Cohen v. Smith
| Decision Date | 24 March 1995 |
| Docket Number | Nos. 5-94-0203,5-94-0204,s. 5-94-0203 |
| Citation | 648 N.E.2d 329,207 Ill.Dec. 873,269 Ill.App.3d 1087 |
| Parties | , 207 Ill.Dec. 873 Patricia K. COHEN and Joe Cohen, Plaintiffs-Appellants, v. Roger SMITH, Defendant-Appellee. Patricia K. COHEN and Joe Cohen, Plaintiffs-Appellants, v. ST. JOSEPH MEMORIAL HOSPITAL, INC., Defendant-Appellee. |
| Court | United States Appellate Court of Illinois |
Phyllis Wohlferd, Carterville, Darrell Dunham, Murphysboro, for appellants.
R. Corydon Finch, P.C., Anna, for appellee.
Patricia Cohen was admitted to St. Joseph Memorial Hospital ("Hospital") to deliver her baby. After an examination, Cohen was informed that it would be necessary for her to have a cesarean section. Cohen and her husband allegedly informed her physician, who in turn advised the Hospital staff, that the couple's religious beliefs prohibited Cohen from being seen unclothed by a male. Cohen's doctor assured her husband that their religious convictions would be respected.
During Cohen's cesarean section, Roger Smith, a male nurse on staff at the Hospital, allegedly observed and touched Cohen's naked body. Cohen and her husband filed suit against Nurse Smith and the Hospital. The trial court allowed defendants' motions to dismiss. We reverse.
In reviewing a motion to dismiss for failure to state a cause of action, the court must view all well-pleaded facts in the light most favorable to the plaintiff. (Business Development Services, Inc. v. Field Container Corp. (1981), 96 Ill.App.3d 834, 836, 52 Ill.Dec. 405, 408, 422 N.E.2d 86, 89.) A trial court may dismiss a cause of action for failing to state a cause of action, based solely on the pleadings, only if it is clearly apparent that no set of alleged facts can be proven which will entitle a plaintiff to recovery. (Burdinie v. Village of Glendale Heights (1990), 139 Ill.2d 501, 504, 152 Ill.Dec. 121, 124, 565 N.E.2d 654, 657.) Therefore, we will consider only the facts alleged by the plaintiffs in their complaints.
This case was originally filed as two separate cases, one against Nurse Smith and the other against the Hospital. The cases were consolidated on appeal. There are strong similarities between the complaints filed, and the arguments made, in each case. Plaintiffs' complaints against both Nurse Smith and the Hospital are stated in three counts: (1) battery, (2) intentional infliction of emotional distress, and (3) violation of the Right of Conscience Act (745 ILCS 70/2 (West 1992)).
Attached to the complaint against Nurse Smith is an affidavit of plaintiffs' lawyer stating that due to time constraints imposed by the statute of limitations, he was unable to obtain the written affidavit of a health professional that is required by section 2-622 of the Civil Practice Law in cases based on healing art malpractice (735 ILCS 5/2-622 (West 1992)) (Healing Arts Malpractice Act). Defendants' motions to dismiss contended that the affidavit requirement of section 2-622 could not be waived. Plaintiffs subsequently filed a motion to amend their complaint, along with an affidavit of a licensed physician, in order to comply with section 2-622. The trial court denied plaintiffs' motion to amend and granted Nurse Smith's motion for involuntary dismissal based on plaintiffs' failure to comply with section 2-622. Plaintiffs' motions to set aside and reconsider were denied.
The trial court also dismissed the complaint against the Hospital, but it based that dismissal on the grounds that the Hospital owed the plaintiffs no duty. The complaint against the Hospital also included a separate count for intentional infliction of emotional distress, which was filed by Mr. Cohen. This is the only count that involves Mr. Cohen, despite the fact that he is listed as one of the plaintiffs in the captions of both complaints.
In both the trial court and on appeal, there has been much discussion over various tangential matters, but the two basic issues are: (1) whether the Healing Arts Malpractice Act applies to these cases; and (2) do plaintiffs' complaints state a cause of action for battery, for intentional infliction of emotional distress, and for relief under the Right of Conscience Act.
