Eads v. Heritage Enterprises, Inc.

JUSTICE GARMAN,

dissenting:

I respectfully dissent. The majority finds that the Nursing Home Care Act (Act) (210 ILCS 45/1 — 101 et seq. (West 2000)) and section 2 — 622 of the Code of Civil Procedure (Code) (735 ILCS 5/2 — 622 (West 2000)), known as the Healing Arts Malpractice Act, are wholly incompatible, so that section 2 — 622 does not apply to any claims brought under the Act. However, when two statutes conflict, the court has a duty to interpret the statutes in a way that avoids inconsistency and that gives effect to both statutes where reasonably possible. McNamee v. Federated Equipment & Supply Co., 181 Ill. 2d 415, 427 (1998). To that end, I believe that section 2 — 622 does apply to claims under the Act alleging that nurses or other health-care professionals employed by nursing homes caused injury to residents because of healing art malpractice.

According to section 1 — 108(b) of the Code (735 ILCS 5/1 — 108(b) (West 2000)), article II of the Code applies to proceedings brought under a statute that does not itself regulate procedure. The Act does not regulate pleadings. Nonetheless, the majority correctly notes that section 2 — 622 does not apply to all actions. Section 2 — 622 applies to: “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). Therefore, we should determine whether a “healing art malpractice” claim can ever be alleged under the Act.

The phrase “healing art” includes “an entire branch of learning dealing with the restoration of physical or mental health.” Lyon v. Hasbro Industries, Inc., 156 Ill. App. 3d 649, 654 (1987); see also Owens v. Manor Health Care Corp., 159 Ill. App. 3d 684, 687 (1987). “Malpractice” is defined as “[flailure 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 *** to the recipient of those services.” Black’s Law Dictionary 959 (6th ed. 1990). In evaluating whether a claim involves healing art malpractice, Illinois courts have focused on the nature of the negligent act rather than the location where the conduct occurred. Milos v. Hall, 325 Ill. App. 3d 180, 184 (2001); Lyon, 156 Ill. App. 3d at 655.

Nursing homes may employ health-care professionals. For example, nursing homes that employ nurses and provide nursing services are subject to the Act, which states that it applies to facilities that “provide[ ], through its ownership or management, personal care, sheltered care or nursing for 3 or more persons.” (Emphasis added.) 210 ILCS 45/1 — 113 (West 2000). Healing art malpractice claims can be brought against nurses. See, e.g., Moyer v. Southern Illinois Hospital Service Corp., 327 Ill. App. 3d 889, 903-04 (2002); Shanks v. Memorial Hospital, 170 Ill. App. 3d 736, 737 (1988).

The Act clearly authorizes the courts to hold nursing homes liable for the actions of its employees. Section 3 — 601 provides: “The owner and licensee are liable to a resident for any intentional or negligent act or omission of their agents or employees which injures the resident.” 210 ILCS 45/3 — 601 (West 2000). Medical malpractice is a type of negligence claim. See Black’s Law Dictionary 959 (6th ed. 1990). It logically follows that a nursing home can be held liable under section 3 — 601 when its health-care professional employee commits healing art malpractice, causing injury to a resident. The majority seems to acknowledge as much. 203 111. 2d at 106.

The majority correctly recognizes that there are some conflicts between the Act and the medical malpractice reform legislation. 203 Ill. 2d at 103-05. The reform legislation, including section 2 — 622, includes certain procedural and remedial rules that differ from rules of the Act. A conflict arises between these two sets of legislation, then, when a plaintiff raises a healing art malpractice claim under the Act. While the majority views this conflict as proof of the “opposing nature” of these statutes, rendering them mutually exclusive, I view them as conflicts to be resolved through the application of statutory construction principles. 203 Ill. 2d at 103-04. When two statutes conflict, the more specific statute controls over the more general provisions unless the legislature makes it clear that it intends the more general statute to be controlling. Stone v. Department of Employment Security Board of Review, 151 Ill. 2d 257, 266 (1992).

The appellate court applied this statutory construction principle. 325 Ill. App. 3d 129, 135-36. The majority briefly acknowledges and agrees with the appellate court’s conclusion that the Act should apply because it is more specifically applicable to plaintiffs cause of action than section 2 — 622. 203 Ill. 2d at 102-03. In reaching this conclusion, the appellate court discussed two approaches: the traditional approach examining the nature of the cause of action and the Tosado plurality approach looking to the category of defendants (Tosado v. Miller, 188 Ill. 2d 186, 195 (1999)). 325 Ill. App. 3d at 135-36.

