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No. 2--02--1038

_______________________________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

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JUSTICE BOWMAN delivered the opinion of the court:

Plaintiffs, Andrea A. Collins, individually and as special administrator of the estate of JosephJ. Collins, Jr., deceased, Jennifer R. Collins, Joseph J. Collins III, John M. Collins, and James S.Collins, appeal the dismissal with prejudice of counts III and VI of their amended complaint againstdefendants, Lake Forest Hospital (Hospital) and Gerald Osher, M.D. The trial court dismissed countsIII and VI, which alleged violations of the Health Care Surrogate Act (Act) (755 ILCS 40/1 et seq.(West 2000)), on the ground that plaintiffs were required to file with their complaint a certificate ofmerit pursuant to section 2--622 of the Code of Civil Procedure (Code) (735 ILCS 5/2--622 (West2000)) and failed to do so. Plaintiffs argue on appeal that claims alleging violations of the Act do notrequire compliance with section 2--622 or, alternatively, that the trial court abused its discretion indismissing their claims with prejudice and denying them an opportunity to procure a certificate ofmerit.

Plaintiffs filed their original complaint against the Hospital on April 19, 2001. Dr. Osher wasnamed as a respondent in discovery. The complaint contained six counts. The first three counts werebrought on behalf of the estate of the decedent, Joseph Collins, Jr. (Joseph) and alleged, respectively,wrongful death as a result of battery, negligence, and violations of the Act. The next three countsasserted the same theories on behalf of Joseph's wife, Andrea, and the couple's children. Followingthe Hospital's motions to dismiss pursuant to sections 2--615 (735 ILCS 5/2--615 (West 2000)) and2--619 (735 ILCS 5/2--619 (West 2000)) of the Code, the trial court dismissed the negligence countsagainst the Hospital without prejudice for failure to comply with section 2--622. The courtsubsequently granted plaintiffs leave to file an amended complaint and to convert Dr. Osher from arespondent in discovery into a defendant.

Plaintiffs' amended complaint alleges that, on April 20, 1999, Joseph presented to the Hospitalemergency room with acute subdural hematomas caused by a fall. Andrea consented on his behalfto an emergency craniotomy procedure. Following the procedure, "physicians and nurses of [theHospital]" informed Andrea that Joseph's chance for survival was poor and that it would be prudentto remove him from the ventilator. Plaintiffs further allege that, at the time of his admission and atall subsequent times until his death, Joseph was unconscious, lacked any decisional capacity, wasunable to give consent for any medical decisions, and had a qualifying condition as defined by the Act. In addition, plaintiffs allege that Andrea informed the physicians and nurses that Joseph wasnot to be removed from the ventilator before their children arrived home from college on April 23 andhad a chance to see Joseph. According to the amended complaint, on the morning of April 23,Andrea telephoned the hospital and informed a "nursing agent" that she and her children would cometo the Hospital later that morning and that Joseph was to be kept on the ventilator so they could visithim. Plaintiffs further allege that, at 10:55 a.m., an unidentified agent of one of the defendants, actingwithout Andrea's authority or permission, ordered that Joseph be removed from the ventilator. Joseph was disconnected from the ventilator at about 11 a.m. and died approximately three minuteslater. Andrea and her children arrived at the hospital at approximately 11:10 a.m. and were informedthat Joseph had been removed from the ventilator and had died shortly thereafter.

Counts I through III of the amended complaint are directed against the Hospital and asserttheories of wrongful death as a result of battery, negligence, and violations of the Act, respectively. Counts IV through VI assert the same theories against Dr. Osher. Counts VII and VIII allegenegligent lack of informed consent against the Hospital and Dr. Osher, respectively. Counts IX andX are also based on violations of the Act.

Pursuant to section 2--619 of the Code, Dr. Osher moved to dismiss all counts against him,except for the battery count, for failure to comply with section 2--622. The Hospital moved todismiss the negligence and negligent lack of informed consent counts on the same ground.

