Illinois Official Reports

Appellate Court

In re Detention of Duke, 2013 IL App (1st) 121722

Appellate Court 

Caption

In re DETENTION OF TERRY DUKE (Terry Duke, PlaintiffAppellant, v. Jacqueline Buck, Ph.D., and Kimberly Weitl, Psy.D., 

Defendants-Appellees (Erin Busse, M.A., L.P.C. and Liberty 

Healthcare Corporation, Defendants)).

District & No. First District, Second Division

Docket No. 1-12-1722

Filed December 17, 2013

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.)

In proceedings on a petition seeking plaintiff’s involuntary 

commitment as a sexually violent person, his counterclaims alleging 

that defendants, including psychiatrists and counselors, were guilty of 

medical and professional malpractice in diagnosing and treating him

as a sexual sadist were properly dismissed, since he failed to seek 

proper leave to file the counterclaims, defendants had no duty to

plaintiff, and defendants were immune from liability as agents of the 

State of Illinois.

Decision Under 

Review

Appeal from the Circuit Court of Cook County, Nos. 02-CR-80003, 

11-MR-00031, 11-MR-00038; the Hon. William G. Lacy, Judge, 

presiding.

Judgment Affirmed.
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Counsel on

Appeal

J. Nicolas Albukerk, of Albukerk & Associates, of Chicago, for 

appellant.

John A. Ousk and Julie A. Murphy, both of Patton & Ryan, LLC, of 

Chicago, for appellees.

Panel JUSTICE SIMON delivered the judgment of the court, with opinion. 

Presiding Justice Quinn and Justice Pierce concurred in the judgment 

and opinion.

OPINION

¶ 1 Plaintiff Terry Duke appeals from the dismissal of two counterclaim/cross-claims 

(counterclaims) he filed as part of proceedings relating to the Illinois Attorney General’s 

petition to involuntarily commit plaintiff as a sexually violent person pursuant to the Sexually 

Violent Persons Commitment Act. 725 ILCS 207/1 et seq. (West 2002) (Act). Plaintiff alleged 

that defendants Dr. Jacqueline Buck, Dr. Kimberly Weitl, licensed therapist Erin Busse, and 

Liberty Healthcare Corporation committed medical and professional malpractice by 

improperly diagnosing and treating plaintiff as a sexual sadist. Plaintiff sought damages for 

deprivation of comfort, companionship and affection, as well as lost gains and earnings 

resulting from his involuntary and unjust detainment due to the misdiagnosed and/or 

improperly validated disorders.

¶ 2 Dr. Weitl was not served with process and did not appear. The remaining defendants 

moved to dismiss the counterclaims on various grounds pursuant to section 2-619 of the 

Illinois Code of Civil Procedure. 735 ILCS 5/2-619 (West 2012). The circuit court granted the 

motions to dismiss, without prejudice. The court followed the rule announced in Lieberman v. 

Liberty Healthcare Corp., 408 Ill. App. 3d 1102 (2011), that the filing of such a claim in a 

commitment proceeding is precluded until a favorable termination in the underlying 

proceedings is reached. Plaintiff only appeals the dismissal of his counterclaims against Drs. 

Buck and Weitl, arguing that the circuit court improperly interpreted Lieberman in dismissing 

his malpractice claims and that Lieberman actually supports his right to bring malpractice 

claims in the underlying case. Plaintiff also argues that the circuit court erred in dismissing the 

counterclaim against Dr. Weitl because the court lacked jurisdiction. Dr. Buck filed an 

appearance with this court, filed an appellate brief, and presented oral argument. Dr. Weitl did 

not file an appearance or take any part in the proceedings before this court. For the following 

reasons, we affirm the judgment of the circuit court.
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¶ 3 I. BACKGROUND

¶ 4 Following numerous convictions for sexual offenses and a declaration that he was a 

habitual sex offender, plaintiff was imprisoned at the Dixon Correctional Center in July 1984 

and was scheduled to be paroled on July 5, 2002. However, pursuant to section 10 of the Act, 

the Illinois Department of Corrections engaged Anthony T. Schaab, Ph.D., on April 11, 2002, 

to conduct a clinical evaluation of plaintiff to determine if plaintiff was a sexually violent 

person subject to commitment. Based upon the results of the evaluation, the Attorney General 

filed a petition to commit plaintiff as a sexually violent person on June 26, 2002.

