Chadwick v. Al-Basha

No. 2--97--0224
________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
________________________________________________________________

BRENDA L. CHADWICK, ) Appeal from the Circuit Court
) of Winnebago County.
Plaintiff-Appellant, )
)
v. ) No. 96--L--185
)
IMAD AL-BASHA, ) Honorable
) Galyn W. Moehring,
Defendant-Appellee. ) Judge, Presiding.
________________________________________________________________

PRESIDING JUSTICE GEIGER delivered the opinion of the court:
The plaintiff, Brenda Chadwick, appeals from the January 23,
1997, order of the circuit court of Winnebago County dismissing her
complaint with prejudice. In her complaint, the plaintiff sought
damages against the defendant, Imad Al-Basha, for violations of
sections 2--108 and 2--109 of the Mental Health and Developmental
Disabilities Code (the Mental Health Code) (405 ILCS 5/2--108, 2--
109 (West 1996)). The trial court dismissed the complaint after the
plaintiff failed to file the supporting attorney s affidavit and
physician s report required by section 2--622 of the Code of Civil
Procedure (the Code) (735 ILCS 5/2--622 (West 1996)). On appeal,
the plaintiff argues that the trial court erred in concluding that
her complaint was predicated upon medical malpractice and that she
was therefore obligated to comply with the requirements of section
2--622(a) of the Code. We agree with the plaintiff and reverse and
remand the cause for further proceedings.
The following facts are taken from the plaintiff s complaint.
In June 1994, the plaintiff was being treated as a voluntary patient
at the Singer Mental Health and Developmental Center (Singer) in
Rockford. The defendant, a psychiatrist, was employed at Singer as
an independent contractor. At some point during the plaintiff s
treatment, she was involuntarily transferred to another unit within
Singer. As a result of this transfer, the plaintiff was placed
under the care of the defendant.
After the transfer, the plaintiff s treatment plan was revised
to include several new restrictions including the loss of telephone
privileges and a prohibition against visitors. The plaintiff
refused to sign the new treatment plan because she disagreed with
the new restrictions. During an emotional discussion between the
plaintiff and her therapist about the revised treatment plan, the
plaintiff broke a window.
After this incident, the defendant verbally ordered the
plaintiff into seclusion. After the plaintiff was in seclusion, she
was ordered to remove her jewelry. While removing her jewelry, the
plaintiff complained to staff members about her displeasure in
having to do so. The defendant observed this exchange between the
plaintiff and the staff members and verbally ordered that the
plaintiff be placed in restraints. The defendant further ordered
that the plaintiff was to remain in restraints until she was calm
for one hour and until she agreed to comply with the revised
treatment plan. Approximately 1« hours later, the plaintiff agreed
to comply with the revised plan and was released from the
restraints.
On June 27, 1996, the plaintiff filed a five-count complaint
against the defendant. The complaint alleged the following theories
of liability: (1) false imprisonment; (2) battery; (3) assault; (4)
intentional inflection of emotional distress; and (5) negligent
infliction of emotional distress. Each of these counts specifically
alleged that the defendant had violated sections 2--108 and 2--109
of the Mental Health Code (405 ILCS 5/2--108, 2--109 (West 1996)).
Section 2--108 requires that all restraint orders be in writing and
prohibits the use of restraints to punish or discipline a patient
or as a convenience for the staff. 405 ILCS 5/2--108 (West 1996).
Similarly, section 2--109 requires that all seclusion orders be in
writing. 405 ILCS 5/1--109 (West 1996). The plaintiff alleged
that, as a result of the defendant s violation of these provisions,
she was unlawfully restrained and secluded against her will.
On August 1, 1996, the defendant filed a motion to dismiss the
plaintiff s complaint pursuant to sections 2--619 and 2--622(g) of
the Code (735 ILCS 5/2--619, 2--622(g) (West 1996)). The defendant
argued that section 2--622(a) required the plaintiff to support her
complaint with an attorney s affidavit and a health care
professional s report attesting that the plaintiff had a reasonable
and meritorious cause for filing her action (see 735 ILCS 5/2--
622(a) (West 1996)). The defendant concluded that the plaintiff s
failure to file the required affidavit and report required dismissal
of her complaint pursuant to section 2--619 of the Code.
