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FIRST DIVISION
January 31, 2005

JUSTICE O'MALLEY delivered the opinion of the court:

Plaintiffs, Patricia Jackson and Isaac Jackson, filed suitin the circuit court of Cook County against defendants ChicagoClassic Janitorial & Cleaning Service⁽¹⁾ (Chicago Classic) andMaximum Rehabilitation Services (Maximum) alleging that ChicagoClassic negligently maintained a window of plaintiff PatriciaJackson's employer, causing it to crush her fingers whileperforming her duties. Plaintiffs also allege that Patricia wasreferred to Maximum for a functional capacity evaluation (FCE) byher treating physician and that she suffered injuries to her backas a result of Maximum's improper administration of the FCE.

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

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

We answer the certified question in the affirmative.

BACKGROUND

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

While undergoing the FCE, Patricia maintains that shesuffered serious injuries to her back. Plaintiffs alleged thatMaximum:

"(a) failed to properly instruct its patrons in properlifting, sitting, standing or bending techniques beforerequiring the patrons to perform the same;

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

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

(d) failed to stop the evaluation when they knew orshould have known that one of their patrons was injured andcomplaining of back pain as a result of the exercisesperformed in the evaluation;

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

(f) failed to properly administer the functional capacityevaluation in that it caused injury to Patricia Jackson byrequiring her to perform tests, exercises and otheractivities beyond her physical capabilities; [and]

(g) failed to properly train and/or supervise itsemployees in administering functional capacity evaluationsso as to not cause injury to the individual beingevaluated."

On September 26, 2003, plaintiffs filed their amendedcomplaint at law which did not contain an affidavit of counsel orthe report of an attesting health care professional pursuant tosection 2-622 of the Code. 735 ILCS 5/2-622 (West 2002). Defendant Maximum moved to dismiss plaintiffs' complaint pursuantto section 2-619 of the Code. 735 ILCS 5/2-619 (West 2002). Thecircuit court denied defendant Maximum's motion on March 5, 2004. Following its denial of Maximum's motion to dismiss, the circuitcourt presented the certified question stated above to thiscourt. We granted leave to appeal pursuant to Supreme Court Rule308(a). ANALYSIS

Plaintiffs contend that the complaint in this case allegesordinary negligence and, therefore, no physician certificate isrequired pursuant to section 2-622 of the Code because no medicalmalpractice is alleged. Plaintiffs support their contention byfurther arguing that the purpose of the FCE was to determinePatricia's vocational abilities following a work injury and notto provide a diagnosis or treatment or to restore Patricia to anormal mental or physical condition. Maximum argues thatplaintiffs' complaint alleges healing arts malpractice and thusplaintiffs were required to file the proper affidavit pursuant tosection 2-622 of the Code. Maximum further contends that whendeciding whether a complaint is one for healing arts malpracticeor ordinary negligence, courts in Illinois have employed certainfactors to determine the applicability of section 2-622 of theCode. The factors that Maximum identifies are: (1) whether thestandard of care involves procedures not within the grasp of theordinary lay juror; (2) whether the activity is inherently one ofmedical judgment; and (3) the type of evidence that will benecessary to establish plaintiffs' case. Both parties agree thatcase law in Illinois does not directly address the issuepresented 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 deathby reason of medical, hospital, or other healing artmalpractice, the plaintiff's attorney or the plaintiff, ifthe 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 thefacts of the case with a health professional who theaffiant reasonably believes: (i) is knowledgeable inthe relevant issues involved in the particular action;(ii) practices or has practiced within the last 6 yearsor teaches or has taught within the last 6 years in thesame area of health care or medicine that is at issuein the particular action; and (iii) is qualified byexperience or demonstrated competence in the subject ofthe case; that the reviewing health professional hasdetermined in a written report, after a review of themedical record and other relevant material involved inthe particular action that there is a reasonable andmeritorious cause for the filing of such action; andthat the affiant has concluded on the basis of thereviewing health professional's review and consultationthat there is a reasonable and meritorious cause forfiling of such action. *** For affidavits filed as toall other defendants, the written report must be from aphysician licensed to practice medicine in all itsbranches. In either event, the affidavit must identifythe profession of the reviewing health professional. Acopy of the written report, clearly identifying theplaintiff and the reasons for the reviewing healthprofessional's determination that a reasonable andmeritorious cause for the filing of the action exists,must be attached to the affidavit. ***

