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06/08/87 Michael Lyon, A Minor By v. Hasbro Industries

June 8, 1987

MICHAEL LYON, A MINOR BY HIS PARENT AND NEXT FRIEND, LETITIA LYON, PLAINTIFF-APPELLANT

v.

HASBRO INDUSTRIES, INC., DEFENDANT (ED PIRAINO, D/B/A ARROW MEDICAL SERVICES, DEFENDANT-APPELLEE)



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

509 N.E.2d 702, 156 Ill. App. 3d 649, 109 Ill. Dec. 41 1987.IL.766

Appeal from the Circuit Court of Champaign County; the Hon. George S. Miller, Judge, presiding.

APPELLATE Judges:

JUSTICE McCULLOUGH delivered the opinion of the court. GREEN and LUND, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCCULLOUGH

Plaintiff appeals the dismissal of count V of his complaint for failure to comply with section 2-622 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1985, ch. 110, par. 2-622). He argues that count V of the complaint did not sound in healing art malpractice, the section is being applied retroactively, and the trial court erred in dismissing count V of his complaint in its entirety.

We affirm in part, reverse in part, and remand with directions.

On May 16, 1986, plaintiff, Michael Lyon, through his mother, filed a multicount complaint against Hasbro Industries, Inc., and defendant, Arrow Medical Services. Count V alleged that plaintiff, at the time of the incident, was a 15-month-old infant who had suffered severe injuries after swallowing a small toy peg. He was in a life-threatening situation and needed transportation from Burnham City Hospital in Champaign to Children's Memorial Hospital in Chicago. On July 26, 1977, defendant was called to transport plaintiff.

Plaintiff alleged defendant was under two duties of care: First, defendant had a duty to adequately service and maintain its emergency vehicles, thus preventing malfunctions; and second, defendant had a duty to equip its emergency vehicles with life-support equipment adequate to handle foreseeable emergencies. Plaintiff alleged that defendant used a Winnebago van to transport plaintiff. The van was not equipped with "any of the essential life-saving equipment necessary and precautionary" to safeguard plaintiff during the trip. The van, which had been idling outside of the hospital for two hours, broke down six blocks from the hospital. Plaintiff alleged that defendant was negligent in failing to: (a) provide adequate transportation; (b) provide adequate medical equipment; (c) adequately service the van; and (d) provide back-up transportation. Plaintiff suffered a cardiac arrest, and defendant was unable to handle the emergency.

Plaintiff filed a motion for leave to file a late affidavit stating that he believed the complaint sounded in simple negligence, not healing art malpractice. However, if the court found the complaint sounded in healing art malpractice, plaintiff asked to file an affidavit complying with section 2 -- 622(a)(2) of the Code. Subsequently, defendant filed a motion to dismiss asserting the complaint failed to comply with section 2 -- 622 of the Code.

At a hearing on the motion, the court found that the complaint contained two disparate allegations of negligence. The court noted that the negligent transportation alleged would not fall under section 2 -- 622 of the Code. However, a negligent failure to provide adequate equipment fell under the healing art provision. The trial Judge then stated that the requirements of section 2 -- 622 of the Code were to be followed. However, he granted plaintiff's motion to file a late affidavit and gave plaintiff additional time to fully comply with section 2 -- 622 of the Code. Plaintiff's counsel filed an affidavit stating he was unable to consult with a physician as provided in subsection (a)(1) because the statute of limitations would impair the action. Subsequently, defendant filed an additional motion to dismiss for failure to file a certificate and written report as provided in section 2 -- 622(a)(2) of the Code. The court granted this motion and dismissed count V in its entirety.

The appellate record was supplemented with plaintiff's mother's deposition. She stated that, although the van had the words "rescue unit" painted on it, it did not contain any medical equipment.

Section 2 -- 622 of the Code states in part:

"Healing art malpractice. (a) In any action, whether in tort, contract or otherwise, in which the plaintiff seeks damages for injuries or death by reason of medical, hospital, or other healing art malpractice, the plaintiff's attorney or the plaintiff . ...


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