Jackson v. CHICAGO CLASSIC JANITORIAL

• Decision Date: 31 January 2005
• Docket Number: No. 1-04-1539.,1-04-1539.
• Citation: 823 N.E.2d 1055,291 Ill.Dec. 469,355 Ill. App.3d 906
• Parties: Patricia JACKSON and Isaac Jackson, Plaintiffs-Appellees, v. CHICAGO CLASSIC JANITORIAL AND CLEANING SERVICE, INC., an Illinois Corporation, and Maximum Rehabilitation Services, Ltd., an Illinois Corporation, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

823 N.E.2d 1055

355 Ill. App.3d 906

291 Ill.Dec. 469

Patricia JACKSON and Isaac Jackson, Plaintiffs-Appellees, v. CHICAGO CLASSIC JANITORIAL AND CLEANING SERVICE, INC., an Illinois Corporation, and Maximum Rehabilitation Services, Ltd., an Illinois Corporation, Defendants-Appellants.

No. 1-04-1539.

Appellate Court of Illinois, First District, First Division.

January 31, 2005.

Michael R. Slovis, Chicago, Robert L. Larsen, Wheaton, for Appellant.

Steven Herzberg, Steven I. Rappaport, Northbrook, for Appellees.

Justice O'MALLEY delivered the opinion of the court:

Plaintiffs, Patricia Jackson and Isaac Jackson, filed suit in the circuit court of Cook County against defendants Chicago Classic Janitorial & Cleaning Service¹ (Chicago Classic) and Maximum Rehabilitation Services (Maximum) alleging that Chicago Classic negligently maintained a window of plaintiff Patricia Jackson's employer, causing it to crush her fingers while performing her duties. Plaintiffs also allege that Patricia was referred to Maximum for a functional capacity evaluation (FCE) by her treating physician and that she suffered injuries to her back as a result of Maximum's improper administration of the FCE.

Defendant Maximum moved to dismiss plaintiffs' complaint pursuant to section 2-619 of the Code of Civil Procedure (the Code) (735 ILCS 5/2-619 (West 2002)), claiming that plaintiffs failed to file a certificate in compliance with section 2-622 of the Code (735 ILCS 5/2-622 (West 2002)). The circuit court denied Maximum's motion; however, it certified the following question to this court pursuant to Supreme Court Rule 308(a) (155 Ill.2d R. 308(a)):

"Whether it is necessary for a plaintiff to attach a certificate from a health care professional pursuant to 735 ILCS 5/2-622 where the Complaint alleges negligent conduct by a licensed occupational therapist during the performance of a Functional Capacity Evaluation which was ordered by plaintiff's treating physician and used to determine the vocational suitability of plaintiff[.]"

We answer the certified question in the affirmative.

BACKGROUND

On May 1, 2001, Patricia was working as a nurse for her employer, the Veteran's Administration Hospital. While attempting to open a window, Patricia injured her fingers. During the course of receiving medical care related to the injury of her fingers, her physician referred her to Maximum for an FCE to determine whether Patricia could return to work and, if so, what tasks she would be capable of doing. The FCE consisted of various exercises and tasks, including lifting, sitting, standing and bending. The FCE is designed to determine an individual's physical abilities and deficits. The occupational therapist in this case evaluated, among other things, Patricia's handgrip, pain complaints in relationship to her medical history, pain behavior and its impact on her function, biomechanics, movement, coordination and her overall physical disabilities and deficits.

While undergoing the FCE, Patricia maintains that she suffered serious injuries to her back. Plaintiffs alleged that Maximum:

"(a) failed to properly instruct its patrons in proper lifting, sitting, standing or bending techniques before requiring the patrons to perform the same;

(b) failed to adequately train and/or supervise its employees in this instruction;

(c) failed to properly supervise its patron in performing the various exercises performed in the evaluation;

(d) failed to stop the evaluation when they knew or should have known that one of their patrons was injured and complaining of back pain as a result of the exercises performed in the evaluation;

(e) failed to warn patrons that they may sustain injury in performing the exercises in the evaluation;

(f) failed to properly administer the functional capacity evaluation in that it caused injury to Patricia Jackson by requiring her to perform tests, exercises and other activities beyond her physical capabilities; [and]

(g) failed to properly train and/or supervise its employees in administering functional capacity evaluations so as to not cause injury to the individual being evaluated."