* * *

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

We begin the analysis of this issue bearing in mind that theterm "medical, hospital or other healing art malpractice" must beconstrued broadly. Woodard v. Krans, 234 Ill. App. 3d 690, 703,600 N.E.2d 477 (1992) citing Bernier v. Burris, 113 Ill. 2d 219,226-27, 497 N.E.2d 763 (1986). Section 2-622 of the Code appliesto "any action *** in which the plaintiff seeks damages forinjuries or death by reason of medical, hospital, or otherhealing art malpractice." 735 ILCS 5/2-622 (West 2002).

In Bernier, our supreme court noted that section 2-622 isapplicable "to actions for what is termed 'healing art'malpractice, a broad category that is not confined to actionsagainst physicians and hospitals but rather, as some of theprovisions indicate, may also include actions against otherhealth professionals such as dentists or psychologists." Bernier, 113 Ill. 2d at 226-27.

The phrase "healing art" includes "an entire branch oflearning dealing with the restoration of physical or mentalhealth." Lyon v. Hasbro Industries, Inc., 156 Ill. App. 3d 649,654, 509 N.E.2d 702 (1987). "Malpractice" is defined as"[f]ailure of one rendering professional services to exercisethat degree of skill and learning commonly applied under all thecircumstances in the community by the average prudent reputablemember of the profession with the result of injury *** to therecipient of those services." Black's Law Dictionary 959 (6thed. 1990).

Although section 2-622 does not define the phrase "healingart malpractice," Illinois courts have considered the scope andmeaning of that phrase. In Lyon, this court began its analysisby considering the meaning of the specific terminology in orderto ascertain the legislature's intent. The court noted:

"'Healing' is defined as: 'The restoration to a normalmental or physical condition ***.' (Taber's CyclopedicMedical Dictionary 725 (15th ed. 1985).) 'Art' is definedas a skill acquired by experience, study, or observation andas a branch of learning. (Webster's Ninth New CollegiateDictionary 105 (1986).) 'Malpractice' is defined asincorrect or negligent treatment of the patient by a personresponsible for his health care. (Taber's CyclopedicMedical Dictionary 1001 (15th ed. 1985).) It is alsodefined as a dereliction from a professional duty or afailure to exercise an adequate degree of care in renderingservice. Webster's Ninth New Collegiate Dictionary 721(1986)." Lyon, 156 Ill. App. 3d at 653.

Applying principles of statutory construction, the court inLyon concluded that the phrase "healing art" should be givenbroad application encompassing "an entire branch of learningdealing with the restoration of physical or mental health". Lyon, 156 Ill. App. 3d at 654.

Relative to the first factor, Maximum cites to Woodard forthe proposition that "[w]here determining the standard of carerequires applying distinctively medical knowledge or principles,however basic, the plaintiff must comply with section 2-622 [ofthe Code]." Woodard, 234 Ill. App. 3d at 705-06. In the instantcase, Maximum claims that the procedures employed by theoccupational therapist were not within the grasp of the ordinarylay juror. Maximum notes that occupational therapists havespecial training and are required to be certified in order topractice in Illinois. Maximum also asserts that the occupationaltherapist who supervised the FCE, and thus would form the basisof liability, is licensed by the State of Illinois and subject todiscipline through the Department of Professional Regulation asare doctors. We agree with Maximum and find that occupationaltherapists who conduct FCEs employ specialized knowledge andskill that is not within the grasp of the average lay juror.

Relative to the second factor, Maximum argues that theoccupational therapist's activity that resulted in the allegedinjury was inherently one of medical judgment and, accordingly, asection 2-622 certificate must be filed in this action citing toLyon v. Hasbro Industries, 156 Ill. App. 3d 649, 655, 509 N.E.2d702 (1987). In the Lyon case, the plaintiff alleged negligenceagainst an ambulance service for negligent provision of servicesin transporting a child to a hospital and argued that a section2-622 certificate was not necessary because the action was onefor ordinary negligence and not medical malpractice. Lyon, 156Ill. App. 3d at 655. The court in Lyon agreed with the plaintiffthat failure of the ambulance company to properly maintain theambulance was an action in ordinary negligence. However, thecourt further held that the determination of what equipment isnecessary and precautionary to meet the needs of a patient isinherently one of medical judgment. Lyon, 156 Ill. App. 3d at655.

