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                                  Appellate Court                           Date: 2018.02.08
                                                                            14:59:06 -06'00'



                      Ripes v. Schlechter, 2017 IL App (1st) 161026



Appellate Court       ELIZABETH RIPES, Plaintiff-Appellant, v. BENJAMIN
Caption               SCHLECHTER and NORTH SHORE AESTHETICS, P.C.,
                      Defendants-Appellees.



District & No.        First District, Second Division
                      Docket No. 1-16-1026



Rule 23 order filed   March 29, 2017
Motion to publish
allowed               June 2, 2017
Opinion filed         October 17, 2017



Decision Under        Appeal from the Circuit Court of Cook County, No. 15-L-6456; the
Review                Hon. Patrick J. Sherlock, Judge, presiding.



Judgment              Affirmed.


Counsel on            Mulligan Law, LLC, of Chicago (Michael T. Mulligan, of counsel),
Appeal                for appellant.

                      Cunningham, Meyer & Vedrine, P.C., of Warrenville (Scott A.
                      Herbert, Todd W. Hunnewell, and Robert L. Larsen, of counsel), for
                      appellees.
     Panel                    JUSTICE PUCINSKI delivered the judgment of the court, with
                              opinion.
                              Justices Fitzgerald Smith and Cobbs concurred in the judgment and
                              opinion.



                                               OPINION

¶1         Plaintiff, Elizabeth Ripes, filed a complaint alleging breach of contract, medical battery,
       and a violation of the Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud
       Act or Act) (815 ILCS 505/1 et seq. (West 2012)) against defendants Dr. Benjamin Schlechter
       and North Shore Aesthetics, P.C. (North Shore or North Shore Aesthetics) following an errant
       plastic surgery procedure. Defendants filed a motion to dismiss Ripes’s filing, which the
       circuit court granted. Ripes appeals the circuit court’s ruling, arguing that the court erred in
       concluding that she was required to submit an affidavit in accordance with section 2-622 of the
       Code of Civil Procedure (Code or Civil Code) (735 ILCS 5/2-622 (West 2012)) and in finding
       that she failed to state a valid cause of action under the Consumer Fraud Act. For the reasons
       explained herein, we affirm the judgment of the circuit court.

¶2                                          BACKGROUND
¶3         On October 9, 2014, plaintiff Ripes underwent several plastic surgery procedures. The
       procedures were performed by defendant Dr. Schlechter, a licensed plastic surgeon and the
       president of North Shore Aesthetics. Thereafter, on June 24, 2015, Ripes filed a complaint
       alleging claims of breach of contract, medical battery, and consumer fraud. In her complaint,
       Ripes alleged that on September 7, 2014, she attended a consultation with Dr. Schlechter at his
       office at North Shore Aesthetics “to inquire about obtaining various plastic surgery
       procedures, one of which included removing [her] existing breast implants,” which had been
       placed above the pectoral muscle “and replacing them with new implants.” Ripes further
       alleged that she “specifically requested, and [Dr. Schlechter] agreed, that the new implants
       would be placed below the pectoral muscle.” Following the consultation, Ripes agreed to pay
       Dr. Schlechter $17,000 to perform the requested procedures and a formal written surgery
       proposal was drawn up that itemized the procedures that Ripes had requested. The proposal,
       which was attached to Ripes’s complaint, reflected that Dr. Schlechter was to remove Ripes’s
       existing “intact mam[mary] implant[s]” and to perform a “mammaplasty augmentation w[ith]
       prosth[etic] implant.” Although the proposal did not specify the placement of Ripes’s new
       implants, she alleged that she and Dr. Schlechter “verbally agreed and understood that the
       implants would be placed below the pectoral muscle.” In contravention of this agreement,
       Ripes alleged that when Dr. Schlechter performed the procedure on October 9, 2014, he placed
       her new implants above the pectoral muscle. This was done “contrary to [Ripes’s]
       understanding and consent” and “contrary to the parties’ agreement.” The procedure and the
       purported improper placement of Ripes’s new breast implants formed the basis for her breach
       of contract, medical battery, and consumer fraud claims.
¶4         Defendants responded with a motion to dismiss Ripes’s complaint. In their motion,
       defendants argued that, notwithstanding the terminology Ripes employed in her complaint, her

