Lopez Colunga v. Advoc. Health & Hosp. Corp.

232 N.E.3d 72

2023 IL App (1st) 211386

Yovany I. LOPEZ COLUNGA, Individually and as Father and Next of Friend of Joshua Jair Lopez, and as Independent Administrator of the Estate of Yovanny Jadiel Lopez, Deceased, Plaintiff-Appellant,

v.ADVOCATE HEALTH AND HOSPITALS CORPORATION, d/b/a/ Advocate Christ Medical Center; Advocate Health and Hospitals Corporation, d/b/a Advocate Medical Group; April D. Jones, D.O.; Renaissance Medical Group, S.C.; Rukmini Velamati, M.D.; Thomas Murray, D.O.; Stacee Lewis, M.D.; Alexandria Van Oyen, D.O.; Patrick Lloyd, D.O.; Michelle Johnson; Humera Asem, M.D.; Joanna Izewski, M.D.; Therese Kirsch, M.D.; Denise Taitano-Ritter, M.D.; Valerie Swiatkowski, M.D.; Clarisa Figueroa; Desiree Figueroa; and Piotr Bobak, Defendants

(Advocate Health and Hospitals Corporation, d/b/a Advocate Christ Medical Center; Advocate Health and Hospitals Corporation, d/b/a Advocate Medical Group; April D. Jones, D.O.; Renaissance Medical Group, S.C.; Rukmini Velamati, M.D.; Stacee Lewis, M.D.; Patrick Lloyd, D.O.; Alexandria Van Oyen, D.O., and Thomas Murray, D.O., Defendants-Appellees).

No. 1-21-1386

Appellate Court of Illinois, First District, FIFTH DIVISION.

Filed May 19, 2023

Appeal from the Circuit Court of Cook County. No. 20-L-6550, Honorable Kathy M. Flanagan, Judge presiding.

Sean P. Driscoll, of Driscoll Law Group LLC, and Yvette Loizon, of Clifford Law Offices, P.C., both of Chicago, for appellant.

Krista R. Frick, of Cunningham, Meyer & Vedrine, P.C., of Chicago, for appellees Advocate Health and Hospitals Corporation, Rukmini Velamati, Stacee Lewis, Patrick Lloyd, Alexandria Van Oyen, and Thomas Murray.

Aimee K. Lipkis and Melissa H. Dakich, of Cray Huber Horstman Heil & VanAusdal LLC, of Chicago, for other appellees.

OPINION

JUSTICE MITCHELL delivered the judgment of the court, with opinion.

[1] ¶ 1 This is an interlocutory appeal in a tort action in which plaintiff Yovany I. Lopez Colunga alleged 30 counts of intentional infliction of emotional distress against defendants Advocate Health and Hospitals Corporation and various physicians. In ruling on defendants’ motion to dismiss, pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2020)), the circuit court concluded that plaintiff’s claims were legally insufficient but, on its own motion, certified the following two questions for our review:

(1) Can a cause of action for intentional infliction of emotional distress be stated against a defendant, allegedly engaging in the outrageous conduct toward a plaintiff who is unknown to the defendant and who is not present at the time of the purportedly outrageous conduct; and

(2) Can a cause of action for intentional infliction of emotional distress be stated based on purported failures to perform certain acts (i.e., non-feasance) versus intentional, active performance of certain acts (i.e. malfeasance)?

We allowed leave to appeal. See Ill. S. Ct. R. 308(a) (eff. Oct. 1, 2019). We review certified questions of law de novo. Barbara’s Sales, Inc. v. Intel Corp., 227 Ill. 2d 45, 57-58, 316 Ill.Dec. 522, 879 N.E.2d 910 (2007). For the reasons explained below, we answer the first certified question, "No," and deem the second certified question moot.

[2, 3] ¶ 2 Our review under Rule 308 is limited to answering the legal questions certified. Apollo Real Estate Investment Fund, IV, L.P. v. Gelber, 398 Ill, App. 3d 773, 778, 343 Ill.Dec. 721, 935 N.E.2d 949 (2009). We are not reviewing the circuit court’s dismissal order, and our jurisdiction under Rule 308 is limited to answering the questions as drafted. Id. ("Our review is strictly limited to the certified questions presented; we do not render any opinion on the propriety of any underlying rulings of the trial court."); see also In re Estate of Luccio, 2012 IL App (1st) 121153, ¶ 17, 367 Ill.Dec. 777, 982 N.E.2d 927 ("[T]he rule was not intended to be a mechanism for expedited review of an order that merely applies the law to the facts of a particular case."). Nevertheless, in analyzing the questions presented, it is helpful to have some understanding of the procedural background.

¶ 3 The crime underlying this case is of unspeakable horror: Clarisa Figueroa lured a young expectant mother to her home on the pretense of selling her baby clothes and, instead, murdered the mother, cut her unborn son from her womb, and claimed the baby as her own.