In Tosado, we evaluated whether to apply the two-year statute of limitations from the Code (735 ILCS 5/13 — 212(a) (West 1992)) or the one-year limitations period from the Tort Immunity Act (745 ILCS 10/8 — 101 (West 1996)) to a medical malpractice claim. Tosado, 188 Ill. 2d at 190-91. The Tosado plurality focused on the class of defendants in determining which was more specific because the Tort Immunity Act was enacted with the legislative intent to provide protection to a specific class of defendants, local governmental entities. Tosado, 188 Ill. 2d at 195. Five members of the court did not agree with this approach in that case. Tosado, 188 Ill. 2d at 197-98 (Freeman, C.J., specially concurring); 188 Ill. 2d at 198-200 (Heiple, J., specially concurring); 188 Ill. 2d at 200 (Harrison, J., dissenting); 188 Ill. 2d at 201-11 (McMorrow, J., dissenting, joined by Rathje, J.). The Act, in contrast, is not designed to protect defendant nursing homes. Therefore, I conclude that the Tosado approach is not relevant to the present case.

I do agree with the appellate court’s conclusion in this case that we should apply the traditional rule that the nature of the cause of action determines which statute is more specific and therefore controlling. See, e.g., Hernon v. E.W. Corrigan Construction Co., 149 Ill. 2d 190, 196 (1992). However, I believe the appellate court incorrectly focused on the nature of plaintiff’s cause of action. We should not review plaintiffs claims because of the procedural posture of the present case. We review only the general certified question, which requires us only to determine when, if ever, section 2 — 622, and impliedly the other medical malpractice reform legislation, applies to claims brought under the Act. 203 Ill. 2d at 96. These sets of laws conflict only with regard to medical malpractice claims. Thus, we must assess whether the Act or the medical malpractice reform legislation more specifically addresses medical malpractice claims.

The Act and the medical malpractice reform legislation both encompass malpractice claims. As discussed above, the Act generally addresses negligence claims by enabling claimants to hold liable the owner and licensee of a nursing home facility for “any intentional or negligent act or omission of their agents or employees which injures the resident.” (Emphasis added.) 210 ILCS 45/3 — 601 (West 2000). Medical malpractice is one type of negligence claim. See Black’s Law Dictionary 959 (6th ed. 1990). In contrast, the medical malpractice reform legislation, including section 2 — 622, makes procedural and remedial amendments applicable specifically to medical malpractice claims rather than all negligence claims. Thus, I conclude that the specific provisions of the medical malpractice reform legislation should apply to healing art malpractice claims brought under the Act, which addresses negligence only generally, because the legislature did not clearly indicate an intent that the general provisions apply. Stone, 151 Ill. 2d at 266.

The Act became effective March 1, 1980, and Public Act 84 — 7, which contained section 2 — 622 and other medical malpractice reform provisions, became effective August 15, 1985. We presume the legislature acts rationally, enacting statutes with full awareness of all previous enactments. State v. Mikusch, 138 Ill. 2d 242, 247-48 (1990). We presume the legislature enacted reform to medical malpractice actions with knowledge of the Act. If the legislature wanted to make the Act completely immune to these reform measures, it could have excluded professional health-care services in nursing homes. It did not. We should not read into a statute limitations or exceptions that depart from its plain meaning. Lauer v. American Family Life Insurance Co., 199 Ill. 2d 384, 390-91 (2002). In addition, where two statutes directly conflict, typically the later — here the medical malpractice reform legislation — should prevail because it constitutes the more recent expression of legislative intent. John v. Troy Fire Protection District, 163 Ill. 2d 275, 282 (1994).

Apparently the majority eschews application of these statutory construction principles because it concludes that these laws as a whole are inherently in opposition. 203 Ill. 2d at 103-04. I disagree. The Act responded to “concern over reports of ‘inadequate, improper and degrading treatment of patients in nursing homes.’ ” Harris v. Manor Healthcare Corp., 111 Ill. 2d 350, 357-58 (1986), quoting 81st Ill. Gen. Assem., Senate Debates, May 14, 1979, at 184 (statements of Senator Berning). The Act explicitly conferred certain rights on nursing home residents, including “the right to manage their own finances, the right to refuse treatment, and the right to be free from abuse and neglect by nursing home personnel.” Fisher v. Lexington Health Care, Inc., 188 Ill. 2d 455, 461 (1999); 210 ILCS 45/2 — 101 through 2 — 113 (West 2000).