¶ 5 Plaintiff was transferred to the Illinois Department of Human Services Sexually Violent 

Persons Treatment and Detention Center in Rushville, Illinois. On December 16, 2002, the 

circuit court found probable cause for plaintiff’s detention pending a final adjudication of the 

petition for commitment. Plaintiff has filed several continuances and a trial has yet to be held 

on the Attorney General’s petition. Plaintiff remains detained under the 2002 court order.

¶ 6 On February 9, 2009, the circuit court granted the Attorney General’s request to appoint 

Dr. Buck to conduct an updated evaluation of plaintiff because of the delays in the proceedings 

and Dr. Schaab’s retirement. Dr. Buck submitted a report in August 2009, the Attorney 

General was granted leave to amend her petition, and an amended petition was filed on 

October 27, 2010. The amended petition incorporated the evaluation by Dr. Buck and asserted 

that plaintiff suffered from three mental disorders that predispose him to engage in acts of 

sexual violence thereby requiring his confinement.

¶ 7 Plaintiff did not file an answer to the amended petition. Instead, on August 29, 2011, 

plaintiff filed his counterclaim against Dr. Buck sounding in medical malpractice. On October 

5, 2011, plaintiff filed his second counterclaim, naming Dr. Weitl, Busse and Liberty 

Healthcare as defendants. Plaintiff claimed that Dr. Weitl committed professional malpractice 

in diagnosing and treating plaintiff for the disorder “Paraphilia Not Otherwise Specified 

Sexually Attracted to Non-consenting Women/Females (‘paraphilia non-consent’).” Plaintiff 

alleged that Dr. Weitl indicated this disorder is addressed in the Diagnostic and Statistical 

Manual of Mental Disorders IV TR (DSM), but the disorder does not exist in the DSM. This 

issue was not dealt with by the circuit court as Dr. Weitl was not served and did not file an 

appearance; however, the remaining parties were served, appeared, and filed motions to 

dismiss plaintiff’s counterclaims.

¶ 8 In her motion to dismiss pursuant to section 2-619 of the Code of Civil Procedure (735 

ILCS 5/2-619 (West 2012)), Dr. Buck argued that plaintiff did not file the counterclaims as 

part of his answer or with leave of the trial court as required by sections 2-608 and 2-609 of the 

Code of Civil Procedure. 735 ILCS 5/2-608, 2-609 (West 2012). Both motions to dismiss also 

included argument that under Lieberman, which applied the “Heck Rule” derived from the 

United States Supreme Court decision in Heck v. Humphrey, 512 U.S. 477 (1994), dismissal 

was required. Defendants argued that the Heck Rule bars parallel litigation to avoid the 

possibility of a successful tort action that could imply the invalidity of a sentence or

conviction, as in the resolution of a commitment petition.

¶ 9 The motions were fully briefed and the circuit court heard argument. The court concluded 

that the issue was not complex and Lieberman holds that a counterclaim in a commitment 
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proceeding is precluded until there is a favorable termination of the proceedings. Therefore, 

the circuit court dismissed the counterclaims, without prejudice. This appeal followed.

¶ 10 II. ANALYSIS

¶ 11 A motion to dismiss pursuant to section 2-619 admits the legal sufficiency of a pleading, 

but asserts an affirmative defense or other matter that avoids or defeats the claim. Barber v. 

American Airlines, Inc., 241 Ill. 2d 450, 455 (2011). A section 2-619 dismissal is reviewed 

de novo. Id. We may affirm the dismissal of a complaint on any ground that is apparent from 

the record. Sherman v. Township High School District 214, 404 Ill. App. 3d 1101, 1107 (2010).

¶ 12 Plaintiff argues on appeal that the circuit court misinterpreted the holding in Lieberman.

He asserts that Lieberman actually supports advancing a malpractice claim within proceedings 

under the Act. Therefore, he concludes that the circuit court erred and the dismissal of his 

counterclaims must be reversed so that they may be heard in conjunction with the trial on the 

commitment petition. Plaintiff also contends that the court lacked jurisdiction when it 

dismissed the action against Dr. Weitl.

¶ 13 Plaintiff asserts that the circuit court misinterpreted the Lieberman decision and erred in 

applying it to the instant case. In Lieberman, the class action plaintiffs were adjudicated 

sexually violent persons and committed pursuant to the Act based on a doctor’s testimony that 

the plaintiffs were diagnosed with paraphilia nonconsent. Lieberman, 408 Ill. App. 3d at 1104.

As in this case, the plaintiffs claimed that the defendants committed medical malpractice by 

negligently diagnosing a disorder that did not exist in the DSM. Id. at 1106. The defendants’

motion to dismiss the complaint was granted based on the doctrine of collateral estoppel. Id. at 

1107-08.

