Ripes v. Schlechter
Ripes v. Schlechter
Opinion
*417 ¶ 1 Plaintiff, Elizabeth Ripes, filed a complaint alleging breach of contract, medical battery, and a violation of the Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act or Act) ( 815 ILCS 505/1 et seq. (West 2012)) against defendants Dr. Benjamin Schlechter and North Shore Aesthetics, P.C. (North Shore or North Shore Aesthetics) following an errant plastic surgery procedure. Defendants filed a motion to dismiss Ripes's filing, which the circuit court granted. Ripes appeals the circuit court's ruling, arguing that the court erred in concluding that she was required to submit an affidavit in accordance with section 2-622 of the Code of Civil Procedure (Code or Civil Code) ( 735 ILCS 5/2-622 (West 2012) ) and in finding that she failed to state a valid cause of action under the Consumer Fraud Act. For the reasons explained herein, we affirm the judgment of the circuit court.
¶ 2 BACKGROUND
¶ 3 On October 9, 2014, plaintiff Ripes underwent several plastic surgery procedures. The procedures were performed by defendant Dr. Schlechter, a licensed plastic surgeon and the President of North Shore Aesthetics. Thereafter, on June 24, 2015, Ripes filed a complaint alleging claims of breach of contract, medical battery, and consumer fraud. In her complaint, Ripes alleged that on September 7, 2014, she attended a consultation with Dr. Schlechter at his office at North Shore Aesthetics "to inquire about obtaining various plastic surgery procedures, one of which included removing [her] existing breast implants," which had been placed above the pectoral muscle "and replacing them with new implants." Ripes further alleged that she "specifically requested, and [Dr. Schlechter] agreed, that the new implants would be placed below the pectoral muscle." Following the consultation, Ripes agreed to pay Dr. Schlechter $17,000 to perform the requested procedures and a formal written surgery proposal was drawn up that itemized the procedures that Ripes had requested. The proposal, which was attached to Ripes's complaint, reflected that Dr. Schlechter was to remove Ripes's existing "intact mam[mary] implant[s]" and to perform a "mammaplasty augmentation w[ith] prosth[etic] implant." Although the proposal did not specify the placement of Ripes's new implants, she alleged that she and Dr. Schlechter "verbally agreed and understood that the implants would be placed below the pectoral muscle." In contravention of this agreement, Ripes alleged that when Dr. Schlechter performed the procedure on October 9, 2014, he placed her new implants above the pectoral muscle. This was done "contrary to [Ripes's] understanding and consent" and "contrary to the parties' agreement." The procedure and the purported improper placement of Ripes's new breast implants formed the basis for her breach of contract, medical battery, and consumer fraud claims.
¶ 4 Defendants responded with a motion to dismiss Ripes's complaint. In their motion, *418 defendants argued that notwithstanding the terminology Ripes employed in her complaint, her filing essentially sounded in medical healing arts malpractice. As a result, defendants argued that plaintiff was required to submit an affidavit and report completed by a licensed medical professional, attesting that her claims had merit in accordance with the pleading requirements set forth in section 2-622 of the Civil Code ( 735 ILCS 5/2-622 (West 2012) ). According to defendants, Ripes's failure to include such an affidavit required dismissal of her entire complaint. Defendants further argued that plaintiff's Consumer Fraud Act claim failed as a matter of law because a claim under the Act only applies to deceptive acts committed in the context of trade or commerce and the practice of medicine is not a type of trade of commerce covered by the Act.
¶ 5 In response, Ripes disputed defendants' characterization of her complaint and argued that her filing did not, as defendants' contended, sound in medical healing arts malpractice. As a result, Ripes argued that her complaint was not subject to the pleading requirements of section 2-622 of the Code. Ripes further argued that her Consumer Fraud Act claim did not fail as a matter of law because Dr. Schlechter employed deception and engaged in a deceptive business practice when he agreed to place her new breast implants above the pectoral muscle but then failed to do so.
¶ 6 The circuit court, after considering the arguments of the parties, issued a detailed written order, granting defendants' motion to dismiss Ripes's complaint. In doing so, the court found that counts I and II of plaintiff's complaint, alleging breach of contract and medical battery, respectively, both sounded in medical healing arts malpractice, and as result, plaintiff was subject to the pleading requirements set forth in section 2-622 of the Code. The court concluded that the absence of a section 2-622 affidavit warranted dismissal of both counts without prejudice. With respect to count III, plaintiff's Consumer Fraud Act claim, the court concluded that "the practice of medicine [wa]s not a trade or commerce" and that the Act therefore did not apply to the provision of medical services. The court thus dismissed Ripes's Consumer Fraud Act claim with prejudice.
¶ 7 Ripes responded with a motion to reconsider, which the circuit court denied in another detailed written order. Thereafter, Ripes declined to file an amended complaint with a section 2-622 affidavit and, instead, elected to stand on her original complaint. As a result, the circuit court entered a written order dismissing plaintiff's entire complaint with prejudice. This appeal followed.
