Illinois Official Reports

Appellate Court

McDonald v. Lipov, 2014 IL App (2d) 130401

Appellate Court 

Caption

MICHELLE EVA McDONALD, Plaintiff-Appellant, v. EUGENE G. 

LIPOV, d/b/a Advanced Pain Centers, S.C., d/b/a Alexian Brothers

Medical Center; JAYDEEP JOSHI, d/b/a Advanced Pain Centers,

S.C., d/b/a Alexian Brothers Medical Center; SARAH SANDERS,

d/b/a Advanced Pain Centers, d/b/a Alexian Brothers Medical Center;

VIREN GOHIL, d/b/a Alexian Brothers Medical Center; JEANNIE 

YCARRO, d/b/a Alexian Brothers Medical Center; BARRY 

BIKSHORN, d/b/a Northwest Neurology, d/b/a Alexian Brothers

Medical Center; JERRY ANDREWS, d/b/a Alexian Brothers Medical 

Center, d/b/a IPC-Hospitalists of Chicago; and SZYMON

ROSENBLATT, d/b/a Chicago Institute of Neurosurgery,

Defendants-Appellees.

District & No. Second District

Docket No. 2-13-0401

Filed June 19, 2014

Held

(Note: This syllabus 

constitutes no part of the 

opinion of the court but 

has been prepared by the 

Reporter of Decisions 

for the convenience of 

the reader.)

Where the initial dismissal of pro se plaintiff’s amended complaint for 

the injuries arising from the medical care defendants provided was 

affirmed by the appellate court due to her failure to comply with the 

requirements that she file an affidavit and a health professional’s 

report pursuant to section 2-622 of the Code of Civil Procedure, but 

the appellate court held that the dismissal of the medical battery 

allegations with prejudice was an abuse of discretion that required a 

remand to allow plaintiff to correct the defective allegations, the trial 

court’s subsequent dismissal of plaintiff’s second amended complaint 

with prejudice was also upheld, since plaintiff still did not comply 

with section 2-622 with regard to her medical battery claims, which 

involved knowledge, skill, and training in a technical area outside the 

comprehension of a layperson, some claims from the original and first 

amended complaint were restated or incorporated in the second 

amended complaint, even though they had been rejected in plaintiff’s 

first appeal, and there was no error in the trial court’s refusal to allow 

plaintiff to allege new claims that could have been raised earlier.
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Decision Under 

Review

Appeal from the Circuit Court of Du Page County, No. 09-L-907; the 

Hon. Hollis L. Webster and the Hon. John T. Elsner, Judges, 

presiding.

Judgment Affirmed.

Counsel on

Appeal

Michelle Eva McDonald, of Beach Park, appellant pro se.

Robert L. Nora, Lynne M. Damsma, and Taylor V. Nora, all of Nora 

& Tanzillo, LLP, of Chicago, for appellee Szymon Rosenblatt.

Deborah M.R. O’Brien, Vito M. Masciopinto, and Jamie Crowley, all 

of Lowis & Gellen LLP, for appellee Jeannie Ycarro.

Richard J. Hickey, Thomas A. Rieck, and Scott Stirling, all of Hickey, 

Melia & Associates, Chtrd., of Chicago, for appellee Jerry Andrews.

Michael C. Kominiarek, Lisa M. Green, and Michael R. Webber, all of 

Kominiarek Bresler Harvick & Gudmundson, LLC, of Chicago, for 

appellee Barry Bikshorn.

Brian J. Hickey and Mark A. Sansone, both of Cassiday Schade LLP, 

of Naperville, for other appellees.

Panel PRESIDING JUSTICE BURKE delivered the judgment of the court, 

with opinion.

Justices Schostok and Spence concurred in the judgment and opinion.

OPINION

¶ 1 Plaintiff, Michelle Eva McDonald, is a young woman who suffers from back pain and 

ailments in her lower extremities. She filed a pro se amended complaint for injuries that 

allegedly arose from medical care provided by defendants in 2007. The complaint alleged 

medical malpractice and medical battery. The trial court gave plaintiff three extensions of 

time to comply with the affidavit and health-professional’s-report requirements of section 

2-622 of the Code of Civil Procedure (Code) (735 ILCS 5/2-622 (West 2008)). Defendants 
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filed motions to dismiss on the grounds that plaintiff’s filings did not meet the requirements 

(see 735 ILCS 5/2-619, 2-622(g) (West 2008)) and that the allegations did not state a claim 

(see 735 ILCS 5/2-615 (West 2008)). The court eventually dismissed plaintiff’s amended 

complaint with prejudice.

