLI under a contract between that company and the Railroad, those factors are not conclusive. According to the United States Supreme Court, a plaintiff may establish “employment” with a railroad for FELA purposes even while nominally employed by another where he is (1) a borrowed servant of the railroad, (2) a servant acting for two masters simultaneously, or (3) a subservant of a company that was in turn a servant of the railroad. (Kelley v. Southern Pacific Co. (1974), 419 U.S. 318, 324, 42 L. Ed. 2d 498, 505-06, 95 S. Ct. 472, 476.) Under the FELA, the overriding consideration in determining employee status is simply whether the railroad had control or the right to control the worker in the performance of his job. (Vanskike v. ACF Industries, Inc. (8th Cir. 1981), 665 F.2d 188, 198, cert. denied (1982), 455 U.S. 1000, 71 L. Ed. 2d 867, 102 S. Ct. 1632.) Such control was unquestionably present here.

The Railroad originally hired Lewis. It provided all tools and was responsible for all equipment he used. If Lewis wanted to take vacation or sick days, he had to check with the Railroad. If he wanted to work overtime, it was the Railroad he asked. The Railroad gave Lewis his daily work assignments and supplied the logs he was required to keep when driving trucks. While driving those trucks, Lewis carried a card identifying the Railroad as the carrier. If Lewis were ticketed for violating trucking regulations, the Railroad would pay the fine. Had Lewis ever engaged in any work-related misconduct, it was the Railroad which would have initiated disciplinary measures. Although TLI was the signatory to the Teamsters contract which covered Lewis, that contract was negotiated at the Railroad’s behest under the terms it wanted.

As a practical matter, TLI’s function was limited to providing bookkeeping and payroll services for the Railroad. It sent out paychecks (based on time computed by the Railroad); paid the payroll taxes; and forwarded notices to the workers when the Railroad so requested. None of these payroll and related expenses was borne by TLI. They were reimbursed in full by the Railroad. On the rare occasions when a member of TLI management visited the Railroad’s train yard, he never gave orders to any of the workers there, nor did he provide advice or help with respect to use of the equipment. In fact, a Railroad supervisor testified that had TLI representatives come on to the premises and attempted to fix defective or unsafe equipment, the Railroad would have ordered them to leave on threat of arrest.

With respect to the issue of damages, Lewis sought only $350 for the medical expenses he incurred after his fall at the Panasonic warehouse. For the stanchion incident, he asked the jury to award him $3,935,350 for disability and disfigurement, pain and suffering, medical care, and lost earnings. Although this sum was substantial, it was well within the range of damages established by the evidence. As we indicated at the outset of this disposition, the jury ultimately returned a verdict in favor of Lewis, awarding him the precise amounts he requested. The jury also ruled against the Railroad on its third-party claims against Panasonic and TLI. The circuit court entered judgment on those verdicts and denied the Railroad’s post-trial motion. This appeal followed.

The primary issue presented for our consideration has nothing to do with the sufficiency of the evidence or the amount of damages. The Railroad’s chief complaint is that the circuit court abused its discretion when it imposed sanctions on it for violating the rule established in Petrillo v. Syntex Laboratories, Inc. (1986), 148 Ill. App. 3d 581, 499 N.E.2d 952, cert. denied (1987), 483 U.S. 1007, 97 L. Ed. 2d 738, 107 S. Ct. 3232, which provides that defense counsel may communicate with a plaintiff’s health care providers only through formal discovery procedures as outlined in Supreme Court Rule 201 (134 Ill. 2d R. 201).

The offending conduct here began in July of 1990, when counsel for the Railroad sent letters to the offices of eight different doctors and hospitals from which Lewis had received medical treatment in the State of Illinois. Each of those letters contained a subpoena duces tecum issued by the clerk of the circuit court of St. Clair County directing the particular entity’s custodian of records to produce Lewis’ medical records at a deposition. The letters indicated, however, that if the records were mailed directly to the Railroad’s lawyer in advance, the depositions would be cancelled. The Railroad’s lawyer made this solicitation even though Lewis had not given the Railroad any medical release authorizations or otherwise consented to direct contact between the Railroad and his health care providers.

Copies of the subpoenas and the corresponding notices of deposition were sent to Lewis’ lawyer, but the Railroad’s lawyer kept secret the existence of the accompanying letters soliciting copies of the medical records. On August 3, 1990, Lewis’ lawyer sent a letter to counsel for the Railroad expressly admonishing that he would not agree to allowing the health care providers to mail the medical records to the Railroad in lieu of depositions. Despite this, counsel for the Railroad sent another round of letters and subpoenas like the first, this time directed to seven doctors and hospitals where Lewis had received care in the State of Missouri. Again, counsel for the Railroad proceeded without any authorizations executed by Lewis, and again counsel for the Railroad did not disclose to Lewis’ lawyer his direct solicitation of the records.

Predictably, all of the health care providers contacted by counsel for the Railroad opted to avoid the depositions and to mail him copies of Lewis’ medical records. Those records encompassed all of Lewis’ care. They were not limited to the injuries which gave rise to this litigation. By a letter faxed on August 20, 1990, counsel for the Railroad advised Lewis’ attorney that the seven Illinois medical providers had mailed Lewis’ records directly to him and that their depositions would therefore be cancelled. Lewis’ lawyer immediately protested that counsel for the Railroad had ignored his previous admonition, demanded that all of the records be returned to the respective medical providers, and advised that the depositions should be reset so that the records could be dealt with there. Lewis’ lawyer warned that he would seek sanctions from the court if counsel for the Railroad did not comply, but this was to no avail. The records were never returned. Lewis’ lawyer sent another letter to the Railroad’s attorney at the end of September demanding again that any discovery of medical records be accomplished through depositions, but again his wishes were not heeded. To the contrary, counsel for the Railroad proceeded yet a third time to try to obtain medical records directly from the provider outside of formal discovery channels.

After this last incident, Lewis moved for sanctions pursuant to Supreme Court Rule 219(c) (134 Ill. 2d R. 219(c)). Following a hearing, the circuit court granted that motion and issued an order which held that the Railroad

“is debarred from using any and all medical information that was received after August 3, 1990 from any provider of medical care, in response to [the Railroad’s] Subpoena Duces Tecum for deposition and ex parte letter. This includes information that was generated by some other source but which was found in the provider[’]s file. (E[.]g., letter from a referring doctor, x-ray reports, etc.)”

The order also barred the Railroad from “examining or cross-examining any such medical provider” or “from having any witness rely upon or refer to any such medical information.”

After this order was entered, the case was transferred to a different judge for trial. At the request of counsel for the Railroad, the new judge, acting in the name of his predecessor, issued a clarification of this order, which specified that the Railroad would be prevented from

“examining or cross-examining any medical provider whose office was contacted subsequent to August 3, 1990, even if no new medical records were obtained from such providers or the medical records supplied by such providers were only duplicates of records obtained via subpoena in 1988.
Additionally, [the Railroad] is debarred from using all records obtained after August 3, 1990, via subpoena without deposition, even if such records were only duplicates of records obtained in 1988.” (Emphasis added.)

The order then went on to list 17 specific health care providers whom the Railroad would be prohibited from examining or cross-examining at trial.

The Railroad argues that these sanctions were improper because its conduct did not fall within the prohibitions established in Petrillo v. Syntex Laboratories, Inc. (1986), 148 Ill. App. 3d 581, 499 N.E.2d 952, cert. denied (1987), 483 U.S. 1007, 97 L. Ed. 2d 738, 107 S. Ct. 3232. We disagree. As we have indicated, Petrillo requires that any contact between defense counsel and a plaintiff’s health care providers be carried out only under the rules of formal discovery. No rule of discovery authorizes the surreptitious ex parte communications made by defense counsel here.