The plaintiff responded to the motion by arguing that section
2--622 did not apply to her action. Specifically, the plaintiff
argued that her complaint did not sound in medical malpractice, but
instead sought to collect damages for the defendant s alleged
violations of the Mental Health Code discussed above. The plaintiff
argued that no expert analysis was required to evaluate the
defendant s conduct as he clearly did not follow the procedure
required by the Mental Health Code.
On September 26, 1996, the trial court granted the defendant s
motion to dismiss. In explanation of its decision, the trial court
stated:
The Court finds as to each count of Plaintiff s
complaint that Plaintiff s causes of action are based on
medical decisions and treatment rendered by the Defendant and,
therefore, must be supported by a 2-622 affidavit.
In granting the motion to dismiss, the trial court gave the
plaintiff 90 days in which to file an affidavit and report pursuant
to section 2--622. After the plaintiff failed to file the affidavit
and report within the required time, the defendant again moved to
dismiss the complaint. On January 23, 1997, the trial court
dismissed the plaintiff s complaint with prejudice. The plaintiff
filed a timely notice of appeal.
On appeal, the plaintiff again argues that section 2--622 does
not apply to her action because her complaint does not contain any
allegations of medical negligence. Instead, the plaintiff argues
that her complaint alleges that the defendant failed to comply with
the mandatory provisions of the Mental Health Code. The plaintiff
argues that the intended purpose of these provisions is to protect
the rights of mental health patients and that the defendant s
failure to comply with these requirements resulted in a violation
of her rights.
The purpose of a section 2--619 motion to dismiss is to allow
for the disposition of questions of law and easily proved fact
issues at the outset of the case. Wells v. Travis, 284 Ill. App.
3d 282, 285 (1996). When reviewing the propriety of a section 2--
619 dismissal, all well-pleaded facts alleged in the complaint are
taken as true. Nikolic v. Seidenberg, 242 Ill. App. 3d 96, 99
(1993). As such, the reviewing court is concerned solely with a
question of law presented by the pleadings. Nikolic, 242 Ill. App.
3d at 99. The reviewing court may conduct an independent review of
the propriety of dismissing the complaint and the standard of review
is de novo. Wells, 284 Ill. App. 3d at 285.
Section 2--622(a) of the Code requires the plaintiff s attorney
to file an affidavit and a reviewing health professional s report
in any action in which "the plaintiff seeks damages for injuries or
death by reason of medical, hospital, or other healing art
malpractice." 735 ILCS 5/2--622(a) (West 1996). The question of
whether the plaintiff's complaint requires a section 2--622(a)
affidavit is therefore answered by determining whether, after
accepting the plaintiff's allegations as true, the damages the
plaintiff seeks to recover were caused by the defendant's
malpractice. See 735 ILCS 5/2--622(a) (West 1996).
We are guided in this determination by Cohen v. Smith, 269 Ill.
App. 3d 1087 (1995). In Cohen, a patient and her husband sued a
hospital and a male nurse alleging battery, intentional infliction
of emotional distress, and violation of the Right of Conscience Act
(745 ILCS 70/1 et seq. (West 1996)). Cohen, 269 Ill. App. 3d at
1089. The plaintiffs' claims were based on the defendants' failure
to honor the patient's religious beliefs prohibiting her from being
seen unclothed by a male. Cohen, 269 Ill. App. 3d at 1088-89. The
trial court dismissed the plaintiffs' complaint for failing to
comply with section 2--622. Cohen, 269 Ill. App. 3d at 1089.
The appellate court reversed, holding that the complaint was
not predicated upon healing art malpractice. Cohen, 269 Ill. App.
3d at 1093. In reaching this conclusion, the court explained that
malpractice is defined as:
" 'Professional misconduct or unreasonable lack of skill.
*** Failure of one rendering professional services to exercise
that degree of skill and learning commonly applied under all
the circumstances in the community by the average prudent
reputable member of the profession with the result of injury,
loss or damage to the recipient of those services or to those
entitled to rely upon them.' " Cohen, 269 Ill. App. 3d at
1090 (omission in original), quoting Black's Law Dictionary
959 (6th ed. 1990).
