{ "id": 1586067, "name": "Bernard Guttman, Plaintiff-Appellant, v. Salvatore Salvaggio, Defendant-Appellee", "name_abbreviation": "Guttman v. Salvaggio", "decision_date": "1969-12-08", "docket_number": "Gen. No. 52,979", "first_page": "375", "last_page": "387", "citations": [ { "type": "official", "cite": "117 Ill. App. 2d 375" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "113 NE2d 327", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1953, "opinion_index": 0 }, { "cite": "350 Ill App 471", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5106858 ], "year": 1953, "opinion_index": 0, "case_paths": [ "/ill-app/350/0471-01" ] }, { "cite": "69 Ill App 654", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5201213 ], "year": 1897, "opinion_index": 0, "case_paths": [ "/ill-app/69/0654-01" ] }, { "cite": "84 NE2d 843", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1949, "opinion_index": 0 }, { "cite": "337 Ill App 101", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5012418 ], "year": 1949, "opinion_index": 0, "case_paths": [ "/ill-app/337/0101-01" ] }, { "cite": "211 NE2d 762", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1965, "opinion_index": 0 }, { "cite": "63 Ill App2d 481", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5297397 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/ill-app-2d/63/0481-01" ] }, { "cite": "229 NE2d 171", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1967, "opinion_index": 0 }, { "cite": "85 Ill App2d 129", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2551648 ], "weight": 2, "year": 1967, "opinion_index": 0, "case_paths": [ "/ill-app-2d/85/0129-01" ] }, { "cite": "104 NE2d 635", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1952, "opinion_index": 0 }, { "cite": "346 Ill App 220", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2432400 ], "year": 1952, "opinion_index": 0, "case_paths": [ "/ill-app/346/0220-01" ] }, { "cite": "82 NE 401", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1907, "opinion_index": 0 }, { "cite": "229 Ill 481", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5630551 ], "year": 1907, "opinion_index": 0, "case_paths": [ "/ill/229/0481-01" ] }, { "cite": "111 NE 499", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1916, "opinion_index": 0 }, { "cite": "272 Ill 71", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4830216 ], "year": 1916, "opinion_index": 0, "case_paths": [ "/ill/272/0071-01" ] }, { "cite": "170 NE 14", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1929, "opinion_index": 0 }, { "cite": "338 Ill 56", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5238310 ], "year": 1929, "opinion_index": 0, "case_paths": [ "/ill/338/0056-01" ] }, { "cite": "117 NE2d 74", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1954, "opinion_index": 0 }, { "cite": "2 Ill2d 74", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 12121670 ], "year": 1954, "opinion_index": 0, "case_paths": [ "/ill-2d/2/0074-01" ] }, { "cite": "218 NE2d 42", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1966, "opinion_index": 0 }, { "cite": "71 Ill App2d 174", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2588141 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/ill-app-2d/71/0174-01" ] }, { "cite": "134 NE2d 526", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1956, "opinion_index": 0 }, { "cite": "10 Ill App2d 67", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5157257 ], "year": 1956, "pin_cites": [ { "page": "72" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/10/0067-01" ] }, { "cite": "66 NE 369", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1903, "opinion_index": 0 }, { "cite": "201 Ill 315", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5593163 ], "year": 1903, "pin_cites": [ { "page": "317" } ], "opinion_index": 0, "case_paths": [ "/ill/201/0315-01" ] }, { "cite": "208 NE2d 561", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1965, "opinion_index": 0 }, { "cite": "32 Ill2d 539", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2838591 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/ill-2d/32/0539-01" ] }, { "cite": "407 Ill 121", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2639101 ], "pin_cites": [ { "page": "130" } ], "opinion_index": 0, "case_paths": [ "/ill/407/0121-01" ] }, { "cite": "229 NE2d 504", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "37 Ill2d 494", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2866138 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/ill-2d/37/0494-01" ] }, { "cite": "191 NE2d 436", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1963, "opinion_index": 0 }, { "cite": "42 Ill App2d 96", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5249621 ], "weight": 2, "year": 1963, "opinion_index": 0, "case_paths": [ "/ill-app-2d/42/0096-01" ] } ], "analysis": { "cardinality": 833, "char_count": 18376, "ocr_confidence": 0.591, "pagerank": { "raw": 1.675723746803694e-07, "percentile": 0.6966811578590103 }, "sha256": "4edbdada6a1c2f618604c627cf3372307251bceed091a93a26d5437dbee6618d", "simhash": "1:a527ca40f68859da", "word_count": 3069 }, "last_updated": "2023-07-14T19:26:52.203981+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Bernard Guttman, Plaintiff-Appellant, v. Salvatore Salvaggio, Defendant-Appellee." ], "opinions": [ { "text": "MR. JUSTICE MURPHY\ndelivered the opinion of the court.