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Eads v. Heritage Enterprises

February 21, 2003

BETTY LOU EADS, APPELLEE,
v.
HERITAGE ENTERPRISES, INC., ET AL., APPELLANTS.



The opinion of the court was delivered by: Justice Rarick

Docket No. 92691-Agenda 27-September 2002.

The sole issue in this case is whether a plaintiff asserting a private right of action under the Nursing Home Care Act (210 ILCS 45/1-101 et seq. (West 2000)) must attach to her complaint the certificate of merit and supporting report required by section 2-622 of the Code of Civil Procedure (735 ILCS 5/2-622 (West 2000)), popularly known as the Healing Arts Malpractice Act. On a permissive interlocutory appeal brought pursuant to Supreme Court Rule 308 (155 Ill. 2d R. 308), the appellate court answered this question in the negative, holding that section 2-622 is inapplicable to claims arising under the Nursing Home Care Act. 325 Ill. App. 3d 129. One justice dissented. We granted leave to appeal from the appellate court's judgment (177 Ill. 2d R. 315) and now affirm.

The litigation which gave rise to this appeal commenced when plaintiff, Betty Lou Eads, brought an action in the circuit court of Sangamon County to recover damages for personal injuries she sustained in a fall at Memorial ContinuCare (ContinuCare), a for-profit, extended-term nursing facility located in Springfield, Illinois. Named as defendants were ContinuCare's three owners, Heritage Enterprises, Inc.; Rutledge Joint Ventures, L.L.C.; and Memorial Health Ventures.

Plaintiff's complaint, as amended, alleged that she resided at ContinuCare for approximately one week in July of 1998. Plaintiff had gone to the facility following her release from Memorial Medical Center, where she had been hospitalized for transient ischemic attacks. At the time she arrived at ContinuCare, plaintiff was weak, unsteady, and suffering from confusion. She subsequently became feverish, which caused additional confusion, hallucinations, weakness, unsteadiness, and an inability to comprehend instructions given to her by the facility's staff.

Plaintiff's amended complaint alleged that defendants, as the owners and operators of ContinuCare, by and through their staff, agents or employees, were aware that she was suffering from the foregoing problems. The complaint further alleged that defendants were aware that plaintiff repeatedly got out of bed without assistance to go to the bathroom. On one such trip, she fell. The fall caused her to fracture her hip and produced severe bruises on her head and body.

Plaintiff sought to impose liability on defendants for her injuries pursuant to the Nursing Home Care Act (210 ILCS 45/1-101 et seq. (West 2000)). Specifically, plaintiff asserted that, under the Act, defendants owed her a duty to "ensure that [she] was assisted at all times when she needed to ambulate from her bed to the bathroom." Plaintiff contended that defendants breached that duty by failing to provide adequate surveillance and supervision; failing to promptly respond to her call light, which forced her to attempt to use the bathroom without assistance; failing to equip her bed with a pressure-release alarm that would have alerted the facility's staff when she got out of bed so that they could come and assist her; failing to provide adequate staff to ensure that residents, including plaintiff, would have assistance when they required it; failing to attend to plaintiff's needs; and allowing plaintiff to fall in her room as she attempted to go to the bathroom. For her relief, plaintiff sought an award of damages plus her costs and attorney fees.

Defendants moved to dismiss plaintiff's cause of action under section 2-619.1 of the Code of Civil Procedure (735 ILCS 5/2-619.1 (West 2000)). As grounds for their motion, defendants argued that plaintiff should be precluded from proceeding with her claims because she did not attach to her complaint the certificate of merit and supporting report required by section 2-622 of the Code of Civil Procedure (735 ILCS 5/2-622 (West 2000)), the Healing Arts Malpractice Act. The circuit court found this contention to be meritorious. It therefore dismissed plaintiff's complaint with leave to replead.

On plaintiff's motion, the circuit court subsequently made a written finding pursuant to Supreme Court Rule 308(a) (155 Ill. 2d R. 308(a)) that its dismissal order involved a question of law as to which there is substantial ground for difference of opinion and that immediate appeal from the order may materially advance the ultimate termination of the litigation. The specific question of law identified by the court was as follows:

"In a case where the Plaintiff has sued a nursing home for injuries sustained as a result of alleged violations by the nursing home, its staff and employees, of the Illinois Nursing Home Care Act [210 ILCS 45/1-101 et seq. (West 2000)], and the regulations promulgated pursuant thereto at 77 Illinois Administrative Code Section 300, et seq., is the Plaintiff required to comply with the mandates of *** the Healing Arts Malpractice Act [735 ILCS 5/2-622 (West 2000)]?

Once the circuit court made its written finding, plaintiff applied to the appellate court for leave to appeal from the circuit court's dismissal order. The appellate court granted her application. Over the dissent of one justice, the court then answered the foregoing question of law in the negative, holding that actions brought under the Nursing Home Care Act are not subject to the mandates of the Healing Arts Malpractice Act. 325 Ill. App. 3d at 138.

Defendants subsequently petitioned our court for leave to appeal from the appellate court's judgment. We granted that petition, and the matter is now before us for review. Because the appeal concerns a question of law certified by the circuit court pursuant to Supreme Court Rule 308, because it presents a question of statutory interpretation, and because it arose in the context of an order granting a section 2-619 motion to dismiss, our review is de novo. Weatherman v. Gary-Wheaton Bank of Fox Valley, N.A., 186 Ill. 2d 472, 480 (1999); Michigan Avenue National Bank v. County of Cook, 191 Ill. 2d 493, 503 (2000); Nowak v. St. Rita High School, 197 Ill. 2d 381, 389 (2001).