¶ 2 Plaintiff appealed, arguing that the trial court erred in determining that (1) all of 

plaintiff’s claims sounded in medical malpractice, which required her to comply with section 

2-622 of the Code; (2) plaintiff did not substantially comply with section 2-622; (3) all of 

defendants’ motions to dismiss could be granted in a combined ruling; (4) the amended 

complaint should be dismissed with prejudice; and (5) plaintiff’s motion for summary 

judgment was premature.

¶ 3 We concluded that plaintiff’s claims of medical malpractice required her to comply with 

section 2-622, that plaintiff failed to comply with section 2-622, and that the trial court did 

not abuse its discretion in dismissing the malpractice claims with prejudice. We also held that 

the medical battery allegations failed to state a claim and were subject to dismissal under 

section 2-615. However, we concluded that the court abused its discretion in dismissing the 

medical battery allegations with prejudice, and we remanded the cause to afford plaintiff the 

opportunity to cure the defective allegations. McDonald v. Lipov, No. 2-10-0518 (2011) 

(unpublished order under Supreme Court Rule 23) (McDonald I).

¶ 4 On remand, plaintiff filed a 33-count, second amended complaint, which attempted to 

allege the following types of claims against defendants: (1) medical battery, (2) medical 

negligence, (3) fraudulent concealment, (4) conspiracy, (5) violations of the Emergency 

Medical Treatment and Active Labor Act (42 U.S.C. § 1395dd (2012)), (6) breach of 

contract, (7) vicarious liability, and (8) spoliation of evidence. The trial court dismissed the 

second amended complaint with prejudice for failing to state a claim.

¶ 5 Plaintiff appeals again, arguing that (1) section 2-622 does not apply to her medical 

battery claims; (2) she satisfied the affidavit requirement of section 2-622(a)(3) (735 ILCS 

5/2-622(a)(3) (West 2012)) by verifying the second amended complaint by certification 

according to section 1-109 of the Code (735 ILCS 5/1-109 (West 2012)); (3) Dr. Lipov’s 

affidavit should have been stricken as “insufficient in law”; (4) the dismissal violates her 

right to due process, because it denies her “right to remedy and justice”; (5) a genuine issue 

of material fact precludes the dismissal; (6) the statute of limitations or statute of repose does 

not bar her medical battery claims; and (7) defendants failed to establish that plaintiff 

consented to the intrusions.

¶ 6 We agree with defendants that the trial court properly dismissed the second amended 

complaint with prejudice. First, plaintiff’s medical battery claims, which allege treatment that 

substantially varied from the consent granted, require compliance with section 2-622 of the 

Code, because an assessment of the claims requires knowledge, skill, or training in a 

technical area outside the comprehension of laypersons. Contrary to plaintiff’s assertion, she 

has not complied with section 2-622. Second, the second amended complaint restates 

explicitly or incorporates by reference certain claims from the original complaint and the 

amended complaint, but plaintiff either abandoned those claims or we found them defective 

in McDonald I, and our decision is the law of the case. Third, considering the long 

procedural history of this matter, we conclude that the trial court did not abuse its discretion 

in denying plaintiff leave to assert new claims that she could have pleaded earlier.
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¶ 7 I. BACKGROUND

¶ 8 On August 6, 2012, plaintiff filed her second amended complaint, which contains 33 

claims that can be sorted into three categories. First, the complaint contains 10 claims labeled 

“medical battery,” which plaintiff had the opportunity to cure on remand. The claims allege 

various acts and omissions by defendants, but each claim alleges that the conduct was an 

unauthorized “deviation from consent.” Dr. Lipov, her treating physician, submitted an 

affidavit stating, in part, that plaintiff signed a written consent form agreeing to undergo the 

RACZ caudal epidural injection procedure that is the subject of the claims. His affidavit also 

states that the Myelotec catheter used in the procedure has been approved by the Food and 

Drug Administration for use in the procedure. Over plaintiff’s objection, the court found Dr. 

Lipov’s affidavit to be in compliance with Illinois Supreme Court Rule 191 (eff. Jan. 4, 

2013). The court dismissed the claims, concluding that (1) without a counteraffidavit 

submitted by plaintiff, the court must take as true Dr. Lipov’s statement that plaintiff signed a 

consent form; (2) the existence of a signed consent form meant that plaintiff’s claims were 

for medical negligence, not medical battery; and (3) plaintiff never obtained a health 

professional’s report as required for medical negligence claims.