It is no defense that the Railroad’s ex parte communications were made by letter and not in person (see Nastasi v. United Mine Workers of American Union Hospital (1991), 209 Ill. App. 3d 830, 567 N.E.2d 1358), nor can the Railroad justify its actions on the grounds that all it sought were written records. After all, the physician-patient privilege, which is what the Petrillo rule is designed to safeguard (see Ritter v. Rush-Presbyterian-St. Luke’s Medical Center (1988), 177 Ill. App. 3d 313, 316, 532 N.E.2d 327, 329), is not limited to oral testimony by a physician. It also extends to records kept by the physician or by a hospital concerning a patient’s treatment. Annot., Physician-Patient Privilege As Extending to Patient’s Medical or Hospital Records, 10 ALR 4th 552, 557 (1981); see Parkson v. Central Du Page Hospital (1982), 105 Ill. App. 3d 850, 435 N.E.2d 140.

The Railroad attempts to evade these principles by arguing that the physician-patient privilege is not really involved here at all because its secret ex parte letters were nominally addressed only to the “records custodians” of the doctors and hospitals involved in Lewis’ treatment. This distinction is wholly artificial and completely meaningless. A request to a medical provider’s custodian of records is and must be equivalent to a request to the medical provider himself. As we recognized in Roberson v. Liu (1990), 198 Ill. App. 3d 332, 338, 555 N.E.2d 999, 1003, doctors cannot perform their jobs alone. They need help in delivering medical services to others. If these support personnel are not cloaked with the same privilege as the physicians themselves (and the physicians’ records), the privilege could be readily breached. Accordingly, our court has expressly held that the Petrillo doctrine is not limited to physicians. It also “may be properly applied to a health professional other than a physician who, in a professional capacity, has assisted a physician in the treatment of a plaintiff” (Roberson v. Liu, 198 Ill. App. 3d at 338, 555 N.E.2d at 1003) and to those individuals who work in offices providing health care and who, in the course of their employment, work directly with a patient’s files and “possess[ ] and [have] access to the confidences of the patient and his treating physician,” regardless of whether those individuals qualify as health care providers themselves (Wakeford v. Rodehouse Restaurants of Missouri, Inc. (1991), 223 Ill. App. 3d 31, 46, 584 N.E.2d 963, 973).

Amicus curiae, the Illinois Association of Defense Trial Counsel, urges us to reject the Petrillo doctrine. This we decline to do. That doctrine is sound in policy and straightforward in application. It incorporates no hidden tricks or traps for the unwary. Unless express prior consent has been obtained from the plaintiff, defense counsel simply should not make ex parte communications with the plaintiff’s medical providers. Any discussions between defense counsel and those medical providers must take place pursuant to the rules of formal discovery. Why defense counsel persist in violating this basic proposition we do not know. In any case, the Railroad’s lawyer did commit such a violation here. Indeed, as our review of the record indicated, he actually committed at least 16 such violations and he did so despite protests from Lewis’ counsel.

Contrary to the Railroad’s argument, none of these violations fell within the de minimus exception we recognized in Mahan v. Louisville & Nashville R.R. Co. (1990), 203 Ill. App. 3d 748, 561 N.E.2d 127. The matters at issue here were in no sense incidental or preliminary. They went directly to the heart of the physician-patient privilege. For the purposes of Petrillo, requesting Lewis’ medical records as the Railroad’s lawyer did here was no different than if that lawyer had called up the treating doctors and said, “Tell me everything you know about Lewis’ medical history.”

Barring the Railroad from examining or cross-examining witnesses who were improperly contacted or from using records that were obtained through those improper contacts was an appropriate sanction for the Railroad’s Petrillo violations (see, e.g., Pourchot v. Commonwealth Edison Co. (1992), 224 Ill. App. 3d 634, 637, 587 N.E.2d 589, 591-92; Nastasi v. United Mine Workers of American Union Hospital (1991), 209 Ill. App. 3d 830, 840, 567 N.E.2d 1358, 1366) and did not offend due process under any standard of which we are aware. There was nothing unfair or arbitrary about the court’s action. To the contrary, the court’s efforts to be just in fashioning an appropriate remedy are reflected in the fact that the court restricted the sanctions to the records received and medical providers contacted after August 3, 1990, the date when Lewis’ counsel objected to the procedure in writing. This limitation was not necessary, for while a plaintiff’s consent to ex parte contacts will preclude Petrillo sanctions, nothing in the Petrillo doctrine obligates a plaintiff to affirmatively assert his rights under that doctrine at the time of the violation in order to preserve his entitlement to sanctions. After all, since the improper contacts are ex parte, how can he be expected to know at the time that anything objectionable has occurred?

The Railroad protests vigorously that the sanctions went too far because in some cases the improper contacts yielded material that was merely duplicative of documents which had previously been obtained properly or without objection. In making this argument, what the Railroad is really saying is that it should not be punished where no actual prejudice resulted. The law is now settled, however, that a Petrillo violation occurs regardless of what information is actually revealed. Whether the contact was indeed harmless is irrelevant. Pourchot v. Commonwealth Edison Co. (1992), 224 Ill. App. 3d 634, 637, 587 N.E.2d 589, 591.

The next argument the Railroad makes concerns settlements entered into between Lewis and Panasonic and Lewis and TLI at the conclusion of the evidence, just before closing arguments to the jury. The Railroad contends that the circuit court erred in finding that these settlements were made in “good faith” within the meaning of the Contribution Act (Ill. Rev. Stat. 1987, ch. 70, par. 301 et seq.) because the court made that finding without first conducting a proper hearing. Although a “good faith” hearing was, in fact, held, the Railroad claims that the hearing was inadequate because the court did not permit it to subject the lawyers for Lewis, Panasonic and TLI to questioning under oath concerning their settlement negotiations. This argument is not well taken. Forcing opposing counsel to testify as witnesses during trial is an extreme measure which would have been wholly unwarranted here. The circuit court was thoroughly familiar with this litigation, and counsel for Lewis, Panasonic and TLI described to the court, in detail and on the record, how, when, and under what terms the settlements were achieved.

The court had no reason not to take these attorneys at their word. Under the rules of our supreme court, a lawyer is prohibited from making “a statement of material fact or law to a tribunal which the lawyer knows or reasonably should know is false.” (134 Ill. 2d R. 3.3(a)(l).) Given this prohibition, and the attendant sanctions which counsel would face for its violation, counsel’s factual statements to the court must be considered presumptively true. This presumption is, of course, rebuttable, but there is nothing in the record before us which suggests that the presumption should give way here. To the contrary, the one witness who was questioned under oath regarding the settlement, an employee of TLI, fully corroborated the lawyers’ representations to the court.

Despite this testimony, the Railroad insists now, as it did at trial, that the lawyers for Lewis, Panasonic and TLI were lying. It hypothesizes that Lewis, Panasonic, and TLI actually agreed to settle early on in the case but kept their agreement quiet in order to preserve the illusion that they were adversaries when they were not. This deception was important, according to the Railroad, because it made the witnesses for TLI and Panasonic who gave testimony favorable to Lewis appear more credible than they would have otherwise.

A fundamental problem with the Railroad’s hypothesis is that TLI and Panasonic and Lewis never, in fact, took an adversarial posture with respect to one another at trial, nor did they ever give the jury the impression they were adversaries. From opening to closing arguments, TLI and Panasonic took a constant and compatible position, which was to concede the seriousness of Lewis’ injuries, but to place all blame for those injuries on the Railroad. That the Railroad alone was solely responsible for Lewis’ injuries was, of course, exactly the same position taken throughout the case by Lewis himself, who never sought recovery from either Panasonic or TLI. The only reason Panasonic and TLI were in the case at all was because the Railroad sued them. We note, moreover, that when the possibility of recovering on its workmen’s compensation lien was factored in with its liability exposure, TLI was left in a situation where a verdict against the Railroad was clearly more beneficial to it financially than a verdict against Lewis would have been. In the end, both TLI and Panasonic argued as they did to minimize their perceived monetary exposure, and that is exactly what they told the trial court. There was nothing at all subtle, sinister, or unexpected about their actions.