Maximum points out that plaintiffs alleged that Maximum wasnegligent in how it instructed Patricia regarding the exercises,deciding when the exercises should be stopped in light ofPatricia's complaints of pain and requiring her to perform tests,exercises and other activities beyond her physical capabilities. Here, the occupational therapist is being faulted for makingdecisions based on her experience and training as to how muchpain Patricia could safely tolerate, what level of physicalexercise was safe to determine Patricia's vocational ability andthe limits of Patricia's physical abilities.

Although the Lyon case arises in a different factualcontext, we find that the allegations in this case areessentially the same in nature. The Lyon court decided that thedetermination of which equipment was necessary and precautionaryto meet the needs of a person in the plaintiff's condition wasinherently one of medical judgment. Lyon 156 Ill. App. 3d at655. Similarly, the determination of what exercises areappropriate in conducting an FCE is, in our view, inherently oneof medical judgment exercised by the occupational therapist inthis case. Here, it is alleged that the occupational therapistnegligently ordered exercises and failed to stop certainexercises that were inappropriate for a person in plaintiff'scondition. These are determinations that can only be properlymade by individuals with the necessary training and expertise.

The third factor courts consider in determining whether acomplaint alleges ordinary negligence or medical malpractice isthe evidence that will be necessary to establish the standard ofcare. Kolanowski v. Illinois Valley Community Hospital, 188 Ill.App. 3d 821, 823-24, 544 N.E.2d 821 (1989). " 'Generally, in amedical malpractice case, plaintiff must offer expert testimonyto establish the standard of care unless defendant's conduct isso grossly negligent or the treatment so common that a lay personcould readily understand it.' " Kolanowski, 188 Ill. App. 3d at824, quoting Edelin v. Westlake Community Hospital, 157 Ill. App.3d 857, 862, 510 N.E.2d 958 (1987). If, however, the standardmay be established on the basis of defendant's administrativepolicies or other evidence short of medical expert testimony,plaintiff will be permitted to proceed with his suit on a theoryof ordinary negligence. Kolanowski, 188 Ill. App. 3d at 824.

An example given by the Kolanowski court was an action basedon a slip and fall injury allegedly resulting from defendanthospital's negligent failure to remove or warn of water on thefloor. That example constituted an ordinary premises liabilityclaim rather than medical malpractice claim. Kolanowski 188 Ill.App. 3d at 824. In this case, however, the allegations concernthe manner in which the occupational therapist conducted,supervised and warned Patricia throughout the FCE. We find thatthe evidence necessary to prove the allegations in the complaintis beyond the ken of the average lay juror and as such willrequire expert testimony. This is not to say that any timeexpert testimony is necessary, a section 2-622 certificate willalso be required. However, under the circumstances of this case,we find that the proper levels of supervision and the appropriateexercises were determined by Patricia's medical condition andtherefore involved medical judgments. In other words, theoccupational therapist failed to properly administer the FCE inlight of Patricia's physical capabilities and pain.

After carefully reviewing the facts of this case and thefactors applied by this court in previous cases regarding theapplication of section 2-622 of the Code, we hold that theallegations against Maximum fall within the ambit of the term"healing art malpractice" and section 2-622 of the Code. It was,therefore, necessary for plaintiff to provide a physician'saffidavit stating that a meritorious cause of action existedunder the facts of the instant case.

Plaintiffs argue that the purpose of the FCE was not torestore Patricia to normal physical or mental health and is not,by definition, a "healing art" pursuant to section 2-622 of theCode. Plaintiffs cite to Milos v. Hall, 325 Ill. App. 3d 180,184, 757 N.E.2d 654 (2001), to support their position. We findthat plaintiffs' reliance on Milos is misplaced because the factsand allegations in this case are distinguishable from those inMilos.