¶ 9 Second, the complaint restates nine claims from the amended complaint: four negligence 

claims, three alleged violations of the Emergency Medical Treatment and Active Labor Act, 

and two claims of breach of contract. (Besides explicitly restating these claims, the second 

amended complaint also incorporates by reference all of the claims of the original complaint 

and the amended complaint.) In McDonald I, we determined that the trial court properly 

dismissed these claims with prejudice. When plaintiff restated the claims, the court dismissed 

them again, commenting that “[w]e’ve been over that ground and that has been through the 

higher courts.”

¶ 10 Third, the complaint contains 14 new claims: 3 claims of fraudulent concealment, 9 

claims of conspiracy, 1 claim of vicarious liability, and 1 claim of spoliation of evidence. The 

trial court dismissed these claims with prejudice. The court concluded that allowing plaintiff 

to add these claims would violate our mandate in McDonald I. Plaintiff’s timely appeal 

followed.

¶ 11 II. ANALYSIS

¶ 12 A. Medical Battery

¶ 13 On appeal, plaintiff asks us to reverse the trial court’s dismissal of the medical battery 

claims, entered pursuant to section 2-619 of the Code. 735 ILCS 5/2-619 (West 2012). “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); Solaia Technology, 

LLC v. Specialty Publishing Co., 221 Ill. 2d 558, 578-79 (2006). For a section 2-619 

dismissal, our standard of review is de novo. Solaia Technology, 221 Ill. 2d at 579.

¶ 14 When reviewing a dismissal under section 2-619, a court must accept as true all 

well-pleaded facts in the plaintiff’s complaint and all inferences that can reasonably be drawn 

in the plaintiff’s favor. Morr-Fitz, Inc. v. Blagojevich, 231 Ill. 2d 474, 488 (2008). In ruling 

on a motion to dismiss under section 2-619, the trial court may consider pleadings, 
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depositions, and affidavits. Raintree Homes, Inc. v. Village of Long Grove, 209 Ill. 2d 248, 

262 (2004). Even if the trial court dismissed on an improper ground, a reviewing court may 

affirm the dismissal if the record supports a proper ground for dismissal. Raintree, 209 Ill. 2d 

at 261 (when reviewing a section 2-619 dismissal, we can affirm “on any basis present in the 

record”).

¶ 15 The trial court dismissed plaintiff’s claims labeled “medical battery” on the grounds that 

the claims required compliance with section 2-622 of the Code and that plaintiff still had not 

complied with that statute. Section 2-622 was enacted to curtail frivolous medical 

malpractice lawsuits and to eliminate such actions at the pleading stage before the expenses 

of litigation mount. DeLuna v. St. Elizabeth’s Hospital, 147 Ill. 2d 57, 65 (1992). Section 

2-622(a)(1) requires the plaintiff, if proceeding pro se, or his attorney to file with the 

complaint an affidavit of merit stating that the affiant has consulted and reviewed the facts of 

the case with a health professional who, in a written medical report–after a review of the 

medical records and other relevant material–has determined that there is a “reasonable and 

meritorious” cause for filing the action. 735 ILCS 5/2-622(a)(1) (West 2012). A copy of the 

medical report must be attached to the affidavit and must clearly identify the plaintiff and 

“the reasons for the reviewing health professional’s determination that a reasonable and 

meritorious cause for the filing of the action exists.” 735 ILCS 5/2-622(a)(1) (West 2012);

see Moyer v. Southern Illinois Hospital Service Corp., 327 Ill. App. 3d 889, 902 (2002).

¶ 16 Section 2-622(a)(2) prescribes a 90-day extension for filing the report, allowing the 

plaintiff to file with the complaint an affidavit stating that he was unable to obtain the health 

professional’s consultation “because a statute of limitations would impair the action and the 

consultation required could not be obtained before the expiration of the statute of 

limitations.” 735 ILCS 5/2-622(a)(2) (West 2012). Section 2-622(a)(3) alternatively 

authorizes the plaintiff to file an affidavit stating that he or his attorney made a request to 

examine and copy records and that the party required to comply with the request failed to 

produce those records within 60 days. 735 ILCS 5/2-622(a)(3) (West 2012). If the plaintiff 

executes an affidavit under section 2-622(a)(3), the certificate and report required by section 

2-622(a)(1) must be filed within 90 days of receiving the records. 735 ILCS 5/2-622(a)(3) 

(West 2012).