¶ 14 On appeal, the Lieberman court applied the holding in Heck that, in order to recover 

damages, a 42 U.S.C. § 1983 plaintiff must prove that the conviction or sentence has been 

reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal, or 

called into question by a federal court’s issuance of a writ of habeas corpus. Heck, 512 U.S. at 

486-87. The Lieberman court found that the Heck Rule applied to the plaintiffs as they were 

confined by virtue of the adjudications under the Act and their malpractice actions challenged 

the diagnoses underlying their confinement. Lieberman, 408 Ill. App. 3d at 1112. Because the 

plaintiffs were collaterally attacking their confinement by alleging medical malpractice 

without challenging the confinement, “[o]nly after the favorable termination of plaintiffs’

confinements may they pursue their claim for money damages.” Id. at 1112-13.

¶ 15 Plaintiff argues that the application of Lieberman to his case would violate his due process 

rights because he would not be able to bring his medical malpractice claim until after the 

statute of limitations had run on his claim. Plaintiff quotes Lieberman for the proposition that 

he “could have, and likely should have, raised that [medical malpractice] issue before the 

trial court” (emphasis in original). See id. at 1109. Plaintiff claims that the Lieberman court 

recognized that the issues of confinement and malpractice should have been considered 

together so the jury could rule on all issues concerning the diagnosis in question. Therefore, he 

argued to the circuit court and argues on appeal that denial of his malpractice claims denies 
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him the opportunity to challenge his diagnosis. Plaintiff concludes that he should be allowed to 

raise his malpractice claims in the form of the instant counterclaims in the commitment 

petition.

¶ 16 Dr. Buck argues that the circuit court properly dismissed the counterclaims based on 

Lieberman and the Heck Rule. She also contends that the Act does not contain any provisions 

authorizing a counterclaim, which forecloses plaintiff from seeking damages under such a 

claim until the underlying commitment proceeding concludes. Furthermore, she maintains that 

plaintiff failed to comply with the rules of civil procedure and his untimely claim is a nullity.

¶ 17 As noted above, this court may affirm the dismissal of a cause of action based on any 

ground of record. This case is best resolved by reviewing plaintiff’s counterclaims and the 

elements for a medical malpractice action and, although pertinent, we need not consider the 

applicability of Lieberman to this case. However, we note that plaintiff’s reliance on the 

language of Lieberman and his modification of the court’s language to support his claim that 

the underlying proceedings are the proper venue to bring a medical malpractice action are 

misguided. The Lieberman court simply stated, in dicta, that the proper time for a plaintiff 

facing a commitment petition under the Act to challenge his diagnosis is during the 

proceedings on the petition. There is no support for plaintiff’s argument because the court in no 

way indicated that the plaintiff should file a counterclaim for damages sounding in tort at that 

juncture. Lieberman, 408 Ill. App. 3d at 1109.

¶ 18 In a medical malpractice action, the burden rests with the plaintiff to prove the following 

elements: “the proper standard of care against which the defendant physician’s conduct is 

measured; an unskilled or negligent failure to comply with the applicable standard; and a 

resulting injury proximately caused by the physician’s want of skill or care.” Purtill v. Hess, 

111 Ill. 2d 229, 241-42 (1986). The question of the existence of a duty is a question of law that 

must be resolved by the court. Doe v. McKay, 183 Ill. 2d 272, 278 (1998). “If no duty exists, it 

is axiomatic that no recovery can occur.” Mt. Zion Bank State Bank & Trust v. Consolidated 

Communications, Inc., 169 Ill. 2d 110, 116 (1995). Plaintiff cannot establish a duty owed by 

Dr. Buck and dismissal was proper on that ground alone. In addition, we note in this case that 

plaintiff cannot satisfy the elements of breach, proximate cause and injury caused by Dr. 

Buck’s want of skill or care.