What type of evidentiary hearing should be conducted to produce the facts necessary to determine whether a settlement was made in “good faith” is committed to the discretion of the trial court. (Roberson v. Belleville Anesthesia Associates, Ltd. (1991), 213 Ill. App. 3d 47, 51-52, 571 N.E.2d 1131, 1134.) Under the foregoing circumstances, it was scarcely an abuse of discretion for the circuit court here to refuse the Railroad’s request to subject opposing counsel to the extraordinary measure of being examined under oath. That request was utterly groundless. It was also an affront to the dignity of the profession. While lawyers’ currency may be diminishing in the public’s mind, honesty and integrity remain precious to most practitioners. We admonish counsel for the Railroad that if he levies charges of dishonesty against his colleagues again, he should come prepared with more than unsubstantiated suspicion.

The Railroad next asserts that it is entitled to a new trial because the circuit court prevented it from presenting to the jury evidence of the settlement agreements between Lewis and Panasonic and TLI. This was reversible error, according to the Railroad, because the agreements would have helped the jury to “understand the true interests and alignment of the parties.” As we have just discussed, however, there was nothing about the parties’ alignment which was not already apparent from the first day of trial. Moreover, even where settlement evidence might be admissible to prove a point like witness bias, the decision to admit or exclude that evidence rests with the discretion of the trial court. (McGrath v. Chicago & North Western Transportation Co. (1989), 190 Ill. App. 3d 276, 281-82, 546 N.E.2d 670, 673.) No abuse of discretion was established here.

The Railroad advances a litany of additional errors allegedly made by the circuit court concerning the admission of evidence, the giving of instructions to the jury, and the arguments of counsel. We have considered these matters carefully and have concluded that they do not warrant further discussion. To the extent that errors may have been made which were not waived by the Railroad’s failure to interpose timely objections, we do not believe that they were sufficient, singly or considered as a whole, to warrant setting aside the jury’s verdict. As we have previously observed, that verdict was fully supported by the evidence. No serious claim can be made that it was the product of passion or prejudice. Accordingly, the judgment of the circuit court of St. Clair County is affirmed.

Affirmed.

WELCH and H. LEWIS, JJ., concur.


author: JUSTICE DOYLE

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. VICTOR RUSSELL, Defendant-Appellant.
    Second District
    No. 2—90—0752
    Opinion filed September 23, 1992.
    G. Joseph Weller and Steven E. Wiltgen, both of State Appellate Defender’s Office, of Elgin, for appellant.

      Gary V. Johnson, State’s Attorney, of Geneva (William L. Browers and Mary Beth Burns, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE DOYLE

delivered the opinion of the court:

Defendant, Victor Russell, was indicted in the circuit court of Kane County on four counts of aggravated criminal sexual assault (Ill. Rev. Stat. 1989, ch. 38, pars. 12 — 14(a)(2), (a)(3)) and one count of home invasion (Ill. Rev. Stat. 1989, ch. 38, par. 12 — ll(a)(2)). Following a jury trial, defendant was found guilty of two counts of aggravated criminal sexual assault and not guilty of home invasion, and the court entered judgment thereon. The trial court subsequently vacated the judgment on one count of aggravated criminal sexual assault and sentenced defendant to a 10-year term of imprisonment.

Defendant raises the following issue on appeal: whether the trial court erred in refusing to instruct the jury on the offense of aggravated battery.

We will briefly set forth only those facts necessary to our disposition of this issue. Defendant was indicted on four counts of aggravated criminal sexual assault against J.M. J.M. testified that she and defendant entered the basement living area of her parents’ home at about 12 midnight on August 24, 1989. According to J.M., defendant grabbed her hair, struck her numerous times in the face, head and ears and threw her against a wall. He then engaged in several forcible sexual acts including placing his penis in her mouth and vagina. During one of the incidents, he bit her twice on the leg. J.M. and defendant were friends but had never engaged in any sexual conduct with each other prior to this occurrence.

After sexually assaulting her, defendant pushed J.M. into her bedroom and began going through things in her room. At one point, she reached for her passport, and defendant grabbed it out of her hand, breaking her finger. Defendant then went into a rage and threw J.M. on the floor and kicked her in the ribs, the ears, the stomach and the legs. He also jumped on her back. He pulled her up by her hair and threw her on the couch in the family room. He then removed a sword from near the fireplace and threw J.M. on the floor. He cut her with the sword on the side of her ribs and on her neck and punctured her leg.

J.M. described her injuries as swollen ears filled with fluid, hand marks and cuts on her neck, bruises on her ears and neck, cuts on her side, and bruised ribs. She had a double fracture and tissue damage of her finger. She further suffered a black eye and a swollen jaw, and the entire left side of her face was black and blue. She had tom skin and red and black coloring from the bite marks on her leg.

The physician who examined J.M. after the incident testified that she suffered an abrasion of the vaginal wall and a tear in an area at the rear of the vagina. He described those injuries as consistent with forced vaginal intercourse.

Defendant testified that after entering the basement he kissed J.M. and she hit him in the chest and told him not to kiss her. He then stmck J.M. in the ear with the back of his hand. They proceeded to have sexual intercourse during which J.M. said no several times. Because of his previous consumption of alcohol, he could not remember if he stmck any further blows. He remembered biting J.M. on the leg but could not recall having oral sex with her. He did not believe he had forced J.M. to have sex with him. Defendant acknowledged that some of what J.M. testified to could have happened but he did not remember. He testified that he and J.M. had a long-standing intimate relationship and that they had engaged in sexual relations on numerous occasions.

Defendant submitted instructions defining battery and aggravated battery and an issues instruction for aggravated battery. The trial court refused to give these proposed instructions to the jury. Defendant was found guilty of aggravated criminal sexual assault, and, following the denial of his post-trial motion, he filed this timely appeal.

On appeal, defendant contends that he was entitled to an instruction on aggravated battery because the evidence supported such a verdict and the State had charged some of the elements of that offense. He further argues that the jury should have been instructed concerning aggravated battery pursuant to People v. Bryant (1986), 113 Ill. 2d 497. Finally, he asks that we reverse our earlier decision in People v. Leonard (1988), 171 Ill. App. 3d 380, wherein we held that battery is not a lesser-included offense of aggravated criminal sexual assault.

In a recent decision in which a defendant was convicted of a lesser offense over his objection, our supreme court reiterated the rule set forth in People v. Schmidt (1988), 126 Ill. 2d 179, that an accused may be convicted of an offense not expressly included in the charging instrument if that offense is a lesser-included offense of the offense expressly charged. (People v. Jones (1992), 149 Ill. 2d 288, 292.) A lesser-included offense is one composed of some, but not all, of the elements of the greater offense, and which does not have any element not included in the greater offense. Jones, 149 Ill. 2d at 292-93.

In deciding whether theft was a lesser-included offense of armed robbery in that case, the Jones court found guidance in its prior decision in People v. Bryant (1986), 113 Ill. 2d 497, a case in which a defendant requested at trial an instruction which would have permitted the jury to convict him of a lesser crime. In following Bryant, the court looked to the information charging Jones with armed robbery and concluded that the information sufficiently alleged both the conduct and the mental states required for the lesser offense of theft. (Jones, 149 Ill. 2d at 295-96.) The fact that the information charged Jones with taking property from the victims clearly informed him that he was being charged with obtaining or exerting unauthorized control or obtaining control by threat over the property of the victims. Thus, the conduct elements of theft were adequately charged in the information. Jones, 149 Ill. 2d at 295-96.

Furthermore, the Jones court determined that the information implicitly alleged the two required mental states of theft. (Jones, 149 Ill. 2d at 296.) Notwithstanding that the statutory definition of robbery does not expressly set forth a mental state, the court concluded that either intent, knowledge or recklessness is an element of robbery. (Jones, 149 Ill. 2d at 297.) Consequently, because the information alleged that Jones took property from the victims, the information implicitly set forth that the taking was done knowingly, the mental state required by the first portion of the theft statute. Jones, 149 Ill. 2d at 297.

