dissenting:
I agree with the trial court that section 2 — 622 of the Code — the “healing art malpractice statute” — applies to Eads’ three-count amended complaint filed July 1999. Accordingly, I respectfully dissent.
The majority is correct that (1) portions of the Nursing Home Act and the Code are irreconcilable and (2) the Nursing Home Act, being the more specific statutory provision, governs. However, the majority’s analysis is flawed because it concludes that just because some sections of the Nursing Home Act and the Code conflict, section 2 — 622 of the Code can be disregarded in an action raising a healing art malpractice claim when it is brought pursuant to the Nursing Home Act.
Eads assumes, and the majority agrees, that the relevant portions of the Nursing Home Act, which outline (1) residents’ rights, (2) the liability of the owner or licensee, and (3) damage recovery (210 ILCS 45/2 — 101 through 2 — 113, 3 — 601 through 3 — 612 (West 1998)), imply that all negligence-type actions (including “healing art malpractice”) can be pleaded under the Nursing Home Act and thus need not comply with other applicable statutory provisions. That is simply not the case. The plain language of section 2 — 622 of the Code states that it applies to any action where damages are sought for injuries resulting from medical, hospital, or other “healing art malpractice.” 735 ILCS 5/2— 622(a) (West 1998).
Moreover, section 1 — 108(b) of the Code addresses whether section 2 — 622 of the Code should apply to a claim that is governed by another statute:
“(b) In proceedings in which the procedure is regulated by statutes other than those contained in this [a]ct, such other statutes control to the extent to which they regulate procedure but [ajrticle II of this [a]ct applies to matters of procedure not regulated by such other statutes.” (Emphasis added.) 735 ILCS 5/1 — 108(b) (West 1998).
The Nursing Home Act contains no provision regulating pleadings. Accordingly, the relevant provisions of the Nursing Home Act and section 2 — 622 of the Code are not in conflict, and if a “healing art malpractice” claim arises in a facility covered by the Nursing Home Act, section 1 — 108(b) of the Code governs, and the plaintiff is required to conform with the pleading requirements of section 2 — 622 of the Code.
The certified question in this case is quite broad and appears to seek a definitive yes or no response to the abstract question of whether any action pursuant to the Nursing Home Act must comply with the requirements of section 2 — 622 of the Code. Because the answer depends largely upon the factual allegations contained in the complaint, analysis should focus on the specific allegations raised to support the claim, rather than a categorical approach.
Eads contends that even if section 2 — 622 of the Code applies to “healing art malpractice” claims arising in nursing homes, the negligence that caused her injury was not in the nature of “healing arts malpractice.” Rather, it resulted from (1) negligent supervision, surveillance, and staffing; (2) failure to promptly respond to the “call light” (which forced Eads to try to get out of bed on her own); and (3) failure to equip Eads’ bed with a pressure-release alarm. Defendants contend that these allegations, even if true, are based on Eads’ need for medical attention, assistance, and care. Therefore, according to defendants, the claims sound in malpractice, and Eads is required to submit an affidavit and the reviewing health professional’s written report, pursuant to section 2 — 622(a) of the Code (735 ILCS 5/2— 622(a) (West 1998)). Defendants are correct.
Although the scope of section 2 — 622 has not yet been precisely defined (Lyon, 156 Ill. App. 3d at 653, 509 N.E.2d at 705), the legislature intended it to be a broad provision that is not limited to actions against physicians and hospitals. In Lyon, 156 Ill. App. 3d at 654, 509 N.E.2d at 706, the court noted that “ ‘healing art’ could include negligence by a licensed health-care service and need not be limited to a licensed professional practitioner. *** [T]he phrase may be interpreted as broad enough to cover negligence in the interrelated health-care services.”