The trial court granted defendants' motions, thereby dismissing with prejudice counts II, V,VI, VII, and VIII for failure to file a section 2--622 certificate of merit. In addition, plaintiffsconceded the dismissal of counts IX and X as duplicative of counts III and VI, the other countsalleging violations of the Act. After the court dismissed the count against Dr. Osher allegingviolations of the Act, the Hospital sought dismissal of the similar count against it. The trial courtgranted the Hospital's motion and dismissed count III with prejudice as well. Plaintiffs filed a timelynotice of appeal.

Plaintiffs contend on appeal that section 2--622 does not apply to counts III and VI of theiramended complaint because those counts do not allege medical malpractice. Rather, plaintiffs arguethat the question raised by these counts is whether defendants violated the Act by failing to consultwith Andrea before removing Joseph from the ventilator.

When reviewing the dismissal of a cause of action pursuant to section 2--619, we take as trueall well-pleaded facts alleged in the complaint. Chadwick v. Al-Basha, 295 Ill. App. 3d 75, 79(1998). Consequently, we are concerned solely with a question of law presented by the pleadingsand employ a de novo standard of review. Chadwick, 295 Ill. App. 3d at 79.

Section 2--622(a) of the Code requires a plaintiff's attorney to file an affidavit and a reviewinghealth professional's report in any action in which "the plaintiff seeks damages for injuries or deathby reason of medical, hospital, or other healing art malpractice." 735 ILCS 5/2--622(a) (West 2000). Thus, when determining whether section 2--622 applies to plaintiffs' claims, we must decide whether,taking plaintiffs' allegations as true, the damages they seek were caused by defendants' "malpractice." See Chadwick, 295 Ill. App. 3d at 79. "Malpractice" is defined as:

" 'Professional misconduct or unreasonable lack of skill. *** Failure of one renderingprofessional services to exercise that degree of skill and learning commonly applied under allthe circumstances in the community by the average prudent reputable member of theprofession with the result of injury, loss or damage to the recipient of those services or tothose entitled to rely upon them.' " Cohen v. Smith, 269 Ill. App. 3d 1087, 1090 (1995),quoting Black's Law Dictionary 959 (6th ed. 1990).

It is the nature of the plaintiff's claim, rather than any defense a defendant may raise, that determineswhether the complaint sounds in malpractice. Cohen, 269 Ill. App. 3d at 1093.

The issue of whether a claim alleging violations of the Act requires compliance with section2--622 is one of first impression. Plaintiffs here allege that defendants violated section 25 of the Act,which provides as follows, in pertinent part:

"When a patient lacks decisional capacity, the health care provider must make areasonable inquiry as to the availability and authority of a health care agent under the Powersof Attorney for Health Care Law. When no health care agent is authorized and available, thehealth care provider must make a reasonable inquiry as to the availability of possiblesurrogates listed in items (1) through (4) of this subsection." 755 ILCS 40/25 (West 2000).

The Act defines "decisional capacity" as "the ability to understand and appreciate the nature andconsequences of a decision regarding medical treatment or forgoing life-sustaining treatment and theability to reach and communicate an informed decision in the matter as determined by the attendingphysician." 755 ILCS 40/10 (West 2000). Section 20(c) of the Act provides that a determinationthat an adult patient lacks decisional capacity shall be made by the attending physician to a reasonabledegree of medical certainty. 755 ILCS 40/20(c) (West 2000). Section 20 further requires theattending physician to document such a finding in the patient's medical record along with thephysician's opinion as to the cause, nature, and duration of the lack of decisional capacity. 755 ILCS40/20 (West 2000).

Defendants assert that, based on the definition of "decisional capacity" and the requirementthat the attending physician determine to a reasonable degree of medical certainty that a patient lacksdecisional capacity, the question of whether they complied with the Act necessarily implicates theirmedical judgment. They further contend that a claim sounds in malpractice if it involves conduct thatrequired medical and professional judgment.

We are guided in our analysis by Chadwick v. Al-Basha, 295 Ill. App. 3d 75 (1998), a casethat neither party cites. The plaintiff in Chadwick alleged injuries resulting from the defendantpsychiatrist's violations of sections 2--108 and 2--109 of the Mental Health and DevelopmentalDisabilities Code (405 ILCS 5/2--108, 2--109 (West 1996)), which require that all restraint andseclusion orders be in writing. The plaintiff alleged that, as a result of these statutory violations, shewas unlawfully restrained and secluded while a patient at the Singer Mental Health andDevelopmental Center. Chadwick, 295 Ill. App. 3d at 78.

