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03/24/95 PATRICIA K. COHEN AND JOE COHEN v. ROGER

March 24, 1995

PATRICIA K. COHEN AND JOE COHEN, PLAINTIFFS-APPELLANTS,
v.
ROGER SMITH, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Jackson County. No. 5-94-0203. No. 92-L-179. Honorable E. Dan Kimmel, Judge, presiding. Appeal from the Circuit Court of Jackson County. No. 5-94-0204. No. 92-L-5. Honorable E. Dan Kimmel, Judge, presiding.

The Honorable Justice Chapman delivered the opinion of the court: Maag, P.j., and Hopkins, J., concur.

The opinion of the court was delivered by: Chapman

JUSTICE CHAPMAN delivered the opinion of the court:

Patricia Cohen was admitted to St. Joseph Memorial Hospital ("Hospital") to deliver her baby. After an examination, Cohen was informed that it would be necessary for her to have a cesarean section. Cohen and her husband allegedly informed her physician, who in turn advised the Hospital staff, that the couple's religious beliefs prohibited Cohen from being seen unclothed by a male. Cohen's doctor assured her husband that their religious convictions would be respected.

During Cohen's cesarean section, Roger Smith, a male nurse on staff at the Hospital, allegedly observed and touched Cohen's naked body. Cohen and her husband filed suit against Nurse Smith and the Hospital. The trial court allowed defendants' motions to dismiss. We reverse.

In reviewing a motion to dismiss for failure to state a cause of action, the court must view all well-pleaded facts in the light most favorable to the plaintiff. ( Business Development Services, Inc. v. Field Container Corp. (1981), 96 Ill. App. 3d 834, 836, 422 N.E.2d 86, 89, 52 Ill. Dec. 405.) A trial court may dismiss a cause of action for failing to state a cause of action, based solely on the pleadings, only if it is clearly apparent that no set of alleged facts can be proven which will entitle a plaintiff to recovery. ( Burdinie v. Village of Glendale Heights (1990), 139 Ill. 2d 501, 504, 565 N.E.2d 654, 657, 152 Ill. Dec. 121.) Therefore, we will consider only the facts alleged by the plaintiffs in their complaints.

This case was originally filed as two separate cases, one against Nurse Smith and the other against the Hospital. The cases were consolidated on appeal. There are strong similarities between the complaints filed, and the arguments made, in each case. Plaintiffs' complaints against both Nurse Smith and the Hospital are stated in three counts: (1) battery, (2) intentional infliction of emotional distress, and (3) violation of the Right of Conscience Act (745 ILCS 70/2 (West 1992)).

Attached to the complaint against Nurse Smith is an affidavit of plaintiffs' lawyer stating that due to time constraints imposed by the statute of limitations, he was unable to obtain the written affidavit of a health professional that is required by section 2-622 of the Civil Practice Law in cases based on healing art malpractice (735 ILCS 5/2-622 (West 1992)) (Healing Arts Malpractice Act). Defendants' motions to dismiss contended that the affidavit requirement of section 2-622 could not be waived. Plaintiffs subsequently filed a motion to amend their complaint, along with an affidavit of a licensed physician, in order to comply with section 2-622. The trial court denied plaintiffs' motion to amend and granted Nurse Smith's motion for involuntary dismissal based on plaintiffs' failure to comply with section 2-622. Plaintiffs' motions to set aside and reconsider were denied.

The trial court also dismissed the complaint against the Hospital, but it based that dismissal on the grounds that the Hospital owed the plaintiffs no duty. The complaint against the Hospital also included a separate count for intentional infliction of emotional distress, which was filed by Mr. Cohen. This is the only count that involves Mr. Cohen, despite the fact that he is listed as one of the plaintiffs in the captions of both complaints.

In both the trial court and on appeal, there has been much discussion over various tangential matters, but the two basic issues are: (1) whether the Healing Arts Malpractice Act applies to these cases; and (2) do plaintiffs' complaints state a cause of action for battery, for intentional infliction of emotional distress, and for relief under the Right of Conscience Act.

I. APPLICABILITY OF THE HEALING ARTS MALPRACTICE ACT

Both defendants argue that the plaintiffs' complaints were properly dismissed because the plaintiffs failed to comply with the requirements of the Healing Arts Malpractice Act. The act requires a plaintiff's attorney to file an affidavit of a licensed physician "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." (735 ILCS 5/2-622(a) (West 1992).) The purpose of requiring the filing of an affidavit is to deter the filing of frivolous suits against health care providers. Peterson v. Hinsdale Hospital (1992), 233 Ill. App. 3d 327, 329, 599 N.E.2d 84, 87, 174 Ill. Dec. 538.

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." Black's Law Dictionary 959 (6th ed. 1990).

The first step in our analysis is a determination of whether this claim is one "in which the plaintiff seeks damages * * * by reason of healing art malpractice * * *" (emphasis added), as the defendants claim, or whether it is a simple case of battery, as the plaintiffs claim.

The Restatement (Second) of Torts provides that an actor commits a battery if:

"(a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and

(b) a harmful contact with the person of the other directly or indirectly results." (Restatement (Second) of Torts, ยง 13 (1965).)

Liability for battery emphasizes the plaintiff's lack of consent to the touching. ( Cowan v. Insurance Co. of North America (1974), 22 Ill. App. 3d 883, 893, 318 N.E.2d 315, 323.) "Offensive contact" is said to occur when the contact "offends a reasonable ...


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