Fiala v. Bickford Senior Living Group, LLC ( 2016 )

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Appellate Court Date: 2016.01.11
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Fiala v. Bickford Senior Living Group, LLC,
2015 IL App (2d) 150067Appellate Court EDWARD M. FIALA, JR., Plaintiff-Appellant, v. BICKFORD
Caption SENIOR LIVING GROUP, LLC, and ANNA MEDICAL CLINIC,
S.C., d/b/a Amber Medical Clinic, Defendants (Rabia Naveed,
Defendant-Appellee).
District & No. Second District
Docket No. 2-15-0067
Filed November 19, 2015
Decision Under Appeal from the Circuit Court of Kane County, No. 13-L-635; the
Review Hon. James R. Murphy, Judge, presiding.
Judgment Reversed and remanded.
Counsel on Jeffrey S. Deutschman and Bradley A. Skafish, both of Deutschman &
Appeal Associates, P.C., of Chicago, for appellant.
Robert L. Larsen, of Cunningham, Meyer & Vedrine, P.C., of
Warrenville, and Michael R. Slovis, of Cunningham, Meyer &
Vedrine, P.C., of Chicago, for appellee.
Panel JUSTICE BIRKETT delivered the judgment of the court, with
opinion.
Justices McLaren and Jorgensen concurred in the judgment and
opinion.
OPINION
¶1 Plaintiff, Edward M. Fiala, Jr., appeals the judgment of the circuit court of Kane County,
dismissing his medical battery and civil conspiracy claims against defendant Dr. Rabia
Naveed and striking his request for punitive damages. Plaintiff argues that he was not
required to file a health care professional’s report pursuant to section 2-622(a)(1) of the Code
of Civil Procedure (Code) (735 ILCS 5/2-622(a)(1) (West 2014)), because section 2-622
does not apply to a medical battery claim based on a complete lack of consent; that his
request for punitive damages did not run afoul of section 2-604.1 of the Code (735 ILCS
5/2-604.1 (West 2014)), because that section applies only to negligence and product liability
claims and not to claims of intentional torts; and that he stated a claim for civil conspiracy
sufficient to survive a motion to dismiss pursuant to section 2-615 of the Code (735 ILCS
5/2-615 (West 2014)). We reverse and remand.
¶2 I. BACKGROUND
¶3 This matter comes before us for a second time. In our first contact with this case,
defendant Bickford Senior Living Group, LLC, appealed the judgment of the trial court
denying its petition to compel arbitration. We reversed, holding that the arbitration clause in
plaintiff’s contract with Bickford was enforceable. Fiala v. Bickford Senior Living Group,
LLC, 2015 IL App (2d) 141160. Bickford is not a party to this appeal.
¶4 As pertains to this appeal, on June 3, 2014, plaintiff filed an amended complaint adding
defendant as a party. Plaintiff raised two claims against defendant: count XI for medical
battery and count XII (misnumbered as count IX) for civil conspiracy. On July 10, 2014,
defendant filed a motion to dismiss the two counts and to strike the request for punitive
damages. On September 10, 2014, the trial court granted defendant’s motion to dismiss the
two counts. The trial court also granted without prejudice the motion to strike the request for
punitive damages. Plaintiff filed a motion to clarify the September 10, 2014, order, and, on
September 24, 2014, the trial court entered an order stating that the dismissal of the two
counts was without prejudice and setting a deadline by which plaintiff was to file a second
amended complaint.
¶5 On October 16, 2014, plaintiff filed his second amended complaint, in which count IX
alleged medical battery and requested punitive damages against defendant and count X
alleged civil conspiracy against defendant. We summarize the pertinent allegations from the
second amended complaint.
¶6 From October 2012 to August 2013, plaintiff resided at Bickford’s long-term care facility
in St. Charles. When plaintiff was admitted to the facility, he was confined to a wheelchair
and was diagnosed with Lewy body dementia, a progressively debilitating illness similar to
Parkinson’s disease and potentially also affecting his cognition. Plaintiff resided at the
Bickford facility with his wife, Sue. Plaintiff’s son and daughter held medical powers of
attorney for plaintiff’s care. Plaintiff’s medical chart, maintained by Bickford, indicated that
his children held the medical powers of attorney and that no medications were to be given to
plaintiff without prior consent. In particular, the use of the medication Paxil was prohibited.
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¶7 Because of plaintiff’s physical infirmities, he required assistance from the nursing staff,
including multiple visits to the bathroom during the night. At least some, and perhaps a
sizable number, of the staff members viewed plaintiff as a burdensome patient because of the
effort involved in assisting him. At some point, staff members began taking plaintiff to
“Mary B’s” area, a separate area within the Bickford facility. Over the course of his stay at
the Bickford facility, plaintiff would be left in Mary B’s area overnight. This conduct
separated plaintiff from his wife, and neither plaintiff nor his wife wished for plaintiff to
spend time in Mary B’s area.
¶8 When plaintiff was taken to Mary B’s area, he would be medicated with Paxil or other,
unknown, medications. Sometimes when plaintiff was not in Mary B’s area, he would also be
given medications, including Paxil. The drugs were given to plaintiff without prior consent;
in particular, Paxil was administered despite the prohibition against its use as documented in
his medical chart. Generally, the drugs given to plaintiff without prior consent would render
him catatonic; sometimes, though, they would cause him to become agitated and violent.
Plaintiff grew to believe that the unknown drugs and the Paxil were used on him as a form of
“chemical restraint,” to make it easier for Bickford’s staff to deal with him. Plaintiff neither
used the drugs nor had them prescribed for him before his stay at the Bickford facility.
¶9 Defendant prescribed the drugs used on plaintiff at the Bickford facility, and he
prescribed them for use at night. Plaintiff had not met or consulted with defendant at any
time before, during, or after his stay at the Bickford facility. Indeed, defendant was never one
of plaintiff’s treating physicians. Moreover, neither plaintiff’s wife nor his children were
given the opportunity to discuss or consult with defendant regarding the prescriptions.
Likewise, none of plaintiff’s treating physicians was consulted about the prescriptions.
Plaintiff further alleged that the use of Paxil and the other drugs diminished the quality of his
life and caused him emotional and physical problems.
¶ 10 Regarding medical battery, plaintiff specifically alleged that he consented to neither the
prescription nor the administration of the various medications. Likewise, plaintiff’s
authorized representatives did not consent to the prescription or administration of the
medications. The prescription and, particularly, the administration of the medications were
contrary to the expressed desires of plaintiff and his authorized representatives; plaintiff’s
medical chart clearly indicated that the administration of any medication required the prior
consent of plaintiff or his authorized representatives. Plaintiff alleged that defendant’s
conduct in prescribing the medications and the resultant administration of the medications, in
light of the lack of consent, constituted an unwanted touching of plaintiff’s person.