¶ 17 Plaintiff argues that section 2-622(a) does not apply to her medical battery claims and 

that therefore any noncompliance with the statute is not grounds for involuntary dismissal.

The health-professional’s-report and affidavit requirements of section 2-622(a) apply to “any 

action, whether in tort, contract or otherwise, in which the plaintiff seeks damages for 

injuries or death by reason of medical, hospital, or other healing art malpractice.” 735 ILCS 

5/2-622(a) (West 2012).

¶ 18 It is well established that a claim that a health professional acted without the informed 

consent of the patient is a type of medical malpractice claim. Corollaries to the consent 

requirement are that a patient has the right to refuse medical treatment, even if the patient’s 

life is in jeopardy (In re Estate of Longeway, 133 Ill. 2d 33, 45 (1989)), and that a 

common-law battery is the unauthorized touching of the person of another (In re Estate of 

Allen, 365 Ill. App. 3d 378, 385 (2006)).

¶ 19 At the crossroads of these well-established medical malpractice principles exists the tort 

of medical battery. In a medical battery case, an injured party can recover by establishing that 

(1) there was no consent to the medical treatment performed, (2) the treatment was against 
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the injured party’s will, or (3) the treatment substantially varied from the consent granted.

Estate of Allen, 365 Ill. App. 3d at 385. Under such circumstances, a battery has occurred 

because the person administering the medical care intentionally touched the person of 

another without authorization. Estate of Allen, 365 Ill. App. 3d at 385.

¶ 20 This court has held that lack of consent to medical procedures gives rise to two causes of 

action: one based on negligence and the other based on battery. Gragg v. Calandra, 297 Ill. 

App. 3d 639, 645 (1998); see also Doe v. Noe, 293 Ill. App. 3d 1099, 1113 (1997) (“The law 

distinguishes between a total lack of consent for the contested act (battery) and the lack of 

informed consent (negligence).”). Where an unauthorized surgeon operates, he commits a 

technical trespass to the patient resulting in the intentional tort of battery. It is not the hostile 

intent of the defendant but rather the absence of consent by the plaintiff that is at the core of 

an action for battery. Gragg, 297 Ill. App. 3d at 645.

¶ 21 The second amended complaint contains several claims labeled “medical battery.” The 

claims do not allege a lack of consent or treatment administered against plaintiff’s will.

Rather, the claims allege a “deviation from [the] consent” that plaintiff provided, which can 

be liberally construed as alleging that the treatment substantially varied from the consent 

granted. See Estate of Allen, 365 Ill. App. 3d at 385.

¶ 22 Plaintiff asserted repeatedly in the trial court that her consent to the RACZ procedure did 

not authorize the use of a Myelotec-brand catheter through the caudal canal of her spinal 

cord. However, Dr. Lipov stated in his affidavit that “[t]he Myelotec catheter [he] used in the 

procedure is a brand name of a particular catheter that has been approved by the FDA for use 

in the RACZ procedure,” suggesting that consent to the procedure implies consent to the use 

of the catheter. Dr. Lipov is a physician with relevant specialized expertise, while plaintiff is 

not. The trial court found that plaintiff needed an expert medical opinion to support this facet 

of her medical battery claims. 735 ILCS 5/2-622 (West 2012).

¶ 23 Recently, in Holzrichter v. Yorath, 2013 IL App (1st) 110287, ¶ 96, the appellate court 

affirmed a summary judgment entered against a medical battery plaintiff who failed to file a 

health professional’s report pursuant to section 2-622. The plaintiff had repeatedly insisted 

that the bunionectomy procedure to which he consented did not involve the cutting of 

tendons, which allegedly had caused his injury. He claimed that the defendant committed 

medical battery by exceeding the scope of his consent by cutting the tendons. Holzrichter, 

2013 IL App (1st) 110287, ¶ 85.

¶ 24 The Holzrichter court observed that the plain and unambiguous language of section 2-622 

does not limit the requirement of an affidavit and expert medical opinion solely to medical 

malpractice claims. Holzrichter, 2013 IL App (1st) 110287, ¶¶ 92-93. The court explained 

that the plaintiff’s medical battery action, based in tort, requested damages for injuries arising 

from a medical procedure that he claimed went beyond the scope of the procedure to which 

he consented. Holzrichter, 2013 IL App (1st) 110287, ¶ 96. “Whether the cutting of the 

tendons exceeded the scope of the surgery is a ‘subject matter *** so complicated that lay 

persons are not in an adequate position to assess whether a breach of duty has occurred.’ ”

