Tidwell v. Swanson , 2022 IL App (5th) 200413-U ( 2022 )

2022 IL App (5th) 200413-UNOTICE
NOTICE
Decision filed 01/20/22. The
This order was filed under
text of this decision may be NO. 5-20-0413
Supreme Court Rule 23 and is
changed or corrected prior to
the filing of a Petition for not precedent except in the
Rehearing or the disposition of
IN THE limited circumstances allowed
the same. under Rule 23(e)(1).
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
______________________________________________________________________________
CLEOTHER TIDWELL, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Jefferson County.
)
v. ) No. 19-L-40
)
JAY SWANSON, D.D.S., ) Honorable
) Eric J. Dirnbeck,
Defendant-Appellant. ) Judge, presiding.
______________________________________________________________________________
JUSTICE VAUGHAN delivered the judgment of the court.
Justices Moore and Wharton concurred in the judgment.
ORDER
¶1 Held: The trial court’s dismissal of plaintiff’s complaint is affirmed where plaintiff
failed to attach a section 2-622 affidavit and report to complaint alleging
medical battery.
¶2 Plaintiff, Cleother Tidwell, appeals the trial court’s order dismissing his medical battery
complaint for failure to include an affidavit or a dentist’s report of merit, pursuant to section 2-
622 of the Code of Civil Procedure (Code) (735 ILCS 5/2-622 (West 2018)). We affirm.
¶3 I. BACKGROUND
¶4 On June 11, 2019, Tidwell, a prisoner at Menard Correctional Center, filed a complaint
against Jay Swanson, D.D.S. The complaint alleged that on or around December 18, 2018,
Tidwell was taken to Dr. Swanson to remove a skin tag on his cheek. After Dr. Swanson injected
Tidwell’s cheek with a needle to anesthetize the area, Dr. Swanson also stuck a needle in
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Tidwell’s gum area. Tidwell became angry at Dr. Swanson and Tidwell eventually left without
treatment. Tidwell’s complaint alleged medical battery against Dr. Swanson. In support, Tidwell
alleged that he could recover damages on his complaint because he established that the procedure
performed was contrary to the patient’s will and that the treatment was a substantial variance
from the consent granted.
¶5 On July 27, 2020, Dr. Swanson filed a motion to dismiss which attached the local
anesthesia consent signed by Tidwell on December 18, 2018, as well as a copy of the medical
note from that date which claimed Tidwell refused treatment and would not allow Dr. Swanson
to provide anesthesia. The motion to dismiss was based on section 2-622 of the Code (id.), which
requires an affidavit and report to support any medical injury claim, and requested dismissal of
the claim pursuant to section 2-619 of the Code (id. § 2-619). The motion also requested
dismissal pursuant to section 2-615 of the Code (id. § 2-615), claiming the allegations were
vague, conclusory, and failed to set forth sufficient facts.
¶6 The case proceeded to a Zoom hearing on October 13, 2020, and the matter was taken
under advisement. On November 10, 2020, the trial court issued a docket entry order that found
Tidwell’s claims, “though styled as ‘medical battery,’ ” were “in fact claims of dental
malpractice as all actions taken by [Swanson] were done with consent of Plaintiff.” After
determining that Tidwell’s claims were healing art malpractice claims, the trial court found that
section 2-622 applied, and that Tidwell failed to comply with the statutory requirements and
dismissed the complaint.
¶7 On November 17, 2020, Tidwell filed a motion to reconsider which claimed his consent
was signed under coercion and duress. The trial court denied the motion in a docket entry order
dated November 24, 2020. Tidwell appealed on December 15, 2020.
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¶8 II. ANALYSIS
¶9 On appeal, Tidwell contends that no section 2-622 affidavit or medical report was
necessary. In support, he claims that since his consent was signed under coercion and duress, the
consent was invalid. He further claims the trial court should have allowed him to call witnesses
to show that his consent was signed under coercion. In response, Dr. Swanson states that
Tidwell’s medical battery claim attempts to circumvent section 2-622, but the affidavit and
report are required. Dr. Swanson further contends that Tidwell’s argument related to the alleged
duress in signing the consent, as well as the guard’s testimony regarding same, was not raised
prior to Tidwell filing his motion for reconsideration. In reply, Tidwell claims that his argument
regarding coercion and the guard’s testimony was provided at the initial hearing.
¶ 10 Tidwell’s Consent
¶ 11 While it is possible Tidwell raised the issue of his allegedly coerced consent and
requested leave to obtain the guard’s testimony in support thereof at the initial hearing, there is
no record of the proceedings available to either confirm or deny the conflicting arguments. The
common law record reveals that no court reporter was present for any of the hearings. Such fact,
however, does not eliminate Tidwell’s obligation to provide a complete record to this court.
Kielminski v. St. Anthony’s Hospital, 68 Ill. App. 3d 407, 409 (1979). Instead, Tidwell could
have provided a bystander’s report or an agreed statement of facts. Id.; Ill. S. Ct. R. 323(c), (d)
(eff. July 1, 2017). Here, neither was filed.
¶ 12 When an appellant fails to provide a complete record on review, “[a]ny doubts which
may arise from the incompleteness of the record will be resolved against the appellant.” Foutch
v. O’Bryant, 99 Ill. 2d 389, 392 (1984). Tidwell’s pro se status does not absolve him of
procedural requirements. Kielminski, 68 Ill. App. 3d at 409. There is nothing in Tidwell’s
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response to Dr. Swanson’s motion to dismiss that claimed the consent was signed under duress
or that guard testimony was necessary to support Tidwell’s claims regarding the consent.
