Lyon by Lyon v. Hasbro Industries, Inc.

• Decision Date: 08 June 1987
• Docket Number: No. 4-86-0742,4-86-0742
• Citation: 156 Ill.App.3d 649,509 N.E.2d 702,109 Ill.Dec. 41
• Parties: , 109 Ill.Dec. 41 Michael LYON, a minor, by his parent and next friend, Letitia LYON, Plaintiff-Appellant, v. HASBRO INDUSTRIES, INC., Defendant, and Ed Piraino, d/b/a Arrow Medical Services, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 702

509 N.E.2d 702

156 Ill.App.3d 649, 109 Ill.Dec. 41

Michael LYON, a minor, by his parent and next friend Letitia LYON, Plaintiff-Appellant, v. HASBRO INDUSTRIES, INC., Defendant and Ed Piraino, d/b/a Arrow Medical Services, Defendant-Appellee.

No. 4-86-0742.

Appellate Court of Illinois Fourth District.

June 8, 1987.

Robert I. Auler, Auler Law Offices, P.C., Urbana, for plaintiff-appellant.

John D. Dodson, Dodson & Mann Law Offices, Champaign, for defendant-appellee.

Justice McCULLOUGH delivered the opinion of the court:

Plaintiff appeals the dismissal of count V of his complaint for failure to comply with section 2-622 of the Code of Civil Procedure (Code). (Ill.Rev.Stat.1985, ch. 110, par. 2-622.) He argues that count V of the complaint did not sound in healing art malpractice, the section is being applied retroactively, and the trial court erred in dismissing count V of his complaint in its entirety.

We affirm in part, reverse in part, and remand with directions.

On May 16, 1986, plaintiff, Michael Lyon, through his mother, filed a multi-count complaint against Hasbro Industries, Inc., and defendant, Arrow Medical Services. Count V alleged that plaintiff, at the time of the incident, was a 15-month-old infant who had suffered severe injuries after swallowing a small toy peg. He was in a life-threatening situation and needed transportation from Burnham City Hospital in Champaign to Children's Memorial Hospital in Chicago. On July 26, 1977, defendant was called to transport plaintiff.

Plaintiff alleged defendant was under two duties of care: First, defendant had a duty to adequately service and maintain its emergency vehicles, thus, preventing malfunctions; and second, defendant had a duty to equip its emergency vehicles with life-support equipment adequate to handle foreseeable emergencies. Plaintiff alleged that defendant used a Winnebago van to transport plaintiff. The van was not equipped with "any of the essential life-saving equipment necessary and precautionary" to safeguard plaintiff during the trip. The van, which had been idling outside of the hospital for two hours, broke down six blocks from the hospital. Plaintiff alleged that defendant was negligent in failing to: (a) provide adequate transportation; (b) provide adequate medical equipment; (c) adequately service the van; and (d) provide back-up transportation. Plaintiff suffered a cardiac arrest, and defendant was unable to handle the emergency.

Plaintiff filed a motion for leave to file a late affidavit stating that he believed the complaint sounded in simple negligence, not healing art malpractice. However, if the court found the complaint sounded in healing art malpractice, plaintiff asked to file an affidavit complying with section 2-622(a)(2) of the Code. Subsequently, defendant filed a motion to dismiss asserting the complaint failed to comply with section 2-622 of the Code.

At a hearing on the motion, the court found that the complaint contained two disparate allegations of negligence. The court noted that the negligent transportation alleged would not fall under section 2-622 of the Code. However, a negligent failure to provide adequate equipment fell under the healing art provision. The trial judge then stated that the requirements of section 2-622 of the Code were to be followed. However, he granted plaintiff's motion to file a late affidavit and gave plaintiff additional time to fully comply with section 2-622 of the Code. Plaintiff's counsel filed an affidavit stating he was unable to consult with a physician as provided in subsection (a)(1) because the statute of limitations would impair the action. Subsequently, defendant filed an additional motion to dismiss for failure to file a certificate and written report as provided in section 2-622(a)(2) of the Code. The court granted this motion and dismissed count V in its entirety.

The appellate record was supplemented with plaintiff's mother's deposition. She stated that although the van had the words "rescue unit" painted on it, it did not contain any medical equipment.

Section 2-622 of the Code states in part:

"Healing art malpractice. (a) 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 * * * shall file an affidavit * * * 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 is knowledgeable in the relevant issues involved * * * [and] that the reviewing health professional has determined in a written report * * * that there is a reasonable and meritorious cause for the filing of such action * * *.