Holzrichter, 2013 IL App (1st) 110287, ¶ 96 (quoting Schindel v. Albany Medical Corp., 252 

Ill. App. 3d 389, 395 (1993)). The court held that “the plain and unambiguous language of 

section 2-622 of the Code, requiring an affidavit and health professional’s written report ‘[i]n 

any action, whether in tort, contract or otherwise, in which plaintiff seeks damages for 

injuries or death by reason of medical, hospital, or other healing art malpractice,’ is 
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applicable in this case.” Holzrichter, 2013 IL App (1st) 110287, ¶ 96 (quoting 735 ILCS 

5/2-622(a) (West 1998)). Emphasizing that its holding was limited to the facts of the case, 

the court affirmed the summary judgment entered for the defendant, because the plaintiff 

failed to comply with section 2-622. Holzrichter, 2013 IL App (1st) 110287, ¶ 96 (“we need 

not decide here whether the requirements of section 2-622 are applicable to all medical 

battery claims”).

¶ 25 The Holzrichter court pointed out that expert medical opinions previously had been 

required in non-medical-malpractice actions. Holzrichter, 2013 IL App (1st) 110287, ¶ 93. In 

Schindel, a patient brought an action for damages from the rupture of her fallopian tubes 

during an ectopic pregnancy, but she alleged that the jury could decide her case on principles 

of “ordinary negligence” so that testimony of an expert medical witness was not necessary.

The Schindel court concluded that the case required “expert analysis of [the] plaintiff’s 

medical condition in order to fully define the proper standard of care.” Schindel, 252 Ill. App.

3d at 398. Because no medical testimony was presented to establish the standard of care, the 

jury verdict was reversed. Schindel, 252 Ill. App. 3d at 402.

¶ 26 Similarly, in Bloom v. Guth, 164 Ill. App. 3d 475, 477 (1987), a patient brought an action 

for damages from her doctor’s failure to perform a hysterectomy and repair her bladder, but 

she alleged that her claim was for breach of contract, not medical malpractice, so that 

testimony of an expert medical witness was not necessary. The Bloom court rejected the 

patient’s argument and affirmed the dismissal of the complaint based on the plain language 

of section 2-622(a).

¶ 27 In McDonald I, we stated that “[s]ection 2-622 does not apply to medical battery claims, 

and therefore, that statute is not a proper basis for dismissing those claims [in the amended 

complaint].” McDonald I, No. 2-10-0518, slip op. at 10. After reviewing the specific 

allegations of medical battery in this case, we agree with the reasoning of the First District in 

Holzrichter that section 2-622(a) can potentially apply to medical battery claims. Holzrichter, 

2013 IL App (1st) 110287, ¶ 96. Plaintiff’s medical battery claims turn on whether 

defendants exceeded the parameters of the surgery to which plaintiff consented. Thus, the 

issue is beyond the ken of a layperson and requires a medical expert to opine on whether the 

use of the Myelotec catheter is within the scope of the RACZ procedure. Consistent with 

Holzrichter, Schindel, and Bloom, we hold that, to sustain her medical battery claims, 

plaintiff was required to submit an affidavit and a health professional’s report pursuant to 

section 2-622(a). See Holzrichter, 2013 IL App (1st) 110287, ¶ 96; see also Schindel, 252 Ill. 

App. 3d at 397-98 (“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.”).

¶ 28 Requiring compliance with section 2-622(a) of the Code under these facts follows 

logically from the legislature’s intent to prevent frivolous lawsuits and ensure that 

meritorious claims, bolstered by expert medical opinion, proceed past the pleading stage. See

Holzrichter, 2013 IL App (1st) 110287, ¶ 88. “A plaintiff challenging an implicit part of the 

medical treatment should not be able to avoid the requirement of an expert medical opinion 

simply by claiming medical battery or something other than medical malpractice.”

Holzrichter, 2013 IL App (1st) 110287, ¶ 88.

¶ 29 Plaintiff does not dispute that she has not submitted an affidavit and a health 

professional’s report as mandated by section 2-622(a)(1). However, plaintiff argues that she 
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has substantially complied with the affidavit requirement of section 2-622(a)(3) (735 ILCS 

5/2-622(a)(3) (West 2012)) by verifying the second amended complaint by certification 

according to section 1-109 of the Code (735 ILCS 5/1-109 (West 2012)). The second 

amended complaint contains a section labeled “Affidavit Pursuant to 735 ILCS 

5/2-622(a)(3)” and provides in relevant part as follows:

“The undersigned, Michelle Eva McDonald, under penalties provided by law 

pursuant to Section 1-109 of the Code of Civil Procedure, certifies that the statements 

set forth in this instrument are true and correct, except as to matters therein stated to 

be on information and belief and as to such matters, the undersigned certifies as 

aforesaid that she verily believes the same to be true.”

