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Williams v. Athletico, Ltd.

Court of Appeals of Illinois, First District, Second Division

March 21, 2017

JODINE WILLIAMS and CHRISTOPHER T. WILLIAMS, Individually; and JODINE WILLIAMS and CHRISTOPHER T. WILLIAMS, as Plenary Coguardians of the Person of DREW WILLIAMS, a Disabled Person, Plaintiffs-Appellees,
v.
ATHLETICO, LTD., a Corporation; ACCELERATED REHABILITATION CENTERS, LTD., a Corporation; and ALBERT BUZON, ATC a/k/a WOJCIECH BUZUN, Defendants-Appellants.

         Appeal from the Circuit Court of Cook County No. 15 L 10041 Honorable Moira S. Johnson, Judge Presiding.

          JUSTICE PIERCE delivered the judgment of the court, with opinion. Presiding Justice Hyman and Justice Mason concurred in the judgment and opinion.

          OPINION

          PIERCE, JUSTICE

         ¶ 1 Plaintiffs Jodine Williams and Christopher Williams, both individually and as plenary coguardians of Drew Williams, a disabled person, filed suit in Cook County circuit court against Athletico, Ltd. (Athletico), Accelerated Rehabilitation Centers, Ltd. (ARC), and Albert Buzon, ATC a/k/a Wojciech Buzun[1] (collectively, defendants), alleging that defendants were negligent for failing to assess Drew for symptoms of head trauma during a high school football game. Plaintiffs alleged that defendants failed to (1) assess Drew for symptoms of head trauma "following a significant blow to the head, " (2) "evaluate [Drew] for a concussion until the fourth quarter of the game, " and (3) "recognize the signs of [Drew] suffering a brain trauma." ¶ 2 Defendants moved to dismiss plaintiffs' complaint pursuant to section 2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619 (West 2014)) on the ground that, because the complaint sounded in healing arts malpractice, plaintiffs were required to comply with section 2-622 of the Code (735 ILCS 5/2-622 (West 2014)), and this failure warranted dismissal under section 2-622(g) of the Code. The trial court denied defendants' motion to dismiss; however, it certified the following three questions of law pursuant to Illinois Supreme Court Rule 308 (eff. Jan. 1, 2016):

"1. Whether it is necessary for a plaintiff to attach a certificate from a health care professional, pursuant to section 2-622 of the Code of Civil Procedure (735 ILCS 5/2-622), where the complaint alleges negligent conduct by an Athletic Trainer during a high school football game in which the trainer was hired to provide on-site injury evaluation to ensure the health and well-being of the participating athletes.
2.Whether it is necessary for a plaintiff to attach a certificate from a health care professional pursuant to section 2-622 of the Code where the complaint alleges negligent conduct by a licensed Athletic Trainer for failing to evaluate an athlete for a concussion following a head trauma suffered while participating in an athletic program.
3. If so, must the health care professional that issues the certificate pursuant to section 2-622 of the Code be someone in the same profession, with the same class of license as the defendant Athletic Trainer."

         ¶ 3 We allowed defendants' application for leave to appeal pursuant to Rule 308(a). For the following reasons, we reframe the first and second certified questions and answer in the affirmative, and answer the third certified question in the negative. We remand for further proceedings consistent with this opinion.

         ¶ 4 BACKGROUND

         ¶ 5 Plaintiffs' first amended complaint asserts four counts. Counts I and III allege negligence against Athletico and ARC/Buzun, respectively, and counts II and IV assert claims under the family expense provision of the Rights of Married Persons Act (750 ILCS 65/15 (West 2014)) against Athletico and ARC/Buzun, respectively. For purposes of this appeal, we set forth only the relevant allegations dealing with the negligence claims.

         ¶ 6 Count I alleges that Athletico was under contract with Chicago Public Schools "to assign and maintain an adequate staff of competent personnel that was fully equipped, licensed as appropriate, available as needed, and qualified to provide on-site injury care and evaluation and assist on all matters pertaining to the health and well-being of the athletes participating" in an October 4, 2013, high school football game between Lane Tech High School and Dunbar High School, in Chicago. Drew participated in the game on behalf of Lane Tech. During the first quarter of the game, Drew "violently collided" with a teammate, causing Drew's teammate to suffer a broken rib and ruptured spleen.[2] Following the collision, Drew "was not assessed or evaluated for symptoms of Concussive Brain Trauma." According to the complaint, Athletico trainers "watch for signs of concussion and must evaluate and assess a player following a sign of brain trauma." Drew continued participating in the game, "sustaining numerous additional impacts to his head."[3] The complaint asserts that "Second Impact Syndrome occurs when the brain swells rapidly and catastrophically as a result of additional blows to the head following a Concussive Brain Trauma." During the fourth quarter of the game, Drew "appeared on the sideline, dazed, " and "suffered numerous brain bleeds as a result of continuing to play football following a Concussive Brain Trauma." Plaintiffs assert that Athletico was negligent in failing to (1)"assess [Drew] for symptoms of head trauma following a significant blow to the head, " (2)"evaluate [Drew] for a concussion following head trauma, " and (3) "recognize the signs of [Drew] suffering a brain trauma, " and that, "as a direct and proximate result of one or more of the above negligent acts or omissions, [Drew] sustained injuries of a personal and pecuniary nature, rendering him disabled."

