JODINE WILLIAMS аnd CHRISTOPHER T. WILLIAMS, Individually; and JODINE WILLIAMS and CHRISTOPHER T. WILLIAMS, as Plenary Coguardians of the Person of Drew Williams, a Disabled Person, Plaintiffs-Appellees, v. ATHLETICO, LTD., a Corporation; ACCELERATED REHABILITATION CENTERS, LTD., a Corporation; and ALBERT BUZON, ATC a/k/a Wojciech Buzun, Defendants-Appellants.
No. 1-16-1902
Appellate Court of Illinois, First District, Second Division
March 21, 2017
2017 IL App (1st) 161902
Hon. Moira S. Johnson, Judge, presiding.
Certified questions answered; cause remanded.
Illinois Official Reports
Appellate Court
Williams v. Athletico, Ltd., 2017 IL App (1st) 161902
Counsel on Appeal
Cray Huber Horstman Heil & VanAusdal LLC, of Chicago (Stephen W. Heil and Chase M. Gruszka, of counsel), for appellant Athletico, Ltd.
Kaufman Dolowich & Voluck, LLP, of Chicago (David T. Brown and Bradley S. Levison, of counsel), for other appellants.
Corboy & Demetrio, P.C., of Chicago (William T. Gibbs, of counsel), for appellees.
Presiding Justice Hyman and Justice Mason concurred in the judgment and oрinion.
OPINION
¶ 1 Plaintiffs Jodine Williams and Christopher Williams, both individually and as
¶ 2 Defendants moved to dismiss plaintiffs’ complaint pursuant to
“1. Whether it is necessary for a plaintiff to attach a certificate from a health care professional, pursuant to
section 2-622 of the Code of Civil Procedure (735 ILCS 5/2-622) , where the complaint alleges negligent conduct by an Athletic Trainer during a high school fоotball game in which the trainer was hired to provide on-site injury evaluation to ensure the health and well-being of the participating athletes.2. Whether it is necessary for a plaintiff to attach a certificate from a health care professional pursuant to
section 2-622 of the Code where the complaint alleges negligent conduct by a licensed Athletic Trainer for failing to evaluate an athlete for a concussion following a head trauma suffered while participating in an athletic program.3. If so, must the health care professional that issues the certificate pursuant to
section 2-622 of the Code be someone in the same profession, with the same class of license as the defendant Athletic Trainer.”
¶ 3 We allowed defendants’ application for leave to appeal pursuant to
BACKGROUND
¶ 4 Plaintiffs’ first amended complaint asserts four counts. Counts I and III allege negligence against Athletico and ARC/Buzun, respectively, and counts II and IV assert claims under the family expense provision of the
¶ 5 Count I alleges that Athletico was under contract with Chicago public schools “to assign and maintain an adequate staff of competent personnel that was fully equipped, licensed as appropriate, available as needed, and qualified to provide on-site injury care and evaluation and assist on all matters pertaining to the
¶ 6 Count III alleges that ARC had an agreement with Lane Tech whereby ARC was “required to provide athletic trainer services to Lane Tech students participating in all varsity football games during the 2013 season in order to evaluate and treat athletic injuries sustained during the games.” ARC assigned Buzun as Lane Tech‘s athletic trainer. Plaintiffs allege that after Drew collided with his teammate, Drew “was not properly assessed or evaluated for symptoms of Concussive Brain Trauma by [Buzun] or any other agent or employee of [ARC], despitе demonstrating a sign of concussive brain trauma.”4 Count III repeats the allegations that Drew continued to participate in the game, “sustaining numerous additional impacts to his head,” that “Second Impact Syndrome occurs when the brain swells rapidly and catastrophically as a result of additional blows to the head following a Concussive Brain Trauma,” and that during the fourth quarter of the game, Drew “appeared on the sidelines, dazed.” The complaint alleges that “during the fourth quarter incident, [ARC] by and through its duly authorized agent and employee, [Buzun], performed a concussion assessment” and that during the assessment, Drew “began seizing and became unresponsive.” Plaintiffs again allege that Drew “suffered
numerous brain bleeds as a result of continuing to play football following a Concussive Brain Trauma.” Plaintiffs alleged that ARC and Buzun failed to (1) “assess [Drew] for symptoms of head trauma following a significant blow to the head,” (2) “evaluate [Drew] for a concussion until the fourth quarter of the game,” and (3) “recognize the signs of [Drew] suffering a brain trauma” and that “as a direct and proximate result of one or more of the above negligent acts or omissions, [Drew]
ANALYSIS
¶ 7
¶ 8 Because the first and second certified questions are similar, we can consider them together under a singlе analysis. See Simmons v. Homatas, 236 Ill. 2d 459, 466 (2010). The parties agree, and we concur, that the first and second certified questions, while worded differently, apply to licensed athletic trainers and seek an answer to the question of whether plaintiffs were required to attach an affidavit and report, pursuant to
¶ 9 Although the circuit court should ensure that a certified question is concise and clearly states the question to be answered, considering the first and second question presented, we can comply with our responsibilities under the requirements of
“Whether it is necessary for a plaintiff to attaсh a certificate from a health care professional pursuant to
section 2-622 where the complaint alleges negligent conduct by a licensed athletic trainerhired to provide on-site injury evaluation and treatment to participants in an athletic competition for failing to assess and evaluate a participating athlete for a concussion and for failing to recognize the signs of a concussion following a trauma sustained by the participant.”