The court further held that the information implicitly alleged the intent to permanently deprive the victims of their property, the second mental state required for a theft conviction. (Jones, 149 Ill. 2d at 297-98.) The court explained that when a robbery is committed common sense dictates that the perpetrator either intends to permanently deprive the owner of the use or benefit of the property or knowingly uses, conceals or abandons the property so as to deprive the owner permanently of its use or benefit. Thus, the mental state required by the second part of the theft statute was implicitly set forth. (Jones, 149 Ill. 2d at 297-98.) The court held that the information in that case adequately charged Jones with the offense of theft as a lesser-included offense of armed robbery. Jones, 149 Ill. 2d at 297-98.

Pursuant to Jones, which expressly relied on Bryant, we are compelled to examine the charging instrument in this case to determine whether aggravated battery was a lesser-included offense of aggravated criminal sexual assault, that is, whether aggravated battery is composed of some, but not all, of the elements of the greater offense, and that it does not have any element not included in aggravated criminal sexual assault. The second amended indictment in this case alleged that

“the defendant, knowingly committed a criminal sexual assault, in violation of Illinois Revised Statutes, Chapter 38, Section 12 — 13(aXl), against [J.M.], in that by use of force the defendant placed his penis in the vagina of [J.M.] and during the commission of this offense caused bodily harm to [J.M.], by hitting [J.M.] in the face and/or head with his fist, and/or fracturing a finger of [J.M.], and/or cutting her on parts of her body with a sword.”

Defendant contends that aggravated battery is a lesser-included offense of aggravated criminal sexual assault as charged here because the “gravamen of [aggravated battery] is great bodily harm.” He cites to section 12 — 4(a) of the Criminal Code of 1961, which provides that “[a] person who, in committing a battery, intentionally or knowingly causes great bodily harm, or personal disability or disfigurement commits aggravated battery.” Ill. Rev. Stat. 1989, ch. 38, par. 12— 4(a).

It appears that the evidence as it emerged at trial would have supported a conviction of aggravated battery. Following the procedure enunciated in Jones, however, our analysis must initially focus upon the indictment to determine whether all of the elements of that offense are expressly or impliedly contained within the language charging aggravated criminal sexual assault. Specific intent or knowledge is a requisite element of aggravated battery (People v. Crosser (1983), 117 Ill. App. 3d 24, 27), while aggravated criminal sexual assault is a general intent crime which does not require proof of specific intent (People v. Leonard (1988), 171 Ill. App. 3d 380, 390). If bodily harm to the victim is caused during the course of the sexual assault, it is unnecessary for the State to prove that it was inflicted knowingly or intentionally. An inadvertent or accidental infliction of simple bodily harm will nonetheless subject the assailant to conviction of aggravated criminal sexual assault.

The indictment in the present case clearly contains allegations of bodily injury to the victim. It accuses the defendant of causing bodily harm by hitting the victim in the “face and/or head with his fist, and/ or fracturing [her] finger, and/or cutting her on parts of her body with a sword.” It is apparent that the indictment does not expressly charge the defendant with specifically intending to inflict great bodily harm.

A more difficult question, however, is whether, considered as a whole, the indictment may reasonably be read as implying such intent. Because the State has elected to charge these allegations of violence in the alternative, and because neither allegation of hitting the victim and/or fracturing her finger is sufficiently explicit to imply necessarily a specific intent to inflict great bodily harm, we are unable to conclude that such an intent has been charged by either of those allegations. Although the allegation of striking the adult victim in the face or head with a fist might reasonably be read as implying an intent to cause bodily harm, it does not follow that a specific intent to inflict great bodily harm must also be implied. It is the latter specific intent which is an element of the type of aggravated battery relied upon by defendant in his argument. (See Ill. Rev. Stat. 1989, ch. 38, par. 12 — 4(a).) Similarly, the allegation of fracturing the victim’s finger does not implicitly charge an intention to accomplish that result. Notably, the victim’s testimony establishes that the fractured finger was a consequence of defendant’s grabbing her passport from her hand. In our view, this testimony is insufficient to prove that defendant knowingly or intentionally fractured the finger. A jury instruction on a lesser-included offense implicit in the language of the charging instrument is not to be given unless supported by an evidentiary basis. Jones, 149 Ill. 2d at 297-98; Bryant, 113 Ill. 2d at 506.

Whether or not we interpret the allegation that the victim was cut with a sword as implying that defendant did so with intent to inflict great bodily harm, we hold that this conduct did not provide a basis for the trial court to give a lesser-included offense instruction. Although we are to focus initially upon the language of the charging instrument, we must also examine the trial evidence to determine whether facts exist to support the theory of the proposed lesser-included offense. (Bryant, 113 Ill. 2d at 506-07.) A defendant is not entitled to instructions on other uncharged offenses which may be incidentally disclosed by the evidence but which are not lesser-included offenses of the crime expressly charged. (Jones, 149 Ill. 2d at 292.) In the present case the trial court would have been authorized to give an aggravated battery instruction relating to the sword incident only if that incident were shown by the evidence to have occurred “during the commission of the offense [of aggravated criminal sexual assault]” as expressly charged in the indictment. However, it is evident from the victim’s testimony that this incident did not occur during the commission of the sexual assault. It is an offense which is said to have happened separately following the sexual assault and after defendant pushed the victim into another room and began rummaging through her possessions. Had defendant been charged with aggravated battery for the sword incident, its prosecution undoubtedly might have been joined with the aggravated criminal sexual assault prosecution; however, it cannot be said that the evidence in support of the sword aggravated battery would have served to establish any element of the previously occurring aggravated criminal sexual assault. Accordingly, the trial court correctly denied defendant’s request for an instruction on aggravated battery as related to the sword incident because the evidence failed to establish any connection between that incident and the expressly charged crime of aggravated criminal sexual assault.

Our reading of the Jones and Bryant opinions indicates that the courts in those cases were presented with a logical basis for inferring the requisite mental states of the lesser-included offenses from the language of the charging instruments. It is our view that by straining to infer an uncharged specific intent from the allegations of the present indictment we would be unduly expanding and blurring the principles enunciated in those decisions. We conclude, therefore, that aggravated battery is not a lesser-included offense of aggravated criminal sexual assault as charged in this case. Accordingly, defendant was not entitled to an instruction on aggravated battery.

For the foregoing reasons, we affirm the judgment of the circuit court of Kane County.

Affirmed.

BOWMAN and NICKELS, JJ., concur.


author: JUSTICE WOODWARD

text:
    SARAH WOODARD, Plaintiff-Appellant and Cross-Appellee, v. DAVID KRANS et al., Defendants-Appellees and Cross-Appellants.
    Second District
    No. 2—91—1008
    Opinion filed September 15, 1992.

      Philip A. Nicolosi and Brent D. Blair, both of Philip A. Nicolosi & Associates, of Rockford, for appellant.
    G. Kimball MacCloskey, Jeffrey Spears, and David P. Faulkner, all of Lord, Bissell & Brook, and Douglas J. Pomatto, of Heyl, Royster, Voelker & Allen, both of Rockford, Karen L. Kendall, of Heyl, Royster, Voelker & Allen, of Peoria, and Hugh C. Griffin, of Lord, Bissell & Brook, of Chicago, for appellees.
   JUSTICE WOODWARD

delivered the opinion of the court:

Plaintiff, Sarah Woodard, appeals the dismissal of her three-count amended complaint against defendants, David Krans, M.D., Rockford Anesthesiologists Associated (Rockford), and SwedishAmerican Hospital (the Hospital). The complaint alleged that, as a result of defendants’ negligence, plaintiff contracted tuberculosis from Dr. Krans, an anesthesiologist, while the latter was performing electroshock therapy upon plaintiff at the Hospital. The trial court held that plaintiff failed to submit a certificate of merit and medical report that complied with section 2 — 622 of the Code of Civil Procedure (section 2 — 622) (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 622).