¶ 30 Rejecting plaintiff’s assertion that the certification satisfies section 2-622, the trial court 

commented, “I understand, Ms. McDonald, that you disagree with the statements of [Dr. 

Lipov’s] affidavit. But from a legal point of view, I can’t consider your disagreement. You 

needed–or you needed to supply me with something that under the law I can consider. An 

affidavit from a qualified expert in the field[.] I understand that you disagree with that but 

that doesn’t allow me to make a different decision.”

¶ 31 Plaintiff’s verification of the second amended complaint by certification under section 

1-109 of the Code is not a substitute for compliance with section 2-622(a)(3) (735 ILCS 

5/2-622(a)(3) (West 2012)). Section 2-622(a)(3) allowed an affidavit stating that plaintiff 

made a request to examine and copy records and that defendants failed to produce those 

records within 60 days, but plaintiff’s verification contains no such statement. Even if 

plaintiff’s verification had satisfied section 2-622(a)(3), that statute authorizes a plaintiff to 

file an affidavit only to delay compliance with section 2-622(a)(1). 735 ILCS 5/2-622(a)(3) 

(West 2012). Thus, even if plaintiff had executed a proper affidavit under section 

2-622(a)(3), section 2-622(a)(1) still required her to file the certificate and written report 

within 90 days of receiving the records. 735 ILCS 5/2-622(a)(3) (West 2012).

¶ 32 Since plaintiff is proceeding pro se, section 2-622(a) required an affidavit stating that she

consulted and reviewed the facts of the case with a health professional who reviewed the 

medical records and prepared a written medical report finding that there is a “reasonable and 

meritorious” cause for filing the action. See 735 ILCS 5/2-622(a)(1) (West 2012). Section 

2-622(a) further requires the professional’s report to clearly identify the plaintiff and “the 

reasons for the reviewing health professional’s determination that a reasonable and 

meritorious cause for the filing of the action exists.” 735 ILCS 5/2-622(a)(1) (West 2012).

Plaintiff does not claim to be an expert health professional or that she obtained a health 

professional’s report. Plaintiff’s certification does not comply with section 2-622(a).

¶ 33 We further reject plaintiff’s argument that the trial court erred in accepting Dr. Lipov’s 

affidavit. Affidavits in support of motions under section 2-619 are controlled by Rule 191.

Elliott v. LRSL Enterprises, Inc., 226 Ill. App. 3d 724, 732 (1992). Rule 191(a) provides that 

“affidavits submitted in connection with a motion for involuntary dismissal under section 

2-619 of the Code of Civil Procedure *** shall be made on the personal knowledge of the 

affiants; shall set forth with particularity the facts upon which the claim, counterclaim, or 

defense is based; shall have attached thereto sworn or certified copies of all documents upon 

which the affiant relies; shall not consist of conclusions but of facts admissible in evidence; 

and shall affirmatively show that the affiant, if sworn as a witness, can testify competently 
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thereto. If all of the facts to be shown are not within the personal knowledge of one person, 

two or more affidavits shall be used.” Ill. S. Ct. R. 191(a) (eff. Jan. 4, 2013).

¶ 34 If the document as a whole shows that the affidavit is based upon the personal knowledge 

of the affiant and there is a reasonable inference that the affiant could competently testify to 

its contents at trial, Rule 191 is satisfied. Doria v. Village of Downers Grove, 397 Ill. App. 3d 

752, 756 (2009). “Prima facie authorship of a document may include a showing that the 

writing contains knowledge of a matter sufficiently obscure so as to be known to only a small 

group of individuals.” People v. Downin, 357 Ill. App. 3d 193, 203 (2005). It is the function 

of a trial court to determine the admissibility of evidence, and its rulings will not be disturbed 

absent an abuse of discretion. Independent Trust Corp. v. Hurwick, 351 Ill. App. 3d 941, 952 

(2004). Here, Dr. Lipov performed the RACZ procedure at issue; his affidavit consists of 

facts within his personal knowledge and is therefore in compliance with Rule 191.