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       filing essentially sounded in medical healing arts malpractice. As a result, defendants argued
       that plaintiff was required to submit an affidavit and report completed by a licensed medical
       professional, attesting that her claims had merit in accordance with the pleading requirements
       set forth in section 2-622 of the Civil Code (735 ILCS 5/2-622 (West 2012)). According to
       defendants, Ripes’s failure to include such an affidavit required dismissal of her entire
       complaint. Defendants further argued that plaintiff’s Consumer Fraud Act claim failed as a
       matter of law because a claim under the Act only applies to deceptive acts committed in the
       context of trade or commerce and the practice of medicine is not a type of trade of commerce
       covered by the Act.
¶5          In response, Ripes disputed defendants’ characterization of her complaint and argued that
       her filing did not, as defendants’ contended, sound in medical healing arts malpractice. As a
       result, Ripes argued that her complaint was not subject to the pleading requirements of section
       2-622 of the Code. Ripes further argued that her Consumer Fraud Act claim did not fail as a
       matter of law because Dr. Schlechter employed deception and engaged in a deceptive business
       practice when he agreed to place her new breast implants below the pectoral muscle but then
       failed to do so.
¶6          The circuit court, after considering the arguments of the parties, issued a detailed written
       order, granting defendants’ motion to dismiss Ripes’s complaint. In doing so, the court found
       that counts I and II of plaintiff’s complaint, alleging breach of contract and medical battery,
       respectively, both sounded in medical healing arts malpractice, and as result, plaintiff was
       subject to the pleading requirements set forth in section 2-622 of the Code. The court
       concluded that the absence of a section 2-622 affidavit warranted dismissal of both counts
       without prejudice. With respect to count III, plaintiff’s Consumer Fraud Act claim, the court
       concluded that “the practice of medicine [wa]s not a trade or commerce” and that the Act
       therefore did not apply to the provision of medical services. The court thus dismissed Ripes’s
       Consumer Fraud Act claim with prejudice.
¶7          Ripes responded with a motion to reconsider, which the circuit court denied in another
       detailed written order. Thereafter, Ripes declined to file an amended complaint with a section
       2-622 affidavit and, instead, elected to stand on her original complaint. As a result, the circuit
       court entered a written order dismissing plaintiff’s entire complaint with prejudice. This appeal
       followed.

¶8                                              ANALYSIS
¶9                                 Section 2-622 Affidavit Requirement
¶ 10       On appeal, Ripes argues that the circuit court erred in finding that her complaint alleged
       claims of “healing art malpractice,” which were required to be supported by an affidavit in
       accordance with section 2-622 of the Civil Code. She submits that neither her breach of
       contract claim nor her medical battery claim sounded in medical healing art malpractice and, as
       a result, a section 2-622 affidavit was not required.
¶ 11       Defendants respond that the circuit court properly granted their motion to dismiss Ripes’s
       complaint. Notwithstanding the caption employed by plaintiff in the first two counts of her
       complaint, defendants argue that her claims for breach of contract and medical battery both
       sounded in medical healing art malpractice, and as a result, she was required to submit an
       affidavit and report by a licensed physician attesting to the merit of her cause of action in
       accordance with the requirements set forth in section 2-622 of the Civil Code. Defendants

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       maintain that the circuit court properly concluded that Ripes’s failure to meet section 2-622’s
       pleading requirements warranted dismissal of her claims.
¶ 12       A motion filed in accordance with section 2-619.1 of the Civil Code allows a party to file a
       combined motion to dismiss pursuant to sections 2-615 and 2-619 of the Code (735 ILCS
       5/2-615, 2-619 (West 2012)). 735 ILCS 5/2-619.1 (West 2012). Patrick Engineering, Inc. v.
       City of Naperville, 2012 IL 113148, ¶ 31. A motion filed pursuant to 2-615 of the Code
       challenges the legal sufficiency of the complaint based on defects that are apparent on its face.
       City of Chicago v. Beretta U.S.A. Corp., 213 Ill. 2d 351, 364 (2004). A motion to dismiss
       pursuant to section 2-619 of the Code, in turn, admits the legal sufficiency of the complaint but
       alleges that an affirmative matter defeats the claim contained therein. Patrick Engineering,
       2012 IL 113148, ¶ 31. When reviewing motions brought pursuant to either section, the court
       must accept as true all well-pleaded facts as well as all of the reasonable inferences that arise
       therefrom and disregard any conclusions that are not supported by allegations of fact. Id.;
       Morris v. Harvey Cycle & Camper, Inc., 392 Ill. App. 3d 399, 402 (2009). Dismissals entered
       in accordance with either code section are subject to de novo review. Patrick Engineering,
       2012 IL 113148, ¶ 31; Purmal v. Robert N. Wadington & Associates, 354 Ill. App. 3d 715, 720
       (2004). The failure to file an affidavit or report in accordance with section 2-622 of the Code is
       an appropriate ground for the dismissal of a complaint sounding in “medical, hospital, or other
       healing art malpractice.” 735 ILCS 5/2-622(g) (West 2012); Jacobs v. Rush North Shore
       Medical Center, 284 Ill. App. 3d 995, 997 (1996).
¶ 13       Section 2-622 of the Civil Code provides as follows:
                   “§ 2-622. Healing art malpractice.
                   (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, or 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 who the affiant reasonably believes: (i) is knowledgeable 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 the
                   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 podiatrist, 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