Like defendants in the case at bar, the defendant in Chadwick contended that the plaintiff wasrequired to comply with section 2--622 because her allegations challenged the defendant's exerciseof professional skill or judgment (Chadwick, 295 Ill. App. 3d at 80). This court rejected thedefendant's argument because the plaintiff's complaint stemmed from the defendant's alleged statutoryviolations rather than any breach of the standard of medical care. Chadwick, 295 Ill. App. 3d at 80. We further explained that the defendant's medical judgment was not implicated because "he wasobligated to observe the specific requirements codified by the legislature as to the appropriate mannerand use of restraints and seclusion as medical treatments." Chadwick, 295 Ill. App. 3d at 81.

Likewise, defendants here were obligated to follow the statutory directive to inquire as to asurrogate decision maker once the decision was made that the patient lacked decisional capacity. Weagree that whether a patient has decisional capacity involves medical judgment. However, plaintiffsin the case at bar are not alleging that Joseph in fact had the capacity to make and communicateinformed decisions regarding his medical care. Instead, they allege that Joseph was unconscious atall times during his hospital stay and that he lacked decisional capacity. Dr. Osher argues that he mayraise as a defense that Joseph did have decisional capacity, thereby making the existence of decisionalcapacity a central issue in the case. As we stated earlier, the nature of any defense that might ariseis irrelevant to the determination of whether a complaint sounds in malpractice for purposes of section2--622.

Dr. Osher likens the case at bar to Kus v. Sherman Hospital, 204 Ill. App. 3d 66 (1990), andKolanowski v. Illinois Valley Community Hospital, 188 Ill. App. 3d 821 (1989). In Kus, the courtheld that the plaintiff's claim that a doctor improperly treated him with an experimental device thathad lost government approval was predicated upon healing art malpractice. Kus, 204 Ill. App. 3d at72. Likewise, the court in Kolanowski held that the plaintiff was required to file a section 2--622certificate of merit when he alleged that the defendant hospital failed to adequately supervise andrestrain him, resulting in his injuries when he fell out of a bed. Kolanowski, 188 Ill. App. 3d at 825.

As we explained in Chadwick, Kus and Kolanowski are distinguishable from situations inwhich a defendant health care provider is statutorily obligated to perform the task at issue in aprescribed manner. Contrary to Kus and Kolanowski and similar to Chadwick, plaintiffs in the caseat bar do not allege that defendants "improperly exercised [their] professional skill" (Chadwick, 295Ill. App. 3d at 81), but rather that they failed to follow the procedures set forth by statute. Accordingly, we hold that plaintiffs are not required to comply with section 2--622, and the trial courterred in dismissing counts III and VI of their amended complaint. In light of our determination ofthis issue, we need not address whether the trial court acted improperly in denying plaintiffs anopportunity to obtain a section 2--622 certificate of merit.

In addition to its arguments based on section 2--622, the Hospital also asserts that dismissalof plaintiffs' claims against it was appropriate because it owed plaintiffs no duty under the Act. Wenote that the Hospital did not raise this issue in the trial court. It is well settled that issues not raisedin the trial court are generally deemed waived and may not be raised for the first time on appeal. Central Illinois Public Service Co. v. Allianz Underwriters Insurance Co., 244 Ill. App. 3d 709, 720(1993). The reasoning underlying this rule is that the appellate court should not consider differenttheories or new questions on appeal if proof might have been offered to refute or overcome them hadthey been presented below. Central Illinois, 244 Ill. App. 3d at 720. This is true even of legal issues(Sasser v. Alfred Benesch & Co., 216 Ill. App. 3d 445 (1991)), such as whether a duty exists. Waiver, however, is an admonition to the parties, not a limitation on the reviewing court'sjurisdiction. Texaco-Cities Service Pipeline Co. v. McGaw, 182 Ill. 2d 262, 279 (1998). A reviewingcourt may relax the waiver rule in order to maintain a uniform body of precedent or where theinterests of justice so require. Texaco-Cities, 182 Ill. 2d at 279. Accordingly, we choose to addressthe duty issue in spite of waiver because it is likely to recur on remand.