The court noted that the essence of the plaintiffs' complaint
was not that the defendants performed a medical procedure
incorrectly or deviated from an appropriate medical standard, but
rather that the nurse violated the patient's privacy interests and
religious standards by observing and touching her without consent.
Cohen, 269 Ill. App. 3d at 1092. The court further noted that
"[t]he only reason there is some hesitancy over the issue of whether
a battery occurred in this case is because the contact took place
in a hospital between a medical professional and a patient." Cohen,
269 Ill. App. 3d at 1092. The court explained that "it is not the
plaintiffs who are seeking damages because of healing art
malpractice; it is the defendants who are raising a defense based
on their positions in the healing art fields." Cohen, 269 Ill. App.
3d at 1093. Since the nature of a plaintiff's claim determines
whether section 2--622 is implicated, the court concluded that
section 2--622 did not apply and that the plaintiffs' complaint
should not have been dismissed. Cohen, 269 Ill. App. 3d at 1093.
We believe that similar considerations govern the disposition
of this action. Here, the plaintiff alleges that the defendant
injured her by violating certain sections of the Mental Health Code.
In particular, she alleges that the defendant violated the Mental
Health Code by (1) not placing his seclusion and restraint orders
in writing; and (2) by restraining her as punishment, discipline,
and for the convenience of the staff. The essence of the
plaintiff s complaint arises out of the defendant s violation of
these statutory violations, as opposed to any deviation from the
applicable standard of medical care. See Cohen, 269 Ill. App. 3d
at 1092. The counts of the plaintiff s complaint do not allege
medical negligence, but are instead predicated upon false
imprisonment, assault, battery, and infliction of emotional
distress. The plaintiff alleges that, by engaging in statutorily
prohibited conduct, the defendant caused her to be touched and
confined without her consent and without legal authority.
The defendant contends that section 2--622 applies to the
plaintiff s complaint because the allegations challenge the level
of professional skill or judgment exercised by the defendant. To
support this argument, the defendant relies upon Kus v. Sherman
Hospital, 204 Ill. App. 3d 66 (1990) and Kolanowski v. Illinois
Valley Community Hospital, 188 Ill. App. 3d 821 (1989). Our reading
of these cases, however, does not support the defendant s position.
In Kus, the plaintiff alleged that his doctor had acted
improperly by treating the plaintiff with an experimental device
that had lost its governmental approval. Kus, 204 Ill. App. 3d at
72. This court held that the action was predicated upon healing art
malpractice because the defendant physician was required to exercise
his professional judgment in order to determine whether the
plaintiff's condition necessitated the use of an experimental device
that no longer had governmental approval. Kus, 204 Ill. App. 3d at
72. Unlike the instant case, however, there was no specific
statutory prohibition which prevented the doctor in Kus from
treating the plaintiff in such a manner.
In Kolanowski, the plaintiff was injured when he fell from a
bed in the defendant's respite care program. Kolanowski, 188 Ill.
App. 3d at 822. The plaintiff alleged that his injuries resulted
from the defendant's failure to adequately supervise and restrain
him. Kolanowski, 188 Ill. App. 3d at 822. The reviewing court
determined that the plaintiff was required to file a section 2--622
affidavit because the complaint sounded in medical malpractice.
Kolanowski, 188 Ill. App. 3d at 825. Specifically, the court noted
that the exercise of medical judgment had been required in order to
diagnose the plaintiff's medical condition and to determine the
proper levels of supervision and restraint. Kolanowski, 188 Ill.
App. 3d at 825. Once again, as in Kus, there was no specific
statutory enactments which required that the defendant provide a
certain level of care.
Clearly the situations in both Kus and Kolanowski required the
exercise of medical judgment in order to determine the most
appropriate course of treatment. In the instant case, however, the
defendant was not at liberty to exercise his own medical judgment.
Instead, he was obligated to observe the specific requirements
codified by the legislature as to the appropriate manner and use of
restraints and seclusion as medical treatments. Regardless of
whether the defendant s treatment was medically appropriate, it was
nonetheless prohibited under the Mental Health Code.
We therefore agree with the plaintiff that the question of
whether the defendant violated the provisions of the Mental Health
Code does not require a determination of whether the defendant
properly exercised his medical judgment. See Cohen, 269 Ill. App.