¶ 4 Figueroa called for emergency medical assistance, reporting that she had given birth unexpectedly at home. When the baby arrived at Advocate Christ Medical Center, he was not breathing. Doctors resuscitated him and admitted him into the neonatal intensive care unit. The hospital discharged Figueroa from the labor and delivery unit after three days. She continued to make medical decisions on the baby’s behalf for two weeks, until Chicago police detectives questioned the medical staff, prompting the baby’s neonatologist to take protective custody. Genetic testing confirmed that Figueroa was not the baby’s biological mother. Police subsequently arrested Figueroa for the murder of the baby’s mother.

¶ 5 Upon learning of his newborn son’s whereabouts, the baby’s father, Yovany Lopez Colunga, assumed responsibility for decisions pertaining to the baby’s medical care. The same doctors continued to care for the baby until his death one month later.

¶ 6 The baby’s father is our plaintiff, and his complaint seeks damages based on intentional infliction of emotional distress against the medical providers who administered care to Figueroa and the baby at Advocate Christ Medical Center. According to plaintiff, the medical providers consciously disregarded the substantial risk of causing him to suffer severe emotional distress when they permitted Figueroa to make medical decisions on the baby’s behalf, despite the information in Figueroa’s medical records—including her age, lack of verifiable prenatal history, and prior tubal ligation—which should have indicated to the medical providers that she was physically unable to be the baby’s biological mother.

¶ 7 The circuit court concluded that plaintiff had not stated viable claims for intentional infliction of emotional distress, reasoning that the baby’s biological father was "unknown to Defendants at the time *** and that he was not present, either in a two-person or a three-person setting when the alleged outrageous conduct occurred." The circuit court further noted that defendants’ alleged conduct involved "taking no action," which does not "constitute the type of intentional, overt, active conduct *** required to satisfy the elements of this tort."

¶ 8 A. First Certified Question

[4] ¶ 9 Can a cause of action for intentional infliction of emotional distress be stated against a defendant who allegedly engaged in outrageous conduct toward a plaintiff who is unknown to the defendant and who is not present at the time of the purportedly outrageous conduct? To state a cause of action for intentional infliction of emotional distress, a plaintiff must allege facts establishing that (1) the defendant’s conduct was extreme and outrageous, (2) the defendant either intended to inflict severe emotional distress or knew that there was a high probability that his conduct would cause emotional distress, and (3) the defendant’s conduct in fact caused severe emotional distress. Doe v. Calumet City, 161 Ill. 2d 374, 392, 204 Ill.Dec. 274, 641 N.E.2d 498 (1994); accord Restatement (Second) of Torts § 46(1) (1965).

[5, 6] ¶ 10 To the extent that Illinois courts have analyzed issues related to the tort, Illinois law corresponds with section 46 of the Restatement (Second) of Torts. The Restatement divides the tort into "direct" claims and "third-party" claims. A direct claim is one where the plaintiff is the victim of the defendant’s extreme and outrageous acts and the defendant directs those acts at the plaintiff. E.g., Feltmeier v. Feltmeier, 207 Ill. 2d 263, 275, 278 Ill. Dec. 228, 798 N.E.2d 75 (2003). A third-party claim is one brought by a bystander, who witnesses the defendant’s extreme and outrageous acts directed at another person. See Restatement (Second) of Torts § 46 cmt. l (1965).

"(1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.

(2) Where such conduct is directed at a third person, the actor is subject to liability if he intentionally or recklessly causes severe emotional distress

(a) to a member of such person’s immediate family who is present at the time, whether or not such distress results in bodily harm, or

(b) to any other person who is present at the time, if such distress results in bodily harm." (Emphases added.) Restatement (Second) of Torts § 46 (1965).

[7] ¶ 11 Almost from its inception, courts and commentators alike have recognized the need to impose strict limiting principles on this tort. See Public Finance Corp. v. Davis, 66 Ill. 2d 85, 88-90, 4 Ill.Dec. 652, 360 N.E.2d 765 (1976). These limiting principles differ in direct claims versus third-party claims. Third-party claims may only be brought by a plaintiff who is present and who is either a family member or a non-family member who suffers bodily harm as a result of the tort. See, e.g., Green v. Chicago Tribune Co., 286 Ill. App. 3d 1, 13-14, 221 Ill.Dec. 342, 675 N.E.2d 249 (1996) (citing Restatement (Second) of Torts § 46(2) (1965) (the plaintiff’s intentional infliction of emotional distress claim failed where she "did not allege *** that she was present" when the defendant photographed her son undergoing medical treatment)); Prosser and Keeton on the Law of Torts § 12, at 65 (W. Page Keeton et al. eds., 5th ed. 1984) ("Ordinarily recovery in such cases is limited to plaintiffs who are not only present at the time, but are known by the defendant to be present ***.").

[8] ¶ 12 The "presence"...