                                  Illinois Official Reports

                                          Appellate Court




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




Appellate Court              In re DETENTION OF TERRY DUKE (Terry Duke, Plaintiff-
Caption                      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                         In proceedings on a petition seeking plaintiff’s involuntary
(Note: This syllabus         commitment as a sexually violent person, his counterclaims alleging
constitutes no part of the   that defendants, including psychiatrists and counselors, were guilty of
opinion of the court but     medical and professional malpractice in diagnosing and treating him
has been prepared by the     as a sexual sadist were properly dismissed, since he failed to seek
Reporter of Decisions        proper leave to file the counterclaims, defendants had no duty to
for the convenience of       plaintiff, and defendants were immune from liability as agents of the
the reader.)                 State of Illinois.




Decision Under               Appeal from the Circuit Court of Cook County, Nos. 02-CR-80003,
Review                       11-MR-00031, 11-MR-00038; the Hon. William G. Lacy, Judge,
                             presiding.




Judgment                     Affirmed.
     Counsel on                J. Nicolas Albukerk, of Albukerk & Associates, of Chicago, for
     Appeal                    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

                                                   -4-
       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).


                                                    -5-
¶ 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.
                                                     -6-
       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.




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