The purpose of section 2 — 622 and other medical malpractice legislation enacted by Public Act 84 — 7 was to respond to “what was perceived to be a crisis in the area of medical malpractice.” Bernier v. Burris, 113 Ill. 2d 219, 229 (1986). The legislature sought to address this crisis by reducing the amount of frivolous suits filed and to eliminate such suits at an early stage before litigation expenses have mounted. DeLuna v. St. Elizabeth’s Hospital, 147 Ill. 2d 57, 65 (1992).

The purposes of these two statutes should not be characterized solely in terms of encouraging or discouraging litigation, or of being pro-plaintiff or pro-defendant. The goal of improving nursing home care is not impeded by ehminating frivolous healing art malpractice lawsuits against health-care professionals.

The majority discusses the provisions of the medical malpractice reform legislation that impose procedural and remedial limitations absent from the Act, including a prohibition of recovery of punitive damages (735 ILCS 5/2 — 1115 (West 2000)) and a lack of corresponding availability of recovery of costs and attorneys’ fees (210 ILCS 45/3 — 602 (West 2000)). 203 Ill. 2d at 104. However, in some cases the majority overstates the importance of certain provisions in support of its conclusion that the two statutes are by nature in opposition. 203 Ill. 2d at 103-04.

For example, the majority asserts that the medical malpractice reforms “provide [ ] a disincentive for the filing of healing arts malpractice claims *** by subjecting unsuccessful litigants to suits for malicious prosecution.” 203 Ill. 2d at 105. The reform litigation does remove the requirement of pleading and proving special injury from malicious prosecution claims. 735 ILCS 5/2 — 109 (West 2000). However, claimants still must prove that the healing art malpractice claim was filed without probable cause and with malice. Miller v. Rosenberg, 196 Ill. 2d 50, 58 (2001). Therefore, all unsuccessful litigants will not be sued for malicious prosecution. The purpose of section 2 — 109 was to “liberalize the availability of a suit for malicious prosecution as a means of punishing and discouraging the filing of ill-grounded medical malpractice cases.” Miller, 196 Ill. 2d at 63, quoting Ill. Ann. Stat., ch. 110, par. 2 — 109, Historical & Practice Notes, at 31 (Smith-Hurd Supp. 1992). Thus, this provision should not deter plaintiffs with potentially viable claims, and it should not impede the Act’s general purpose of improving nursing home care.

In addition, the majority notes that the medical malpractice reform legislation limits contingency fees that can be paid to attorneys. 735 ILCS 5/2 — 1114 (West 2000); 203 111. 2d at 104. When evaluating the constitutionality of this contingency fee provision, however, we stated that we did not believe that section 2 — 1114 “will work to limit litigants access to the courts.” Bernier v. Burris, 113 Ill. 2d 219, 251 (1986). Finally, the majority emphasizes provisions in the Act that encourage plaintiffs to bring private rights of action, including the ability of plaintiff to file class action suits. 210 ILCS 45/3 — 604 (West 2000). Class action suits will rarely, if ever, be an appropriate format for raising medical malpractice cases which by nature typically involve a specific instance of negligence by an individual health-care professional in the care of an individual patient rather than a consistent, widespread pattern of negligence by the same defendant.

The majority also asserts that the Act would be limited further by the other medical malpractice reform provisions that were passed with section 2 — 622. 203 111. 2d at 105. I believe that these other medical malpractice reforms will not frustrate the purposes of the Act. Section 2 — 622 was a part of Public Act 84 — 7, which amended sections 2 — 1109, 2 — 1205, 8 — 2001, and 8 — 2003 of the Code (111. Rev. Stat. 1985, ch. 110, pars. 2 — 1109, 2 — 1205, 8 — 2001, 8 — 2003) and added sections 2 — 114, 2 — 611.1, 2 — 622, 2 — 1010, 2 — 1012 through 2 — 1020, 2 — 1114, 2 — 1115, 2 — 1701 through 2 — 1719, and 8 — 2501 to the Code (111. Rev. Stat. 1985, ch. 110, pars. 2 — 1020, 2 — 1114, 2 — 1115, 2 — 1701 through 2 — 1719, 8 — 2501).

