Chadwick v. Al-Basha

JUSTICE BOWMAN,

dissenting:

I respectfully dissent. I believe that plaintiffs complaint is based on allegations of medical malpractice and must therefore be accompanied by a health care professional’s report pursuant to section 2 — 622(a) of the Code of Civil Procedure (735 ILCS 5/2 — 622(a) (West 1996)). Because plaintiff failed to provide such a report, the trial court properly dismissed her complaint. See 735 ILCS 5/2 — 619, 2 — 622(g) (West 1996).

In count V of her complaint, plaintiff alleges that defendant “had a duty to exercise ordinary care in delivering health care services *** due to the doctor-patient relationship that existed between Defendant and Plaintiff.” Plaintiff then alleges that defendant was “guilty of negligent infliction of emotional distress by failing to exercise ordinary care” in secluding and restraining her. Such allegations present a textbook example of a medical malpractice complaint. As the majority notes, a medical professional commits malpractice when the facts demonstrate that he failed to exercise an appropriate amount of skill and care during treatment. See Lyon v. Hasbro Industries, Inc., 156 Ill. App. 3d 649, 653 (1987). When the facts are viewed in the light most favorable to the plaintiff, count V directly challenges defendant’s use of reasonable care during his treatment of her. Accordingly, plaintiff had to attach a section 2 — 622 certificate from a health care professional averring that she had a reasonable and meritorious cause of action. See 735 ILCS 5/2 — 622(a)(1) (West 1996). In the absence of this certificate, the trial court properly dismissed plaintiffs complaint.

Moreover, the remaining counts of plaintiffs complaint are inextricably entwined with the fact that plaintiff received medical treatment at the time she alleges defendant committed various intentional torts. According to her complaint, plaintiff was a patient in a mental health facility at the time of the alleged wrongdoing. Plaintiff refused to accept her “new treatment plan.” In an effort to implement this treatment plan, defendant ordered plaintiff to be secluded. Later, defendant ordered her to be restrained after she engaged in a verbal altercation with staff members. Thus, it is apparent that plaintiff was receiving medical treatment at the time of the seclusion and restraint. All of defendant’s alleged actions occurred while he was treating plaintiff. It therefore follows that allegations regarding defendant’s behavior challenge his professional medical decisions to seclude and restrain plaintiff. Her alleged injuries stem directly from defendant’s care and treatment decisions. Her intentional tort claims are nothing more than malpractice claims. As such, plaintiff was bound to file a section 2 — 622 affidavit. See Tucker v. St. James Hospital, 279 Ill. App. 3d 696, 702 (1996).

The purpose of section 2 — 622 is to reduce the number of frivolous suits against health care providers and to terminate such suits before the cost of litigation increases substantially. Tucker, 279 111. App. 3d at 702. Under the majority’s rule, however, mental health patients may now bring medical malpractice actions under the guise of intentional tort claims without regard to whether those actions would be certified as reasonable and meritorious by health care professionals. This result is particularly troublesome in the area of mental health care because such care so often involves physical interaction, including seclusion and restraint, between doctors and patients who are often likely to be confrontational and irrational because of serious mental problems. The constant threat of physical interaction is recognized in the duty of doctors to use restraint in order to prevent a patient “from causing harm to himself or physical abuse to others.” 405 ILCS 5/2 — 108 (West 1996).

Thus, mental health care professionals are caught in an impossible situation: if a doctor physically restrains a patient, he is now subject to common-law intentional tort actions without the protection of section 2 — 622. If, on the other hand, he chooses not to restrain a patient and that patient causes harm to herself or another, the doctor is then liable for failing to restrain the patient. In the complete absence of any legislative direction providing for this result, I am unwilling to allow a patient like plaintiff in this case to proceed in complete derogation of section 2 — 622 when it is so apparent that her claim sounds in medical malpractice.

Accordingly, I dissent.