On appeal, plaintiff argues that (1) section 2 — 622 is unconstitutional; (2) the trial court abused its discretion in refusing to grant plaintiff discovery of certain records relating to the diagnosis and treatment of Dr. Krans’ illness; (3) the trial court abused its discretion in refusing plaintiff leave to submit an amended certificate of merit and medical report; and (4) the court erred in holding that count II of the complaint sounded in healing art malpractice, thus requiring compliance with section 2 — 622, rather than in ordinary negligence.

Defendants cross-appeal, arguing that the trial court erred in (1) granting plaintiff 90 days from the filing of the complaint to supply the documentation needed under section 2 — 622 (see Ill. Rev. Stat. 1989, ch. 110, par. 2 — 622(a)(2)); and (2) granting plaintiff an additional 30 days in which to file the needed documentation.

On January 4, 1991, plaintiff filed her original one-count complaint for medical malpractice. Plaintiff alleged the following facts. During the summer of 1988, Dr. Krans, a partner in Rockford, administered electroshock therapy to plaintiff at the Hospital. On January 5, 1989, plaintiff tested positive for tuberculosis. Plaintiff contracted tuberculosis from Dr. Krans while she was his patient. During this treatment period, Dr. Krans knew and the other defendants knew or should have known that Dr. Krans was ill. Dr. Krans was negligent in continuing to anesthetize patients while he was ill, and Rockford and the Hospital were negligent in allowing him to do so and in not inquiring into the nature of his illness. Defendants’ negligence proximately caused plaintiff’s tuberculosis and resultant injuries, pain and suffering, and medical expenses.

In an affidavit attached to the complaint, plaintiff’s attorney stated that he had reviewed some of the records of Dr. Krans’ treatment of plaintiff; that plaintiff’s condition was not reasonably known to her until January 5, 1989; that it was possible nonetheless that the complaint was time barred; and that because of the possible running of the limitations period, plaintiff’s attorney had been unable to obtain the medical consultation required by section 2 — 622.

On February 5, 1991, plaintiff moved to amend her complaint, stating that upon further consideration she believed she also had causes of action against all defendants for common-law negligence and for negligence based on res ipsa loquitur. The amended complaint, filed February 14, 1991, alleged the same facts as the original complaint and added the common-law negligence and res ipsa loquitur theories as counts II and III, respectively. Count III, although not employing the term “res ipsa loquitur,” also alleged that the operation of plaintiff’s electroshock treatment was entirely within the control of one or more of the defendants and that the plaintiff did not voluntarily contribute to her exposure to tuberculosis other than by presenting herself for treatment.

' On February 5, 1991, plaintiff filed a “bill of discovery” alleging that most of the information necessary to her cause of action was entirely within the control of one or more of the defendants. Plaintiff requested that the trial court temporarily suspend section 2 — 622’s “90 day period for obtaining an expert affidavit” (see Ill. Rev. Stat. 1989, ch. 110, par. 2 — 622(a)(2)). Plaintiff requested further that the court order defendants to produce any and all records which would disclose “the dates and means by which Dr. Krans was examined, diagnosed or treated for tuberculosis.” Also, plaintiff asked the court to order the defendants to answer interrogatories that she appended to her bill of discovery. These interrogatories asked inter alia about the date that Dr. Krans was diagnosed with tuberculosis, any examinations and treatment he received thereafter, the date that any defendant knew of Dr. Krans’ illness, and the nature of any procedures that defendants used to protect Dr. Krans’ patients.

On February 25, 1991, Dr. Krans and Rockford moved to dismiss the complaint pursuant to section 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619). The motion argued that plaintiff had failed to comply with section 2 — 622 in the following respects: (1) plaintiff did not and in good faith could not certify, as required by section 2 — 622(a)(2), that she could not have obtained the required consultation before the running of the statute of limitations; (2) the amended complaint did not include any certificate of merit; and (3) the amended complaint, though purportedly based on res ipsa loquitur, failed to comply with the requirements of section 2 — 622(c) that (a) plaintiff certify that she was relying on the doctrine of res ipsa loquitur, and (b) plaintiff provide the report of a reviewing health professional stating that, in the opinion of the reviewing professional, negligence had occurred in the course of medical treatment.

To bolster their argument that plaintiff was not entitled to invoke the 90-day extension provided by section 2 — 622(a)(2), Dr. Krans and Rockford attached two exhibits to their motion. Exhibit “A” is a letter dated December 27, 1988, from Rockford and the Hospital to plaintiff. The letter informed plaintiff of the following. Rockford and the Hospital had jointly determined that “during a procedure at [the Hospital] on 8/03/88, 9/2/88 & 9/6/88 you were treated by an anesthesiologist who has recently been diagnosed as having active tuberculosis. Consequently, you may have been exposed to tuberculosis during your surgery.” All patients treated at local hospitals by this anesthesiologist were being contacted. The anesthesiologist was currently undergoing treatment and was not involved in patient care. Because plaintiff risked contracting tuberculosis “in this type of situation,” the Hospital and Rockford had arranged for her to obtain a free tuberculosis screening.

Exhibit “B” is an affidavit of Terry Robins, “administrator” of Rockford. Robins stated that on June 14, 1989, Nancee Melquist, a Hospital employee, told Robins by phone that plaintiff’s attorney had contacted Melquist regarding plaintiff’s claimed exposure to tuberculosis; that Melquist told Robins that plaintiff’s attorney would be “sending a letter on behalf of the patient regarding damages”; and that on June 14, 1989, plaintiff’s attorney telephoned Robins and told the latter of plaintiff’s claim and of a letter on this matter that plaintiff’s attorney would be sending Robins.

On March 5, 1991, the Hospital also moved to dismiss plaintiff’s complaint for failure to comply with section 2 — 622. The Hospital argued that, at the time plaintiff filed her original complaint, her counsel had been aware for over a year and one-half of her potential cause of action and that this was enough time to obtain the required medical report. The Hospital therefore asserted that plaintiff’s complaint should be dismissed with prejudice because (1) plaintiff had failed to file any affidavit or medical report with her amended complaint; and (2) plaintiff was not entitled to request 90 additional days pursuant to section 2 — 622(aX2) because she had had ample time to obtain the required consultation before the running of the limitations period.

The Hospital included an affidavit from its risk manager, James L. Roberts. Roberts stated that in June 1989 his department received a letter from John C. Thomalla, the legal assistant to plaintiff’s attorney. In the letter, a copy of which was appended to Roberts’ affidavit, Thomalla advised Roberts that the law firm of Philip A. Nicolosi & Associates was representing plaintiff in “a claim that arises out of an incident which caused [plaintiff to become exposed to a tuberculosis bacteria [sic].” Thomalla’s letter asked Roberts to advise plaintiff’s law firm of who would be handling the matter for the Hospital and to send, pursuant to plaintiff’s enclosed release form, any medical reports relative to plaintiff’s treatment. Roberts stated further in his affidavit that on July 10, 1989, he referred Thomalla to Rockford Anesthesiologists Association; since July 10, 1989, Roberts had not heard from anyone on behalf of plaintiff.

Defendants supplemented their motions to dismiss with the affidavit of Nancee Melquist, who stated that on or about June 14, 1989, while employed as assistant risk manager for the Hospital, she received a call from Paul Nicolosi of Philip A. Nicolosi & Associates. Nicolosi told her that the firm was representing plaintiff and asserting a claim against the Hospital on her behalf.

On March 28, 1991, the trial court heard argument on the motions to dismiss. The court denied plaintiff’s motion to stay the running of the 90-day period of section 2 — 622(a)(2) pending further argument.

