## Illinois Official Reports

Appellate Court

In re Detention of Duke , 201 3 IL App ( 1st ) 121722

Appellate Court Caption In re DETENTION OF TERRY DUKE (Terry Duke, Plaintiff

Appellant, 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.- 2

- Counsel on
Appeal J. Nicola s Albukerk, of Albukerk & Assoc iates, 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 s adist. 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 n ot 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 under lying 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 h is 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 a ppellate 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.- 3

- ¶ 3 I. BACKGROUND
¶ 4 Following numerous convicti ons 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 Attorn ey 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 Decemb er 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 detai ned 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 retirem ent. 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 s uffered 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 trea ting 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

Manu al 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 m otions 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 leav e 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 Sta tes 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- 4

- proceeding is precl uded 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 complai nt 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 actua lly 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

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

dismisse d 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 Lieber man , 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 estopp el. 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, decl ared 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 adju dications 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 c hallenging 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 likel y should have, raised that [medical malpractice] issue before the

trial court ” (emphasis in original). See i d. 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- 5

- 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 wit h 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 di agnosis 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 soundin g in tort at that juncture

. Lieberman , 408 Ill. App. 3d a t 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 ap plicable 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. Dur ing 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 expe rt 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).- 6

- ¶ 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 brie f o n 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 un der the authority of the State.

* * *

Both Dr. Buck and Dr. Weitl have assu med 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

individ ual 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 erre d 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 with out 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, b ut 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.- 7

- Wei tl, 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.