                                                     -4-
                   profession of the reviewing health professional. 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.” 735 ILCS 5/2-622(a)(1) (West 2012).
¶ 14       Section 2-622’s pleading requirements were designed to reduce the number of frivolous
       medical malpractice lawsuits that are filed at an early stage before the expenses associated with
       such litigation mount. Sullivan v. Edward Hospital, 209 Ill. 2d 100, 116-17 (2004); Schroeder
       v. Northwest Community Hospital, 371 Ill. App. 3d 584, 595 (2006); Hobbs v. Lorenz, 337 Ill.
       App. 3d 566, 569 (2003). In accordance with the plain language of this provision, section
       2-622’s pleading requirements applied to all claims premised on medical, hospital, or other
       healing art malpractice. 735 ILCS 5/2-622(a)(1) (West 2012). It is well-settled, however, that
       not every act or omission committed by a physician or hospital constitutes medical, hospital or
       other healing art malpractice. Milos v. Hall, 325 Ill. App. 3d 180, 183 (2001). Nonetheless,
       courts construing section 2-622 of the Code have held that the phrase must be interpreted
       “broadly” when determining the applicability of section 2-622’s affidavit requirement to a
       particular cause of action. Id.; Woodard v. Krans, 234 Ill. App. 3d 690, 703 (1992). In
       particular, “the phrase ‘healing art’ should be given broad application encompassing ‘an entire
       branch of learning dealing with the restoration of physical or mental health.’ ” Jackson v.
       Chicago Classic Janitorial & Cleaning Service, Inc., 355 Ill. App. 3d 906, 911 (2005) (quoting
       Lyon v. Hasbro Industries, Inc., 156 Ill. App. 3d 649, 654 (1987)). Because the plain language
       of section 2-622 does not limit the affidavit requirement solely to ordinary medical malpractice
       claims arising in a hospital setting (Holzrichter v. Yorath, 2013 IL App (1st) 110287, ¶ 93),
       courts must consider the underlying nature of the plaintiff’s claim to determine whether a
       particular cause of action, regardless of how it is captioned in the plaintiff’s complaint, sounds
       in medical healing art malpractice (Jackson, 355 Ill. App. 3d at 913; Milos, 325 Ill. App. 3d at
       183; see also Fiala v. Bickford Senior Living Group, LLC, 2015 IL App (2d) 150067, ¶ 29
       (recognizing that “a court will look beyond a party’s characterization of the claim and will
       examine the underlying allegations or facts” to determine whether a claim is subject to section
       2-622’s pleading requirements)). Accordingly, courts that have applied this rule to various
       pleadings have concluded that claims for breach of contract, fraud, and medical battery will be
       subject to section 2-622’s pleading requirements where the underlying nature of those claims
       sound in medical healing art malpractice. See, e.g., Holzrichter, 2013 IL App (1st) 110287,
       ¶ 96 (finding that the plaintiff’s claim for medical battery premised on the defendant doctor
       allegedly exceeding the scope of the plaintiff’s consent during a surgical procedure was subject
       to the requirements of section 2-622 of the Code because the nature of the claim was
       essentially one for medical malpractice); Bloom v. Guth, 164 Ill. App. 3d 475, 477-78 (1987)
       (concluding that all of the claims included in the plaintiff’s complaint, including claims for
       breach of contract and consumer fraud, sounded in medical malpractice, rendering section
       2-622’s affidavit requirement applicable). As a general rule, section 2-622’s pleading
       requirements will apply if the allegations contained in the plaintiff’s complaint involve issues
       of medical diagnoses, skill, knowledge, or treatment that is “beyond the ken” of the average




