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Collins v. Lake Forest Hospital

October 10, 2003


Appeal from the Circuit Court of Lake County. No. 01-L-317 Honorable John R. Goshgarian, Judge, Presiding.

The opinion of the court was delivered by: Justice Bowman


Plaintiffs, Andrea A. Collins, individually and as special administrator of the estate of Joseph J. Collins, Jr., deceased, Jennifer R. Collins, Joseph J. Collins III, John M. Collins, and James S. Collins, appeal the dismissal with prejudice of counts III and VI of their amended complaint against defendants, Lake Forest Hospital (Hospital) and Gerald Osher, M.D. The trial court dismissed counts III and VI, which alleged violations of the Health Care Surrogate Act (Act) (755 ILCS 40/1 et seq. (West 2000)), on the ground that plaintiffs were required to file with their complaint a certificate of merit pursuant to section 2--622 of the Code of Civil Procedure (Code) (735 ILCS 5/2--622 (West 2000)) and failed to do so. Plaintiffs argue on appeal that claims alleging violations of the Act do not require compliance with section 2--622 or, alternatively, that the trial court abused its discretion in dismissing their claims with prejudice and denying them an opportunity to procure a certificate of merit.

Plaintiffs filed their original complaint against the Hospital on April 19, 2001. Dr. Osher was named as a respondent in discovery. The complaint contained six counts. The first three counts were brought on behalf of the estate of the decedent, Joseph Collins, Jr. (Joseph) and alleged, respectively, wrongful death as a result of battery, negligence, and violations of the Act. The next three counts asserted the same theories on behalf of Joseph's wife, Andrea, and the couple's children. Following the Hospital's motions to dismiss pursuant to sections 2--615 (735 ILCS 5/2--615 (West 2000)) and 2--619 (735 ILCS 5/2--619 (West 2000)) of the Code, the trial court dismissed the negligence counts against the Hospital without prejudice for failure to comply with section 2--622. The court subsequently granted plaintiffs leave to file an amended complaint and to convert Dr. Osher from a respondent in discovery into a defendant.

Plaintiffs' amended complaint alleges that, on April 20, 1999, Joseph presented to the Hospital emergency room with acute subdural hematomas caused by a fall. Andrea consented on his behalf to an emergency craniotomy procedure. Following the procedure, "physicians and nurses of [the Hospital]" informed Andrea that Joseph's chance for survival was poor and that it would be prudent to remove him from the ventilator. Plaintiffs further allege that, at the time of his admission and at all subsequent times until his death, Joseph was unconscious, lacked any decisional capacity, was unable to give consent for any medical decisions, and had a qualifying condition as defined by the Act. In addition, plaintiffs allege that Andrea informed the physicians and nurses that Joseph was not to be removed from the ventilator before their children arrived home from college on April 23 and had a chance to see Joseph. According to the amended complaint, on the morning of April 23, Andrea telephoned the hospital and informed a "nursing agent" that she and her children would come to the Hospital later that morning and that Joseph was to be kept on the ventilator so they could visit him. Plaintiffs further allege that, at 10:55 a.m., an unidentified agent of one of the defendants, acting without Andrea's authority or permission, ordered that Joseph be removed from the ventilator. Joseph was disconnected from the ventilator at about 11 a.m. and died approximately three minutes later. Andrea and her children arrived at the hospital at approximately 11:10 a.m. and were informed that Joseph had been removed from the ventilator and had died shortly thereafter.

Counts I through III of the amended complaint are directed against the Hospital and assert theories of wrongful death as a result of battery, negligence, and violations of the Act, respectively. Counts IV through VI assert the same theories against Dr. Osher. Counts VII and VIII allege negligent lack of informed consent against the Hospital and Dr. Osher, respectively. Counts IX and X are also based on violations of the Act.

Pursuant to section 2--619 of the Code, Dr. Osher moved to dismiss all counts against him, except for the battery count, for failure to comply with section 2--622. The Hospital moved to dismiss the negligence and negligent lack of informed consent counts on the same ground.

The trial court granted defendants' motions, thereby dismissing with prejudice counts II, V, VI, VII, and VIII for failure to file a section 2--622 certificate of merit. In addition, plaintiffs conceded the dismissal of counts IX and X as duplicative of counts III and VI, the other counts alleging violations of the Act. After the court dismissed the count against Dr. Osher alleging violations of the Act, the Hospital sought dismissal of the similar count against it. The trial court granted the Hospital's motion and dismissed count III with prejudice as well. Plaintiffs filed a timely notice of appeal.

Plaintiffs contend on appeal that section 2--622 does not apply to counts III and VI of their amended complaint because those counts do not allege medical malpractice. Rather, plaintiffs argue that the question raised by these counts is whether defendants violated the Act by failing to consult with Andrea before removing Joseph from the ventilator.

When reviewing the dismissal of a cause of action pursuant to section 2--619, we take as true all well-pleaded facts alleged in the complaint. Chadwick v. Al-Basha, 295 Ill. App. 3d 75, 79 (1998). Consequently, we are concerned solely with a question of law presented by the pleadings and employ a de novo standard of review. Chadwick, 295 Ill. App. 3d at 79.

Section 2--622(a) of the Code requires a 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 2000). Thus, when determining whether section 2--622 applies to plaintiffs' claims, we must decide whether, taking plaintiffs' allegations as true, the damages they seek were caused by defendants' "malpractice." See Chadwick, 295 Ill. App. 3d at 79. "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.' " Cohen v. Smith, 269 Ill. App. 3d 1087, 1090 (1995), quoting Black's Law Dictionary 959 (6th ed. 1990).
It is the nature of the plaintiff's claim, rather than any defense a defendant may raise, that determines whether the complaint sounds in malpractice. Cohen, 269 Ill. App. 3d at 1093.

The issue of whether a claim alleging violations of the Act requires compliance with section 2--622 is one of first impression. Plaintiffs here allege that defendants violated section 25 of the Act, which provides as follows, in pertinent part:

"When a patient lacks decisional capacity, the health care provider must make a reasonable inquiry as to the availability and authority of a health care agent under the Powers of Attorney for Health Care Law. When no health care agent is authorized and available, the health care provider must make a reasonable inquiry as to the availability of possible surrogates listed in items (1) through (4) of this subsection." 755 ILCS 40/25 (West 2000).
The Act defines "decisional capacity" as "the ability to understand and appreciate the nature and consequences of a decision regarding medical treatment or forgoing life-sustaining treatment and the ability to reach and communicate an informed decision in the matter as determined by the attending physician." 755 ILCS 40/10 (West 2000). Section 20(c) of the Act provides that a determination that an adult patient lacks decisional capacity shall be made by the attending physician to a reasonable degree of medical certainty. 755 ILCS 40/20(c) ...

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