         ¶ 7 Count III alleges that ARC had an agreement with Lane Tech whereby ARC was "required to provide athletic trainer services to Lane Tech students participating in all varsity football games during the 2013 season in order to evaluate and treat athletic injuries sustained during the games." ARC assigned Buzun as Lane Tech's athletic trainer. Plaintiffs allege that after Drew collided with his teammate, Drew "was not properly assessed or evaluated for symptoms of Concussive Brain Trauma by [Buzun] or any other agent or employee of [ARC], despite demonstrating a sign of concussive brain trauma."[4] Count III repeats the allegations that Drew continued to participate in the game, "sustaining numerous additional impacts to his head, " that "Second Impact Syndrome occurs when the brain swells rapidly and catastrophically as a result of additional blows to the head following a Concussive Brain Trauma, " and that during the fourth quarter of the game, Drew "appeared on the sidelines, dazed." The complaint alleges that "during the fourth quarter incident, [ARC] by and through its duly authorized agent and employee, [Buzun], performed a concussion assessment" and that during the assessment, Drew "began seizing and became unresponsive." Plaintiffs again allege that Drew "suffered numerous brain bleeds as a result of continuing to play football following a Concussive Brain Trauma." Plaintiffs alleged that ARC and Buzun failed to (1) "assess [Drew] for symptoms of head trauma following a significant blow to the head, " (2) "evaluate [Drew] for a concussion until the fourth quarter of the game, " and (3) "recognize the signs of [Drew] suffering a brain trauma" and that "as a direct and proximate result of one or more of the above negligent acts or omissions, [Drew] sustained injuries of a personal and pecuniary nature, rendering him disabled."

         ¶ 8 ANALYSIS

         ¶ 9 Illinois Supreme Court Rule 308 allows a trial court, upon a finding that an order involves a question of law as to which there is substantial ground for difference of opinion, to make an otherwise interlocutory order immediately appealable if an appeal may materially advance the ultimate termination of the litigation. Ill. S.Ct. R. 308(a) (eff. Jan. 1, 2016). Our review is generally confined to the certified question. De Bouse v. Bayer AG, 235 Ill.2d 544, 550 (2009); Cincinnati Insurance Co. v. Chapman, 2012 IL App (1st) 111792, ¶ 21. However, we may limit our consideration of the question as necessary if answering the question as certified would not materially advance the ultimate determination of the litigation. See Crawford County Oil, LLC v. Weger, 2014 IL App (5th) 130382, ¶ 11 (citing De Bouse, 235 Ill.2d at 557). Certified questions under Rule 308 are issues of law, and our review is de novo. Doe No. 2 v. Boy Scouts of America, 2016 IL App (1st) 152406, ¶ 67.

         ¶ 10 Because the first and second certified questions are similar, we can consider them together under a single analysis. See Simmons v. Homatas, 236 Ill.2d 459, 466 (2010). The parties agree, and we concur, that the first and second certified questions, while worded differently, apply to licensed athletic trainers and seek an answer to the question of whether plaintiffs were required to attach an affidavit and report, pursuant to section 2-622 of the Code, to their complaint. In the circuit court, the parties expressed concern over the wording of the questions to be certified, with each side advancing an advocate's perspective on what was essentially the same question: plaintiffs were concerned with the alleged failures to assess, evaluate, and recognize head and brain trauma, whereas defendants were focused on the alleged negligence and the provision of on-site injury evaluation and prevention. Neither party has raised any issue regarding the licensing requirements for athletic trainers.[5] The circuit court took a middle ground and proposed submission of both the first and second questions so that "the Appellate Court might have a better understanding of what exactly it is that's being asked of them. *** I don't think that they are overburdensome, because they flow. They make it much more understandable what it is that you're asking."

         ¶ 11 Although the circuit court should ensure that a certified question is concise and clearly states the question to be answered, considering the first and second question presented, we can comply with our responsibilities under the requirements of Rule 308 by combining questions one and two to ensure that our answers are limited to the questions presented. See De Bouse, 235 Ill.2d at 557. As presented in both question one and question two, the core question of law to be answered is whether the alleged negligent conduct concerns the area of healing art malpractice and whether compliance with section 2-622 of the Code is required. We are essentially being asked the following question:

"Whether it is necessary for a plaintiff to attach a certificate from a health professional pursuant to section 2-622 where the complaint alleges negligent conduct by a licensed athletic trainer hired to provide on-site injury evaluation and treatment to participants in an athletic competition for failing to assess and evaluate a participating athlete for a concussion, and for failing to recognize the signs of a concussion following a trauma sustained by the participant."

         ¶ 12 Whether a Section 2-622 ...


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