¶ 13 Further, careful review of the record reveals that Tidwell’s “coercion” argument was first
argued in his motion for reconsideration. A motion to reconsider is intended to bring to a trial
court’s attention “newly discovered evidence, changes in the law or errors in the court’s prior
application of existing law.” Universal Scrap Metals, Inc. v. J. Sandman & Sons, Inc., 337 Ill.
App. 3d 501, 508 (2003). Tidwell’s motion for reconsideration reveals a new argument that fails
to comport with any above-stated bases. “Arguments raised for the first time in a motion for
reconsideration in the circuit court are forfeited on appeal.” Evanston Insurance Co. v.
Riseborough, 2014 IL 114271, ¶ 36 (citing Caywood v. Gossett, 382 Ill. App. 3d 124, 134
(2008)). Accordingly, we decline to consider Tidwell’s claims of coercion related to his consent.
¶ 14 Section 2-622 Dismissal
¶ 15 On appeal, Tidwell requests reversal of the trial court’s dismissal of his complaint
pursuant to section 2-619 of the Code. 735 ILCS 5/2-619 (West 2018). “A motion to dismiss,
pursuant to section 2-619 of the Code, admits the legal sufficiency of the plaintiffs’ complaint,
but asserts an affirmative defense or other matter that avoids or defeats the plaintiffs’ claim.”
DeLuna v. Burciaga, 223 Ill. 2d 49, 59 (2006). Our standard of review from a section 2-619
dismissal is de novo. Borowiec v. Gateway 2000, Inc., 209 Ill. 2d 376, 383 (2004). Even if the
trial court’s dismissal was premised on an improper ground, we “may affirm the dismissal if the
record supports a proper ground for dismissal.” McDonald v. Lipov, 2014 IL App (2d) 130401,
¶ 14 (citing Raintree Homes, Inc. v. Village of Long Grove, 209 Ill. 2d 248, 261 (2004)).
¶ 16 On review of a section 2-619 dismissal, we accept as true all well-pleaded facts in the
plaintiff’s complaint and all inferences that can be reasonably drawn in the plaintiff’s favor.
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Morr-Fitz, Inc. v. Blagojevich, 231 Ill. 2d 474, 488 (2008). Here, there is no dispute that
Tidwell’s complaint alleged medical battery against Dr. Swanson. “A plaintiff claiming medical
battery must establish one of the following: (1) no consent to the medical procedure performed;
(2) the procedure was contrary to the injured party’s will; or (3) substantial variance of the
procedure from the consent granted.” Holzrichter v. Yorath, 2013 IL App (1st) 110287, ¶ 83. We
interpret Tidwell’s complaint to fall within the third category of medical battery addressing
“substantial variance of the procedure from the consent granted” because Tidwell’s complaint
contended that it was unnecessary for Dr. Swanson to inject anesthesia in his gums to remove a
skin tag on his cheek. As noted by Tidwell, “The visit was supposed to be for my cheek skin, [it
had] nothing to do with my jawbone.”
¶ 17 Our courts have found that some medical battery claims are governed by section 2-622 of
the Code. Id. ¶ 96; McDonald, 2014 IL App (2d) 130401, ¶ 27. In both Holzrichter and
McDonald, the courts found that the medical battery issues were so complicated that laypersons
could not determine whether the proper medical standard of care was followed and therefore
section 2-622 was applicable. Holzrichter, 2013 IL App (1st) 110287, ¶¶ 84-85; McDonald, 2014
IL App (2d) 130401, ¶ 27. As such, we consider whether Tidwell’s medical battery claim falls
into the purview of section 2-622.
¶ 18 Tidwell’s claim turns on whether it was necessary for Dr. Swanson to inject anesthesia in
Tidwell’s gum to remove a skin tag on his cheek. This issue, which requires knowledge of the
location of facial nerves and where anesthesia must be placed to perform the requisite skin tag
removal procedure without pain, is well beyond that of a layperson. “An assessment of what is
required or necessary in light of [a] medical condition is inherently one of medical judgment and,
as a result, necessitates expert testimony on the standard of care.” Schindel v. Albany Medical
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Corp., 252 Ill. App. 3d 389, 397-98 (1993). Therefore, we find that section 2-622 of the Code is
applicable to Tidwell’s medical battery claim.
¶ 19 Section 2-622 requires the plaintiff’s counsel, or a pro se plaintiff, to attach an affidavit
to the complaint attesting that (1) the affiant either consulted and reviewed the facts of the case
with a health professional qualified as per the statute and said health professional prepared a
written report finding the plaintiff’s claim to be a reasonable and meritorious cause of action; or
(2) the affiant was unable to obtain a consultation prior to the expiration of the statute of
limitations; or (3) the affiant was unable to obtain the report due to medical records being
untimely produced. 735 ILCS 5/2-622(a)(1)-(3) (West 2018). If the affiant’s statement is based
on the timely consultation with a qualified health professional, a copy of the health
professional’s report must also be attached to the complaint. Id. § 2-622(a)(1).
¶ 20 Here, Tidwell’s complaint contained neither an affidavit addressing any of the section 2-
622 requirements nor any health professional’s written determination that a reasonable and
meritorious cause for the filing of the action existed. As such, we affirm the trial court’s
dismissal of Tidwell’s complaint due to a failure to comply with the requirements of section 2-
622.
¶ 21 III. CONCLUSION
¶ 22 For the reasons stated herein, we affirm the trial court’s denial of Tidwell’s complaint.
¶ 23 Affirmed.
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