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Ripes v. Schlechter

Court of Appeals of Illinois, First District, Second Division

October 17, 2017

ELIZABETH RIPES, Plaintiff-Appellant,
v.
BENJAMIN SCHLECHTER and NORTH SHORE AESTHETICS, P.C., Defendants-Appellees.

         Appeal from the Circuit Court of Cook County. No. 15 L 6456 The Honorable Patrick J. Sherlock, Judge Presiding.

          JUSTICE PUCINSKI delivered the judgment of the court, with opinion. Justices Fitzgerald Smith and Cobbs concurred in the judgment and opinion.

          OPINION

          PUCINSKI JUSTICE.

         ¶ 1 Plaintiff, Elizabeth Ripes, filed a complaint alleging breach of contract, medical battery, and a violation of the Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act or Act) (815 ILCS 505/1 et seq. (West 2012)) against defendants Dr. Benjamin Schlechter and North Shore Aesthetics, P.C. (North Shore or North Shore Aesthetics) following an errant plastic surgery procedure. Defendants filed a motion to dismiss Ripes's filing, which the circuit court granted. Ripes appeals the circuit court's ruling, arguing that the court erred in concluding that she was required to submit an affidavit in accordance with section 2-622 of the Code of Civil Procedure (Code or Civil Code) (735 ILCS 5/2-622 (West 2012)) and in finding that she failed to state a valid cause of action under the Consumer Fraud Act. For the reasons explained herein, we affirm the judgment of the circuit court.

         ¶ 2 BACKGROUND

         ¶ 3 On October 9, 2014, plaintiff Ripes underwent several plastic surgery procedures. The procedures were performed by defendant Dr. Schlechter, a licensed plastic surgeon and the President of North Shore Aesthetics. Thereafter, on June 24, 2015, Ripes filed a complaint alleging claims of breach of contract, medical battery, and consumer fraud. In her complaint, Ripes alleged that on September 7, 2014, she attended a consultation with Dr. Schlechter at his office at North Shore Aesthetics "to inquire about obtaining various plastic surgery procedures, one of which included removing [her] existing breast implants, " which had been placed above the pectoral muscle "and replacing them with new implants." Ripes further alleged that she "specifically requested, and [Dr. Schlechter] agreed, that the new implants would be placed below the pectoral muscle." Following the consultation, Ripes agreed to pay Dr. Schlechter $17, 000 to perform the requested procedures and a formal written surgery proposal was drawn up that itemized the procedures that Ripes had requested. The proposal, which was attached to Ripes's complaint, reflected that Dr. Schlechter was to remove Ripes's existing "intact mam[mary] implant[s]" and to perform a "mammaplasty augmentation w[ith] prosth[etic] implant." Although the proposal did not specify the placement of Ripes's new implants, she alleged that she and Dr. Schlechter "verbally agreed and understood that the implants would be placed below the pectoral muscle." In contravention of this agreement, Ripes alleged that when Dr. Schlechter performed the procedure on October 9, 2014, he placed her new implants above the pectoral muscle. This was done "contrary to [Ripes's] understanding and consent" and "contrary to the parties' agreement." The procedure and the purported improper placement of Ripes's new breast implants formed the basis for her breach of contract, medical battery, and consumer fraud claims.

         ¶ 4 Defendants responded with a motion to dismiss Ripes's complaint. In their motion, defendants argued that notwithstanding the terminology Ripes employed in her complaint, her filing essentially sounded in medical healing arts malpractice. As a result, defendants argued that plaintiff was required to submit an affidavit and report completed by a licensed medical professional, attesting that her claims had merit in accordance with the pleading requirements set forth in section 2-622 of the Civil Code (735 ILCS 5/2-622 (West 2012)). According to defendants, Ripes's failure to include such an affidavit required dismissal of her entire complaint. Defendants further argued that plaintiff's Consumer Fraud Act claim failed as a matter of law because a claim under the Act only applies to deceptive acts committed in the context of trade or commerce and the practice of medicine is not a type of trade of commerce covered by the Act.

         ¶ 5 In response, Ripes disputed defendants' characterization of her complaint and argued that her filing did not, as defendants' contended, sound in medical healing arts malpractice. As a result, Ripes argued that her complaint was not subject to the pleading requirements of section 2-622 of the Code. Ripes further argued that her Consumer Fraud Act claim did not fail as a matter of law because Dr. Schlechter employed deception and engaged in a deceptive business practice when he agreed to place her new breast implants above the pectoral muscle but then failed to do so.

         ¶ 6 The circuit court, after considering the arguments of the parties, issued a detailed written order, granting defendants' motion to dismiss Ripes's complaint. In doing so, the court found that counts I and II of plaintiff's complaint, alleging breach of contract and medical battery, respectively, both sounded in medical healing arts malpractice, and as result, plaintiff was subject to the pleading requirements set forth in section 2-622 of the Code. The court concluded that the absence of a section 2-622 affidavit warranted dismissal of both counts without prejudice. With respect to count III, plaintiff's Consumer Fraud Act claim, the court concluded that "the practice of medicine [wa]s not a trade or commerce" and that the Act therefore did not apply to the provision of medical services. The court thus dismissed Ripes's Consumer Fraud Act claim with prejudice.

         ¶ 7 Ripes responded with a motion to reconsider, which the circuit court denied in another detailed written order. Thereafter, Ripes declined to file an amended complaint with a section 2-622 affidavit and, instead, elected to stand on her original complaint. As a result, the circuit court entered a written order dismissing plaintiff's entire complaint with prejudice. This appeal followed.

         ¶ 8 ANALYSIS

         ¶ 9 Section 2-622 Affidavit Requirement

         ¶ 10 On appeal, Ripes argues that the circuit court erred in finding that her complaint alleged claims of "healing art malpractice, " which were required to be supported by an affidavit in accordance with section 2-622 of the Civil Code. She submits that neither her breach of contract claim nor her medical battery claim sounded in medical healing art malpractice and, as a result, a section 2-622 affidavit was not required.

         ¶ 11 Defendants respond that the circuit court properly granted their motion to dismiss Ripes's complaint. Notwithstanding the caption employed by plaintiff in the first two counts of her complaint, defendants argue that her claims for breach of contract and medical battery both sounded in medical healing art malpractice, and as a result, she was required to submit an affidavit and report by a licensed physician attesting to the merit of her cause of action in accordance with the requirements set forth in section 2-622 of the Civil Code. Defendants maintain ...


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