Ripes v. Schlechter
2017 Ill. App. LEXIS 653
| Ill. App. Ct. | 2017Background
- On October 9, 2014, Ripes underwent breast implant removal and replacement performed by Dr. Benjamin Schlechter at North Shore Aesthetics; she alleges an express oral agreement that new implants would be placed below the pectoral muscle.
- The written surgery proposal (attached to the complaint) described augmentation but did not state implant placement; Ripes contends Schlechter placed the new implants above the muscle in breach of their agreement and outside her consent.
- Ripes sued for breach of contract, medical battery, and violation of the Illinois Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act).
- Defendants moved to dismiss, arguing (1) the breach and battery claims sound in ‘‘healing art’’ malpractice and therefore required a section 2-622 affidavit and expert report, and (2) the Consumer Fraud Act does not apply to the provision of medical services.
- The trial court dismissed the breach and battery counts without prejudice for failure to file a 2-622 affidavit and dismissed the Consumer Fraud Act count with prejudice; Ripes appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether breach of contract claim is subject to §2-622 affidavit requirement | Ripes: breach is contractual and involves no specialized medical issues; no §2-622 affidavit required | Defendants: claim necessarily involves medical skill/judgment in implant placement and thus sounds in healing-art malpractice requiring §2-622 | Court: Breach sounds in healing-art malpractice because implant placement requires medical skill beyond juror knowledge; §2-622 applies; dismissal proper |
| Whether medical battery claim is subject to §2-622 affidavit requirement | Ripes: battery claim is about consent/representation, not malpractice requiring affidavit | Defendants: claim alleges deviation from scope of consent during surgery—a medical-judgment issue—so §2-622 applies | Court: Claim alleges a substantial deviation from consent during surgery (a technical issue requiring expert proof); §2-622 applies; dismissal proper |
| Whether Consumer Fraud Act covers alleged deception about implant placement | Ripes: fraud was a dishonest business act (intentional deception for gain), not medical judgment; Act should apply | Defendants: medical/professional services are outside the Act’s ‘‘trade or commerce’’ scope; Act does not apply | Court: Practice of medicine is not trade or commerce under Illinois precedent; Consumer Fraud Act claim fails as a matter of law |
Key Cases Cited
- Sullivan v. Edward Hospital, 209 Ill. 2d 100 (discussion of §2-622 purpose and scope)
- City of Chicago v. Beretta U.S.A. Corp., 213 Ill. 2d 351 (standards for 2-615/2-619 motions and de novo review)
- Milos v. Hall, 325 Ill. App. 3d 180 (broad construction of "healing art" for §2-622 applicability)
- Woodard v. Krans, 234 Ill. App. 3d 690 (broad meaning of healing art and when §2-622 applies)
- Jackson v. Chicago Classic Janitorial & Cleaning Serv., 355 Ill. App. 3d 906 (factors for distinguishing ordinary negligence from medical malpractice)
- Feldstein v. Guinan, 148 Ill. App. 3d 610 (holding practice of medicine not "trade or commerce" under Consumer Fraud Act)
- Bloom v. Guth, 164 Ill. App. 3d 475 (claims styled as contract/fraud can nonetheless sound in medical malpractice)
- Evanston Hospital v. Crane, 254 Ill. App. 3d 435 (Consumer Fraud Act not for purely private medical wrongs)
- Tkacz v. Weiner, 368 Ill. App. 3d 610 (recognizing that medical/legal/dental services fall outside "trade or commerce")