¶ 11 Regarding civil conspiracy, plaintiff specifically alleged that defendant formed an
agreement with Bickford to prescribe and administer Paxil and other medications for the
purpose of chemically restraining plaintiff. Plaintiff alleged that the agreement was formed
when Bickford asked defendant to prescribe psychotropic drugs for plaintiff. Defendant had
never seen plaintiff professionally, and the prescription of Paxil and other medications
violated plaintiff’s express wishes as indicated in his medical chart. Defendant knowingly
had the prescriptions filled and caused the medications to be delivered to the Bickford
facility.
¶ 12 Plaintiff alleged that the prescription and the administration of the medications were done
without authorization and without the documented need for chemical restraints. This conduct
also took place without notice to plaintiff or to his authorized representatives, against
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plaintiff’s express instructions and wishes as contained in his medical chart, and without
regard to either plaintiff’s well being or whether the medications constituted the least
restrictive means to accomplish the goal, presumably of restraining plaintiff; further, it
constituted unlawful conduct because it violated the Nursing Home Care Act (210 ILCS
45/1-101 et seq. (West 2014)).
¶ 13 Plaintiff alleged that the overt acts in furtherance of the scheme to restrain plaintiff
through medication included requesting prescriptions for Paxil and the other drugs,
approving the prescriptions, writing or otherwise creating the prescriptions, sending the
prescriptions to a pharmacy, picking up the medications, bringing the medications on-site,
administering the medications to plaintiff, and moving plaintiff to a secluded area where the
administration of the medications and their effects on plaintiff would not be witnessed.
Plaintiff also alleged that he was harmed by the medications both emotionally and physically
and that the medications put him at risk of future decline.
¶ 14 Defendant moved to dismiss the counts against him in the second amended complaint and
to strike the request for punitive damages. Regarding the medical battery claim, defendant
sought dismissal pursuant to section 2-619 of the Code (735 ILCS 5/2-619 (West 2014)),
arguing that plaintiff had not filed the required health-professional’s report pursuant to
section 2-622 of the Code (735 ILCS 5/2-622 (West 2014)). Likewise, defendant argued that
the request for punitive damages was improper under section 2-604.1 of the Code (735 ILCS
5/2-604.1 (West 2014)), which requires leave from the trial court following a hearing on the
propriety of punitive damages. Finally, regarding the civil conspiracy claim, defendant
sought dismissal pursuant to section 2-615 of the Code (735 ILCS 5/2-615 (West 2014)),
arguing that plaintiff had not stated a claim for civil conspiracy.
¶ 15 On January 8, 2015, the trial court granted defendant’s motion, dismissing both counts
with prejudice and striking plaintiff’s request for punitive damages. The trial court also
included a finding pursuant to Illinois Supreme Court Rule 304(a) (eff. Feb. 26, 2010).
Plaintiff timely appeals.
¶ 16 II. ANALYSIS
¶ 17 On appeal, plaintiff challenges the trial court’s judgment dismissing his claims against
defendant and striking his request for punitive damages. First, plaintiff argues that section
2-622 does not apply to a medical battery claim that is not based on healing art malpractice.
Next, plaintiff argues that section 2-604.1 does not apply to an intentional tort such as
medical battery. Last, plaintiff argues that he sufficiently pleaded a cause of action for civil
conspiracy. We consider each argument in turn.
¶ 18 A. Medical Battery (Count IX)
¶ 19 Plaintiff appeals the dismissal of the medical battery count under section 2-619 of the
Code. A section 2-619 motion to dismiss admits the legal sufficiency of the complaint but
asserts an affirmative matter outside of the complaint that avoids the effect of or defeats the
claim. Concord Air, Inc. v. Malarz, 2015 IL App (2d) 140639, ¶ 20. We review de novo a trial
court’s dismissal of a claim pursuant to section 2-619. Id. We note that defendant advocates
for the abuse-of-discretion standard, because the dismissal of plaintiff’s claim was with
prejudice, citing to Muirfield Village-Vernon Hills, LLC v. K. Reinke, Jr., & Co., 349 Ill. App.
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3d 178, 195 (2004). Defendant blatantly misapprehends the standards of review set forth in
Muirfield Village. There, we held that a dismissal (albeit pursuant to section 2-615) was
subject to de novo review (id. at 188), whereas only the decision whether to make the
dismissal with prejudice was reviewed for an abuse of discretion (id. at 195).
¶ 20 Plaintiff alleged a medical battery claim against defendant. A battery is the unauthorized
touching of the person of another. Curtis v. Jaskey, 326 Ill. App. 3d 90, 93 (2001) (citing
Gaskin v. Goldwasser, 166 Ill. App. 3d 996, 1011-12 (1988)). Battery is an intentional tort.
Bakes v. St. Alexius Medical Center, 2011 IL App (1st) 101646, ¶ 21. The cases indicate that
the element of intent is defined in at least two ways: either an intent to touch or an intent to
harm or offend by the touch. Id. In medical battery, hostile intent on the part of the defendant
need not be established; rather, the gravamen of the medical battery focuses on the plaintiff’s
consent. Curtis, 326 Ill. App. 3d at 94. Thus, in a medical battery case, the plaintiff may
recover by establishing “a total lack of consent to the procedure performed, that the treatment
was contrary to the patient’s will, or that the treatment was at substantial variance with the
consent granted.” Id.
¶ 21 Defendant concedes that plaintiff stated a claim for medical battery, but he asserts that
the claim is defeated or avoided by an affirmative matter outside of the four corners of the
complaint. Concord Air, 2015 IL App (2d) 140639, ¶ 20. Defendant argues that plaintiff’s
failure to file a report pursuant to section 2-622 is the affirmative matter defeating plaintiff’s
claim. 735 ILCS 5/2-622(g) (West 2014) (the “failure to file a certificate required by this
Section shall be grounds for dismissal under Section 2-619”).
¶ 22 Section 2-622 requires the plaintiff to file with the complaint an affidavit of merit that
states that the affiant has consulted with a health professional who, after reviewing the
medical records and other relevant material, has determined in a written report that there is a
reasonable and meritorious cause for filing the action. 735 ILCS 5/2-622(a)(1) (West 2014).