In examining all of these provisions, only one appears relevant to the potential concern of discouraging litigation or reducing recovery against nursing homes besides the attorney fees and punitive damages issues already discussed. Section 2 — 1205 of the Code (735 ILCS 5/2 — 1205 (West 2000)) addresses reduction in amount of recovery, but we have interpreted the specific language of this provision as limiting negligence actions against only hospitals and physicians. Bernier v. Burris, 113 Ill. 2d 219, 242 (1986); 735 ILCS 5/2 — 1205 (West 2000) (section 2 — 1205 states that it applies to “any judgment in an action to recover for that injury based on an allegation of negligence or other wrongful act, not including intentional torts, on the part of a licensed hospital or physician”). Therefore, no other provision of the medical malpractice reform legislation potentially conflicts with the purposes of the Act.

In addition, as the majority concedes, there are many types of actionable claims under the Act that do not involve healing art malpractice. 203 Ill. 2d at 105. Given these numerous other claims that will not be subject to the medical malpractice reform legislation, I disagree with the majority’s assertion that “[c]ore provisions of the Nursing Home Care Act would be rendered inoperable” in all cases. 203 111. 2d at 105. I do not believe that the handful of conflicting provisions and the majority’s characterization of the opposing purposes of the statutes are sufficient to support its conclusion that the medical malpractice reform legislation does not apply to any claims brought under the Act, especially in the absence of supporting statutory language.

In fact, I do not believe that these differences about attorney fees and punitive damages significantly limit the Act because these limits would apply only to the narrow class of healing art malpractice claims brought against health-care professionals employed by nursing homes. The majority dismisses this distinction because “[t]he overwhelming majority of civil cases against nursing homes” involve falls, so the medical malpractice reform legislation will apply to most claims brought under the Act. 203 Ill. 2d at 106-07. I disagree. It is not clear that many, much less all, falls resulting in injury are caused by medical malpractice by health-care professionals employed by nursing homes. Ordinary negligence through inadequate staffing and unsafe premises conditions, for example, may contribute to a fall by a nursing home resident. In addition, again, the procedural posture of this case requires us to review only the appellate court’s response to the broad certified question of “the trial court. 203 Ill. 2d at 96. It is irrelevant and inappropriate for us to evaluate whether plaintiff’s claims involving her fall or hypothetical cases involving falls necessarily would be subject to the medical malpractice reform legislation.

The holding of the majority has the disturbing and illogical consequence that healing art malpractice by the same health-care professional will be subject to different procedural and remedial rules solely based on the physical location of malpractice. The majority responds that the legislature may have had sound reasons to treat these two health-care service providers differently, including the history of patient abuse unique to nursing homes and the greater prevalence of care by nonprofessional or paraprofessional aides in nursing homes. 203 111. 2d at 108.' However, claims of patient abuse likely do not implicate efforts — or lack thereof — -to restore physical or mental health by health-care professionals, so these claims do not sound in healing art malpractice. In addition, nonprofessionals by definition are not health-care professionals potentially subject to malpractice claims. The majority’s explanations do not adequately address why the legislature would want to treat nursing homes differently from hospitals specifically concerning healing art malpractice claims.

CONCLUSION

I acknowledge that certain medical malpractice reform provisions conflict with the Act when a plaintiff brings a healing art malpractice claim under the Act. Several principles of statutory construction indicate that we should resolve this conflict by applying the medical malpractice reform provisions, including section 2 — 622, to such claims. By applying the reform legislation, all medical malpractice cases will be treated consistently, allowing both statues to operate together. See McNamee, 181 Ill. 2d at 427. The reform legislation more specifically addresses healing art malpractice claims. See Hernon, 149 Ill. 2d at 196. We presume the legislature enacted the reform legislation with knowledge of the Act, and the reforms did not exclude claims brought under the Act from their scope. See Mikusch, 138 Ill. 2d at 247-48. The reform legislation is the later enactment of the two conflicting sets of laws. See Jahn, 163 Ill. 2d at 282. I believe the majority should have applied these principles in order to avoid the unwarranted consequence that healing art malpractice claims will be subject to differing procedural and remedial rules solely on the basis of the physical location of where the malpractice occurred.

I believe the appellate court and the majority are mistaken in responding to the certified question that plaintiffs suing nursing homes under the Act never have to comply with section 2 — 622. I assert that we should follow established principles of statutory construction by applying the medical malpractice reform legislation to the narrow class of claims brought under the Act alleging healing art malpractice by health-care professionals employed by nursing homes that caused injury. Therefore, I would answer the certified question by stating that a plaintiff bringing suit under the Act is required to comply with the Healing Arts Malpractice Act if he or she alleges a healing art malpractice claim.

CHIEF JUSTICE McMORROW and JUSTICE THOMAS join in this dissent.