Fiala v. Bickford Senior Living Grp., LLC, No. 2–15–0067.

CourtUnited States Appellate Court of Illinois
Writing for the CourtJustice BIRKETT delivered the judgment of the court, with opinion.
Citation43 N.E.3d 1234
PartiesEdward M. FIALA, Jr., Plaintiff–Appellant, v. BICKFORD SENIOR LIVING GROUP, LLC, and Dr. Anna Medical Clinic, S.C., d/b/a Amber Medical Clinic, Defendants (Rabia Naveed, Defendant–Appellee).
Decision Date19 November 2015
Docket NumberNo. 2–15–0067.

43 N.E.3d 1234

Edward M. FIALA, Jr., Plaintiff–Appellant
v.
BICKFORD SENIOR LIVING GROUP, LLC, and Dr. Anna Medical Clinic, S.C., d/b/a Amber Medical Clinic, Defendants (Rabia Naveed, Defendant–Appellee).

No. 2–15–0067.

Appellate Court of Illinois, Second District.

Nov. 19, 2015.


43 N.E.3d 1237

Jeffrey S. Deutschman and Bradley A. Skafish, both of Deutschman & Associates, P.C., Chicago, for appellant.

Robert L. Larsen, of Cunningham, Meyer & Vedrine, P.C., Warrenville, and Michael R. Slovis, of Cunningham, Meyer & Vedrine, P.C., Chicago, for appellee.

OPINION

Justice BIRKETT delivered the judgment of the court, with opinion.

¶ 1 Plaintiff, Edward M. Fiala, Jr., appeals the judgment of the circuit court of Kane County, dismissing his medical-battery and civil-conspiracy claims against defendant Dr. Rabia Naveed and striking his request for punitive damages. Plaintiff argues that he was not required to file a health-care professional's report pursuant to section 2–622(a)(1) of the Code of Civil Procedure (Code) (735 ILCS 5/2–622(a)(1) (West 2014)), because section 2–622 does not apply to a medical-battery claim based on a complete lack of consent; that his request for punitive damages did not run afoul of section 2–604.1 of the Code (735 ILCS 5/2–604.1 (West 2014) ), because that section applies only to negligence and product-liability claims and not to claims of intentional torts; and that he stated a claim for civil conspiracy sufficient to survive a motion to dismiss pursuant to section 2–615 of the Code (735 ILCS 5/2–615 (West 2014) ). We reverse and remand.

¶ 2 I. BACKGROUND

¶ 3 This matter comes before us for a second time. In our first contact with this case, defendant Bickford Senior Living Group, LLC, appealed the judgment of the trial court denying its petition to compel arbitration. We reversed, holding that the arbitration clause in plaintiff's contract with Bickford was enforceable. Fiala v. Bickford Senior Living Group, LLC, 2015 IL App (2d) 141160, 392 Ill.Dec. 80, 32 N.E.3d 80. Bickford is not a party to this appeal.

¶ 4 As pertains to this appeal, on June 3, 2014, plaintiff filed an amended complaint adding defendant as a party. Plaintiff raised two claims against defendant: count XI for medical battery, and count XII (misnumbered as count IX) for civil conspiracy. On July 10, 2014, defendant filed a motion to dismiss the two counts and to strike the request for punitive damages. On September 10, 2014, the trial court granted defendant's motion to dismiss the two counts. The trial court also granted without prejudice the motion to strike the request for punitive damages. Plaintiff filed a motion to clarify the September 10, 2014, order, and, on September 24, 2014, the trial court entered an order stating that the dismissal of the two counts was without prejudice and setting a deadline by which plaintiff was to file a second amended complaint.

¶ 5 On October 16, 2014, plaintiff filed his second amended complaint, in which count IX alleged medical battery and requested punitive damages against defendant and count X alleged civil conspiracy against defendant. We summarize the pertinent allegations from the second amended complaint.

¶ 6 From October 2012 to August 2013, plaintiff resided at Bickford's long-term-care facility in St. Charles. When plaintiff was admitted to the facility, he was confined to a wheelchair and was diagnosed with Lewy body dementia, a progressively debilitating illness similar to Parkinson's disease and potentially also affecting his

43 N.E.3d 1238

cognition. Plaintiff resided at the Bickford facility with his wife, Sue. Plaintiff's son and daughter held medical powers of attorney for plaintiff's care. Plaintiff's medical chart, maintained by Bickford, indicated that his children held the medical powers of attorney and that no medications were to be given to plaintiff without prior consent. In particular, the use of the medication Paxil was prohibited.