The plaintiff is to attach a copy of the report to the affidavit, and the medical report must
identify the plaintiff and the reasons why the professional believes there to be a reasonable
and meritorious cause of action. Id. Finally, the affidavit and the report are required “[i]n any
action, whether in tort, contract or otherwise, in which the plaintiff seeks damages for
injuries *** by reason of medical, hospital, or other healing art malpractice.” 735 ILCS
5/2-622(a) (West 2014).1
¶ 23 Defendant argues that a medical battery claim based on lack of informed consent is
subsumed within the universe of medical malpractice claims. McDonald v. Lipov, 2014 IL
App (2d) 130401, ¶ 18. Medical malpractice claims require section 2-622 reports, and this
requirement can extend to a medical battery claim based on lack of consent. See id. ¶¶ 18-28.
Defendant contends that we should inquire not whether plaintiff has pleaded a claim for
medical battery but whether the type of medical battery alleged requires a section 2-622
report. Defendant answers this question affirmatively: plaintiff’s allegations deal with
medical diagnoses and treatment beyond the ken of the average juror.
1
To be clear, a reading of section 2-622(a) reveals that it is implicated only where the action is for
damages caused by medical malpractice, hospital malpractice, or other healing art malpractice. Thus,
section 2-622 applies to the determination of liability, but the issue of damages is separate and not
subject to the section’s requirements.
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¶ 24 Plaintiff, by contrast, argues that this case involves medical battery due to the
administration of medications without any consent whatsoever. The issues, according to
plaintiff, are whether plaintiff or his representatives gave consent to the administration of any
of the medications and whether the medications were administered. These issues do not
involve conduct beyond the ken of the average juror.
¶ 25 We begin with a closer look at McDonald. In McDonald, this court first noted that a
claim that a health professional acted without informed consent is a type of medical
malpractice claim. McDonald, 2014 IL App (2d) 130401, ¶ 18. We recognized that a patient
has the rights to withhold consent and to refuse even lifesaving treatment, as well as the fact
that an unauthorized touching of another (i.e., without consent) is a common-law battery, and
we recognized that all of these arise within the medical treatment context. Id.¶ 26 We next observed that at the intersection of these medical malpractice principles stood
the tort of medical battery. Id. ¶ 19. In order to state a viable claim, the injured party had to
establish that (1) there was no consent to the medical treatment performed, (2) the medical
treatment performed was against the injured party’s will, or (3) the medical treatment
performed varied substantially from the consent actually granted. Id. Under any of these
circumstances, a battery has occurred, because the person administering the medical
treatment touched the person of another without authorization. Id. The lack of consent to the
medical treatment is the focus, not the intent of the person administering the medical
treatment; further, the law maintains a distinction between a total lack of consent (battery)
and a lack of informed consent (negligence). Id. ¶ 20.
¶ 27 We then discussed the applicability of section 2-622 to a medical battery claim, relying
on the analysis in Holzrichter v. Yorath, 2013 IL App (1st) 110287. Holzrichter explained
that, generally, “expert testimony is required to support a medical malpractice claim because
the assessment of the alleged negligence may require knowledge, skill or training in a
technical area outside the comprehension of laypersons.” Id. ¶ 93. Further, the section 2-622
report is necessary where the subject matter is sufficiently complicated so as to be beyond the
understanding of a normal juror, and this requirement is not limited to medical malpractice
claims. Id. Holzrichter pointed to two cases, one styled as ordinary negligence (id.
¶ 94)–Schindel v. Albany Medical Corp., 252 Ill. App. 3d 389 (1993), in which the resolution
of the issues required expert medical testimony to define the standard of care notwithstanding
the plaintiff’s characterization of the issues as ordinary negligence–and one as breach of
contract (Holzrichter, 2013 IL App (1st) 110287, ¶ 95)–Bloom v. Guth, 164 Ill. App. 3d 475(1987), in which a section 2-622 report was required because the plaintiff’s allegations that
the defendant failed to properly perform medical procedures, while styled as a
breach-of-contract claim, nevertheless described conduct well within the plain and ordinary
meaning of healing art malpractice–to support its determination that a medical battery claim
could require compliance with section 2-622 if the alleged conduct involved questions about
the medical standard of care or issues that were otherwise so complicated that laypersons
would not be able to assess it without expert testimony. Holzrichter, 2013 IL App (1st)
110287, ¶ 96.
¶ 28 In McDonald we noted that, while Holzrichter limited itself to its specific facts, it
nevertheless stood for the broader principle that section 2-622 can apply to claims other than
for medical malpractice, depending on whether the conduct is beyond the ken of a layperson
and requires a medical expert’s opinion to help the jurors understand. McDonald, 2014 IL
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App (2d) 130401, ¶¶ 24, 27. Specifically, in McDonald, the plaintiff alleged that the
defendants committed a medical battery against her, but her claims turned on whether the
defendants’ conduct exceeded the parameters of the surgery to which the plaintiff consented.
We held that this presented an issue “beyond the ken of a layperson,” requiring expert
testimony about whether the use of certain implements was within the scope of the medical
procedure performed. Id. ¶ 27. We also concluded that the purpose of section 2-622
buttressed our holding: “Requiring compliance with section 2-622(a) of the Code under these
facts follows logically from the legislature’s intent to prevent frivolous lawsuits and ensure
that meritorious claims, bolstered by expert medical opinion, proceed past the pleading
stage.” Id. ¶ 28. McDonald further cautioned that a “ ‘plaintiff challenging an implicit part of
the medical treatment should not be able to avoid the requirement of an expert medical
opinion simply by claiming medical battery or something other than medical malpractice.’ ”
Id. (quoting Holzrichter, 2013 IL App (1st) 110287, ¶ 88).
¶ 29 McDonald thus teaches that a court will look beyond a party’s characterization of the
claim and will examine the underlying allegations or facts to determine whether they raise
issues requiring expertise to aid in the understanding of matters beyond the ken of
laypersons. With these principles in mind, we turn to plaintiff’s allegations.
¶ 30 Plaintiff alleged medical battery. Defendant conceded, by moving to dismiss pursuant to
section 2-619, that plaintiff stated a claim for medical battery, but defendant argued that the
claim was defeated because the allegations involved matters beyond the ken of laypersons
and required the report of a health professional pursuant to section 2-622. Plaintiff alleged
that both the prescription and the administration of Paxil and the other medications occurred
with a complete lack of consent. In the allegations common to all claims, plaintiff alleged
that he refused to be given any medications “without prior consent.” Plaintiff alleged that this
was reflected in his medical chart. Plaintiff alleged further that his medical chart forbade the
administration of Paxil in particular. Plaintiff alleged that he was given medications,
including Paxil, when he was in Mary B’s area and even when he was not in Mary B’s area.