On September 26, 2003, plaintiffs filed their amended complaint at law which did not contain an affidavit of counsel or the report of an attesting health care professional pursuant to section 2-622 of the Code. 735 ILCS 5/2-622 (West 2002). Defendant Maximum moved to dismiss plaintiffs' complaint pursuant to section 2-619 of the Code. 735 ILCS 5/2-619 (West 2002). The circuit court denied defendant Maximum's motion on March 5, 2004. Following its denial of Maximum's motion to dismiss, the circuit court presented the certified question stated above to this court. We granted leave to appeal pursuant to Supreme Court Rule 308(a).

ANALYSIS

Plaintiffs contend that the complaint in this case alleges ordinary negligence and, therefore, no physician certificate is required pursuant to section 2-622 of the Code because no medical malpractice is alleged. Plaintiffs support their contention by further arguing that the purpose of the FCE was to determine Patricia's vocational abilities following a work injury and not to provide a diagnosis or treatment or to restore Patricia to a normal mental or physical condition. Maximum argues that plaintiffs' complaint alleges healing arts malpractice and thus plaintiffs were required to file the proper affidavit pursuant to section 2-622 of the Code. Maximum further contends that when deciding whether a complaint is one for healing arts malpractice or ordinary negligence, courts in Illinois have employed certain factors to determine the applicability of section 2-622 of the Code. The factors that Maximum identifies are: (1) whether the standard of care involves procedures not within the grasp of the ordinary lay juror; (2) whether the activity is inherently one of medical judgment; and (3) the type of evidence that will be necessary to establish plaintiffs' case. Both parties agree that case law in Illinois does not directly address the issue presented in this case.

Section 2-622 of the Code provides in pertinent part:

"In 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, the plaintiff's attorney or the plaintiff, if the plaintiff is proceeding pro se, shall file an affidavit, attached to the original and all copies of the complaint, declaring one of the following:

1. That the affiant has consulted and reviewed the facts of the case with a health professional who the affiant reasonably believes: (i) is knowledgeable in the relevant issues involved in the particular action; (ii) practices or has practiced within the last 6 years or teaches or has taught within the last 6 years in the same area of health care or medicine that is at issue in the particular action; and (iii) is qualified by experience or demonstrated competence in the subject of the case; that the reviewing health professional has determined in a written report, after a review of the medical record and other relevant material involved in the particular action that there is a reasonable and meritorious cause for the filing of such action; and that the affiant has concluded on the basis of the reviewing health professional's review and consultation that there is a reasonable and meritorious cause for filing of such action. * * * For affidavits filed as to all other defendants, the written report must be from a physician licensed to practice medicine in all its branches. In either event, the affidavit must identify the profession of the reviewing health professional. A copy of the written report, clearly identifying the plaintiff and the reasons for the reviewing health professional's determination that a reasonable and meritorious cause for the filing of the action exists, must be attached to the affidavit. * * *

* * *

(g) The failure to file a certificate required by this Section shall be grounds for dismissal under Section 2-619." 735 ILCS 5/2-622 (West 2002).

We begin the analysis of this issue bearing in mind that the term "medical, hospital or other healing art malpractice" must be construed broadly. Woodard v. Krans, 234 Ill.App.3d 690, 703, 175 Ill.Dec. 546, 600 N.E.2d 477 (1992) citing Bernier v. Burris, 113 Ill.2d 219, 226-27, 100 Ill. Dec. 585, 497 N.E.2d 763 (1986). Section 2-622 of the Code 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 (West 2002).

In Bernier, our supreme court noted that section 2-622 is applicable "to actions for what is termed `healing art' malpractice, a broad category that is not confined to actions against physicians and hospitals but rather, as some of the provisions indicate, may also include actions against other health professionals such as dentists or psychologists." Bernier, 113 Ill.2d at 226-27, 100 Ill.Dec. 585, 497 N.E.2d 763. 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, 109 Ill.Dec. 41, 509 N.E.2d 702 (1987). "Malpractice" is defined as "[f]ailure 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).

Although section 2-622 does not define the phrase "healing art malpractice," Illinois courts have considered the scope and meaning of that phrase. In Lyon, this court began its analysis by considering the meaning of the specific terminology in order to ascertain the legislature's intent. The court noted:

"`Healing' is defined as: `The restoration to a normal mental or

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