On April 2, 1991, plaintiff moved to extend the 90-day period, stating that through no fault of her own, circumstances had arisen preventing her from obtaining the required medical report on time. At the April 11, 1991, hearing on the motion, plaintiff’s attorney explained that plaintiff’s treating physician had initially agreed to provide a medical report. However, upon returning from his vacation a few days before the hearing, the physician, himself now a defendant in a medical malpractice suit, withdrew from any further involvement in plaintiff’s case. Since then plaintiff’s attorneys had contacted other physicians who might be willing to provide the necessary report. The court concluded that plaintiff had shown good cause for an extension of time. The court denied the motions to dismiss and granted plaintiff an additional 30 days (the maximum suggested by plaintiff’s counsel) for plaintiff to comply with section 2 — 622.

On April 21, 1991, Brent D. Blair, plaintiff’s attorney of record, filed his affidavit. Blair stated that Dr. Alfred Muller had reviewed the records in the case, consulted with Blair and prepared a written report. Based on these facts, Blair believed that plaintiff had a meritorious cause of action for medical malpractice.

Blair also submitted Dr. Muller’s report. The doctor stated that he was a physician licensed to practice medicine in all its branches, had reviewed the records in the case, and believed that plaintiff had a reasonable and meritorious cause of action against Dr. Krans and the Hospital. Dr. Muller believed that defendants’ omissions or carelessness could have caused plaintiff to get tuberculosis from Dr. Krans during anesthesia. Specifically, Dr. Krans may have known that he was not feeling well and should therefore have sought tests to determine whether he had a disease that he could communicate to patients; the Hospital and Rockford each should have had a screening procedure to detect infectious diseases among staff members and should have required annual tuberculosis testing such as many localities require for teachers.

All defendants moved to dismiss the complaint with prejudice. Defendants argued that both the attorney’s certificate and Dr. Muller’s report failed to comply with section 2 — 622. Defendants maintained that Blair’s affidavit was defective because it (1) did not state that Dr. Muller was knowledgeable in the relevant issues involved in the particular action; (2) did not state that Dr. Muller had practiced or taught within the last six years in the same area of health care that was at issue in plaintiff’s case; (3) did not state that Dr. Muller was qualified by experience or demonstrated competence in the subject of the case; and (4) did not certify that plaintiff was relying on the doctrine of res ipsa loquitur.

Defendants also asserted that Dr. Muller’s report was fatally defective in that it (1) did not identify the standard of care applicable to any of the defendants in this case; and (2) gave no factual basis for its determinations of any defendant’s negligence. At the hearing on the motion, held June 13, 1991, defendants added that the report was defective in that it did not state that plaintiff had a meritorious cause of action against Rockford. Plaintiff replied that she had in substance met the requirements of section 2 — 622 even if her proffered documentation did not meet the “exact language” of the statute. Her counsel conceded that Dr. Muller’s report did not say anything about whether plaintiff had a meritorious cause of action against Rockford.

The court agreed with defendants that plaintiff had not complied with the statute. On June 13, 1991, the court dismissed the complaint with prejudice.

On July 11, 1991, plaintiff moved to clarify and reconsider the dismissal order. Plaintiff first asked the court to state whether it was dismissing count II, which sounded in common-law negligence rather than medical malpractice. Plaintiff also asked the court to reconsider its ruling because (1) the Appellate Court, First District, had recently held section 2 — 622 unconstitutional and, although the second district had upheld the statute, both of these cases were pending before the Illinois Supreme Court; (2) plaintiff was denied discovery that was necessary for her to determine whether her claim had merit; (3) Dr. Muller made as thorough a review as possible given the available information; and (4) the court should allow plaintiff to amend her affidavit and report. Plaintiff submitted no proposed amendments with her motions or at the August 8,1991, hearing on the motions.

At this hearing, the trial judge stated that count II alleged “healing art malpractice.” Therefore, along with the rest of the complaint, count II was dismissed with prejudice for failure to comply with section 2 — 622. On August 8, 1991, the trial court entered a written order denying plaintiff’s motions to clarify and reconsider.

Plaintiff timely appealed. Defendants then filed notices of cross-appeal, purportedly appealing from the trial court’s April 11, 1991, ruling that denied defendants’ original motion to dismiss and extended the time for plaintiff to comply with section 2 — 622.

Before we turn to the merits of plaintiff’s appeal, we must address two preliminary matters. First, the Hospital has moved to strike portions of plaintiff’s statement of facts, arguing that plaintiff has made assertions that are not supported by the record (see 134 Ill. 2d R. 341(e)(6)). This court ordered the motion taken with the case. Insofar as plaintiff’s statement of facts is unsupported by the record, we grant the Hospital’s motion. We have reviewed the record and will not consider any improper factual assertions. See Cato v. Attar (1991), 210 Ill. App. 3d 996, 998.

Second, we must examine our jurisdiction to hear defendants’ cross-appeals. Although plaintiff has not raised the issue, we are bound to do so sua sponte. (Archer Daniels Midland Co. v. Barth (1984), 103 Ill. 2d 536, 539.) Defendants assert that they are appealing the nonfinal order of April 11, 1991, denying their original motions to dismiss. However, subject to exceptions not relevant here, this court has jurisdiction to hear appeals only from final orders. 134 Ill. 2d R. 301.

The only final order in this case was the dismissal of the complaint. In dismissing the entire complaint with prejudice, the trial court granted defendants all that they sought, albeit not for all the reasons they urged. Because defendants received an entirely favorable judgment, their cross-appeal is impermissible. (Material Service Corp. v. Department of Revenue (1983), 98 Ill. 2d 382, 386; Ruddock v. First National Bank (1990), 201 Ill. App. 3d 907, 910-11.) On our own motion, therefore, we dismiss the cross-appeals and strike the “Reply Brief” filed by Dr. Krans and Rockford.

The cross-appeals are not only unauthorized but unnecessary. As we may affirm the trial court on any basis warranted by the record, defendants need not cross-appeal to present their alternative grounds for affirmance. (Material Service, 98 Ill. 2d at 386-87; People ex rel. Hartigan v. Knecht Services, Inc. (1991), 216 Ill. App. 3d 843, 852-53; Ruddock, 201 Ill. App. 3d at 911.) We shall therefore consider those grounds in the context of plaintiff’s appeal.

Plaintiff argues first that section 2 — 622 is an unconstitutional infringement on the judicial power. We summarily reject this argument, as our supreme court has held that section 2 — 622 is constitutional. DeLuna v. St. Elizabeth’s Hospital (1992), 147 Ill. 2d 57.

Plaintiff argues second that the trial court abused its discretion in refusing her request for limited discovery of Dr. Krans’ medical records. Plaintiff argues that without these records a reviewing health professional could not reasonably determine the meritoriousness of her claim.

Although plaintiff sets out this argument at some length in her brief (including assertions not supported by the record), she fails to support this argument with any case authority. Under the waiver rule, we may disregard argument unsupported by pertinent authority. 134 Ill. 2d R. 341(e)(7); Spinelli v. Immanuel Lutheran Evangelical Con gregation, Inc. (1987), 118 Ill. 2d 389, 401; Poplar Grove State Bank v. Powers (1991), 218 Ill. App. 3d 509, 516-17.

Even without waiver, plaintiff’s argument must fail. Section 2 — 622, which affects procedure prior to the attachment of a court’s jurisdiction (McAlister v. Schick (1992), 147 Ill. 2d 84, 95), allows only for discovery of the plaintiff’s medical records. (Ill. Rev. Stat. 1989, ch. 110, pars. 2 — 622(a)(3), 8 — 2001.) Plaintiff has thus shown no basis for her attempt to obtain discovery before all defendants had appeared or were required to appear. 134 Ill. 2d R. 201(d).

Moreover, plaintiff has never responded to defendants’ correct assertion that the patient-physician privilege (Ill. Rev. Stat. 1989, ch. 110, par. 8 — 802) and the Medical Studies Act (Ill. Rev. Stat. 1989, ch. 110, par. 8 — 2101 et seq.) protect most if not all of the information sought from discovery. See Pritchard v. SwedishAmerican Hospital (1989), 191 Ill. App. 3d 388, 397-405.

