Jackson v. Alverez

JUSTICE APPLETON, concurring in part and dissenting in part:

I concur with that portion of the majority opinion dealing with defendant Goforth and agree that appeal must be dismissed as being taken from a nonfinal order.

I disagree with the majority as to defendant Alverez. Plaintiffs counsel filed a motion for leave to file a first-amended complaint with regard to defendant Alverez and noticed it for hearing at the same time as the motion to reconsider. The trial court never specifically ruled on this motion, despite the inclusion of the motion in the notice of hearing. The court effectively ruled on the motion, however, by dismissing the counts against Alverez “with prejudice.” See Gouge v. Central Illinois Public Service Co., 195 Ill. App. 3d 1026, 1029 , 552 N.E.2d 1304, 1306 (1990), rev’d on other grounds, 144 Ill. 2d 535 , 582 N.E.2d 108 (1991) (“the trial court dismissed plaintiffs’ complaint with prejudice for failure to state a cause of action, thereby also denying plaintiffs’ motion to amend their complaint” (emphasis added)). If, as the majority says, “ ‘with prejudice’ meant that the court would not allow plaintiff to replead against Alverez” (358 Ill. App. 3d at 559), I do not see the logic in requiring plaintiff to ask again (the first time was in her notice of hearing) for a ruling on her motion to amend — only to have the court explain to her the meaning of “with prejudice.” I consider the notice itself, together with the ruling, sufficient to prevent application of the rule of abandonment announced by the majority.

We should remand this case with instructions to grant plaintiffs motion for leave to an amended complaint. Dismissing the counts against Alverez with prejudice, without specifically addressing the pending motion to amend, was an abuse of discretion and a miscarriage of justice. See Cantrell v. Wendling, 249 Ill. App. 3d 1093, 1096 , 620 N.E.2d 9, 11 (1993). The proposed amended complaint could survive a challenge premised on sovereign immunity because sovereign immunity will not bar the lawsuit if the duty the employee breached arose from a source independent of the state employment. See Jinkins, 209 Ill. 2d at 330, 807 N.E.2d at 418; Currie, 148 Ill. 2d at 159, 592 N.E.2d at 980; Janes, 254 Ill. App. 3d at 960, 626 N.E.2d at 1133. In support of her motion to reconsider, plaintiff argued to the trial court that her original complaint sufficiently alleged professional negligence within the meaning of Jinkins, and, in the alternative, she requested leave to amend. In her filings below, she clearly made the relevant argument.

Citing Jinkins, 209 Ill. 2d at 331, 807 N.E.2d at 418, plaintiff argues that the duties Alvarez owed Exavier were “no different [from] the duties owed to a patient at a private mental health[ ]care facility. The relationship between *** Exavier *** and [defendants] as mental health[ ]care providers is no different [from] the relationship between private mental health[ ]care providers and their patients.” In Jinkins, 209 Ill. 2d at 321, 807 N.E.2d at 412-13, the plaintiff, administratrix of George Jinkins’s estate, sued two employees of a state mental-health facility for failing to properly diagnose and treat Jinkins’s mental illness. Instead of certifying him as subject to involuntary commitment, they let him go home, where he committed suicide. Jinkins, 209 Ill. 2d at 321, 807 N.E.2d at 413. One defendant was a board-certified psychiatrist (Jinkins, 209 Ill. 2d at 324, 807 N.E.2d at 414), and the other was a licensed clinical professional counselor (Jinkins, 209 Ill. 2d at 325, 807 N.E.2d at 415). The defendants argued they would have owed no duty to Jinkins at all but for their state employment and, therefore, the source of their duty to Jinkins was their state employment.

The supreme court identified the non sequitur in that reasoning. The question was not whether the state employment provided the occasion for the defendants to incur a duty to Jinkins. The question was where the duty ultimately came from: the job or an independent source. Did the duty come from the job alone or from some set of standards outside the job? Jinkins, 209 Ill. 2d at 332-33, 807 N.E.2d at 419-20.

For three related reasons, the supreme court concluded that the defendants’ duty in Jinkins came from a source independent of their state employment. First, they made a clinical decision that Jinkins did not qualify for involuntary commitment, and the standards for such a decision came not from their state employment but from their profession. Jinkins, 209 Ill. 2d at 334-35, 807 N.E.2d at 420-21. Second, the standards for involuntary commitment of patients were the same at private hospitals as at state hospitals (leading to the inference that those standards — and the duty they defined — came from a source independent of state employment). Jinkins, 209 Ill. 2d at 335-36, 807 N.E.2d at 421. Third, “the duties inherent in the doctor-patient relationship emanate[d] from the standards imposed by the profession itself,” not from “the physician’s employment status.” Jinkins, 209 Ill. 2d at 336, 807 N.E.2d at 421.

In the proposed amended complaint, plaintiff alleges that Alverez was a certified nursing assistant and that by failing to properly supervise Exavier, Alverez “failed to exercise that degree of skill and care that ordinarily well qualified and certified nursing assistants possess and exercise under similar circumstances in [the] locality or similar localities in which the *** treatment was rendered.” That allegation suggests that the professional standards of a certified nurse’s aide have something to say about proper supervision of patients.

On the one hand, in her proposed amended complaint, plaintiff refers to Alverez’s violation of workplace rules, as if to suggest that the duty Alverez breached was defined by her job at the Center. On the other hand, plaintiff refers to the “degree of skill and care that ordinarily well qualified and certified nursing assistants possess” and Alverez’s failure to exercise that skill and care. From that allegation, it would be reasonable to infer that certified nursing assistants have a set of professional standards external to their jobs and the duty that Alverez breached derived not merely from her job but also from that set of professional standards. See 77 Ill. Adm. Code § 390.680(b) (Conway Greene CD-ROM March 2002) (developmental disabilities aides must be registered on the nurse aide registry and must complete a developmental disabilities aide training program within 120 days after being hired); 77 Ill. Adm. Code § 395.310(f)(3) (Conway Greene CD-ROM March 2002) (required contents of developmental disabilities aide training program, including “[i]njury[-]prevention techniques”).

I, therefore, dissent from the majority’s decision to affirm that portion of the judgment ordering that the dismissal of the counts against Alverez be with prejudice. I would remand with directions to grant the motion for leave to file an amended complaint.