The Nursing Home Care Act, upon which plaintiff's cause of action is founded, was adopted more than 20 years ago "amid concern over reports of `inadequate, improper and degrading treatment of patients in nursing homes.' " Harris v. Manor Healthcare Corp., 111 Ill. 2d 350, 357-58, quoting Senate Debates, 81st Ill. Gen. Assem., May 14, 1979, at 184 (statements of Senator Karl Berning). It was described by one of its principal sponsors as a " `full reform of the nursing home industry.' " Harris, 111 Ill. 2d at 358, quoting Senate Debates, 81st Ill. Gen. Assem., May 14, 1979, at 181 (statements of Senator Richard M. Daley).

The Act repealed the nursing homes, sheltered care homes and homes for the aged act (Ill. Rev. Stat. 1977, ch. 111½, par. 35.16 et seq.) and

"replaced it with a comprehensive statute which established standards for the treatment and care of nursing home residents; created minimum occupational requirements for nurses aides; and expanded the power of the Illinois Department of Public Health to enforce the provisions of the Act." Harris v. Manor Healthcare Corp., 111 Ill. 2d at 358.

A principal component of the Act is the residents' "bill of rights," under which nursing home residents are guaranteed certain rights, including the right to manage their own finances, the right to refuse treatment, and the right to be free from abuse and neglect by nursing home personnel. See 210 ILCS 45/2-101 through 2-113 (West 2000); see also Harris v. Manor Healthcare Corp., 111 Ill. 2d at 358.

To ensure that nursing homes comply with the Act, the legislature invested the Department of Public Health with expanded regulatory and enforcement powers, and created civil as well as criminal penalties. See, e.g., 210 ILCS 45/3-119, 3-301 through 3-318 (West 2000); see also Harris v. Manor Healthcare Corp., 111 Ill. 2d at 358-59. It also expressly granted nursing home residents a private cause of action for damages and other relief against nursing home owners and operators who violate its provisions. 210 ILCS 45/3-601, 3-602, 3-603 (West 2000). Fisher v. Lexington Health Care, Inc., 188 Ill. 2d 455, 461 (1999).

In granting private remedies to nursing home residents, the General Assembly embraced the concept of a "private attorney general." It realized that the Department of Public Health could not police every nursing home on a daily basis and could not detect every violation of the Act. It also realized that nursing home residents themselves are in the best position to know of and seek redress for violations. See Springwood Associates v. Lumpkin, 239 Ill. App. 3d 771, 777 (1992).

Under section 3-601 of the Act, owners and licensees of a facility are liable to a resident for injuries caused by the intentional or negligent acts or omissions of their employees or agents. 210 ILCS 45/3-601 (West 2000). Section 3-602 requires licensees to pay actual damages and costs and attorney fees to nursing home residents whose rights under the Nursing Home Care Act are violated. 210 ILCS 45/3-602 (West 2000). Section 3-603 permits nursing home residents to maintain an action under the Nursing Home Care Act for any other type of relief permitted by law, including injunctive and declaratory relief. 210 ILCS 45/3-603 (West 2000).

The cause of action asserted by plaintiff in the case before us is premised on the foregoing statutory provisions. There is no dispute that the allegations of plaintiff's complaint, if proved, would entitle her to relief under the Act. Defendants' challenge to her cause of action is based solely on procedural grounds. They argue that plaintiff should be precluded from proceeding against them under the Nursing Home Care Act because she did not comply with section 2-622 of the Code of Civil Procedure (735 ILCS 5/2-622 (West 2000)), commonly referred to as the Healing Arts Malpractice Act.

The Nursing Home Care Act itself contains no special procedures regulating the conduct of private rights of action brought pursuant to its provisions. Such actions are therefore governed by article II of the Code of Civil Procedure (735 ILCS 5/2-101 et seq. (West 2000)), also known as the Civil Practice Law (735 ILCS 5/1-101(b) (West 2000)), and by the Illinois supreme court rules on civil proceedings in the trial court (134 Ill. 2d R. 1).

Among the provisions of article II of the Code of Civil Procedure is section 2-622 (735 ILCS 5/2-622 (West 2000)), the Healing Arts Malpractice Act. That statute, however, does not apply to all civil actions. By its terms, it is applicable only to "action[s], 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 2000).

In damage actions based on "medical, hospital or other healing art malpractice," section 2-622 requires the plaintiff's attorney or the plaintiff, if the plaintiff is proceeding pro se, to file an affidavit, attached to the complaint, declaring that he has consulted with a health-care professional who has determined, by written report, 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," must be attached to the affidavit. 735 ILCS 5/2-622(a)(1) (West 2000). Failure to comply is grounds for dismissal under section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 2000)). 735 ILCS 5/2-622(g) (West 2000).

No affidavit or report of the type described by section 2-622 was attached to plaintiff's complaint. The absence of such supporting documentation was the basis for the circuit court's order granting defendants' motion to dismiss. The circuit court correctly recognized, however, that its dismissal order can be sustained only if plaintiff's cause of action under the Nursing Home Care Act is subject to the requirements ...


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