3d at 1092. As the plaintiff has not alleged that the defendant
improperly exercised his professional skill, we conclude that the
plaintiff's complaint is not subject to the requirements of section
2--622 and that the trial court erred in dismissing the plaintiff s
complaint on that basis.
For the foregoing reasons, the judgment of the circuit court
of Winnebago County is reversed and the cause is remanded for
further proceedings consistent with the opinion.
Reversed and remanded.
RATHJE, J., concurs.
JUSTICE BOWMAN, dissenting:
I respectfully dissent. I believe that plaintiff s complaint
is based on allegations of medical malpractice and must therefore
be accompanied by a health care professional s report pursuant to
section 2--622(a) of the Code of Civil Procedure (735 ILCS 5/2--
622(a) (West 1996)). Because plaintiff failed to provide such a
report, the trial court properly dismissed her complaint. See 735
ILCS 5/2--619, 2--622(g) (West 1996).
In count V of her complaint, plaintiff alleges that defendant
had a duty to exercise ordinary care in delivering health care
services *** due to the doctor-patient relationship that existed
between Defendant and Plaintiff ***. Plaintiff then alleges that
defendant was guilty of negligent infliction of emotional distress
by failing to exercise ordinary care in secluding and restraining
her. Such allegations present a textbook example of a medical
malpractice complaint. As the majority notes, a medical
professional commits malpractice when the facts demonstrate that he
failed to exercise an appropriate amount of skill and care during
treatment. See Lyon v. Hasbro Industries, Inc., 156 Ill. App. 3d
649, 653 (1987). When the facts are viewed in the light most
favorable to the plaintiff, count V directly challenges defendant s
use of reasonable care during his treatment of her. Accordingly,
plaintiff had to attach a section 2--622 certificate from a health
care professional averring that she had a reasonable and
meritorious cause of action. See 735 ILCS 5/2--622(a)(1) (West
1996). In the absence of this certificate, the trial court
properly dismissed plaintiff s complaint.
Moreover, the remaining counts of plaintiff s complaint are
inextricably entwined with the fact that plaintiff received medical
treatment at the time she alleges defendant committed various
intentional torts. According to her complaint, plaintiff was a
patient in a mental health facility at the time of the alleged
wrongdoing. Plaintiff refused to accept her new treatment plan.
In an effort to implement this treatment plan, defendant ordered
plaintiff to be secluded. Later, defendant ordered her to be
restrained after she engaged in a verbal altercation with staff
members. Thus, it is apparent that plaintiff was receiving medical
treatment at the time of the seclusion and restraint. All of
defendant s alleged actions occurred while he was treating
plaintiff. It therefore follows that allegations regarding
defendant s behavior challenge his professional medical decisions
to seclude and restrain plaintiff. Her alleged injuries stem
directly from defendant s care and treatment decisions. Her
intentional tort claims are nothing more than malpractice claims.
As such, plaintiff was bound to file a section 2--622 affidavit.
See Tucker v. St. James Hospital, 279 Ill. App. 3d 696, 702 (1996).
The purpose of section 2--622 is to reduce the number of
frivolous suits against health care providers and to terminate such
suits before the cost of litigation increases substantially.
Tucker, 279 Ill. App. 3d at 702. Under the majority s rule,
however, mental health patients may now bring medical malpractice
actions under the guise of intentional tort claims without regard
to whether those actions would be certified as reasonable and
meritorious by health care professionals. This result is
particularly troublesome in the area of mental health care because
such care so often involves physical interaction, including
seclusion and restraint, between doctors and patients who are often
likely to be confrontational and irrational because of serious
mental problems. The constant threat of physical interaction is
recognized in the duty of doctors to use restraint in order to
prevent a patient from causing harm to himself or physical abuse
to others. 405 ILCS 5/2--108 (West 1996).
Thus, mental health care professionals are caught in an
impossible situation: if a doctor physically restrains a patient,
he is now subject to common-law intentional tort actions without
the protection of section 2--622. If, on the other hand, he
chooses not to restrain a patient and that patient causes harm to
herself or another, the doctor is then liable for failing to
restrain the patient. In the complete absence of any legislative
direction providing for this result, I am unwilling to allow a
patient like plaintiff in this case to proceed in complete
derogation of section 2--622 when it is so apparent that her claim
sounds in medical malpractice.
Accordingly, I dissent.