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12/30/87 Nancy C. Bloom, v. Ruth K. Guth

December 30, 1987

NANCY C. BLOOM, PLAINTIFF-APPELLANT

v.

RUTH K. GUTH, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

517 N.E.2d 1154, 164 Ill. App. 3d 475, 115 Ill. Dec. 468 1987.IL.1960

Appeal from the Circuit Court of Lake County; the Hon. Bernard E. Drew, Jr., Judge, presiding.

APPELLATE Judges:

JUSTICE NASH delivered the opinion of the court. UNVERZAGT and WOODWARD, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE NASH

Plaintiff, Nancy C. Bloom, appeals from orders of the trial court which dismissed her complaint for failure to comply with section 2-622 of the Civil Practice Law (Ill. Rev. Stat. 1985, ch. 110, par. 2-622), which requires that in medical malpractice actions, plaintiff or her attorney file an affidavit stating that, based on consultation with a health professional, there is a "reasonable and meritorious" cause for filing the action.

On February 7, 1986, plaintiff filed a five-count complaint against defendant, Ruth K. Guth, M.D., which alleged, inter alia, that defendant failed to perform a hysterectomy on plaintiff and failed to repair her bladder. Count I of the complaint sounded in negligent misrepresentation; count II alleged fraud; count III sought recovery for breach of contract; count IV alleged a violation of the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1985, ch. 121 1/2, par. 261 et seq.); and count V was for breach of an express warranty. In each count, plaintiff sought recovery of compensatory damages, punitive damages, and attorney fees.

Defendant moved for involuntary dismissal pursuant to section 2-622 of the Civil Practice Law (Ill. Rev. Stat. 1985, ch. 110, par. 2-622) and also moved to strike and dismiss the allegations of plaintiff's complaint which sought punitive damages, damages for pain and suffering, and attorney fees. In response to defendant's motion, plaintiff's counsel submitted an affidavit in opposition which stated that he was unable to obtain an expert who would prepare an affidavit that defendant had committed medical malpractice, but he believed that a breach of contract cause of action was proper. Plaintiff also submitted a memorandum of law to the trial court in support of her position that punitive damages, damages for pain and suffering, and the award of attorney fees was proper.

The trial court subsequently entered an order dismissing plaintiff's complaint pursuant to section 2-619 of the Civil Practice Law (Ill. Rev. Stat. 1985, ch. 110, par. 2-619), for failure to comply with section 2-622 of the Civil Practice Law. Plaintiff's motion for rehearing alleged that section 2-622 was unconstitutional on a number of grounds; it was denied by the trial court, and this appeal followed.

Plaintiff contends that section 2-622 of the Civil Practice Law does not apply to this case, arguing that this is not a medical malpractice action, but rather is an action sounding in contract. However, that argument is contrary to the plain language of section 2-622(a), which states that an affidavit of plaintiff or plaintiff's attorney is required "[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." Ill. Rev. Stat. 1985, ch. 110, par. 2-622(a).

Plaintiff cites Mooney v. Graham Hospital Association (1987), 160 Ill. App. 3d 376, 513 N.E.2d 633, to support her argument. We find Mooney must be distinguished. There, in what was essentially a slip and fall case, the court held that the term "healing art" does not encompass ordinary premises liability claims and, therefore, the affidavit requirement was not applicable. (160 Ill. App. 3d at 380-81.) The facts in the present case, however, are quite different, as plaintiff's complaint alleged that defendant failed to perform a hysterectomy and failed to repair plaintiff's bladder. We conclude that these allegations describe conduct well within the plain and ordinary meaning of "healing art malpractice" (see Lyon v. Hasbro Industries, Inc. (1987), 156 Ill. App. 3d 649, 653, 509 N.E.2d 702) and subject plaintiff's complaint to the affidavit requirement of section 2 -- 622.

Plaintiff next contends that section 2 -- 622 is unconstitutional based on a number of grounds. In Bernier v. Burris (1986), 113 Ill. 2d 219, 497 N.E.2d 763, our supreme court examined the constitutionality of some of the provisions of the medical malpractice legislation of which section 2 -- 622 is a part. The court noted that there is a strong presumption that the legislation is constitutional, and a party asserting otherwise has the burden of clearly establishing a constitutional violation. 113 Ill. 2d at 227.

Plaintiff asserts that section 2 -- 622 denies the medical patient due process and equal protection of the law. The standard for determining plaintiff's due process and equal protection objections is the rational-basis test. If the legislation bears a rational relationship to a legitimate governmental purpose, then it does not violate a person's right to due process and equal protection. (Bernier v. Burris (1986), 113 Ill. 2d 219, 228-29, 497 N.E.2d 763.) The purpose of section 2 -- 622 is to eliminate frivolous lawsuits at the pleading stage (Lyon, 156 Ill. App. 3d at 655), which we find to be a legitimate governmental purpose which section 2 -- 622 is rationally related to achieving.

Plaintiff also suggests that section 2 -- 622 violates the State constitutional prohibition against special legislation. Applying the same general standard utilized for due process and equal protection purposes (Bernier, 113 Ill. 2d at 228), we find that ...


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