Ripes v. Schlechter
91 N.E.3d 415
Ill. App. Ct.2018Background
- Elizabeth Ripes underwent breast-replacement surgery performed by Dr. Benjamin Schlechter at North Shore Aesthetics; she alleged he agreed to place new implants below the pectoral muscle but instead placed them above it.
- Ripes sued for breach of contract, medical battery, and violation of the Illinois Consumer Fraud and Deceptive Business Practices Act.
- Defendants moved to dismiss, arguing the claims sounded in medical/healing-art malpractice and therefore required a §2-622 affidavit by a medical expert; they also argued the Consumer Fraud Act does not apply to medical services.
- The circuit court dismissed the breach-of-contract and medical-battery counts without prejudice for failure to file a §2-622 affidavit, and dismissed the Consumer Fraud Act count with prejudice as the Act does not cover medical services.
- Ripes appealed, contesting the applicability of §2-622 and arguing her fraud claim alleged business deception, not medical malpractice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether breach-of-contract claim required §2-622 affidavit | Ripes: contract claim is within ordinary lay understanding and not subject to §2-622 | Defs: claim concerns surgical technique/implant placement and thus sounds in healing-art malpractice requiring §2-622 | Court: claim sounds in healing-art malpractice; §2-622 affidavit required; dismissal proper |
| Whether medical-battery claim required §2-622 affidavit | Ripes: battery is non-medical consent issue, not malpractice | Defs: claim alleges treatment deviated from scope of consent and involves specialized surgical issues | Court: battery claim alleges substantial deviation from consent in surgery; §2-622 applies; dismissal proper |
| Whether Consumer Fraud Act (815 ILCS 505/2) covers alleged deception | Ripes: alleged dishonest act for financial gain (placing implants contrary to agreement) is a deceptive business practice covered by the Act | Defs: provision of medical services is not "trade or commerce" under the Act; CFA inapplicable | Court: practice of medicine is not trade or commerce under the Act; Consumer Fraud claim fails; dismissal proper |
| Proper remedy for failure to file §2-622 affidavit | Ripes: court should not treat her pleaded labels as determinative; she could proceed without expert affidavit | Defs: failure to comply with §2-622 mandates dismissal of claims sounding in healing-art malpractice | Court: courts look to underlying nature of claims; where claims require expert proof beyond lay knowledge, §2-622 applies and dismissal for noncompliance is appropriate |
Key Cases Cited
- Sullivan v. Edward Hospital, 209 Ill. 2d 100 (explaining §2-622’s purpose to curb frivolous malpractice suits)
- Price v. Phillip Morris, Inc., 219 Ill. 2d 182 (describing Consumer Fraud Act’s protection against unfair or deceptive acts in trade or commerce)
- Feldstein v. Guinan, 148 Ill. App. 3d 610 (holding practice of medicine is not trade or commerce under the Consumer Fraud Act)
- Jackson v. Chicago Classic Janitorial & Cleaning Service, 355 Ill. App. 3d 906 (discussing broad application of "healing art" concept when assessing §2-622 applicability)
- Milos v. Hall, 325 Ill. App. 3d 180 (§2-622 must be construed broadly; not every physician act is malpractice but courts look to underlying nature)
- Bloom v. Guth, 164 Ill. App. 3d 475 (claims for breach of contract and consumer fraud can be treated as sounding in medical malpractice depending on underlying allegations)
- Jacobs v. Rush North Shore Medical Center, 284 Ill. App. 3d 995 (failure to file §2-622 affidavit is grounds for dismissal)
- Tkacz v. Weiner, 368 Ill. App. 3d 610 (confirming Illinois courts’ view that medical services are excluded from "trade or commerce" under the Act)
- Evanston Hospital v. Crane, 254 Ill. App. 3d 435 (Consumer Fraud Act does not redress purely private medical malpractice claims)