Further, the legislative history of section 2 — 622 of the Code reveals that Senate amendment No. 1 amended the original house bill (84th Ill. Gen. Assem., House Bill 1604, 1985 Sess.), changing the term “physician” to “health professional” in provisions relating to consultations prior to filing a complaint (84th Ill. Gen. Assem., Senate Proceedings, June 12, 1985, at 39-40); the House later adopted Senate amendment No. 1 (84th Ill. Gen. Assem., House Proceedings, June 18, 1985, at 51-52). This change supports the Bernier court’s analysis that the legislature intended that the statute be broadly construed, envisioning malpractice claims against persons and entities who are not necessarily licensed physicians.
Nursing homes such as ContinuCare are licensed by the State, regulated through the Nursing Home Act (210 ILCS 45/3 — 101 through 3 — 807 (West 1998)) and the Illinois Administrative Code (77 Ill. Adm. Code § 300 et seq. (Weil 2001)), and provide health-related services to their residents in varying degrees. Thus, medical services rendered in a nursing home such as ContinuCare fall within the definition of “healing arts.”
However, not every patient who suffers an injury in a hospital, medical facility, or nursing home is limited to suing for malpractice, as opposed to common-law negligence. Woodard v. Krans, 234 Ill. App. 3d 690, 703, 600 N.E.2d 477, 486 (1992). A person or entity can negligently injure another in a hospital or other medical setting without committing “healing art malpractice.” For example, if a hospital patient slips and falls on a freshly mopped floor, his resulting claim would sound in negligence, not malpractice. Thus, the location or place of the injury is of little importance in determining whether the claim sounds in malpractice or negligence. The nature of the negligent act alleged, not whether the act occurred in a hospital or involved some medical treatment, should determine whether the activity constitutes “healing art malpractice.” Owens v. Manor Health Care Corp., 159 Ill. App. 3d 684, 688, 512 N.E.2d 820, 823 (1987).
Cases that require expert analysis of a medical condition, treatment procedure, or diagnosis fall within the purview of the term “healing art malpractice,” while cases alleging ordinary negligence do not. Owens, 159 Ill. App. 3d at 689, 512 N.E.2d at 823-24. Accordingly, determining whether a particular claim must comply with section 2 — 622 of the Code is a fact-specific analysis.
In the case at bar, Eads arrived at ContinuCare after being treated in the hospital for transient ischemic attacks. While ContinuCare may provide primarily custodial care to some patients, it also provides medical treatment to residents who need it. Eads was admitted to ContinuCare for medical, albeit restorative, treatment.
Eads alleged that she arrived at ContinuCare not yet fully recovered from her illness. She was weak, unsteady, and unresponsive. In her amended complaint, Eads asserted that ContinuCare staff knew that she was not verbalizing, making eye contact, or otherwise giving signals that she understood instructions, and she was hallucinating.
Further, Eads alleged that ContinuCare failed to adequately equip her bed with a pressure-release alarm, so as to alert ContinuCare staff if she got up from her bed. Consistent with our holding in Lyon — that adequately equipping an ambulance requires medical judgment — this court should conclude that ContinuCare’s decisions (1) regarding how to keep Eads from walking unassisted in her weakened condition and (2) not to equip her bed with an alarm each required a medical judgment.
Eads’ claim regarding ContinuCare’s lack of care and supervision in allowing her to fall involves issues that are inherently medical. Accordingly, her claim sounds in “healing art malpractice,” not negligence under the Nursing Home Act (210 ILCS 45/3 — 601 (West 1998)), and she is required to strictly conform to the pleading requirements set forth in section 2 — 622 of the Code (735 ILCS 5/2 — 622 (West 1998)).
Claims grounded in violations of the Nursing Home Act constitute separate and distinct causes of action that must comply with the requirements of section 2 — 622 of the Code to the extent that the factual allegations allege conduct that constitutes “healing art malpractice.” Since section 2 — 622 was enacted in 1985, practitioners have not had a substantial problem in determining whether particular sets of facts and circumstances fall within this rubric. No reason exists to conclude that confusion and uncertainty will now be interjected into this process merely because the acts or omissions (or both) giving rise to the claim occur at the hands of nursing home personnel.