According to section 25(a) of the Act, a health care provider must make a reasonable inquiryas to the availability and authority of a surrogate "[w]hen a patient lacks decisional capacity." 755ILCS 40/25(a) (West 2000). There is no dispute that the Hospital meets the definition of a "healthcare provider" under the Act.

As always, in interpreting a statute we must give effect to the legislature's intention. Varelisv. Northwestern Memorial Hospital, 167 Ill. 2d 449, 454 (1995). The language of the statute is thebest indicator of legislative intent. Kirwan v. Welch, 133 Ill. 2d 163, 165 (1989). Consequently, welook first to the words of the statute. Metropolitan Life Insurance Co. v. Washburn, 112 Ill. 2d 486,492 (1986). When such language is clear, we do not resort to other tools of construction. Henryv. St. John's Hospital, 138 Ill. 2d 533, 541 (1990).

Relying on Ficke v. Evangelical Health Systems, 285 Ill. App. 3d 886 (1996), the Hospitalcontends that its duty under the Act is triggered only by a written finding by the patient's attendingphysician that the patient lacks decisional capacity. Because there was no such written finding in thiscase, the Hospital asserts that it had no duty to inquire as to the availability of a surrogate. Wedisagree with the Hospital's interpretation of the Act and find Ficke distinguishable.

The plain language of the Act indicates that the existence of a duty under section 25 of theAct is not dependent upon a written finding of decisional capacity. The Act defines "decisionalcapacity" as "the ability to understand and appreciate the nature and consequences of a decisionregarding medical treatment or forgoing life-sustaining treatment and the ability to reach andcommunicate an informed decision in the matter as determined by the attending physician." 755 ILCS40/10 (West 2000). Although section 20 of the Act requires the attending physician to document afinding of lack of decisional capacity in the patient's medical record, section 25 states that a healthcare provider must make reasonable inquiry when a patient "lacks decisional capacity," not when aphysician has made a written finding that a patient lacks decisional capacity. We believe that if thelegislature had intended for a duty under section 25 to arise only upon a written finding of decisionalincapacity, it would have expressly said so.

We recognize that the court in Ficke reached the opposite result. In Ficke, the court held that"there is no duty on the part of the hospital to inquire into the availability of a surrogate until a findinghas been made by the attending physician that the patient lacks decisional capacity and has aqualifying condition." Ficke, 285 Ill. App. 3d at 893-94. The court based its holding on thefollowing: (1) section 20(c)'s requirement that a physician diagnose lack of decisional capacity to areasonable degree of medical certainty (755 ILCS 40/20(c) (West 1992)); (2) section 20(e)'srequirement that the attending physician document in writing the existence of a qualifying condition(755 ILCS 40/20(e) (West 1992)); and (3) the presumption codified in section 20(c) that a patient"is presumed to have decisional capacity in the absence of actual notice to the contrary without regardto advanced age" (755 ILCS 40/20(c) (West 1992)). Thus, the court held that "it is for the attendingphysician, not the hospital or its staff, to determine whether the Act applies to a particular patient." Ficke, 285 Ill. App. 3d at 893.

Ficke is distinguishable from the case at bar for two reasons. First, section 25 has beenamended since Ficke. The version of section 25 at issue in Ficke required a health care provider tomake a reasonable inquiry as to the availability of a surrogate when "a patient has a qualifyingcondition and lacks decisional capacity" (755 ILCS 40/25(a) (West 1992)). Ficke, 285 Ill. App. 3dat 893. The court in Ficke based its decision in part on the fact that the Act required a physician todiagnose and document both lack of decisional capacity and the presence of a qualifying conditionunder the Act. Ficke, 285 Ill. App. 3d at 893. The legislature subsequently amended section 25(a),removing the requirement that a patient have a qualifying condition. Pub. Act 90--246,