Plaintiff alleged that all of the medications were administered without the consultation or
prior consent of himself, his authorized representatives, or his wife.
¶ 31 In count IX, plaintiff alleged specifically that defendant prescribed Paxil and other
medications without ever seeing or consulting with plaintiff, his authorized representatives,
or his wife. Further, “the prescription and resulting administration of the above-mentioned
medication to Plaintiff occurred with a complete lack of consent by plaintiff or his authorized
representatives to any treatment whatsoever by [defendant].” Additionally, defendant’s
prescribing and the resulting administering of the medications “occurred contrary to the
stated will of the Plaintiff and his authorized representatives in that his medical chart required
prior consent for such action.”
¶ 32 Taking the factual allegations as true, as we must, we believe that plaintiff has
successfully pleaded a complete lack of consent to the administration of the medications.
McDonald states that, “[i]n a medical battery case, an injured party can recover [for medical
battery] by establishing that (1) there was no consent to the medical treatment performed.”
McDonald, 2014 IL App (2d) 130401, ¶ 19. Plaintiff has alleged that he preemptively refused
all medications unless he or his authorized representatives were specifically consulted about
each and any proposed medication and that this prior refusal was indicated in his medical
chart, kept by Bickford. Notwithstanding this blanket refusal, plaintiff was routinely
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administered medications, including Paxil, about which he had not been consulted and to
which he had not consented. Likewise, his representatives also were not consulted about the
medications and they did not give consent on plaintiff’s behalf to the administration of the
medications.
¶ 33 These allegations are similar to those in Gragg v. Calandra, 297 Ill. App. 3d 639, 645
(1998). There, the plaintiff 2 did not consent to an operation and the subsequent
life-sustaining treatment, which were contrary to the plaintiff’s living will and his family’s
express wishes. The court held that, “[B]y stating that surgery and treatment were performed
without consent, plaintiff has stated a claim for medical battery.” Id. The court further held
that, because it was clear that the plaintiff did not allege any deviation from the appropriate
medical standards, the claim was not based upon medical or other healing arts malpractice
and was thus not subject to the requirements of section 2-622. Id. at 645-46. Likewise here.
Plaintiff alleged that he refused the administration of all medication without his or his
representatives’ prior consent, thereby pleading medical battery. Plaintiff did not allege that
any incorrect or inappropriate medication was prescribed and administered, so we do not see
any basis for the application of the requirements of section 2-622. Id.
¶ 34 We also note that, in McDonald, although the plaintiff pleaded claims of medical battery,
those claims did not allege a lack of consent but instead alleged that the treatment
substantially deviated from the consent granted. McDonald, 2014 IL App (2d) 130401, ¶ 21.
We held that this type of allegation sounds more in medical or other healing arts malpractice
and requires the input of a medical expert to opine whether the treatment as performed was
within the scope of the treatment consented to. Id. ¶ 27. In our case, by contrast, plaintiff did
not allege that he consented to the administration of a certain drug but was given a different
drug that provided similar effects. Instead, plaintiff alleged a complete lack of consent.
Accordingly, McDonald, while useful to understanding contours of the law in this area, is
factually distinguishable from this case and cannot guide our result.
¶ 35 Likewise, Holzrichter is similarly distinguishable. There, the plaintiff alleged that the
treatment he actually received deviated from the procedure to which he consented.
Holzrichter, 2013 IL App (1st) 110287, ¶ 98. The court held that the plaintiff had to comply
with the requirements of section 2-622 because the plaintiff’s allegations involved the proper
medical standard of care. Id. ¶ 100. Here, plaintiff did not allege that, although his medical
condition required the administration of certain medications, defendant administered
different medications. Rather, plaintiff alleged only that he did not consent to the
administration of any medications for any reason unless he or his authorized representatives
gave prior consent to it. By alleging a lack of consent rather than a deviation from consent
given, plaintiff remains outside of the requirements of section 2-622. Accordingly, we hold
that the trial court erred in dismissing count IX. We now turn to defendant’s specific
contentions regarding count IX.
¶ 36 Defendant first argues that “a claim that a health professional acted without the informed
consent of the patient is a type of malpractice claim,” citing McDonald, 2014 IL App (2d)
130401, ¶ 18. While this is a correct statement of law, it mischaracterizes plaintiff’s
allegations. As we have discussed, plaintiff did not plead a lack of informed consent, but
2
In Gragg, the plaintiff of record was the administrator of the estate of the daughter of the person
who received the medical treatment. For ease, we will simply refer to that person as “the plaintiff.”
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pleaded instead a complete lack of consent. This is key, because the cases distinguish
between a lack of consent for the contested act (generally battery) and a lack of informed
consent for the contested act (negligence). Doe v. Noe, 293 Ill. App. 3d 1099, 1113 (1997).
Accordingly, we reject defendant’s initial premise, that plaintiff was attempting to plead a
sort of negligence claim.
¶ 37 Defendant’s syllogism proceeds from the initial premise that plaintiff was pleading a
claim sounding in negligence to the contention that “[e]verything about the case at bar deals
with medical diagnosis and treatment beyond the ken of the average juror.” We disagree.
Defendant argues that, because plaintiff alleged that he “suffered from conditions including
Lewy Body Dementia, a debilitating illness similar to Parkinson’s Disease”; that his
authorized representatives had the authority “to make medical decisions on behalf of
Plaintiff”; and that defendant “authorized a prescription for Paxil and/or other medications,”
this case involves “medical diagnosis and treatment.” This argument does not scan.
¶ 38 Plaintiff alleged that he refused consent to any medication unless he or his authorized
representatives had given prior consent to that particular medication. Plaintiff did not allege
that he was given the wrong medications or that the medications had an unintended effect; he
alleged only that he was administered medications without his consent. None of plaintiff’s
allegations implicated the treatment the medications were meant to provide; he alleged only
that he was given the medications without his consent. None of plaintiff’s allegations
involved defendant diagnosing plaintiff with any condition; he alleged only that defendant
prescribed and caused the administration of medications without his consent. Contrary to
defendant’s contention, we discern nothing in plaintiff’s allegations that implicates an alleged
error in diagnosing plaintiff or providing his medical treatment. Instead, plaintiff steadfastly
alleged that he did not consent to taking any medications. Accordingly, we reject defendant’s
argument.