\nIn a two-count complaint, plaintiff seeks damages allegedly caused by the defendant in giving medical treatment to the plaintiff without being licensed to practice medicine. Count I is based on negligence, and Count II is based on malice and seeks punitive damages. At the close of plaintiff\u2019s evidence the trial court directed a verdict in favor of defendant on both counts. On appeal plaintiff contends that he presented a prima facie case sufficient to submit both counts to the jury.\nIn 1960 plaintiff, a certified public accountant, and his wife, a registered nurse, resided at 6739 South Clyde Avenue, Chicago. The defendant and his family lived on the third floor directly above plaintiff\u2019s second-floor apartment. In 1944 the Department of Registration and Education of Illinois denied defendant\u2019s application to practice medicine in Illinois.\nPlaintiff testified that in May, 1959, defendant\u2019s wife introduced plaintiff to defendant and said, \u201cThis is my husband, Doctor Salvaggio.\u201d The name on the defendant\u2019s doorbell was \u201cDr. Salvatore Salvaggio.\u201d In August or September, 1960, plaintiff\u2019s wife cut her finger and went up to the defendant\u2019s apartment, and defendant bandaged her finger. Defendant was not paid for this, nor did he send a bill.\nOn Friday, December 9, 1960, plaintiff became ill. He had chills, he was coughing a lot, and he went to bed. He stayed home and in bed for the next three days, but his condition did not improve, and he had a temperature of 101\u00b0. On Tuesday, December 13, 1960, his condition was unchanged and, failing to reach his family doctor, he telephoned defendant and asked for an examination. Defendant had plaintiff strip to the waist and examined plaintiff with a stethoscope and made finger tappings in the same manner as by a medical doctor. Defendant also examined plaintiff\u2019s throat, took his temperature and pulse, put a hypodermic needle in him, telling him he was giving him a shot of penicillin, and gave him some tablets to take every three hours. He diagnosed plaintiff\u2019s condition as a cold. Plaintiff saw defendant professionally five more times in the next three days, during which he was examined by defendant, given capsules, an injection of streptomycin and a partially filled bottle of liquid described by defendant as an expectorant. On December 16, 1960, defendant examined plaintiff and informed plaintiff that he could leave his apartment to attend to such personal duties as going to the cleaners, getting a haircut, going to the dentist and to a convocation at the University of Chicago. Defendant testified that during all of this time his temperature remained at 101\u00b0. He offered to pay defendant for his services, but defendant did not submit a bill or request or receive any compensation from the plaintiff. They did not see each other after Friday, December 16,1960.\nOn December 18, 1960, because his condition persisted, plaintiff consulted with Dr. Noah H. Sloan. His condition was diagnosed as viral pneumonia, and he was hospitalized. He was in the hospital from December 18, 1960, until February 11,1961.\nDefendant, called under section 60 of the Civil Practice Act, testified that he was not licensed to practice medicine in Illinois. He had received degrees from two unaccredited medical schools and was employed as a medical technician by the Elston Medical Center, where his duties were to take X rays, dress wounds and take the temperature of patients, and see that the mail got out properly. He substantially corroborated plaintiff\u2019s testimony. He denied that he injected plaintiff with penicillin, and admitted giving plaintiff penicillin capsules and telling him when to take them. He did not tell plaintiff that he was not a qualified medical doctor because \u201che never asked me.\u201d He saw plaintiff on only two occasions and never asked for any compensation for his services.\nDr. Sloan testified that he saw plaintiff at home on December 18, 1960. Plaintiff had pneumonia, and he sent him to a hospital. Dr. Sloan also testified as to his treatment of plaintiff and his charges for his services.