Whether a Section 2-622 Certificate Is Required
¶ 10
“(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, оr 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 ***; 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 filing of such action. *** 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
* * *
(g) The failure to file a certificate required by this Section shall bе grounds for dismissal under
Section 2-619 .”735 ILCS 5/2-622(a)(1) ,(g) (West 2014) .
¶ 11 A plain reading of
¶ 12 Defendants argue that the plaintiffs’ claims fall within the ambit of “healing art malpractice” because the procedures employed by an athletic trainer, a person that receives specialized training and must be licensed to practice in Illinois, are not within the grasp of an
ordinary lay juror. Defendants argue that the recognition,
¶ 13 Plaintiffs argue that their allegations sound in ordinary negligence, not in healing art malpractice. They contend that defendants were “negligent in performing the activities they contracted to provide” and by that failing to assess Drew for concussive head trauma, by failing to timely evaluate Drew for a concussion, and by failing to recognize that Drew was suffering from brain trauma, the defendants were not employing medical judgment but instead were “simply shirking their agreed upon tasks.” Plaintiffs argue that defendants cannot “credibly argue” that the athletic trainers were “rendering any services ordered by a physician or part of a comprehensive treatment plan” for Drew. They argue that compliance with
¶ 14 The legislature has not defined “healing art malpractice.” Defendants argue that it must be construed broadly (see Woodard v. Krans, 234 Ill. App. 3d 690, 703 (1992)) and that the individual terms “healing art” and “malpractice” must be given their plain and ordinary meaning (see Jackson v. Chicago Classic Janitorial & Cleaning Service, Inc., 355 Ill. App. 3d 906, 910-11 (2005)).
¶ 15 In Jackson, the plaintiff sustained injuries during a physician-ordered evaluation performed by a licensed occupational therapist. Id. at 907-08. The negligence claim against the occupational therapist was dismissed for failing to attach a
¶ 16 We first looked to our decision in Lyon v. Hasbro Industries, Inc., 156 Ill. App. 3d 649, 653 (1987), in which we examined the term “healing art.” We defined “healing” as “[t]he restoration to a normal mental or physical condition” and “art” as “a skill acquired by experience, study, or observation and as a branch of learning.” (Internal quotation marks omitted.) Id. We concluded that the phrase “healing art” includes “an entire branch of learning dealing with the restoration of physical or mental health.” Id. at 654.
¶ 17 Next, the Jackson court observed that “malpractice” is defined as the “‘[f]ailure of one rendering professional services to exercise that degree of skill and learning commonly applied under all the circumstances in the community by the average prudent reputable member of the profession with the result of injury *** to the rеcipient of those services.‘” Jackson, 355 Ill. App. 3d at 910 (quoting Black‘s Law Dictionary 959 (6th ed. 1990)); see also Loman v. Freeman, 375 Ill. App. 3d 445, 452 (2006) (“‘Malpractice’ is ‘[a]n instance of negligence or incompetence on the part of a professional.‘” (quoting Black‘s Law Dictionary 978 (8th ed. 2004))).
¶ 18 Jackson then considered whether the complaint sounded in healing art malpractice, requiring compliance with
occupational therapists conducting the evaluations at issue in Jackson “employ specialized knowledge and skill that is not within the grasp of the ordinary lay juror,” and we acknowledged that occupational therapists are licensed by and subject to discipline by the State. Id. at 911. As to the second factor, we found that occupational therapists exercised medical judgment when determining which exercises were appropriate in conducting the evaluations. Id. at 912; see also Lyon, 156 Ill. App. 3d at 655 (finding that an ambulance company‘s determination of which equipment was necessаry and precautionary to meet the needs of a patient is inherently one of medical judgment). Finally, as to the third factor, we observed that the evidence necessary to prove the allegations against the occupational therapist was “beyond the ken of the average lay juror” and, as such, would require expert testimony. Jackson, 355 Ill. App. 3d at 913. We concluded that the allegations of the plaintiff‘s complaint fell within the “ambit” of the term “healing art malpractice” and
¶ 19 We believe the analysis in Jackson is sound and applicable to the case before us. First, we consider whether the standard of care for athletic trainers in evaluating concussions involves procedures not within the grasp of the ordinary lay juror. As a matter of public policy, the legislature enacted the
¶ 20 The Athletic Trainers Practice Act defines a “licensed athletic trainer” as:
“[A] person licensed to practice athletic training as defined in this Act and with the specific qualifications set forth in Section 9 of this Act who, upon the direction of his or her team physician or сonsulting physician, carries out the practice of prevention/emergency care or physical reconditioning of injuries incurred by athletes participating in an athletic program conducted by an educational institution ***.”