                                                   -5-
       juror.1 See, e.g., Fiala, 2015 IL App (2d) 150067, ¶ 29; McDonald v. Lipov, 2014 IL App (2d)
       130401, ¶ 27; Holzrichter, 2013 IL App (1st) 110287, ¶ 96.
¶ 15       As set forth above, the basis for Ripes’s breach of contract claims is Dr. Schlechter’s
       placement of her replacement breast implants above, rather than below, her pectoral muscle, in
       contravention of their express oral agreement to the contrary. Although Ripes suggests her
       claim does not involve a matter that is beyond the ken of the ordinary lay persons and does not
       require a medical expert’s testimony, we disagree. Plastic surgery procedures generally, and
       breast augmentation surgeries specifically, do not fall within the general knowledge common
       to layperson jurors. That is, the average juror is not familiar with the different placement
       options for breast implants or the knowledge, methodology, and skill a plastic surgeon
       employs to place a breast implant above or below the pectoral muscle. We reiterate the courts
       must “broadly” construe the phrase “medical, hospital, or other healing art malpractice” to
       determine the applicability of section 2-622’s pleading requirements. Milos, 325 Ill. App. 3d at
       183; Woodard, 234 Ill. App. 3d at 703. After considering the nature of plaintiff’s breach of
       contract claim, we conclude that the claim sounds in healing art malpractice and that the circuit
       court properly dismissed count I of Ripes’s complaint for failing to comply with section
       2-622’s pleading requirements. See 735 ILCS 5/2-622(a) (West 2012) (the pleading
       requirements apply to any action “in which the plaintiff seeks damages for injuries or death by
       reason of medical, hospital, or other healing art malpractice,” including “tort, contract or
       otherwise” (emphasis added)).
¶ 16       With respect to Ripes’s medical battery claim, we note that courts have generally
       concluded that section 2-622’s affidavit requirement applies when a plaintiff’s claim of
       medical battery involves the issue of whether the treatment provided or the procedure
       performed by the defendant medical professional substantially deviated from the scope of the
       consent that the plaintiff provided. See, e.g., McDonald, 2014 IL App (2d) 130401, ¶ 27;
       Holzrichter, 2013 IL App (1st) 110287, ¶ 96; cf. Fiala, 2015 IL App (2d) 150067, ¶¶ 32-35
       (concluding that the plaintiff’s medical battery claim did not sound in medical healing art
       malpractice and was not required to be supported by a section 2-622 affidavit where the basis
       for the plaintiff’s claim was not that the defendant doctor deviated from the scope of his
       consent, but that he did not consent at all to the defendant’s administration of a particular
       medication). In doing so, courts have concluded that the issue of whether a doctor deviated
       from the scope of the plaintiff’s consent is one that is generally beyond the ken of the average
       lay juror because the assessment of such a claim requires specialized knowledge, skill, and

           1
            Ripes, citing Jackson v. Chicago Classic Janitorial & Cleaning Service, Inc., 355 Ill. App. 3d 906,
       909 (2005), argues that courts must consider three factors to determine the applicability of section
       2-622 of the Code, including (1) whether the applicable standard of care involves procedures not within
       the grasp of ordinary lay persons, (2) whether the activity is inherently one of medical judgment, and
       (3) the type of evidence that will be necessary to establish the plaintiff’s case. Although the relevant
       analysis is similar, the circuit court correctly observed that the three factors delineated in Jackson are
       expressly applicable to determine “whether a complaint alleges ordinary negligence or medical
       malpractice.” Id. at 912. Ripes’s complaint, however, does not contain an ordinary negligence claim,
       and as such, this court need not employ Jackson’s three factor test to evaluate the merit of plaintiff’s
       appeal. See generally Fiala, 2015 IL App (2d) 150067 (resolving the issue of whether section 2-622’s
       pleading requirements apply without specifically employing the three factors identified in Jackson);
       McDonald, 2014 IL App (2d) 130401 (same); Holzrichter, 2013 IL App (1st) 110287 (same).