¶ 8 ANALYSIS
¶ 9 Section 2-622 Affidavit Requirement
¶ 10 On appeal, Ripes argues that the circuit court erred in finding that her complaint alleged claims of "healing art malpractice," which were required to be supported by an affidavit in accordance with section 2-622 of the Civil Code. She submits that neither her breach of contract claim nor her medical battery claim sounded in medical healing art malpractice and, as a result, a section 2-622 affidavit was not required.
¶ 11 Defendants respond that the circuit court properly granted their motion to dismiss Ripes's complaint. Notwithstanding the caption employed by plaintiff in the first two counts of her complaint, defendants argue that her claims for breach of contract and medical battery both sounded in medical healing art malpractice, and as a result, she was required to submit an affidavit and report by a licensed physician attesting to the merit of her cause of action *419 in accordance with the requirements set forth in section 2-622 of the Civil Code. Defendants maintain that the circuit court properly concluded that Ripes's failure to meet section 2-622's pleading requirements warranted dismissal of her claims.
¶ 12 A motion filed in accordance with section 2-619.1 of the Civil Code allows a party to file a combined motion to dismiss pursuant to sections 2-615 ( 735 ILCS 5/2-615 (West 2012) ) and 2-619 of the Code ( 735 ILCS 5/2-619 (West 2012) ).
Patrick Engineering, Inc. v. City of Naperville
,
¶ 13 Section 2-622 of the Civil Code provides as follows:
" § 2-622. 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, 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 the filing of such action. If the affidavit is filed as to a defendant who is a physician licensed to treat human ailments without the use of *420 drugs or medicines and without operative surgery, a dentist, a podiatrist, a psychologist, or a naprapath, the written report must be from a health professional licensed in the same profession, with the same class of license, as the defendant. 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, but information which would identify the reviewing health professional may be deleted from the copy so attached." 735 ILCS 5/2-622(a)(1) (West 2012).
¶ 14 Section 2-622's pleading requirements were designed to reduce the number of frivolous medical malpractice lawsuits that are filed at an early stage before the expenses associated with such litigation mount.
Sullivan v. Edward Hospital
,
¶ 15 As set forth above, the basis for Ripes's breach of contract claims is Dr. Schlechter's placement of her replacement breast implants above, rather than below, her pectoral muscle, in contravention of their express oral agreement to the contrary. Although Ripes suggests her claim does not involve a matter that is beyond the ken of the ordinary lay persons and does not require a medical expert's testimony, we disagree. Plastic surgery procedures generally, and breast augmentation surgeries specifically, do not fall within the general knowledge common to layperson jurors. That is, the average juror is not familiar with the different placement options for breast implants or the knowledge, methodology, and skill a plastic surgeon employs to place a breast implant above or below the pectoral muscle. We reiterate the courts must "broadly" construe the phrase "medical, hospital, or other healing art malpractice" to determine the applicability of section 2-622's pleading requirements.
Milos
,
¶ 16 With respect to Ripes's medical battery claim, we note that courts have generally concluded that section 2-622's affidavit requirement applies when a plaintiff's claim of medical battery involves the issue of whether the treatment provided or the procedure performed by the defendant medical professional substantially deviated from the scope of the consent that the plaintiff provided. See,
e.g.
,
McDonald
,
¶ 17 Consumer Fraud Act Claim
¶ 18 Ripes also argues that the circuit court erred in concluding that her Consumer Fraud Act claim failed to state a valid cause of action. She maintains that the fraud delineated in her complaint did not pertain to Dr. Schlechter's exercise of medical judgment or his medical skills or training; rather, it involved his decision to engage in a "dishonest act for financial gain" when he placed her new implants above the pectoral muscle in contravention of the parties' oral agreement to do otherwise. As such, Ripes asserts that her Consumer Fraud Act claim should be permitted to proceed.
¶ 19 Defendants respond that the circuit court properly found that Ripes's complaint failed to state a valid cause of action *423 under the Consumer Fraud Act, given that "Illinois courts have unequivocally held that the Consumer Fraud Act does not apply to the provision of medical services."
¶ 20 The Consumer Fraud Act is a regulatory and remedial statute intended to protect individuals against unfair methods of competition and unfair or deceptive business practices.
Price v. Philip Morris, Inc.
,
¶ 21 Here, Ripes's Consumer Fraud Act claim is premised on Dr. Schlechter's "representation to [her] that [he] would place her new implants [below] the pectoral muscle," even though he "had no intention of doing so." Breast augmentation surgery, however, is a type of medical procedure, and, as set forth above, the provision of medical services does not constitute a trade or commerce under the Act.
Tkacz
,
¶ 22 CONCLUSION
¶ 23 The judgment of the circuit court is affirmed.
¶ 24 Affirmed.
Justices Fitzgerald Smith and Cobbs concurred in the judgment and opinion.
Ripes, citing
Jackson v. Chicago Classic Janitorial & Cleaning Service, Inc.
,
Reference
- Full Case Name
- Elizabeth RIPES, Plaintiff-Appellant, v. Benjamin SCHLECHTER and North Shore Aesthetics, P.C., Defendants-Appellees.
- Cited By
- 4 cases
- Status
- Unpublished