¶ 35 Plaintiff contends that she was precluded from cross-examining Dr. Lipov regarding the 

statements in his affidavit, but she never requested his deposition when the affidavit was 

filed. If a party believes that additional discovery is necessary to adequately respond to a 

motion to dismiss, the party may seek a continuance and obtain discovery by filing an 

affidavit under Rule 191(b), but plaintiff failed to do so. Failure to file a Rule 191(b) affidavit 

in the trial court results in forfeiture of a potential appellate argument that additional 

discovery was needed. By failing to file a Rule 191(b) affidavit, plaintiff has forfeited any 

claim that she was not permitted to cross-examine Dr. Lipov for the purposes of challenging 

his affidavit and establishing a reasonable and meritorious cause for filing her action.

¶ 36 B. Old Claims

¶ 37 The second amended complaint restates nine claims from the amended complaint: four 

negligence claims, three alleged violations of the Emergency Medical Treatment and Active 

Labor Act, and two claims of breach of contract. Besides explicitly restating these claims, the 

second amended complaint incorporates by reference all of the claims of the original 

complaint and the amended complaint.

¶ 38 Plaintiff’s amended complaint did not incorporate the original complaint. “ ‘Where an 

amendment is complete in itself and does not refer to or adopt the prior pleading, the earlier 

pleading ceases to be a part of the record for most purposes, being in effect abandoned and 

withdrawn.’ ” Foxcroft Townhome Owners Ass’n v. Hoffman Rosner Corp., 96 Ill. 2d 150, 

154 (1983) (quoting Bowman v. County of Lake, 29 Ill. 2d 268, 272 (1963)). Thus, plaintiff 

abandoned the claims in the original complaint when she filed the amended complaint 

without referring to the original complaint.

¶ 39 Moreover, in McDonald I, we determined that the trial court properly dismissed with 

prejudice these nine claims from the amended complaint. When plaintiff restated the claims 

in the second amended complaint, the court dismissed them again, commenting that “[w]e’ve 

been over that ground and that has been through the higher courts.”

¶ 40 The law-of-the-case doctrine limits relitigation of a previously decided issue in the same 

case. Village of Ringwood v. Foster, 2013 IL App (2d) 111221, ¶ 33 (citing Krautsack v. 

Anderson, 223 Ill. 2d 541, 552 (2006)). The doctrine encompasses not only the reviewing 

court’s explicit decisions, but those issues decided by necessary implication. Reich v. 

Gendreau, 308 Ill. App. 3d 825, 829 (1999). The doctrine applies to questions of law on 
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remand to the trial court as well as on subsequent appeals. Radwill v. Manor Care of 

Westmont, IL, LLC, 2013 IL App (2d) 120957, ¶ 8.

¶ 41 In McDonald I, we found these nine claims to be defective. Our decision is the law of the 

case, and the trial court correctly dismissed them with prejudice.

¶ 42 C. New Claims

¶ 43 On remand, plaintiff filed the second amended complaint with new claims besides the 

repleaded medical battery claims. Among the new claims are three claims of fraudulent 

concealment, nine claims of conspiracy, one claim of vicarious liability, and one claim of 

spoliation of evidence. The trial court dismissed the new claims with prejudice on the ground 

that they fell “outside the directive” of our holding in McDonald I.

¶ 44 It is well recognized that a reviewing court’s mandate vests a trial court with jurisdiction 

only to take action that complies with the reviewing court’s mandate. Fleming v. Moswin, 

2012 IL App (1st) 103475-B, ¶ 28. A trial court lacks the authority to exceed the scope of the 

mandate and must obey precise and unambiguous directions on remand. Furthermore, the 

correctness of the trial court’s action on remand is to be determined from the appellate 

court’s mandate, as opposed to the appellate court opinion. However, if the direction is to 

proceed in conformity with the opinion, then, of course, the content of the opinion is 

significant. Fleming, 2012 IL App (1st) 103475-B, ¶ 28. If specific directions are not given, 

the trial court should examine the opinion and determine what further proceedings would be 

consistent with the opinion. Any other order issued by the trial court is outside the scope of 

its authority and void for lack of jurisdiction. Fleming, 2012 IL App (1st) 103475-B, ¶ 28.

¶ 45 In this case, our mandate following our initial order contained no specific instructions 

and, therefore, we look to that order to determine the scope of the trial court’s authority on 

remand. In McDonald I, we held that, although the medical battery allegations had been 

properly dismissed under section 2-615, the trial court abused its discretion in dismissing 

those allegations with prejudice and should have afforded plaintiff the opportunity to cure the 

defects. Specifically, we directed the trial court to afford plaintiff “the opportunity to replead 

her medical battery claims.”