When evaluating whether a claim involves healing artmalpractice, Illinois courts have focused on the nature of thenegligent act rather than the location where the conductoccurred. Milos, 325 Ill. App. 3d at 184; Lyon, 156 Ill. App. 3dat 655. In the case before us, the allegations are different innature from those alleged in Milos. In Milos, this court heldthat a section 2-622 certificate was not required where aplaintiff alleges that a pathologist wilfully and maliciouslyomitted certain premortem lab results from an autopsy report inorder to misrepresent the cause of death for the purpose ofprotecting other doctors from liability claims. Milos, 325 Ill.App. 3d at 184. The Milos court found that the plaintiff did notallege that the pathologist breached an accepted standard of carewhile attempting to restore the deceased to normal mental orphysical health.

Here, even if Patricia was not receiving treatment designedto restore her to physical or mental health when the injuryoccurred, we do not agree that the inquiry ends there. In thatrespect we find Baumann v. American National Red Cross, 262 F.Supp. 2d 965 (C.D. Ill. 2003), to be instructive. In Baumann,the plaintiff sued the American Red Cross for alleged injuriesshe sustained after donating blood at an American Red Crossfacility. The plaintiff there alleged that the defendant wasnegligent for failing to warn her of the potential for injuryinvolved in drawing blood, improperly injecting the blood-drawingdevice and injuring her right median nerve. Baumann, 262 F.Supp. 2d at 966. Relying on Woodard, the Baumann court held that"although [the plaintiff] was not a 'patient' receiving 'medicaltreatment' in the traditional sense from the Red Cross, *** thiscase is one for medical malpractice rather than simplenegligence, and section 2-622 applies." Baumann, 262 F. Supp. 2dat 968. The Baumann court stated that the "focus of section2-622 is not as much on the education, training, or certificationof the defendant as it is on the nature of the claim itself.[Citations.]" Baumann, 262 F. Supp. 2d at 967. We find theBaumann case to be more analogous to the case here than the Miloscase.

Plaintiffs also cite to Owens v. Manor Health Care Corp.,159 Ill. App. 3d 684, 512 N.E.2d 820 (1987) arguing that "healingarts" malpractice is not appropriate here because no steps weretaken to restore Patricia's physical or mental health. Owens,159 Ill. App. 3d at 687. However, the Owens case involved anallegation of negligence brought against a nursing home where aresident fell as he attempted to get out of a wheelchair. Owens,159 Ill. App. 3d at 685. This court held that the determinationto be made pursuant to the allegations was not inherently one ofmedical judgment. Owens, 159 Ill. App. 3d at 688-89. We furtherdecided that the plaintiff in Owens was only receiving custodialshelter and that expert medical testimony would not be requiredto assess the acts of the defendant. Owens, 159 Ill. App. 3d at688. In this case, however, expert testimony and medicaljudgment will be required to determine what aspects of an FCEwould be appropriate for a patient in Patricia's physicalcondition. The case before us is not one where plaintiffs allegethat Patricia fell out of a chair while waiting to undergo theFCE. The allegations leveled by plaintiffs against Maximum arefor healing arts malpractice.

Furthermore, we do not agree with plaintiffs' claims thatPatricia's visit to the occupational therapist and the purpose ofthe FCE was not intended to restore her to normal physicalhealth. In our view, the FCE was a necessary part of acomprehensive treatment plan designed to ultimately restorePatricia to a normal physical and vocational lifestyle. The FCEwas ordered by Patricia's treating physician and required by heremployer prior to having Patricia return to work. Although theFCE is not designed to diagnose a specific illness or injury, itwas administered in this case to determine whether Patricia couldcontinue working without risk of further injury. As such, theservices rendered by Maximum to Patricia were an integral part ofher recovery and treatment.

CONCLUSION

For the foregoing reasons, we hold that a certificatepursuant to section 2-622 fo the Code was required in this casebecause plaintiffs' complaint sounded in healing artsmalpractice. Accordingly, we answer the certified question inthe affirmative.

Certified question answered. Circuit Court reversed andcause remanded for further proceedings.

CAHILL, P.J., and GORDON, J., concur.

1. Defendant Chicago Classic did not participate in theinstant appeal.