225 ILCS 5/3(4) (West 2014) .
¶ 21 Here, the complaint alleges that Athletico was hired by Chicago public schools and ARC and Buzun were hired by Lane Tech to provide on-site injury evaluation and treatment to athletes participating
their care, including Drew. See
¶ 22 With respect to the second Jackson factor, defendants argue that the athletic trainers’ activity was “inherently one of medical judgment.” They argue that Illinois public policy reflects that athletic trainers are considered competent to provide the medical judgment necessary to evaluate concussions. In support, defendants point to
¶ 23 Plaintiffs argue that defendants’ medical judgment was never employed because the defendants did not evaluate or treat Drew in response to the first-quarter collision. Plaintiffs argue that Drew allegedly sustained “numerous additional impacts” to his head before defendants evaluated him for the first time in the fourth quarter. We fail to see how this would alter our analysis because a licensed professional‘s failure to perform in accord with the applicable standard of care can also be a basis for liability.
¶ 24 Plaintiffs’ first amended complaint alleges that Athletico and ARC/Buzun “watch for signs of concussion and must evaluate and assess a player following a sign of brain trauma.” This allegation clearly implicates a medical judgment. In order to watch for, evaluate, and assess the signs of a brain trauma, the defendants are required to possess the specialized knowledge and skill of a licensed athletic trainer, and they must be familiar with what signs to look for and how to evaluate and assess those signs in order to respond appropriately. In Lyon, we held that even though the plaintiff‘s claim against an ambulance company for failing to properly
¶ 25 Here, a determination of whether to assess or evaluate Drew following the first-quarter collision requires at least some degree of medical judgment. In our view, plaintiffs’ claim is analogous to a medical negligence claim alleging a failure to diagnose, in which a
professional‘s conduct (e.g., the failure to assess or evaluate a patient and thereby failing to diagnose a condition) falls below the standard of care, resulting in an injury. See, e.g., Kramer v. Milner, 265 Ill. App. 3d 875, 876 (1994) (involving allegations that defendant physician was negligent in failing to recommend or order a screening mammogram that could have revealed decedent‘s breast cancer and whether defendant‘s conduct fell below the applicable standard of care). We therefore find that the second Jackson factor weighs in favor of finding that plaintiffs’ complaint alleges healing art malpractice for the purposes of
¶ 26 The final Jackson factor considers the type of evidence that will be necessary for plaintiffs to prove their case. Defendants argue that since this is a professional negligence case, plaintiffs will need expert testimony to establish both the standard of care (see Studt v. Sherman Health Systems, 2011 IL 108182, ¶ 20 (“‘[I]n professional negligence cases, *** the plaintiff bears a burden to establish the standard of care through expert witness testimony.‘” (quoting Advincula v. United Blood Services, 176 Ill. 2d 1, 24 (1996)))) and that a deviation from that standard caused the plaintiffs’ injuries (Jones v. Chicago HMO Ltd. of Illinois, 191 Ill. 2d 278, 296 (2000)). Defendants argue that the evidence necessary in this case to prove negligence is beyond the knowledge of a lay juror. Plaintiffs do not offer any counter-argument on this point.
¶ 27 We take caution in not issuing advisory opinions as to how plaintiffs must prove their case, and we do not intend to inadvertently stray beyond the issues germane to the certified questions. The proof required to establish defendants’ liability is better left to the circuit court. That stated, considering defendants’ status as licensed athletic trainers, their alleged acts and omissions, and plaintiffs’ theory of liability, the third Jackson factor weighs in favor of finding that plaintiffs’ complaint sounds in healing art malpractice. Based on the record before us, it appears that plaintiffs will need to establish that defendants failed to employ the degree of knowledge, skill, and ability that a reasonable athletic trainer would employ under similar circumstances.
¶ 28 In sum, for the reasоns set forth above, we answer the reframed version of the first and second certified questions in the affirmative: plaintiffs were required to attach an affidavit and health professional‘s report pursuant to
What Type of Health Professional Must Author the Section 2-622 Report
¶ 29 Having answered the first and second certified questions in the affirmative, we consider the third certified question:
“3. If so, must the health care professional that issues the certificate pursuant to
section 2-622 of the Code be someone in the same profession, with the same class of license as the defendant Athletic Trainer.”
¶ 30 We start again with the plain language of
“That the affiant has consulted and reviewed the facts of the case with a health professional who the affiant reasonably believes: (i) is knowledgеable 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 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 drugs or medicines and without operative surgery, a dentist, a podiatric physician, 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.” (Emphasis added.)
735 ILCS 5/2-622(a)(1) (West 2014) .
¶ 31 The parties do not dispute that “athletic trainers” fall within the category of “all other defendants” in
¶ 32 Defendants’ argument cannot be аccepted in light of the plain language of the statute. To require plaintiffs in this case to
¶ 33 We therefore answer the third certified question in the negative: the health professional that reviews the case and authors the written report pursuant to
CONCLUSION
¶ 34 For the foregoing reasons, plaintiffs’ first amended complaint sounds in healing art malpractice, and plaintiffs were therefore required to comply with
this cause to allow plaintiffs a reasonable opportunity to comply with
¶ 35 Certified questions answered; cause remanded.