NO. 4-99-0954

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

_______________________________________________________________________________________________

JUSTICE MYERSCOUGH delivered the opinion of the court:

In September 1999, the trial court dismissed the first-amended complaint of plaintiff, Betty Lou Eads, and allowed her90 days within which to file a second-amended complaint. InNovember 1999, the trial court granted Eads leave to seek interlocutory review under Supreme Court Rule 308 (155 Ill. 2d R. 308)from this court to answer a certified question. We answer thequestion in the negative and remand for further proceedings.

I. BACKGROUND

In June 1998, Eads was a resident of MemorialContinuCare (ContinuCare), an extended-term nursing facilityowned and operated by defendants, Heritage Enterprises Inc.,Rutledge Joint Ventures, LLC, d/b/a Memorial ContinuCare, andMemorial Health Ventures. During her stay at ContinuCare, Eadsfell and fractured her hip while attempting to use a rest room. In May 1999, Eads filed suit against defendants, alleging numerous causes of action, including breach of contract and fiduciaryduty, res ipsa loquitur, and violations of the Nursing Home CareAct (Nursing Home Act) (210 ILCS 45/3-601 (West 1998)).

Defendants filed a motion to dismiss pursuant tosection 2-613(a) of the Code of Civil Procedure (Code) (735 ILCS5/2-613(a) (West 1998)). The trial court granted defendants'motion to dismiss, finding that Eads' complaint improperlycommingled causes of action in violation of section 2-613 of theCode but granted Eads leave to replead.

In July 1999, Eads filed a three-count amended complaint, alleging only that defendants acted negligently under theNursing Home Act. In her amended complaint, Eads alleged thatshe became feverish, weak, confused, and unsteady on her feet,suffered hallucinations, and was unable to comprehend verbalinstructions. Eads claims that the ContinuCare staff membersknew of her weakened condition and that she was unsteady, unresponsive, and disoriented, yet permitted her to repeatedly getout of bed, without assistance, to use the bathroom. Eadsfurther claims that defendants were negligent by failing to (1)adequately supervise her activity, (2) ensure that she did notwalk without assistance, (3) respond to her call light when sherequested assistance, (4) equip her bed with a pressure releaseto alert staff that Eads had risen from her bed, and (5) adequately staff the facility to ensure appropriate assistance wouldbe provided.

Defendants again moved to dismiss Eads' amendedcomplaint (735 ILCS 5/2-622(g) (West 1998)), arguing that herclaim sounded in "healing art malpractice." Specifically,defendants complained that Eads must (1) attach an affidavitattesting that she or her attorney had spoken with a qualifiedphysician who thought her claims were meritorious and (2) includea copy of the physician's written report made after reviewingEads' medical records. 735 ILCS 5/2-622(a) (West 1998). Eadsresponded that her claims were not "healing art malpractice"claims but were negligence claims specifically allowed by theNursing Home Act (210 ILCS 45/3-601 (West 1998)); therefore, shewas not obligated to file an accompanying affidavit and writtenphysician's report.

In November 1999, the trial court granted defendants'motion and dismissed Eads' amended complaint but granted herleave to replead. Eads chose instead to seek interlocutoryreview under Supreme Court Rule 308 (155 Ill. 2d R. 308). Thisappeal followed.

II. ANALYSIS

A. The Certified Question

The trial court certified the following question:

"In a case where the [p]laintiff hassued a nursing home for injuries sustained asa result of alleged violations by the nursinghome, its staff[,] and employees, of the[Nursing Home Act] and the regulations promulgated pursuant thereto [77 Ill. Adm. Code