We recognize the truth in plaintiff’s assertion that these exemptions may make it difficult, if not impossible, for her to file an affidavit and report in conformance with section 2 — 622. Indeed, even were there no section 2 — 622, the statutory restrictions on discovery of information regarding Dr. Krans’ own treatment or the methods the Hospital took to protect its patients might well foreclose plaintiff from proving an otherwise meritorious case. However, as is true of exclusionary rules generally, the restrictions on discovery represent a considered judgment that interests of litigants such as plaintiff here must yield to other interests, in this case confidentiality, privacy and candid peer review within medical institutions. See Pritchard, 191 Ill. App. 3d at 399, 404.

Plaintiff does not argue, and we do not see, that any exemptions to the statutory privileges apply here. We conclude that the trial court properly denied plaintiff’s requested discovery. To the extent that the statutory restrictions on discovery produce a harsh result, as plaintiff argues, this result inheres in the statute, and the remedy must be supplied by the legislature.

Plaintiff argues next that the trial court abused its discretion in dismissing her complaint and denying her leave to amend the complaint to conform to section 2 — 622. Plaintiff correctly notes that section 2 — 622 is intended primarily to foreclose frivolous medical malpractice suits at the pleading stage, not to block meritorious suits on narrow technical grounds. (McAlister v. Schick (1992), 147 Ill. 2d 84, 91; Ebbing v. Prentice (1992), 225 Ill. App. 3d 598, 601.) From this plaintiff reasons that, because defendants have never maintained that her suit is frivolous, it should not be dismissed without any opportunity for a trial on the merits.

Besides arguing that dismissal without leave to amend was proper, defendants supply two other purported grounds to affirm the dismissal. First, defendants argue that plaintiff was never entitled to use the 90-day “safety valve” of section 2 — 622(aX2) in the first place. Defendants reason that because plaintiff retained counsel for over a year before the complaint was filed, her counsel could not validly maintain that plaintiff could not obtain the required consultation before the statute of limitations.

We decline to affirm on this basis. The determination of whether plaintiff initially complied with section 2 — 622(a)(2) was for the discretion of the trial court, and we will not disturb the court’s decision absent an abuse of discretion. (Moss v. Gibbons (1989), 180 Ill. App. 3d 632, 638.) Despite the substantial delay between plaintiff’s retention of counsel and the filing of her complaint, defendants’ assertion that plaintiff’s counsel “manipulated” section 2 — 622(a)(2) rather than using that provision in good faith is utter speculation. The trial court accepted the assertion in plaintiff’s counsel’s affidavit that the extra time was necessary, and we are satisfied that this decision was reasonable.

Defendants argue second that the trial court lacked the authority to extend the period for filing the medical report beyond the 90 days specified by section 2 — 622(a)(2). Without citing relevant authority, defendants assert that, by providing a specific 90-day period in section 2 — 622(a)(2), the legislature intended that a medical malpractice plaintiff have only 90 days after the filing of the complaint to provide the required documentation.

This argument is patently without merit. The appellate court has already recognized that a trial court has the discretion to allow, for good cause, filings that are not timely even under the deadline provided in section 2 — 622(a)(2). (Garland, v. Kauten (1991), 209 Ill. App. 3d 30, 35-36; Wasielewski v. Gilligan (1989), 189 Ill. App. 3d 945, 950-51; Hauk v. Day (1988), 167 Ill. App. 3d 758.) Such a construction is consistent not only with the principle that section 2 — 622 is to be construed liberally (Ebbing, 225 Ill. App. 3d at 601), but also with the trial court’s power under both Supreme Court Rule 183 (134 Ill. 2d R. 183) and section 2 — 1007 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1007) to grant continuances for good cause. Defendants do not quarrel with the trial court’s determination that the unexpected refusal of plaintiff’s treating physician to supply the needed report was “good cause” for the 30-day extension that plaintiff requested.

The issue, therefore, is whether the trial court abused its discretion in denying plaintiff leave to amend. Plaintiff maintains that because her suit is not frivolous, it should not be dismissed merely because of what she calls “formal” or “technical” deficiencies in the affidavit and report.

We cannot agree. We grant that plaintiff’s case does not appear frivolous, except perhaps in the sense that the statutory restrictions on discovery (noted earlier) may make it extremely unlikely that plaintiff would prevail on the merits. Nonetheless, the Hospital itself introduced evidence that it had warned plaintiff that she may have contracted tuberculosis at the Hospital from Dr. Krans. Although not an admission of liability, this concession amply demonstrates that plaintiff’s claim is not the sort of frivolous suit with which section 2 — 622 is primarily concerned.

Nevertheless, section 2 — 622 has more than a general purpose; it also contains a number of specific requirements. Among these are that the affidavit be based on a medical report issued by a health professional whom the affiant reasonably believes (i) is knowledgeable in the relevant issues involved in the particular action; (ii) practices or has practiced within the last six years or teaches or has taught within the last six years in the same area of health care or medicine that is at issue in the particular action; and (iii) is qualified by experience or demonstrated competence in the subject of the case (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 622(a)(l)). Also, where the plaintiff intends to rely on the doctrine of res ipsa loquitur, the certificate and written report must state that, in the opinion of the reviewing health professional, negligence has occurred in the course of medical treatment, and the affiant shall certify that he is relying on the doctrine of res ipsa loquitur (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 622(c)).

On appeal, plaintiff makes no attempt to argue that she complied with these requirements. Rather, she characterizes the requirements as “technical” and cites general authority that trial courts should be liberal in deciding motions to amend complaints. We must agree with defendants, however, that Dr. Muller’s report in no way shows that he meets the qualifications of section 2 — 622(a)(l) and that his conclusions that negligence occurred are simply that — unsupported conclusions that do not define, apply or reflect knowledge of the relevant standard of care. Thus the trial court properly concluded that the shortcomings of the medical report and the affidavit based on that report (other than the inconsequential failure to affirm separately that plaintiff was relying on res ipsa loquitur) were more than “technical.”

We also conclude that the trial court properly denied plaintiff leave to amend her complaint to conform to section 2 — 622. Plaintiff received a 90-day extension and a 30-day extension to comply with section 2 — 622. After the trial court found that she had not done so, she waited until her motion to reconsider to ask for leave to amend. In requesting leave to amend, she failed to tender any proposed amendments or even to specify a reviewing health professional on whom she might rely for the needed report.

Whether to grant leave to amend is within the sound discretion of the trial court. (McCastle v. Sheinkop (1987), 121 Ill. 2d 188, 194; Moss, 180 Ill. App. 3d at 638.) Where the plaintiff completely fails to tender proposed amendments that might cure the failure to comply with section 2 — 622, a reviewing court will not find an abuse of discretion. (Batten v. Retz (1989), 182 Ill. App. 3d 425, 430; Moss, 180 Ill. App. 3d at 638.) Given the chronology we have set out, we cannot conclude that the trial court abused its discretion in denying plaintiff leave to amend.

Plaintiff’s final argument is that, regardless of her failure to comply with section 2 — 622, the trial court should not have dismissed count II of her complaint. Plaintiff reasons that count II states a claim for common-law negligence rather than medical malpractice and that therefore it should stand even without any proper section 2 — 622 affidavit or report.

Section 2 — 622 applies to “any action *** in which the plaintiff seeks damages for injuries or death by reason of medical, hospital, or other healing art malpractice” (Ill. Rev. Stat. 1989, ch. 110, par. 2— 622(a)). The term “medical, hospital or other healing art malpractice” must be construed broadly. (Bernier v. Burris (1986), 113 Ill. 2d 219, 226-27; Kus v. Sherman Hospital (1990), 204 Ill. App. 3d 66, 71.) However, not every patient who suffers an injury in a hospital or medical facility is limited to suing for malpractice, as opposed to common-law negligence. (Kus, 204 Ill. App. 3d at 71; Lyon v. Hasbro Industries, Inc. (1987), 156 Ill. App. 3d 649, 654-55.) Where to draw the line between medical malpractice and common-law negligence is the issue that we face.