¶ 7 Because of plaintiff's physical infirmities, he required assistance from the nursing staff, including multiple visits to the bathroom during the night. At least some, and perhaps a sizable number, of the staff members viewed plaintiff as a burdensome patient because of the effort involved in assisting him. At some point, staff members began taking plaintiff to “Mary B's” area, a separate area within the Bickford facility. Over the course of his stay at the Bickford facility, plaintiff would be left in Mary B's area overnight. This conduct separated plaintiff from his wife, and neither plaintiff nor his wife wished for plaintiff to spend time in Mary B's area.

¶ 8 When plaintiff was taken to Mary B's area, he would be medicated with Paxil or other, unknown, medications. Sometimes when plaintiff was not in Mary B's area, he would also be given medications, including Paxil. The drugs were given to plaintiff without prior consent; in particular, Paxil was administered despite the prohibition against its use as documented in his medical chart. Generally, the drugs given to plaintiff without prior consent would render him catatonic; sometimes, though, they would cause him to become agitated and violent. Plaintiff grew to believe that the unknown drugs and the Paxil were used on him as a form of “chemical restraint,” to make it easier for Bickford's staff to deal with him. Plaintiff neither used the drugs nor had them prescribed for him before his stay at the Bickford facility.

¶ 9 Defendant prescribed the drugs used on plaintiff at the Bickford facility, and he prescribed them for use at night. Plaintiff had not met or consulted with defendant at any time before, during, or after his stay at the Bickford facility. Indeed, defendant was never one of plaintiff's treating physicians. Moreover, neither plaintiff's wife nor his children were given the opportunity to discuss or consult with defendant regarding the prescriptions. Likewise, none of plaintiff's treating physicians was consulted about the prescriptions. Plaintiff further alleged that the use of Paxil and the other drugs diminished the quality of his life and caused him emotional and physical problems.

¶ 10 Regarding medical battery, plaintiff specifically alleged that he consented to neither the prescription nor the administration of the various medications. Likewise, plaintiff's authorized representatives did not consent to the prescription or administration of the medications. The prescription and, particularly, the administration of the medications were contrary to the expressed desires of plaintiff and his authorized representatives: plaintiff's medical chart clearly indicated that the administration of any medication required the prior consent of plaintiff or his authorized representatives. Plaintiff alleged that defendant's conduct in prescribing the medications and the resultant administration of the medications, in light of the lack of consent, constituted an unwanted touching of plaintiff's person.

¶ 11 Regarding civil conspiracy, plaintiff specifically alleged that defendant formed an agreement with Bickford to prescribe and administer Paxil and other medications for the purpose of chemically restraining plaintiff. Plaintiff alleged that the agreement was formed when Bickford

43 N.E.3d 1239

asked defendant to prescribe psychotropic drugs for plaintiff. Defendant had never seen plaintiff professionally, and the prescription of Paxil and other medications violated plaintiff's express wishes as indicated in his medical chart. Defendant knowingly had the prescriptions filled and caused the medications to be delivered to the Bickford facility.

¶ 12 Plaintiff alleged that the prescription and the administration of the medications were done without authorization and without the documented need for chemical restraints. This conduct also took place without notice to plaintiff or to his authorized representatives, against plaintiff's express instructions and wishes as contained in his medical chart, and without regard to either plaintiff's well being or whether the medications constituted the least restrictive means to accomplish the goal, presumably of restraining plaintiff; further, it constituted unlawful conduct because it violated the Nursing Home Care Act (210 ILCS 45/1–101 et seq. (West 2014)).

¶ 13 Plaintiff alleged that the overt acts in furtherance of the scheme to restrain plaintiff through medication included requesting prescriptions for Paxil and the other drugs, approving the prescriptions, writing or otherwise creating the prescriptions, sending the prescriptions to a pharmacy, picking up the medications, bringing the medications on site, administering the medications to plaintiff, and moving plaintiff to a secluded area where the administration of the medications and their effects on plaintiff would not be witnessed. Plaintiff also alleged that he was harmed by the medications both emotionally and physically and that the medications put him at risk of future decline.