¶ 46 Our disposition was silent as to whether plaintiff could allege additional claims on 

remand; nothing in the record suggested that she might wish to do so. One could argue that to 

allow plaintiff to plead new claims would have been outside the scope of the trial court’s 

authority and void for lack of jurisdiction. See Fleming, 2012 IL App (1st) 103475-B, ¶ 28.

¶ 47 Even if the pleading of new claims were within our directive and consistent with the 

disposition, the trial court did not abuse its discretion in dismissing those new claims with 

prejudice. Section 2-616(a) of the Code governs the amendment of pleadings and provides 

that “[a]t any time before final judgment amendments may be allowed on just and reasonable 

terms *** changing the cause of action or defense or adding new causes of action or 

defenses, and in any matter, either of form or substance, in any process, pleading, bill of 

particulars or proceedings, which may enable the plaintiff to sustain the claim for which it 

was intended to be brought or the defendant to make a defense or assert a cross claim.” 735 

ILCS 5/2-616(a) (West 2012). Amendments should be liberally allowed to permit parties to 

fully present their cases and to further the interests of justice. Rusch v. Leonard, 399 Ill. App. 

3d 1026, 1037 (2010). The right to amend, however, is neither absolute nor unlimited. Hayes 
- 11 -

Mechanical, Inc. v. First Industrial, L.P., 351 Ill. App. 3d 1, 6 (2004). The decision to grant 

leave to amend a complaint rests within the sound discretion of the trial court and we will not 

reverse such a decision absent an abuse of that discretion. Hayes Mechanical, Inc., 351 Ill.

App. 3d at 7.

¶ 48 Four factors determine whether amendments to pleadings should be permitted under 

section 2-616(a): (1) whether the proposed amendment would cure a defective pleading; (2) 

whether the proposed amendment would surprise or prejudice the opposing party; (3) 

whether the proposed amendment was timely filed; and (4) whether the moving party had 

previous opportunities to amend. Sheth v. SAB Tool Supply Co., 2013 IL App (1st) 110156, 

¶ 101. The most important factor is prejudice to the opposing party, such as where an 

amendment leaves the party unprepared to respond to a new theory at trial. Sheth, 2013 IL 

App (1st) 110156, ¶ 101.

¶ 49 The plaintiff must meet all four factors, and “if the proposed amendment does not state a 

cognizable claim, and thus, fails the first factor, courts of review will often not proceed with 

further analysis.” Hayes Mechanical, Inc., 351 Ill. App. 3d at 7. Accordingly, “[w]here it is 

apparent even after amendment that no cause of action can be stated, leave to amend should 

be denied.” Hayes Mechanical, Inc., 351 Ill. App. 3d at 7. “[W]hen ruling on a motion to 

amend, the court may consider the ultimate efficacy of a claim as stated in a proposed 

amended pleading” and it is not necessary for the plaintiff to file an amended complaint and 

the defendant to test the sufficiency of that complaint through a motion to dismiss. Hayes 

Mechanical, Inc., 351 Ill. App. 3d at 7.

¶ 50 In this case, we remanded the cause to afford plaintiff the opportunity to cure the defects 

in her medical battery claims, and the trial court repeatedly informed plaintiff of the need to 

comply with section 2-622 to preserve those claims. The new claims of fraudulent 

concealment, conspiracy, vicarious liability, and spoliation of evidence were not timely filed.

Plaintiff had several previous opportunities to amend her pleading. In fact, in dismissing the 

second amended complaint with prejudice, the court commented that “I think the procedural 

history of this case will reflect that I bent over backwards to give you every opportunity to 

file the best pleading that you could file, to obtain legal counsel if you chose to do so, and 

you proceeded on your own.” Under these circumstances, the trial court did not abuse its 

discretion in dismissing plaintiff’s new claims with prejudice.

¶ 51 Plaintiff also argues that the dismissal violates her right to due process, because it denies 

her “right to remedy and justice,” and that a genuine issue of material fact precludes the 

dismissal. She also claims that the statute of limitations or statute of repose does not bar her 

medical battery claims and that defendants failed to establish that plaintiff consented to the 

intrusions. Plaintiff’s arguments are not developed or supported by citation to relevant 

authority (see Ill. S. Ct. R. 341(h)(7) (eff. Feb. 6, 2013)) and otherwise lack merit.

¶ 52 III. CONCLUSION

¶ 53 For the reasons stated, we affirm the order of the circuit court of Du Page County 

dismissing the second amended complaint with prejudice.

¶ 54 Affirmed.