¶ 39 Defendant argues that several cases cited by plaintiff in support of his contention that
count IX is not subject to the requirements of section 2-622 do not themselves reference
section 2-622 and so are inapposite. If we agree with defendant, for the sake of argument, we
nevertheless arrive at the same conclusion. In reaching our determination above, we did not
rely on Gaskin v. Goldwasser, 166 Ill. App. 3d 996 (1988), Mink v. University of Chicago,
460 F. Supp. 713 (N.D. Ill. 1978), In re Estate of Allen, 365 Ill. App. 3d 378 (2006), or
Hernandez v. Schittek, 305 Ill. App. 3d 925 (1999). Accordingly, even if we accept that these
cases are entirely inapposite, such a conclusion does not avail defendant.
¶ 40 Defendant next challenges plaintiff’s argument that, in cases where the injury claims
involve medical care but are not beyond the ken of laypersons, section 2-622 does not apply.
As in the preceding paragraph, we do not need to pass on the propriety of such a principle.
Rather, by analyzing section 2-622, its purpose, and the law interpreting it, we have
concluded that, irrespective of any broad principle, plaintiff’s claim in count IX is not subject
to section 2-622. Accordingly, even if we agree with defendant that plaintiff has overstated
the holdings of the cases he cites and thus mistakenly drawn the challenged principle, we
have arrived at our conclusion from a different direction and rejecting plaintiff’s argument
would not affect our conclusion.
¶ 41 Defendant argues that plaintiff’s allegations raise issues of the proper standard of care for
persons with Lewy body dementia and whether Paxil is contraindicated for that condition.
We disagree. Plaintiff alleged that he did not consent to taking Paxil (or any other drugs
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administered to him) but was nevertheless given Paxil (and the other drugs). This does not
raise a standard-of-care issue or the issue of whether Paxil was appropriate for a patient with
plaintiff’s ailments. It instead avoids the issues sounding in the healing arts and raises solely
the question of whether defendant committed an unauthorized touching of plaintiff by
prescribing Paxil and the other drugs that were then administered to plaintiff. Accordingly,
the standard of care for Lewy body dementia and for the administration of Paxil and the other
drugs is not relevant.
¶ 42 In making the argument that plaintiff’s case involves medical diagnoses and medical
treatments beyond the ken of the average juror, defendant purports to distinguish the cases
plaintiff relies on. In particular, defendant contends that the facts in both Mooney v. Graham
Hospital Ass’n, 160 Ill. App. 3d 376 (1987), and Edelin v. Westlake Community Hospital, 157
Ill. App. 3d 857 (1987), are distinguishable from the facts of this case, because they involved
slips and falls and this case involves medical treatment. We note that we did not rely on
either Mooney or Edelin or on plaintiff’s interpretation of those cases. Thus, even if the two
cases are distinguishable, it does not affect our analysis. Moreover, because Mooney and
Edelin did not involve healing art malpractice, it appears that they would provide at least
minimal guidance in this case, which also does not involve healing art malpractice.
¶ 43 Defendant also purports to distinguish another case, Cohen v. Smith, 269 Ill. App. 3d
1087 (1995), although conceding that it is the case plaintiff cites that is most closely on point.
Once again, we did not rely on Cohen or plaintiff’s argument based on Cohen, so even if we
accepted defendant’s argument about its distinguishability, it would not be germane to our
analysis. Defendant also argues that plaintiff raises Cohen for the first time on appeal and
that both the trial court and defendant did not have an opportunity to consider or respond to
that case below. While defendant does not actually invoke waiver or forfeiture, he implies
that we should consider the point in Cohen waived or forfeited. Defendant cites no case
supporting his implied point that not only must an argument be raised before the trial court,
but the precise authority relied on to support the argument must also be raised below. We are
unaware of such a requirement and reject the point.
¶ 44 Additionally, we believe that Cohen is not distinguishable and offers substantial
guidance. In Cohen, the plaintiff had religious objections to being seen or touched by a
member of the opposite sex when she was unclothed, and she explained this to the hospital
staff as she was being readied for a cesarean section. Id. at 1088. A male nurse allegedly saw
and touched the plaintiff’s naked body, and the plaintiff sued for battery. Id. at 1089. The
appellate court noted that the plaintiff had not consented to the touching at issue and that she
plainly stated a claim for battery. However, because the conduct took place in a hospital, the
defendants sought to shield themselves from the claim by calling it a medical malpractice
claim. Id. at 1092-93. The court reasoned that in such a claim the plaintiff must allege facts
bringing the claim within healing arts malpractice, not simply allege that the conduct took
place in a hospital-like setting “or involved some medical treatment.” Id. at 1093. The court
held that, because the plaintiff alleged a battery, a section 2-622 report was unnecessary. Id.
¶ 45 Defendant seeks to distinguish Cohen on the ground that it involved a physical touching
by one of the defendants. Defendant is, of course, correct that Cohen involved physical
contact between one of the defendants and the plaintiff, while in this case there was no direct
physical contact between defendant and plaintiff. However, the point in Cohen was that the
plaintiff did not consent to the contact; likewise, here, plaintiff did not consent to the
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administration of the medications that were prescribed by defendant. In both cases, what
gave rise to the plaintiffs’ injuries was not the fact of the contact or the fact of administering
the medications, but the fact that the plaintiffs’ wills were ignored and the fact that conduct
occurred that they expressly forbade. Accordingly, we do not see the lack of direct physical
contact in this case as sufficiently distinguishing to make Cohen inapposite.
¶ 46 Defendant argues that he used his medical judgment in prescribing Paxil and the other
medications used on plaintiff and that it is the medical judgment that throws this case into the
realm of healing art malpractice. That argument might carry weight if plaintiff had alleged
that defendant gave him the wrong medications for his conditions. However, plaintiff alleged
that defendant ignored the fact that he did not consent to take any medication at all without
prior consultation and consent and that defendant neither consulted with plaintiff nor gained
(or even sought) his consent to the medications defendant prescribed and caused to be
administered. In that sense, this case closely parallels Cohen, and we reject defendant’s
contention.
¶ 47 Defendant also argues that this case “deals with the scope of the consent provided.” We
disagree. Plaintiff alleged that he withheld consent to the administration of any drug without
prior consent. There is no scope of consent where consent is categorically withheld. We
reject defendant’s attempt to recharacterize plaintiff’s actual allegations.
¶ 48 Moreover, defendant supports his contention not by citing the allegations common to
both claims or within the medical battery claim, but by citing an allegation within the civil
conspiracy claim. Defendant justifies this not by saying that a complaint should be read as a
whole, but by claiming that “a plaintiff ‘should not be able to avoid the requirement of an
expert medical opinion simply by claiming medical battery or something other than medical
malpractice,’ ” quoting Holzrichter, 2013 IL App (1st) 110287, ¶ 88. We fail to see how an
allegation wrenched from a different claim constitutes an attempt to avoid the applicability of
section 2-622 to a medical malpractice claim. Further, we do not believe that alleging a
complete lack of consent to the administration of any medication implicates healing art
malpractice. Accordingly, we reject defendant’s contention.