In Lyon, upon which plaintiff relies, the plaintiff alleged that the defendant ambulance service was negligent in (1) failing to maintain and service its ambulance as a vehicle and (2) failing to equip the ambulance with proper emergency health care equipment. The appellate court held that the first allegation sounded in common-law negligence, but that the second was one of “healing art malpractice” as that term is used in section 2 — 622.

The Lyon court explained that “healing art” deals with the “entire branch of learning dealing with the restoration of physical or mental health” (Lyon, 156 Ill. App. 3d at 654) and that “malpractice” implies the lack of skill in practicing the profession. Under these definitions, the first allegation needed no section 2 — 622 affidavit because motor vehicle maintenance and service is not a matter of medical skill or judgment. However, the second allegation required documentation pursuant to section 2 — 622, because “[t]he determination of which equipment is necessary [here] *** is inherently one of medical judgment. The negligence alleged is in an intrinsic part of the provision of the facilities for emergency health care.” Lyon, 156 Ill. App. 3d at 655.

Lyon specifically rejected the argument that a section 2 — 622 affidavit is necessary only where the plaintiff would need to provide expert testimony at trial to establish negligence. Rather, section 2 — 622 applies, according to Lyon, in any medical malpractice action, even where the negligence alleged is within the knowledge of ordinary jurors. Lyon, 156 Ill. App. 3d at 655-56.

Not entirely consistent with Lyon is Kolanowski v. Illinois Valley Community Hospital (1989), 188 Ill. App. 3d 821. Kolanowski held that the plaintiff was required to attach a section 2 — 622 affidavit and report to his complaint, which alleged that the defendant respite care provider had failed to place sufficient physical restraints on the plaintiff, who was injured when he fell out of a bed on the defendant’s premises. Although citing Lyon, Kolanowski held that whether a complaint sounds in ordinary negligence or in medical malpractice depends upon whether the plaintiff’s case may be established without expert medical testimony. (Kolanowski, 188 Ill. App. 3d at 823-24.) Because expert medical testimony was required to establish the standard of care in that case, Kolanowski affirmed the dismissal of the complaint.

In upholding the constitutionality of section 2 — 622, the supreme court has adopted the Lyon view that a section 2 — 622 affidavit may not be dispensed with simply because the defendant’s alleged negligence may be proved without expert testimony. Paradoxically, the court did so in analogizing the requirements of section 2 — 622 to the requirement of expert testimony at trial. We quote the court’s reasoning:

“A consideration of the function performed by the health professional under section 2 — 622 *** demonstrates that his task in that regard is essentially no different from the function he is later called upon to perform at trial. In medical malpractice cases, the applicable standard of care and its breach must normally be established through expert testimony. [Citations.] Clearly, giving such testimony at trial does not constitute the exercise of a judicial function. *** Section 2 — 622 merely accelerates the time by which an expert opinion must be obtained. That section 2 — 622 requires the submission of a health professional’s report even in cases in which expert testimony might not be necessary at trial (see Walski v. Tiesenga (1978), 72 Ill. 2d 249, 256-57) merely reflects the legislature’s assessment of the statute’s desired scope.” (Emphasis added.) DeLuna, 147 Ill. 2d at 70.

Although the issue of precisely when section 2 — 622 applies was not squarely before the court in DeLuna, the above-cited passage was a vital step in the DeLuna rationale, and we believe that we would ignore such a clear pronouncement at our own peril. The language that we have emphasized — along with the citation to Walski’s discussion of those situations where expert testimony is not necessary because the common knowledge of lay people is sufficient to establish the standard of care and any deviation therefrom — convinces us that our supreme court has rejected the Kolanowski rationale in favor of the Lyon rule that section 2 — 622 applies even in cases of “gross negligence” or “common treatment” (see Walski, 72 Ill. 2d at 256-57) as long as these cases involve “medical, hospital or other healing art malpractice.” Put differently, there are three types of negligence suits against providers of medical services: (1) malpractice suits requiring expert testimony; (2) malpractice cases not requiring expert testimony; and (3) negligence suits, essentially common-law in character, that happen to be directed against health care providers. According to the language we have quoted from DeLuna, only the last of these three does not require a plaintiff to follow section 2 — 622.

From this discussion we conclude that the type of case in which a plaintiff need not file a section 2 — 622 affidavit against a defendant health care provider is the exceptional one, defined by the inherent character of the conduct involved rather than whether expert testimony will later be necessary to prove the plaintiff’s case. Thus “gross negligence” or the possibility that the standard of care may be established by lay knowledge does not necessarily take a case outside the broad realm of medical, hospital or healing art malpractice. Where determining the standard of care requires applying distinctively medical knowledge or principles, however basic, the plaintiff must comply with section 2 — 622. A fortiori, where the standard of care involves procedures not within the grasp of the ordinary lay juror, the case is one for malpractice, rather than simple negligence.

We therefore hold first that the trial court properly concluded that the Hospital could not be sued for common-law negligence. We may take judicial notice that by their very character hospitals provide unusual if not unique problems regarding the spread of infectious diseases. We agree with defendants that the question of what measures should reasonably be taken to control the spread of diseases within the hospital setting is one necessarily involving medical judgment and that the standard of care is not simply a matter of lay knowledge. At least as to the Hospital, therefore, the trial court properly dismissed count II for failure to comply with section 2 — 622.

Somewhat more difficult to determine is the character of Dr. Krans’ potential liability. We have not found a case truly comparable to the one at bar. Plaintiff stresses that she has not alleged that Dr. Krans negligently performed his medical specialty, anesthesiology, or that he fell below the standard of care in the specific treatment of plaintiff’s medical condition. Rather, she has alleged that Dr. Krans negligently communicated his disease to plaintiff. As Dr. Muller’s report implied, this negligent spread of an infectious disease is not unique to doctors or hospitals; the type of injury plaintiff alleges is not peculiarly tied to the practice of medicine. Ordinarily, only licensed medical practitioners perform anesthesiology or other forms of medicine; thus, ordinarily, only medical professionals will be sued for negligently performing those specialties. However, a schoolteacher or prisoner (for example) may in principle be as capable of spreading an infectious disease to others as a doctor. Thus, a case could be made that what is alleged against Dr. Krans is common-law negligence in a medical setting rather than medical malpractice.

While acknowledging the force behind such arguments, we must nonetheless conclude that count II of the complaint, as applied to Dr. Krans, sounds in medical malpractice rather than common-law negligence. Dr. Krans allegedly communicated his disease to plaintiff in the course of his medical practice, i.e., his treatment of plaintiff. Thus, the allegation that he did not adequately prevent the spread of a communicable disease during this operation is effectively an allegation that he showed a want of skill (however gross) in the preparation and performance of his medical duties. Thus, plaintiff alleges that Dr. Krans failed to exercise adequate care in rendering service. Such a failure is one definition of malpractice. Lyon, 156 Ill. App. 3d at 653, citing Webster’s Ninth New Collegiate Dictionary 721 (1986).

Moreover, the negligence alleged is the spread (or failure to prevent the spread) of a communicable disease, a subject matter that is by nature medical. Although lay people are not wholly unfamiliar with the nature of infectious diseases such as tuberculosis, this subject matter still involves medical learning and judgment beyond that of the average lay person. This is particularly so in the context of a hospital, which, as we have noted, is a setting that presents special difficulties in the control of infectious diseases.

We therefore hold that plaintiff’s allegation that Dr. Krans engaged in inadequate preoperative measures is an allegation of medical malpractice rather than one of simple negligence. For the same reasons, any suit against Rockford is also one for medical malpractice.

The trial court properly held that the entire complaint constituted a claim for medical, hospital or healing art malpractice. As plaintiff failed to comply with the requirements of section 2 — 622, the trial court did not abuse its discretion in dismissing the complaint with prejudice.

The judgment of the circuit court of Winnebago County is affirmed.

Affirmed.

GEIGER and NICKELS, JJ., concur.