                                                       -6-
       familiarity with the procedure at issue. McDonald, 2014 IL App (2d) 130401, ¶ 27;
       Holzrichter, 2013 IL App (1st) 110287, ¶ 96. Here, the gravamen of Ripes’s claim for medical
       battery is that the plastic surgery procedure that Dr. Schlechter performed “substantially varied
       from the consent” that she provided. As explained above, lay jurors are not familiar with the
       intricacies of breast augmentation surgery or the placement options for breast implants.
       Moreover, the inherent complexity of the issue of whether Dr. Schlechter substantially
       deviated from the scope of Ripes’s consent during the performance of that procedure is one
       that cannot be determined by a lay juror without the aid of expert testimony because an
       accurate assessment of the claim requires knowledge, skill, and training in a technical area that
       is outside of the comprehension of laypersons. See, e.g., McDonald, 2014 IL App (2d) 130401,
       ¶¶ 6, 27; Holzrichter, 2013 IL App (1st) 110287, ¶ 96. As such, we conclude that the circuit
       court properly found that Ripes’s medical battery claim sounded in healing art malpractice and
       that her failure to include a section 2-622 affidavit warranted the dismissal of her medical
       battery claim.

¶ 17                                    Consumer Fraud Act Claim
¶ 18       Ripes also argues that the circuit court erred in concluding that her Consumer Fraud Act
       claim failed to state a valid cause of action. She maintains that the fraud delineated in her
       complaint did not pertain to Dr. Schlechter’s exercise of medical judgment or his medical skills
       or training; rather, it involved his decision to engage in a “dishonest act for financial gain”
       when he placed her new implants above the pectoral muscle in contravention of the parties’
       oral agreement to do otherwise. As such, Ripes asserts that her Consumer Fraud Act claim
       should be permitted to proceed.
¶ 19       Defendants respond that the circuit court properly found that Ripes’s complaint failed to
       state a valid cause of action under the Consumer Fraud Act, given that “Illinois courts have
       unequivocally held that the Consumer Fraud Act does not apply to the provision of medical
       services.”
¶ 20       The Consumer Fraud Act is a regulatory and remedial statute intended to protect
       individuals against unfair methods of competition and unfair or deceptive business practices.
       Price v. Phillip Morris, Inc., 219 Ill. 2d 182, 233-34 (2005). To that end, the Act precludes the
       use “unfair or deceptive acts or practices *** in the conduct of any trade or commerce.”
       (Emphasis added.) 815 ILCS 505/2 (West 2012). Reviewing courts, however, have held that
       the provision of professional legal, medical, and dentistry services does not constitute trade or
       commerce under the Consumer Fraud Act. See, e.g., Feldstein v. Guinan, 148 Ill. App. 3d 610,
       615 (1986) (“The practice of medicine is not the equivalent of an ordinary commercial
       enterprise. The statutory language making the Act applicable to trade or commerce does not
       include the practice of medicine ***.”); see also Tkacz v. Weiner, 368 Ill. App. 3d 610, 613
       (2006) (recognizing that “Illinois courts have previously interpreted the term ‘trade or
       commerce’ as defined by the Act to exclude medical, dental and legal services” (emphasis
       added)).
¶ 21       Here, Ripes’s Consumer Fraud Act claim is premised on Dr. Schlechter’s “representation
       to [her] that [he] would place her new implants [below] the pectoral muscle,” even though he
       “had no intention of doing so.” Breast augmentation surgery, however, is a type of medical
       procedure, and, as set forth above, the provision of medical services does not constitute a trade
       or commerce under the Act. Tkacz, 368 Ill. App. 3d at 613; Feldstein, 148 Ill. App. 3d at 615.

                                                   -7-
       As such, Ripes’s Consumer Fraud Act claim necessarily fails. In so finding, we are
       unpersuaded by her argument that her fraud claim is premised on Dr. Schlechter’s business
       practices as opposed to his practice of medicine. We note that, although the practice of
       medicine may have a business aspect, courts have uniformly held that the Consumer Fraud Act
       may not be used as a means to redress a personal claim for medical malpractice, the
       commercial aspects of which do not affect the general public. Evanston Hospital v. Crane, 254
       Ill. App. 3d 435, 444 (1993); see also Feldstein, 148 Ill. App. 3d at 615 (“[T]he Act does not
       redress purely private wrongs but is for practices which affect the public generally.”). In this
       case, the wrong alleged by Ripes is a purely private wrong and does not affect the public
       generally. As a result, we conclude that the circuit court properly dismissed count III of the
       complaint for failure to state a valid cause of action under the Consumer Fraud Act.

¶ 22                                       CONCLUSION
¶ 23      The judgment of the circuit court is affirmed.

¶ 24      Affirmed.




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