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Chadwick v. Al-Basha

March 27, 1998


The opinion of the court was delivered by: Presiding Justice Geiger


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 1½ 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, ...

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