2. That the affiant was unable to obtain a consultation required by paragraph 1 because a statute of limitations would impair the action and the consultation required could not be obtained before the expiration of the statute of limitations. If an affidavit is executed pursuant to this paragraph, the certificate and written report required by paragraph 1 shall be filed within 90 days after the filing of the complaint. The defendant shall be excused from answering or otherwise pleading until 30 days after being served with a certificate required by paragraph 1.

* * *

* * *

(g) The failure to file a certificate required by this Section shall be grounds for dismissal under Section 2-619.

(h) This Section does not apply to or affect any actions pending at the time of its effective date, but applies to cases filed on or after its effective date." (Ill.Rev.Stat.1985, ch. 110, par. 2-622.)

Section 2-1704 of the Code states:

"Medical Malpractice Action. As used in this Part, 'medical malpractice action' means 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 term 'healing art' shall not include care and treatment by spiritual means through prayer in accord with the tenets and practices of a recognized church or religious denomination." Ill.Rev.Stat.1985, ch. 110, par. 2-1704.

Initially, plaintiff argues that section 2-622 of the Code is inapplicable to the allegations of negligence contained in count V. Plaintiff maintains that the term "healing art malpractice" should be interpreted as applying only to licensed health-care professionals and does not include ambulance services. Defendant argues that the term should be given a broad interpretation.

The scope of the term "healing art malpractice" has not been interpreted by the courts. However, other malpractice provisions have been reviewed. In Bernier v. Burris (1986), 113 Ill.2d 219, 229, 100 Ill.Dec. 585, 590, 497 N.E.2d 763, 768, the court stated that the legislative history demonstrates that the provisions were enacted as a response to a perceived crisis in medical malpractice. The court declared certain provisions dealing with healing art malpractice unconstitutional. It did not address the constitutionality of section 2-622 of the Code. However, the court noted that section 2-622 of the Code applied to "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 v. Burris (1986), 113 Ill.2d 219, 226-227, 100 Ill. Dec. 585, 589, 497 N.E.2d 763, 767.

Section 2-622 of the Code states that it applies to all actions in which plaintiff seeks recovery for "medical, hospital, or other healing art malpractice." (Ill.Rev.Stat.1985, ch. 110, par. 2-622.) Section 2-622(a)(1) of the Code refers to review of the action by a "health professional." (Ill.Rev.Stat.1985, ch. 110, par. 2-622(a)(1).) Section 2-1704 of the Code repeats the language of section 2-622 of the Code and specifically states that the term "healing art" does not include faith healing. (Ill.Rev.Stat.1985, ch. 110, par. 2-1704.) The phrase is not otherwise defined.

"Healing" is defined as: "The restoration to a normal mental or physical condition * * *." (Taber's Cyclopedic Medical Dictionary 725 (15th ed. 1985).) "Art" is defined as a skill acquired by experience, study, or observation and as a branch of learning. (Webster's Ninth New Collegiate Dictionary 105 (1986).) "Malpractice" is defined as incorrect or negligent treatment of the patient by a person responsible for his health care. (Taber's Cyclopedic Medical Dictionary 1001 (15th ed. 1985).) It is also defined as a dereliction from a professional duty or a failure to exercise an adequate degree of care in rendering service. Webster's Ninth New Collegiate Dictionary 721 (1986).

Interpretation and construction of statutes are governed by the principle that the legislature's intent should be ascertained and given effect. (Benjamin v. Cablevision Programming Investments (1986), 114 Ill.2d 150, 102 Ill.Dec. 296, 499 N.E.2d 1309.) In determining legislative intent, consideration must be given to the entire statute, its nature, object, and purpose. If the intent of the legislature can be ascertained from the language of the statute, then that intent will prevail without resort to construction aids. (Benjamin v. Cablevision Programming Investments (1986), 114 Ill.2d 150, 102 Ill.Dec. 296, 499 N.E.2d 1309.) The language of the statute should be given its plain and ordinary meaning. (Coldwell Banker Residential Real Estate Services of Illinois, Inc. v. Clayton (1985), 105 Ill.2d 389, 86 Ill.Dec. 322, 475 N.E.2d 536.) We note also that under the concept of ejusdem generis when a statutory clause specifically describes several classes of persons or things and then includes a general statement of "other" persons or things, the "other" is interpreted as "other such as" the...