Kreisman Law Offices Professional Corporation
Edward Fiala and his wife were residents of Bickford Senior Living Group. He was confined to a wheelchair and suffered from a disorder that affected his motor control and cognition. The healthcare power of attorney was held by Fiala and his children. The nursing home staff from the beginning of his residency were instructed that Fiala was not to get any medicine without their prior consent and that Paxil specifically was prohibited. These instructions were made apparent in Fiala’s nursing home medical chart.
In spite of that specific instruction, the nursing home staff members, who found Fiala difficult, administered Paxil and other medicines from time to time. There was no prior consent to allow it over the original instructions prohibiting it.
Fiala believed that the staff gave him medication to chemically sedate him to make him easier to work with. Sometimes, the drugs left him in a catatonic state. Other times the medicine caused him to be agitated and behave violently.
Fiala filed a lawsuit against the nursing home claiming improper administration of medications. In response to that lawsuit, the nursing home argued to the trial judge that it had an arbitration agreement with Fiala so his claims could not be heard in court. The trial judge agreed and so did a subsequent appellate court.
When the case was remanded to the trial court, Fiala added another claim of medical battery against the doctor who prescribed the Paxil and other medicines. Fiala also added a claim of civil conspiracy against the same doctor and nursing home and requested punitive damages. The trial judge dismissed the added claims on the defendants’ motion.
The trial judge dismissed the claim of medical battery pursuant to Section 2-619 of the Illinois Code of Civil Procedure. The court found that Fiala had chosen not to attach to his complaint a Section 2-622 report, an affidavit from the plaintiff’s attorney, stating that he consulted with a physician who found in a written report that there was a reasonable and meritorious cause for filing the lawsuit.
The requirement of Section 2-622 report depends on the underlying claims and their facts. The presentation of the claim doesn’t matter. Whether the conduct at issue involves questions about the standard of medical care or whether there are complicated medical issues that require expert testimony to explain them is the deciding issue on whether a Section 2-622 report is required as a condition precedent in filing the lawsuit.
The important distinction between complete lack of consent and lack of informed consent or deviation from the consent granted are different. An example of complete lack of consent case was one in which the plaintiff’s decedent refused surgery that nevertheless went forward. The patient alleged that the surgeon did unauthorized things during the surgery, which was a case of deviation from the consent granted. In a case where no consent was granted but surgery went forward, no Section 2-622 report would be necessary. However, when the patient claimed that a surgeon did things during the surgery that were not authorized, a 622 report would be necessary.
The defendants in this case argued that since Fiala suffered from medical conditions, since there were issues of medical authorization and since the case involved allegations of prescription medicine, the case involved medical diagnosis and treatment, which required a Section 2-622 report.
The Fiala case is one in which the real issue is whether the defendants were authorized to administer medications prohibited by the patient’s instructions. Nothing about prescribing the Paxil or other medications was a deviation from the standard of care or related to diagnosis or treatment. The court compared the situation to a case in which a woman undergoing a medical procedure at a hospital informed the staff that because of her religious following, she could not be seen or touched by a member of the opposite sex. When she learned that this had happened in spite of her instruction, she filed a medical battery claim.
Even though the procedure took place in a setting that involved doctors and hospitals, it did not involve questions about medical treatment and diagnosis. It was a question of unauthorized touching. That case, a battery claim, did not require a Section 2-622 report.
Under Illinois civil practice, a plaintiff cannot allege in a negligence action punitive damages unless an order has been entered allowing it. Section 2-604.1 of the Illinois Code of Civil Procedure requires that a complaint seeking punitive damages cannot be filed without leave of court.
Because Fiala complained of a battery, which is an intentional tort and not negligence, that section of the Code of Civil Procedure did not apply. In addition, since no part of the plaintiff’s complaint sounded in negligence, Section 2-604.1 did not apply. Since all of Fiala’s claims were of intentional torts, he was allowed to plead a claim for punitive damages without a court order or before seeking leave of court to file such a claim.
With respect to the Fiala allegation of civil conspiracy, the trial judge dismissed the count under Section 2-615 for failure to state a cause of action for which relief could be granted. The appeals panel found this to be in error.
A civil conspiracy claim has three basic elements. There must be a combination of two or more actors. The actors must be working together to accomplish an unlawful purpose. At least one of the actors needs to have committed a tort or unlawful act in furtherance of the unlawful purpose.
The court found that Fiala’s complaint properly alleged all of these elements. He claimed that the doctor’s actions were in furtherance of a scheme with the nursing home to chemically restrain him in violation of the Illinois Nursing Home Care Act. The civil conspiracy claim was supported by alleged facts that the doctor had never interacted with Fiala but still prescribed the medications. It is implied that the doctor — by doing so — was receiving something in return. The appellate court thus reversed the trial judge’s decision to remand the case for further proceedings.
Fiala v. Bickford Senior Living Group, LLC, 2015 IL App (2d) 150067.
Kreisman Law Offices has been handling nursing home abuse cases, nursing home negligence cases and medical negligence cases for individuals and families who have been injured or killed by the negligence of a medical provider for more than 40 years, in and around Chicago, Cook County and its surrounding areas including, Melrose Park, Schiller Park, Bensenville, Wood Dale, Villa Park, Oakbrook Terrace, Yorkfield, Countryside, Western Springs, Willowbrook, Hickory Hills, Palos Hills, Chicago Ridge, Burr Ridge, Midlothian, Harvey and Riverdale, Ill.
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