\nDr. Sloan was asked three hypothetical questions by the plaintiff: one as to the kind of examination properly required to have been given plaintiff prior to his hospitalization, another as to the causal relation as to the treatment and the condition of ill-being, and a third as to whether the treatment of plaintiff might or could have aggravated or adversely affected the condition of the hypothetical man as found on December 13, 1960. Dr. Sloan answered the first question by saying that the treatment was not of the kind required of skilled doctors in Chicago in December, 1960; that he could not answer the causal connection question, and that there may or may not have been an aggravation of a preexisting condition.\nOn the causal connection question Dr. Sloan\u2019s answers included: \u201cIt\u2019s a nebulous sort of thing. . . . Well, I don\u2019t think the alleged doctor produced the disease. . . . The natural history of pneumonia is a very difficult thing to know, because when a given point in time, you have pneumonia\u2014but, what happened a day or six days before, or two months before, you don\u2019t know.\u201d In response to a question, \u201cMight or could that previous \u25a0treatment, prior to the treatment of December 18, adversely affect it\u2014might or could it?\u201d, Dr. Sloan said, \u201cIt may, or may not be. . . . I have no way of knowing.\u201d\nAt the end of plaintiff\u2019s case, and after hearing from both counsel, the court directed a verdict for defendant as to both counts. Thereafter the trial court denied a post-trial motion of plaintiff and incorporated in his ruling a four-page \u201c \u2018Opinion of the Court\u2019 in support of his ruling.\u201d\nAt the outset, we think the basic guidelines to be used here are set forth in Gault v. Sideman, 42 Ill App2d 96, 191 NE2d 436 (1963), and Pedrick v. Peoria & Eastern R. Co., 37 Ill2d 494, 229 NE2d 504 (1967). In Gault, it is said (p 104):\n\u201cIn 34 ILP Trial, section 133, it is stated that a motion to direct a verdict for defendant should be allowed if when the evidence is considered in its aspects most favorable to the plaintiff, together with all reasonable inferences to be drawn therefrom, there is a total failure of proof on one or more essential elements of the case. Lindroth v. Walgreen Co., 407 Ill 121, 130.\u201d\nIn Pedrick, it is said (p 510):\n\u201cIn our judgment verdicts ought to be directed and judgments n. o. v. entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.\u201d\nPlaintiff contends that \u201cthere was more than enough evidence to support a verdict for the plaintiff let alone foreclose the possibility of the Court\u2019s taking the case from the jury by the process of directing a verdict against the plaintiff.\u201d Plaintiff asserts that the defendant, during the time he treated plaintiff, acted as a doctor, gave advice and orders like a doctor and responded repeatedly to being addressed as a doctor, and told plaintiff that his condition had improved so that he could get out of bed and attend to his usual affairs, when in fact the plaintiff was very ill and was diagnosed as having viral pneumonia less than twenty-four hours after what was tantamount to a release by the defendant. Plaintiff also notes that the Blinois Department of Registration and Education denied three applications of defendant to be licensed as a medical doctor, and that defendant did not deny certain allegations in plaintiff\u2019s complaint concerning defendant\u2019s treating various other persons, and allegations not specifically denied must be deemed admitted. People ex rel. Scott v. Kerner, 32 Ill2d 539, 208 NE2d 561 (1965).\nPlaintiff further contends that the testimony of plaintiff, plus the admission of defendant in his pleadings and his testimony that he was not a licensed medical doctor, was enough to go to the jury, since this presented a violation of the Medical Practice Act and was prima facie evidence of negligence. (True & True Co. v. Woda, 201 Ill 315, 317, 66 NE 369 (1903); Smith v. Ohio Oil Co., 10 Ill App2d 67, 72, 134 NE2d 526 (1956).) Plaintiff notes that the purpose of the Medical Practice Act is to regulate the treatment of human ailments for the better protection of public health, and it is designed to require all persons treating people afflicted with disease to have a license, so that the public may be protected against the practice of treatment by inexperienced persons. Citations in support include Gula v. Gawel, 71 Ill App2d 174, 218 NE2d 42 (1966), and Ney v. Yellow Cab Co., 2 Ill2d 74, 117 NE2d 74 (1954). In Gula, it is said (p 182):\n\u201cThe violation of an ordinance is prima facie evidence of negligence if the ordinance is designed for the protection of human life or property. If a plaintiff falls within the class of persons the ordinance is designed to protect, and if the violation is the proximate cause of the injury, the plaintiff has a cause of action.