¶ 49 Defendant also argues that plaintiff alleged that a side effect of the medications
administered to him caused his injuries. We do not accept that characterization. Plaintiff
alleged that he was injured due to defendant’s conduct of prescribing the medications and
causing them to be administered to him without his consent. Thus, plaintiff alleged that the
injuries stemmed from the nonconsensual prescription and administration of the medications.
Section 2-622 applies only where a plaintiff is seeking “damages for injuries *** [caused] by
reason of medical, hospital, or other healing art malpractice.” 735 ILCS 5/2-622(a) (West
2014). Plaintiff seeks to recover damages not for injuries that were caused by medical,
hospital, or other healing art malpractice, but for injuries that were caused by a battery
committed in a healing art setting; consequently, section 2-622 does not apply to plaintiff’s
claim of medical battery. Accordingly, we hold that the trial court erred in dismissing
plaintiff’s claim of medical battery and we reverse its judgment on that issue.
¶ 50 B. Propriety of Pleading Punitive Damages
¶ 51 Relying on Voyles v. Sandia Mortgage Corp., 311 Ill. App. 3d 649, 659-60 (2000), rev’d
on other grounds, 196 Ill. 2d 288 (2001), plaintiff next argues that, because he pleaded a
claim for the intentional tort of medical battery, his request for punitive damages was not
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subject to section 2-604.1 of the Code (735 ILCS 5/2-604.1 (West 2014)). Plaintiff concludes
that the trial court thus erred in striking his request for punitive damages. Plaintiff’s
contention raises a point of statutory interpretation, which presents a question of law and
which we review de novo. Hooker v. Retirement Board of the Firemen’s Annuity & Benefit
Fund, 2013 IL 114811, ¶ 15.
¶ 52 Section 2-604.1 provides, pertinently: “In all actions on account of bodily injury or
physical damage to property, based on negligence, or product liability based on any theory or
doctrine, where punitive damages are permitted no complaint shall be filed containing a
prayer for relief seeking punitive damages.” 735 ILCS 5/2-604.1 (West 2014). Plaintiff’s
argument appears to be firmly rooted in the pertinent language of section 2-604.1. The
cardinal principle of statutory interpretation is to ascertain and give effect to the intent of the
legislature. Krautsack v. Anderson, 223 Ill. 2d 541, 552-53 (2006). The best indication of that
intent is the language used in a provision, given its plain and ordinary meaning. Id. at 553.
Further, if the statutory language is clear and unambiguous, it will be given effect without
resort to other aids of construction. Illinois State Treasurer v. Illinois Workers’ Compensation
Comm’n, 2015 IL 117418, ¶ 21.
¶ 53 The operative language of section 2-604.1 states that “[i]n all actions *** based on
negligence *** no complaint shall be filed containing a prayer for relief seeking punitive
damages.” 735 ILCS 5/2-604.1 (West 2014). The remainder of the passage modifies the
operative language. The phrase, “on account of bodily injury or physical damage to
property,” modifies “actions.” Id. Likewise, the phrase, “where punitive damages are
permitted,” modifies “actions.” Id. Finally, the provision prohibits filing a complaint in an
action based on negligence “containing a prayer for relief seeking punitive damages.” Id.Based on this analysis of the elements of the pertinent and operative language of section
2-604.1, we agree with plaintiff that the provision applies only to a negligence or product
liability action and not to any other type of action, such as an intentional tort.
¶ 54 Plaintiff relies on Voyles, 311 Ill. App. 3d at 659-60, in which this court held that section
2-604.1 did not apply to an action for an intentional tort, intentional interference with
prospective economic advantage. Voyles was reversed by our supreme court (Voyles, 196 Ill.
2d 288), but the supreme court did not mention section 2-604.1, let alone engage in an
analysis of the provision. Instead, the court held that the plaintiff had not made a sufficient
showing of all of the elements of the alleged cause of action. Id. at 301. Thus, the reversal in
Voyles did not reach our analysis regarding section 2-604.1.
¶ 55 We note that the First District Appellate Court, in LaSalle National Bank v. Willis, 378 Ill.
App. 3d 307, 327 (2007), held that the supreme court’s holding in Voyles entirely abrogated
our decision, including our conclusion as to the nonapplicability of section 2-604.1. We also
note, however, that Willis did not itself undertake an analysis of section 2-604.1, and that it
appears to have conflated our analysis of section 2-604.1 (Voyles, 311 Ill. App. 3d at 659-60)
with the supreme court’s review of the sufficiency of the elements of the cause of action
(Voyles, 196 Ill. 2d at 301). Willis, 378 Ill. App. 3d at 327. With this said, we will accept, for
the sake of argument, that plaintiff’s reliance on Voyles, 311 Ill. App. 3d at 659-60, is at least
suspect. Taking away the prop of Voyles results in no harm to plaintiff’s argument because,
as we have demonstrated above (supra ¶ 53), simply reading the pertinent and operative
language of section 2-604.1 results in the conclusion that it applies only to negligence-based
causes of action.
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¶ 56 Notwithstanding our analysis of the provision, we further note that it has been held that
section 2-604.1 applies to the entire action, so a request for punitive damages is not allowed
where even part of the complaint sounds in negligence. Willis, 378 Ill. App. 3d at 326; Penn
v. Gerig, 334 Ill. App. 3d 345, 356 (2002); McCann v. Presswood, 308 Ill. App. 3d 1068,
1072 (1999). Willis and Penn both offer only citation to McCann and do not undertake any
sort of additional analysis of section 2-604.1. Willis, 378 Ill. App. 3d at 326; Penn, 334 Ill.
App. 3d at 356. McCann views the section 2-604.1 reference to “actions” as referring to
complaints rather than the counts of a complaint. McCann, 308 Ill. App. 3d at 1072. We
think that “actions” might be a little less clear and more flexible than McCann seems to
believe. While “action” may refer to a complaint, it may also refer to a cause of action or
claim (or, as in McCann, count). This is especially evident if a plaintiff were to engage in
alternative pleading and set forth a claim based on negligence and, alternatively, a claim
based on an intentional tort: it would not make sense, based on our reading of section 2-604.1
as not applying to intentional torts, to preclude a request for punitive damages in a claim for
an intentional tort simply because the plaintiff chose to also plead a claim sounding in
negligence. We do not need to determine, however, whether we will follow McCann, Penn,
and Willis, because, in this case, plaintiff has not pleaded any negligence-based claims;
plaintiff has pleaded only intentional-tort-based claims, so McCann (and Penn and Willis) are
simply not applicable.