¶ 14 Defendant moved to dismiss the counts against him in the second amended complaint and to strike the request for punitive damages. Regarding the medical-battery claim, defendant sought dismissal pursuant to section 2–619 of the Code (735 ILCS 5/2–619 (West 2014) ), arguing that plaintiff had not...

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13 practice notes
  • Smith v. Burge, Case No. 16 C 3404
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • November 28, 2016
    ...necessarily fails. See, e.g., Tillman, 813 F.Supp.2d at 976 ; see also Fiala v. Bickford Sr. Living Grp., LLC, 398 Ill.Dec. 324, 43 N.E.3d 1234, 1250 (2d Dist. 2015) ("A civil-conspiracy claim extends liability in tort beyond the active tortfeasor to those who have planned, assisted, or enc......
  • Obermeier v. Nw. Mem'l Hosp., No. 1-17-0553
    • United States
    • United States Appellate Court of Illinois
    • June 28, 2019
    ...¶ 83, 369 Ill.Dec. 659, 987 N.E.2d 1 ; Fiala v. Bickford Senior Living Group , LLC , 2015 IL App (2d) 150067, ¶ 26, 398 Ill.Dec. 324, 43 N.E.3d 1234 (citing McDonald v. Lipov , 2014 IL App (2d) 130401, ¶ 20), 382 Ill.Dec. 766, 13 N.E.3d 179. Under any of these circumstances, a battery has o......
  • Slabon v. Sanchez, Case No. 15-cv-08965
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • September 28, 2020
    ...with the consent granted.'") (quoting Fiala v. Bickford Senior Living Group, LLC, 2015 IL App (2d) 150067, ¶ 20, 398 Ill. Dec. 324, 43 N.E.3d 1234). Transportation in an ambulance, without more, is not enough. More importantly, the complaint does not allege that Bishop and Strong touched Sl......
  • Slabon v. Sanchez, 15-cv-8965
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • September 13, 2021
    ...unauthorized touching of the person of another.” Fiala v. Bickford Senior Living Grp., LLC, 2015 IL App (2d) 150067, 398 Ill.Dec. 324, 43 N.E.3d 1234, 1240 (2015). “The gist of an action for battery is the absence of consent on the plaintiff's part.” Seibert v. Lee, 2015 IL App (2d) 140945-......
  • Request a trial to view additional results
13 cases
  • Smith v. Burge, Case No. 16 C 3404
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • November 28, 2016
    ...necessarily fails. See, e.g., Tillman, 813 F.Supp.2d at 976 ; see also Fiala v. Bickford Sr. Living Grp., LLC, 398 Ill.Dec. 324, 43 N.E.3d 1234, 1250 (2d Dist. 2015) ("A civil-conspiracy claim extends liability in tort beyond the active tortfeasor to those who have planned, assisted, or enc......
  • Obermeier v. Nw. Mem'l Hosp., No. 1-17-0553
    • United States
    • United States Appellate Court of Illinois
    • June 28, 2019
    ...¶ 83, 369 Ill.Dec. 659, 987 N.E.2d 1 ; Fiala v. Bickford Senior Living Group , LLC , 2015 IL App (2d) 150067, ¶ 26, 398 Ill.Dec. 324, 43 N.E.3d 1234 (citing McDonald v. Lipov , 2014 IL App (2d) 130401, ¶ 20), 382 Ill.Dec. 766, 13 N.E.3d 179. Under any of these circumstances, a battery has o......
  • Slabon v. Sanchez, Case No. 15-cv-08965
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • September 28, 2020
    ...with the consent granted.'") (quoting Fiala v. Bickford Senior Living Group, LLC, 2015 IL App (2d) 150067, ¶ 20, 398 Ill. Dec. 324, 43 N.E.3d 1234). Transportation in an ambulance, without more, is not enough. More importantly, the complaint does not allege that Bishop and Strong touched Sl......
  • Slabon v. Sanchez, 15-cv-8965
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • September 13, 2021
    ...unauthorized touching of the person of another.” Fiala v. Bickford Senior Living Grp., LLC, 2015 IL App (2d) 150067, 398 Ill.Dec. 324, 43 N.E.3d 1234, 1240 (2015). “The gist of an action for battery is the absence of consent on the plaintiff's part.” Seibert v. Lee, 2015 IL App (2d) 140945-......
  • Request a trial to view additional results

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