\u201d\nIn Ney, it is said (pp 78-79):\n\u201cThe violation of the statute is prima facie evidence of negligence under the prevailing rule of this State. . . . This in itself creates no liability. The injury must have a direct and proximate connection with the violation of the statute before liability will be held to exist. It is the existence of this cause and effect relationship which makes the negligence of the defendant actionable.\u201d\nPlaintiff asserts that the element of proximate cause was established by his testimony and by the testimony of Dr. Sloan, who testified that the treatment of plaintiff was not the kind that a skillful and careful physician in Chicago in December, 1960, would have used; that there may or may not have been a causal connection between the condition of ill-being and the treatment given, and that there could have been an affectation of the condition of ill-being by defendant\u2019s treatment. Plaintiff states, \u201cIt was proper for Doctor Sloan to answer \u2018May or may not\u2019 in response to the \u2018might or could\u2019 hypothetical questions.\u201d He noted that the courts of this State have indicated that \u201cmay or could\u201d was proper. Authorities cited include People v. Rongetti, 338 Ill 56, 170 NE 14 (1929); Kimbrough v. Chicago City Ry. Co., 272 Ill 71, 111 NE 499 (1916), and Chicago Union Traction Co. v. Roberts, 229 Ill 481, 82 NE 401 (1907), where the court said (p 484):\n\u201cIt is entirely immaterial whether the witness testified that the injury was the cause of the condition, or that the injury was sufficient to cause the condition or might have caused it. In any event, the testimony was merely the opinion of the witness, given, as such, upon a state of facts assumed to be true. It still remained for the jury to determine the facts, and the opinion was nevertheless an opinion only, whether it states what did cause the condition or what might cause it. The question may be asked in either form.\u201d\nPlaintiff contends that it was not necessary to prove that defendant caused plaintiff\u2019s pneumonia, only that defendant aggravated \u201ca preexisting condition of ill-being\u201d of plaintiff. He notes that aggravation of a preexisting ailment is recognized as a separate element of compensable damages in Illinois, citing as authorities IPI instruction 30.03 and Behles v. Chicago Transit Authority, 346 Ill App 220, 104 NE2d 635 (1952).\nDefendant argues that the directed verdict was properly granted because under the Pedrick test \u201cno contrary verdict based on that evidence could ever stand.\u201d He maintains that the trial court had a duty to direct a verdict for defendant in this case because plaintiff\u2019s evidence did not establish the necessary element of causal connection between defendant\u2019s treatment and the illness plaintiff suffered subsequently. Defendant contends that Dr. Sloan, plaintiff\u2019s own medical expert, negated any causal connection between the alleged actions of the defendant and the injury complained of by plaintiff, and Dr. Sloan further said, \u201cThe natural history of pneumonia is a very difficult thing to know, because when a given point in time, you have pneumonia \u2014but, what happened a day or six days before, or two months before, you don\u2019t know.\u201d\nCited authorities include Manion v. Brant Oil Co., 85 Ill App2d 129, 229 NE2d 171 (1967), and Scardina v. Colletti, 63 Ill App2d 481, 211 NE2d 762 (1965). In Manion, it is said (p 136):\n\u201cOur courts have held that there should be no recovery where there has been a failure to prove a causal connection between the injury and the event at issue. . . .\n\u201cAgain the standards in decisions of our courts are that the causal connection between the injury sustained must not be contingent, speculative or merely possible, but that there must be such degree of probability as to amount to a reasonable certainty that such causal connection exists.\u201d\nIn Scardina, it is said (p 487):\n\u201cThe test by which a plaintiff\u2019s evidence is judged when subjected to a motion for directed verdict is whether there is any evidence or reasonable inference arising from the evidence, tending to prove the cause of action alleged in the complaint. The court must decide if the evidence fails as a matter of law to support the complaint. It becomes such a question of law only where the evidence is such that all reasonable men would reach the same conclusion or where there is a total failure to prove one or more of the elements necessary to the cause of action. When the evidence is considered in its most favorable aspect to the plaintiff and there is a total failure to prove a necessary element of his ease, the motion for a directed verdict should be sustained.