¶ 57 Defendant argues that the allegations of plaintiff’s medical battery claim “necessarily
implicate medical judgment, and thus fall within a claim of medical negligence,” thus
requiring the application of section 2-604.1. Defendant accuses plaintiff of being
disingenuous because plaintiff alleged that defendant’s “course of action in prescribing and
facilitating the administration of medications to Plaintiff *** was committed with actual
malice, deliberate violence, and/or with such gross negligence as to indicate a wanton
disregard of Plaintiff’s rights.” Apparently, defendant’s accusation of disingenuousness
stems from plaintiff’s word choice and including the terms “negligence” and “wanton” in the
allegation. However, this allegation does not invoke negligence; rather, it describes
defendant’s alleged conduct as sufficiently egregious to qualify for an award of punitive
damages. Our examination of the two counts against defendant reveals that, contrary to
defendant’s contention, only intentional torts are pleaded. Gragg, 297 Ill. App. 3d at 645
(intentional tort of medical battery is defined by the injured party’s total lack of consent to a
medical procedure); McClure v. Owens Corning Fiberglas Corp., 188 Ill. 2d 102, 133 (1999)
(civil conspiracy is an intentional tort). Further, our examination of the second amended
complaint as a whole also reveals that plaintiff’s claims do not sound in negligence, so Willis,
Penn, and McCann do not apply. Accordingly, we reject both defendant’s contention and his
ad hominem attack on plaintiff.
¶ 58 Defendant also argues that the trial court appropriately struck the request for punitive
damages, because the claim for medical battery was not properly pleaded owing to plaintiff’s
failure to comply with the requirements of section 2-622. This argument does not actually
address any issues under section 2-604.1. In any event, the argument fails because we held
above that plaintiff’s claim for medical battery is not subject to section 2-622, and so it was
properly pleaded.
¶ 59 Ultimately, then, we are left with the plain language of the provision, which applies only
to actions or claims sounding in negligence, and the fact that plaintiff’s claims do not sound
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in negligence. Based on our consideration above, we hold that section 2-604.1 is not
applicable under the facts alleged in this case and that the trial court erred in striking
plaintiff’s request for punitive damages.
¶ 60 C. Adequacy of Civil Conspiracy Claim
¶ 61 Plaintiff argues that the trial court erred in dismissing his claim of civil conspiracy (count
X) for failing to state a claim pursuant to section 2-615 (735 ILCS 5/2-615 (West 2014)).
Plaintiff argues that his allegations satisfied the pleading requirements for a civil conspiracy
claim. Defendant argues that plaintiff failed to identify the relationship between himself and
Bickford, the duty that defendant owed to plaintiff, and why, how, or when defendant
became involved with plaintiff. We begin by considering the elements necessary to plead a
claim of civil conspiracy.
¶ 62 The elements of civil conspiracy are (1) a combination of two or more persons (2) for the
purpose of accomplishing by some concerted action either an unlawful purpose or a lawful
purpose by unlawful means (3) in the furtherance of which one of the conspirators committed
an overt tortious or unlawful act. Fritz v. Johnston, 209 Ill. 2d 302, 317 (2004). A civil
conspiracy claim extends liability in tort beyond the active tortfeasor to those who have
planned, assisted, or encouraged the tortfeasor’s conduct. Adcock v. Brakegate, Ltd., 164 Ill.
2d 54, 62 (1994). The agreement between the conspirators does not take on the same
importance as in a criminal conspiracy. Id. at 62-63. An agreement to commit a wrongful act
is not a tort, even if that agreement might be a crime. Id. at 63. An action for civil conspiracy
exists only if one of the parties to the agreement commits a tortious act in furtherance of the
agreement; the gist of the claim of civil conspiracy is not the agreement, but the tortious act
carried out in furtherance of the agreement. Id. It is only when the tort is committed that the
conspirators who have not acted but have promoted the act will be held liable. Id.¶ 63 With these principles in mind, we turn to plaintiff’s allegations. Plaintiff alleged that the
scheme between defendant and Bickford was to improperly chemically restrain plaintiff to
make it easier for the staff at Bickford to deal with him. To that end, Bickford used defendant
to prescribe for plaintiff medications with the desired effect of acting as a chemical restraint.
Plaintiff alleged that the conduct violated the Nursing Home Care Act. Because both
Bickford and defendant were acting toward the purpose of chemically restraining plaintiff,
they were acting in concert. Plaintiff alleged that the overt acts were the prescription of the
medications by defendant and the administration of them by Bickford under defendant’s
auspices.
¶ 64 Defendant contends that these allegations are insufficient to state a claim. First, defendant
argues that the allegations are conclusory. Defendant argues, citing Fritz, 209 Ill. 2d at 318,
that the allegations amount only to a statement that defendant and Bickford conspired, which
is insufficient. We disagree.3 Plaintiff is required to allege facts, but need allege only the
ultimate facts that must be proved, not evidentiary facts. Chandler v. Illinois Central R.R. Co.,
207 Ill. 2d 331, 348 (2003). We determine that plaintiff has sufficiently pleaded factual
allegations to support his claim. Accordingly, we reject defendant’s argument that plaintiff’s
allegations are conclusory.
3
Defendant has correctly cited Fritz, but the case is inapposite.
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¶ 65 Defendant contends that plaintiff did not allege the nature of any relationship between
defendant and Bickford. Defendant contends that plaintiff did not specify when defendant
and Bickford supposedly formed the civil conspiracy or why. Defendant elaborates that
plaintiff did not allege that defendant had access to plaintiff’s medical chart, that he was
advised that plaintiff specifically was not to take Paxil, or that prior consent was required
before any medication could be administered. Finally, defendant argues that plaintiff did not
allege that defendant committed any unlawful act or that he committed any lawful act by
unlawful means. We disagree.
¶ 66 The nature of defendant’s relationship with Bickford, vis-à-vis plaintiff, is apparent in the
allegations. Plaintiff alleged that Bickford called upon defendant when plaintiff was deemed
a burdensome patient and that Bickford wished to chemically restrain plaintiff. The
implication arising from these allegations is that defendant was the physician to whom
Bickford turned when a burdensome patient needed to be neutralized. Thus, we believe that
the nature of the relationship, to the extent that it needs to be alleged, can be inferred from
plaintiff’s allegations.
