None of the foregoing cases argued by plaintiffs involved a malpractice action by a nonpatient third party and are therefore distinguishable from the case before us. Defendants have cited Heigert v. Riedel, 206 Ill. App. 3d 556 (1990), and Britton v. Soltes, 205 Ill. App. 3d 943 (1990), to support the view that a physician's duty should not be extended to nonpatient third parties. In Heigert plaintiff was a nurse who contracted tuberculosis from a patient.
Piercy must also plead and ultimately prove that there was a physician-patient relationship. Heigert v. Riedel, 206 Ill. App 3d. 556, 563, 565 N.E.2d 60, 65 (Ill. App. Ct. 1990). Williams argues that Piercy "does not allege a physician-patient relationship, nor does [he] allege any act of negligence on the part of Dan Williams."
Since Kirk, our colleagues in the appellate court have been wary of finding that other types of relationships are of the same intimate nature as that presented in Renslow, expressing uncertainty regarding whether the supreme court considered that relationship to be sui generis. See, e.g., Charleston v. Larson, 297 Ill. App. 3d 540, 548-49, 696 N.E.2d 793, 799 (1998); Britton v. Soltes, 205 Ill. App. 3d 943, 945-46, 563 N.E.2d 910, 912 (1990); Heigert v. Riedel, 206 Ill. App. 3d 556, 563-64, 565 N.E.2d 60, 65 (1990). While the Illinois Supreme Court has reiterated its holding that the concept of transferred negligence is a limited exception to the customary rule barring malpractice liability to nonpatient third parties, the court has never declared the special relationship between mother and infant in Renslow to be sui generis.
We hold that it does not. In Heigert v. Riedel, 206 Ill. App.3d 556, 558, 565 N.E.2d 60, 62 (1990), the court stated "the courts have yet to decide whether the materials required by section 2-622 of the Code of Civil Procedure [citation] are sufficiently analogous to `exhibits' in the conventional sense to fall within this rule." The Heigert court did not resolve that question because the defendants/appellants, who had raised it in the trial court, did not argue it on appeal. Noting that the defendants cited to factual matters contained in the written doctor's report attached to the complaint in support of their argument that the plaintiff's complaint failed to state a cause of action, the court assumed that the section 2-622 materials were to be treated as exhibits and taken as true for purposes of that appeal.
To maintain a medical malpractice action, a plaintiff must have either a direct physician-patient relationship between himself and the doctor or show there exists a special relationship between defendant and the patient. Kirk, 117 Ill.2d at 531; Reynolds v. National R.R. Passenger Corp. (1991), 216 Ill. App.3d 334, 338, 576 N.E.2d 1041; Heigert v. Riedel (1990), 206 Ill. App.3d 556, 562-63, 565 N.E.2d 60; Britton v. Soltes (1990), 205 Ill. App.3d 943, 944, 563 N.E.2d 910. See also O'Hara v. Holy Cross Hospital (1990), 137 Ill.2d 332, 338-39, 561 N.E.2d 18; Renslow v. Mennonite Hospital (1977), 67 Ill.2d 348, 367 N.E.2d 1250.
( Estate of Johnson v. Condell Memorial Hospital (1988), 119 Ill.2d 496, 520 N.E.2d 37.) Whether defendant owed a duty to plaintiff is a question of law for the court to determine considering the reasonable foreseeability of injury, the likelihood of injury, the magnitude of the burden of guarding against it, and the consequences of placing that burden on defendant. ( Heigert v. Riedel (1990), 206 Ill. App.3d 556, 565 N.E.2d 60.) Generally, a person does not have a duty to control the conduct of another to prevent harm to a third person unless a special relationship is shown. ( Johnson, 119 Ill.2d 496, 520 N.E.2d 37.) The special relationships giving rise to such a duty are parent-minor child, master-servant, possessor of land-licensee, and a person in charge of another with dangerous propensities, as listed in sections 315 through 319 of the Restatement (Second) of Torts (1965). Johnson, 119 Ill.2d 496, 520 N.E.2d 37.