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09/22/89 Raymond A. Kolanowski, v. Valley Community Hospital

September 22, 1989

RAYMOND A. KOLANOWSKI, PLAINTIFF-APPELLANT

v.

ILLINOIS VALLEY COMMUNITY HOSPITAL, DEFENDANT-APPELLEE

(G) THE FAILURE TO FILE A CERTIFICATE REQUIRED BY THIS SECTION SHALL BE GROUNDS FOR DISMISSAL UNDER SECTION 2-619." ILL. RE

v.

STAT. 1987, CH. 110, PAR. 2-622. SECTION 2-1704 OF THE CODE PROVIDES:



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

544 N.E.2d 821, 188 Ill. App. 3d 821, 136 Ill. Dec. 135 1989.IL.1477

Appeal from the Circuit Court of La Salle County; the Hon. Louis J. Perona, Judge, presiding.

APPELLATE Judges:

JUSTICE BARRY delivered the opinion of the court. HEIPLE and STOUDER, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BARRY

The plaintiff, Raymond A. Kolanowski, brought suit against the defendant, Illinois Valley Community Hospital, for injuries he allegedly sustained when he fell from a bed while he was in the defendant's respite care program. The defendant filed a motion to dismiss, contending that the plaintiff had failed to file an affidavit and medical report as required by section 2-622 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1987, ch. 110, par. 2-622). The trial court agreed and dismissed the suit, allowing the plaintiff 90 days to file new pleadings. The plaintiff failed to file new pleadings, and the trial court subsequently dismissed the case with prejudice. The plaintiff appeals, arguing that section 2-622 of the Code does not apply to the defendant's respite care program.

The plaintiff's complaint stated in count I that when he entered the defendant's custodial shelter care unit, the defendant knew that he was paralyzed on the left side of his body, rendering him weak, confused, helpless, and susceptible to falling from a hospital bed. It further alleged that on August 2, 1986, the defendant had left him unattended, allowing him to fall out of bed and injure himself. The plaintiff contended that the defendant was negligent in failing to properly supervise him, in failing to fix his bed so that he could not fall out of it or, at least, so that he would not be hurt by a fall, and in allowing him to get out of bed. Count II alleged that the defendant had breached its contract with the plaintiff wherein it agreed to provide him with quality care, 24-hour supervision, and skilled nursing services.

The record contains a copy of a brochure published by the defendant, stating that "Respite Care is an interval of rest or relief for families or primary care-givers of Medicare-aged recipients who need to arrange 24-hour care and supervision for a loved one living with them when they must be away from the home because of short-term business/vacation plans, personal/family commitments, or sheer exhaustion." The contract between the plaintiff and the defendant indicates that the defendant had agreed to provide respite care at the highest level offered, "skilled." Services it agreed to perform included "[m]edication administration based upon level of care and physicians' orders," "[p]rofessional supervision, observation, and treatment at the aforementioned level of care," and "[s]killed nursing services at the aforementioned level of care." The defendant also agreed to provide, as needed, prescribed medication, treatment modalities, physicians' visits, and medical supplies and equipment.

Section 2-622 of the Code provides in relevant 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, if the plaintiff is proceeding pro se, shall file an affidavit, attached to the original and all copies of the complaint, declaring one of the following:

1. That . . . [a] reviewing health professional has determined in a written report, after a review of the medical record and other relevant material involved in the particular action that there is a reasonable and meritorious cause for the filing of such action; and that the affiant has concluded on the basis of the reviewing health professional's review and consultation that there is a reasonable and meritorious cause for filing of such action. . . . A copy of the written report, clearly identifying the plaintiff and the reasons for the reviewing health professional's determination that a reasonable and meritorious cause for the filing of the action exists, must be attached to the affidavit . . ..

2. That the . . . consultation required by paragraph 1 . . . could not be obtained before the expiration of the statute of limitations. If an affidavit is executed pursuant to this paragraph, the certificate and written report required by paragraph 1 shall be filed within 90 days after the filing of the complaint. . . .

"Medical Malpractice Action. As used in this Part, 'medical malpractice action' means 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 term 'healing art' shall not include care and treatment by spiritual means through prayer in accord with the tenets and practices of a recognized church or religious denomination." Ill. Rev. Stat. 1987, ch. 110, par. 2-1704.

The term "healing art malpractice" is broad in scope. (Lyon v. Hasbro Industries, Inc. (1987), 156 Ill. App. 3d 649, 509 N.E.2d 702.) However, not every injury sustained by a patient in a hospital results from "healing art malpractice." To determine whether a complaint sounds in ordinary negligence or healing art malpractice, courts look to the evidence that will be necessary to establish the ...


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