\u201d\nThe trial judge, in his \u201cOpinion of the Court,\u201d included the following excerpts:\n\u201cDefendant could not be chargeable with a higher degree of responsibility than a physician. The standard for a physician is stated in GAULT v. SIDEMAN, 42 Ill App2d 96 (1963), wherein a directed verdict for defendant was sustained:\n\u201c \u2018In order for the plaintiff to prevail, he would have to show by affirmative evidence that the defendant was unskillful and negligent, and, second, that his want of skill and care caused the injury to the plaintiff. If either element is lacking in the proof, no case is presented for the consideration of the jury.\u2019 (Also see other cases cited therein.)\n\u201cThe court finds from the record, and in particular, from the testimony of Dr. Sloan, that the plaintiff did not prove any causal connection between treatment of the plaintiff by the defendant and the pneumonia subsequently contracted by the defendant. The court also finds that plaintiff failed to establish any aggravation of the condition of ill-being of the plaintiff by the defendant. . . .\n\u201c. . . Plaintiff also bases his motion for a new trial on Count II of the complaint, which alleges malice and fraud on the part of defendant. . . .\n\u201cTherefore, as to Count II, the court finds that the record fails to disclose any testimony which would establish the defendant\u2019s treatment of plaintiff as fraudulent, malicious or injurious; hence there can be no recovery as to Count II.\u201d\nAfter examining this record, we conclude that plaintiff\u2019s evidence lacked the necessary element that defendant\u2019s want of skill or care caused injury to plaintiff or aggravated plaintiff\u2019s existing condition. Dr. Sloan\u2019s testimony negated any causal connection. He had no opinion as to whether defendant\u2019s \u201cwant of skill and care\u201d caused or aggravated the condition of plaintiff. Plaintiff\u2019s proof as to causal connection had little probative value and lacked that degree of probability so as to amount to a reasonable certainty that such causal connection existed. This left the necessary element of causal connection \u201ccontingent, speculative or merely possible.\u201d We find that it was proper for the trial court to direct a verdict for defendant on Count I. 85 Ill App2d 129, 229 NE2d 171 (1967).\nPlaintiff further contends that the trial court erred in directing a verdict in favor of defendant on Count II, which included the following allegations:\n\u201c38. That the plaintiff is entitled to exemplary and punitive damages because of the fraudulent and malicious conduct of the defendant.\n\u201c39. That malice is the gist of the action herein, and should the plaintiff prevail herein a body attachment against defendant, SALVATORE SALVAGGIO, is sought.\u201d\nPlaintiff argues substantially that defendant committed an intentional tort, similar to a battery, and acted with malice so as to entitle plaintiff to punitive damages outside of any actual damages sustained. Plaintiff notes that if someone holds himself out as a doctor and treats people without their knowing his lack of qualifications, an intentional tort has been committed because presumably no consent to any treatment would have been given if these people were in fact so aware. Among the authorities cited are Williams v. Piontkowski, 337 Ill App 101, 84 NE2d 843 (1949); Matthei v. Wooley, 69 Ill App 654 (1897); and Church v. Adler, 350 Ill App 471, 113 NE2d 327 (1953).\nAs to Count II, defendant asserts that plaintiff has shifted his theory of recovery on appeal, and \u201che cannot be heard at this time to allege an act of a different nature from that which was alleged before the trial court and the direction in which he presented his case.\u201d We agree.\nOn this point the record shows that Count II was based on malice and fraud, and plaintiff sought exemplary damages \u201cbecause of the fraudulent and malicious conduct of the defendant,\u201d and as to Count II the court found \u201cthat the record fails to disclose any testimony which would establish the defendant\u2019s treatment of plaintiff as fraudulent, malicious or injurious.\u201d As to Count II, we find the trial court properly directed a verdict in favor of defendant.\nUnder the pleadings and evidence in this case, we find the trial court properly directed a verdict for the defendant on both counts, and the judgment of the Circuit Court of Cook County in favor of defendant is affirmed.\nAffirmed.\nADESKO, P. J. and BUBMAN, J., concur.", "type": "majority", "author": "MR. JUSTICE MURPHY" } ], "attorneys": [ "Marshall Kaplan for Kaplan and Kaplan, of Chicago, for appellant.", "Carl Scub, of Chicago, for appellee." ], "corrections": "", "head_matter": "Bernard Guttman, Plaintiff-Appellant, v. Salvatore Salvaggio, Defendant-Appellee.\nGen. No. 52,979.\nFirst District, First Division.\nDecember 8, 1969.\nMarshall Kaplan for Kaplan and Kaplan, of Chicago, for appellant.\nCarl Scub, of Chicago, for appellee." }, "file_name": "0375-01", "first_page_order": 393, "last_page_order": 405 }