¶ 19 For the first element, plaintiff cannot show that Dr. Buck owed him a duty. The 

relationship between Dr. Buck and plaintiff is not a therapeutic relationship. Rather, Dr. Buck 

is a medical expert for the State, a forensic psychiatrist who interviewed plaintiff for purposes 

of the petition under the Act. During oral argument, it was elicited from plaintiff’s counsel that 

Dr. Buck is not a treating doctor for plaintiff. Plaintiff also admits this in his notice of appeal, 

in which he states that he is appealing the dismissal of his counterclaim “against AG expert for 

medical malpractice.” Without such a therapeutic relationship, Dr. Buck has no duty of care to 

plaintiff; she is an expert for the State without a duty to plaintiff and plaintiff’s counterclaim 

was properly dismissed. Johnston v. Weil, 396 Ill. App. 3d 781, 787 (2009), aff’d, 241 Ill. 2d 

169, 182 (2011).
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¶ 20 Even if plaintiff could establish a duty owed to plaintiff by Dr. Buck, there remain 

numerous other issues with his counterclaims, including various immunities that support 

dismissal. In his brief on appeal, plaintiff asserts:

“This cross claim is appropriate because the State of Illinois and the IDOC are 

named parties in an SVP commitment proceeding. Dr. Buck and Dr. Weitl are agents of 

the State and were commissioned and authorized to perform an accurate mental health 

evaluation of the Plaintiff, Mr. Duke. Dr. Buck was authorized as an agent of the IDOC 

and Dr. Weitl was authorized as an agent of the DHS, and both acted under the 

authority of the State.

* * *

Both Dr. Buck and Dr. Weitl have assumed an agency relationship with the State.”

¶ 21 Pursuant to section 10(d) of the Act, “[a]ny agency or officer, employee or agent of an 

agency is immune from criminal or civil liability for any acts or omissions as the result of a 

good faith effort to comply with this Section.” 725 ILCS 207/10(d) (West 2012). Additionally, 

state immunity and mandated reporter laws promulgated by the General Assembly provide 

similar immunities to agents of the State, including medical professionals, that determine if an 

individual presents an imminent danger to the public, children, or himself where there is 

reasonable cause to do so or the professional is not engaging in willful or wanton misconduct.

See 745 ILCS 10/2-202 (West 2012); 325 ILCS 5/4 (West 2012); 405 ILCS 5/6-103, 6-103.1 

(West 2012). Further, if the State or an agent of the State is the party in a tort action, as plaintiff 

maintains Dr. Buck is, the action must be brought in the Court of Claims. 705 ILCS 505/8(d) 

(West 2012).

¶ 22 We also note that plaintiff’s claims center on Dr. Buck’s diagnosis of paraphilia 

non-consent and that this diagnosis constitutes medical malpractice because it is not listed in 

the DSM-IV. However, this diagnosis has been before this court and our supreme court and, 

while acknowledged to be a controversial issue for over 20 years, it has been the basis of 

probable cause determinations under the Act in this state. See In re Detention of Lieberman, 

2011 IL App (1st) 090796, ¶ 53, aff’d sub nom. In re Detention of Stanbridge, 2012 IL 112337.

Very recently, this division of the First District of the Appellate Court held “there is ample 

evidence to conclude that PNOS non-consent is generally accepted within the psychological 

community.” In re Detention of Melcher, 2013 IL App (1st) 123085, ¶¶ 58-62 (citing McGee v. 

Bartow, 593 F.3d 556 (7th Cir. 2010)). Accordingly, plaintiff has not, and cannot, state a claim 

for medical malpractice and the counterclaim against Dr. Buck was properly dismissed.

¶ 23 Plaintiff also contends that the circuit court erred in dismissing his claims against Dr. 

Weitl. He claims that the court had no jurisdiction to act because Dr. Weitl was not properly 

served and did not appear, therefore the court lacked personal jurisdiction. Plaintiff asserts that 

a judgment entered without proper jurisdiction is void and may be attacked at any time. R.W. 

Sawant & Co. v. Allied Programs Corp., 111 Ill. 2d 304, 309 (1986).

¶ 24 The procedure to follow when answering an amended pleading is not covered by the 

Illinois Code of Civil Procedure, but left to the discretion of the circuit court. McGinnis v. A.R. 

Abrams, Inc., 141 Ill. App. 3d 417, 420 (1986). Plaintiff obviously violated the circuit court’s 

requirement for granting leave in this situation. Furthermore, the counterclaim naming Dr. 
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Weitl, Busse, and Liberty Healthcare, brought in new parties to the case and leave was required 

under section 2-406 of the Code of Civil Procedure. 735 ILCS 5/2-406 (West 2012). Therefore, 

in addition to the reasons cited above, the trial court’s dismissal of the counterclaim, whether 

or not it had jurisdiction over Dr. Weitl, was proper as leave was not granted and the pleading 

was a nullity.

¶ 25 III. CONCLUSION

¶ 26 For the foregoing reasons, we affirm the judgment of the circuit court.

¶ 27 Affirmed.