¶ 67 Defendant’s contention that plaintiff did not allege any connection between plaintiff and
defendant does not, in our estimation, cut against the viability of the claim; rather it supports
the inference of an agreement between Bickford and defendant to chemically restrain
plaintiff. Plaintiff alleged that he never saw, consulted, or had contact with defendant, yet
defendant prescribed various medications to plaintiff. This unusual circumstance is
inexplicable unless defendant and Bickford had some agreement that defendant would
prescribe medications that Bickford wanted, such as medications that would have the effect
of chemically restraining a patient, even in the absence of a doctor-patient relationship. On
the other hand, if defendant had a relationship with plaintiff, then the conspiracy claim would
likely face an insuperable hurdle because it would not be at all unusual for a doctor to
prescribe medications to his patient. Similarly, defendant’s assertion that plaintiff did not
allege that defendant even had access to plaintiff’s medical chart reinforces the conclusion
arising from the lack of a doctor-patient relationship: that defendant was at Bickford’s beck
and call to prescribe medications when Bickford wished to minimize the burden plaintiff
posed to its staff.
¶ 68 Plaintiff also alleged that Bickford violated the Nursing Home Care Act by administering
the medications prescribed by defendant. This satisfies the unlawful act element of the claim
and rebuts defendant’s contention that plaintiff did not allege that element.
¶ 69 Defendant raises specific issues with plaintiff’s allegations, and we discuss these in turn.
Defendant first notes that an “agreement” is a necessary element of a civil conspiracy cause
of action. Proof of an agreement includes the defendant’s knowing and voluntary
participation in a common scheme to commit an unlawful act or a lawful act in an unlawful
manner. McClure, 188 Ill. 2d at 133. Accidental, inadvertent, or negligent participation in a
common scheme does not amount to conspiracy; likewise, the innocent performance of an act
that fortuitously furthers the tortious purpose of another is not actionable under the theory of
conspiracy. Defendant contends that the allegations here do not suggest that his conduct was
anything other than innocent, inadvertent, or, worst case, negligent.
¶ 70 Defendant first points out that plaintiff alleged that Bickford, not he, possessed plaintiff’s
medical chart and that defendant had never met plaintiff. Defendant asks why he would have
entered a conspiracy to chemically restrain a patient he had never met. Defendant
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misapprehends the significance of the allegations he highlights. Indeed, the rational question
is why a doctor would enter a prescription for a patient he had never met. The answer, and
this is fairly implied by plaintiff’s complaint, is that the doctor is getting something in return.
Generally, the doctor gets the patient’s fees, but in this case the allegations imply that
defendant received something from Bickford. In other words, defendant agreed to perform
services for Bickford, specifically to prescribe medications that had the effect of chemically
restraining plaintiff, and thus was born the agreement at the foundation of the conspiracy.
Viewed in the light most favorable to plaintiff, the allegations and the resulting inferences are
sufficient to satisfy the agreement element of the claim of a civil conspiracy.
¶ 71 Defendant faults plaintiff for not pleading the dates when Paxil and the other medications
were prescribed. We do not view this as fatal. Plaintiff has alleged the existence of a general
agreement for defendant to prescribe Paxil and the other medications in order to chemically
restrain plaintiff for the ease of Bickford’s staff in dealing with plaintiff. Plaintiff alleged or
implied that this conduct occurred frequently during his stay at the Bickford facility. This is
sufficient. The dates and times are the sort of evidentiary facts that need not be pleaded.
Chandler, 207 Ill. 2d at 348.
¶ 72 Defendant also contends that the allegation of an unlawful act is insufficient. Defendant
argues that the only unlawful act alleged is the violation of the Nursing Home Care Act,
which does not apply to individuals. See Childs v. Pinnacle Health Care, LLC, 399 Ill. App.
3d 167, 180 (2010) (Nursing Home Care Act does not apply to individuals or individual
healthcare providers). Defendant claims that he “cannot conspire to commit an illegal act if
the law is not applicable to him.” This is flatly incorrect.4 The purpose of a civil conspiracy
claim is to reach beyond the tortfeasor to others who helped to plan, implement, and
encourage the unlawful act; there is no requirement that such a party actually committed the
tort him- or herself, only that a tort was ultimately committed. Adcock, 164 Ill. 2d at 63.
Here, plaintiff has alleged that defendant contributed to the violation of the Nursing Home
Care Act by prescribing medications having the effect of chemically restraining him and that
Bickford administered the medications in violation of the Nursing Home Care Act. This is
adequate at this stage in the proceedings. As Adcock noted, the gist of a conspiracy claim is
the tortious act furthering the conspiratorial agreement. Id. Liability is imposed on a
conspirator who did not perform the act. Id. Here, plaintiff alleged that defendant
participated, but personally did not violate, the Nursing Home Care Act. Instead, Bickford
violated the Nursing Home Care Act, thereby triggering liability for defendant. We reject
defendant’s contention.
¶ 73 Defendant argues that there must be an independent cause of action on which to base a
claim of civil conspiracy. See Indeck North American Power Fund, L.P. v. Norweb PLC, 316
Ill. App. 3d 416, 432 (2000) (“a conspiracy is not an independent tort”; if “a plaintiff fails to
state an independent cause of action underlying its conspiracy allegations, the claim for a
conspiracy also fails”). However, plaintiff alleged that Bickford violated the Nursing Home
4
We note that, in support of this claim, defendant cites Eads v. Heritage Enterprises, Inc., 204 Ill.
2d 92, 108-09 (2003), and Childs, 399 Ill. App. 3d at 180. But these cases deal only with whether
individuals other than the owners and operators of nursing homes are liable under the Nursing Home
Care Act, and they do not stand for the proposition that a defendant’s liability for conspiracy depends
on whether the statute violated applies to the defendant individually.
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Care Act, and this is the independent cause of action that underlies the conspiracy claim
against defendant. See Kalata v. Anheuser-Busch Cos., 144 Ill. 2d 425, 434 (1991) (violation
of a statute designed to protect human life is tortious conduct). Plaintiff has alleged an
underlying independent cause of action on which to base his claim of civil conspiracy. We
reject defendant’s argument.
¶ 74 We have rejected defendant’s arguments against the sufficiency of plaintiff’s claim of
civil conspiracy. We conclude that plaintiff has sufficiently alleged each element necessary
to state a claim of civil conspiracy. Accordingly, we hold that the trial court erred in
dismissing plaintiff’s claim of civil conspiracy (count X) for failure to state a claim.
¶ 75 III. CONCLUSION
¶ 76 For the foregoing reasons, the judgment of the circuit court of Kane County is reversed
and the cause is remanded for further proceedings consistent with this opinion.
¶ 77 Reversed and remanded.
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