Both defendants argue that the plaintiffs' complaints were properly dismissed because the plaintiffs failed to comply with the requirements of the Healing Arts Malpractice Act. The act requires a plaintiff's attorney to file an affidavit of a licensed physician "[i]n any action, whether in tort, contract or otherwise, 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 1992).) The purpose of requiring the filing of an affidavit is to deter the filing of frivolous suits against health care providers. Peterson v. Hinsdale Hospital (1992), 233 Ill.App.3d 327, 329, 174 Ill.Dec. 538, 541, 599 N.E.2d 84, 87.
Malpractice is defined as:
Black's Law Dictionary 959 (6th ed. 1990).
The first step in our analysis is a determination of whether this claim is one "in which the plaintiff seeks damages * * * by reason of healing art malpractice * * *" (emphasis added), as the defendants claim, or whether it is a simple case of battery, as the plaintiffs claim.
The Restatement (Second) of Torts provides that an actor commits a battery if:
Liability for battery emphasizes the plaintiff's lack of consent to the touching. (Cowan v. Insurance Co. of North America (1974), 22 Ill.App.3d 883, 893, 318 N.E.2d 315, 323.) "Offensive contact" is said to occur when the contact "offends a reasonable sense of personal dignity." Restatement (Second) of Torts § 19 (1965).
Historically, battery was first and foremost a systematic substitution for private retribution. (W. Prosser & Keeton, Torts § 9, at 41 (5th ed. 1984) (Prosser).) Protecting personal integrity has always been viewed as an important basis for battery. (Prosser, § 9, at 41.) "Consequently, the defendant is liable not only for contacts which do actual physical harm, but also for those relatively trivial ones which are merely offensive and insulting." (Prosser, § 9, at 41.) This application of battery to remedy offensive and insulting conduct is deeply ingrained in our legal history. As early as 1784, a Pennsylvania defendant was prosecuted for striking the cane of a French ambassador. The court furthered the distinction between harmful offensive batteries and nonharmful offensive batteries "As to the assault, this is, perhaps, one of that kind, in which the insult is more to be considered than the actual damage; for, though no great bodily pain is suffered by a blow on the palm of the hand, or the skirt of the coat, yet these are clearly within the definition of assault and battery, and among gentlemen too often induce duelling and terminate in murder." (Respublica v. De Longchamps (Pa.1784), 1 Dall. 111, 1 L.Ed. 59, in Gregory, Kalven, & Epstein, Cases & Materials on Torts 904-905 (1977).)
Causing actual physical harm is not an element of battery. "A plaintiff is entitled to demand that the defendant refrain from the offensive touching, although the contact results in no visible injury." Prosser, § 9, at 41.
With these definitions in mind, we examine plaintiffs' allegations against Nurse Smith. In count 1, plaintiffs charge defendant with a battery:
"1. That defendant, Roger Smith, on or about December 9, 1990, was acting in his capacity as an agent and employee of St. Joseph Memorial Hospital, Inc., which is located in Jackson County, Illinois;
2. That on or about December 9, 1990, the plaintiff, Patricia K. Cohen, was a patient admitted to St. Joseph Memorial Hospital, Inc. for the purpose of delivery of a baby, and after her admittance it was determined that the baby should be delivered by cesarean section;
3. That based upon information sufficient to form a belief, plaintiff alleges that Roger Smith was made aware that Patricia K. Cohen had strongly held and deeply ingrained moral and religious views which prohibited her from being seen or observed in an unclothed condition by a member of the opposite sex;
4. That Roger Smith is male and was a member of the operating team which was to perform a cesarean section upon Patricia K. Cohen;
5. That Patricia K. Cohen was informed, by and through her husband, Joe Cohen, by the physician who was to perform the cesarean section that Roger Smith's presence in the operating room was necessary for the procedure but the cesarean section could be performed without him seeing Patricia K. Cohen in an unclothed condition;
6. The physician who was to perform the cesarean section instructed Roger Smith that the operation was to be performed without any male seeing Patricia K. Cohen in an unclothed condition;
7. Relying about the assurances provided her by her physician, that no male would observe her in an unclothed condition, Patricia K. Cohen consented to have the cesarean section performed at St. Joseph Memorial Hospital, Inc.;
8. That Roger Smith did act so as to place himself in such a position so as to view and touch Patricia K. Cohen's naked, unclothed, body, and did in fact observe and touch her naked and unclothed body;
9. That based upon...
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