{ "id": 3504625, "name": "MICHAEL LYON, a Minor by his Parent and Next Friend, Letitia Lyon, Plaintiff-Appellant, v. HASBRO INDUSTRIES, INC., Defendant (Ed Piraino, d/b/a Arrow Medical Services, Defendant-Appellee)", "name_abbreviation": "Lyon v. Hasbro Industries, Inc.", "decision_date": "1987-06-08", "docket_number": "No. 4\u201486\u20140742", "first_page": "649", "last_page": "656", "citations": [ { "type": "official", "cite": "156 Ill. App. 3d 649" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "449 N.Y.S.2d 621", "category": "reporters:state", "reporter": "N.Y.S.2d", "weight": 2, "opinion_index": 0 }, { "cite": "113 Misc. 2d 655", "category": "reporters:state", "reporter": "Misc. 2d", "case_ids": [ 792432 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/misc2d/113/0655-01" ] }, { "cite": "475 So. 2d 1319", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 7634175, 7634111 ], "year": 1982, "pin_cites": [ { "page": "1321" } ], "opinion_index": 0, "case_paths": [ "/so2d/475/1319-02", "/so2d/475/1319-01" ] }, { "cite": "475 N.E.2d 536", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "105 Ill. 2d 389", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3142129 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-2d/105/0389-01" ] }, { "cite": "499 N.E.2d 1309", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "114 Ill. 2d 150", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5542491 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-2d/114/0150-01" ] }, { "cite": "497 N.E.2d 763", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "768" }, { "page": "767" } ], "opinion_index": 0 }, { "cite": "113 Ill. 2d 219", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3173826 ], "weight": 2, "pin_cites": [ { "page": "229" }, { "page": "226-27" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/113/0219-01" ] } ], "analysis": { "cardinality": 668, "char_count": 16403, "ocr_confidence": 0.749, "pagerank": { "raw": 7.184993419842326e-07, "percentile": 0.9674398005443561 }, "sha256": "354aad4c33252f2d6c8b421449dcc00f7507843c9e71bfe4851f8f5a8ba52a35", "simhash": "1:c7f7ccb4e175bc6f", "word_count": 2619 }, "last_updated": "2023-07-14T21:00:40.510932+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "MICHAEL LYON, a Minor by his Parent and Next Friend, Letitia Lyon, Plaintiff-Appellant, v. HASBRO INDUSTRIES, INC., Defendant (Ed Pi-raino, d/b/a Arrow Medical Services, Defendant-Appellee)." ], "opinions": [ { "text": "JUSTICE McCULLOUGH\ndelivered the opinion of the court:\nPlaintiff appeals the dismissal of count V of his complaint for failure to comply with section 2 \u2014 622 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1985, ch. 110, par. 2\u2014622). He argues that count V of the complaint did not sound in healing art malpractice, the section is being applied retroactively, and the trial court erred in dismissing count V of his complaint in its entirety.\nWe affirm in part, reverse in part, and remand with directions.\nOn May 16, 1986, plaintiff, Michael Lyon, through his mother, filed a multicount complaint against Hasbro Industries, Inc., and defendant, Arrow Medical Services. Count V alleged that plaintiff, at the time of the incident, was a 15-month-old infant who had suffered severe injuries after swallowing a small toy peg. He was in a life-threatening situation and needed transportation from Burnham City Hospital in Champaign to Children\u2019s Memorial Hospital in Chicago. On July 26,1977, defendant was called to transport plaintiff.\nPlaintiff alleged defendant was under two duties of care: First, defendant had a duty to adequately service and maintain its emergency vehicles, thus preventing malfunctions; and second, defendant had a duty to equip its emergency vehicles with life-support equipment adequate to handle foreseeable emergencies. Plaintiff alleged that defendant used a Winnebago van to transport plaintiff. The van was not equipped with \u201cany of the essential life-saving equipment necessary and precautionary\u201d to safeguard plaintiff during the trip. The van, which had been idling outside of the hospital for two hours, broke down six blocks from the hospital. Plaintiff alleged that defendant was negligent in failing to: (a) provide adequate transportation; (b) provide adequate medical equipment; (c) adequately service the van; and (d) provide back-up transportation. Plaintiff suffered a cardiac arrest, and defendant was unable to handle the emergency.\nPlaintiff filed a motion for leave to file a late affidavit stating that he believed the complaint sounded in simple negligence, not healing art malpractice. However, if the court found the complaint sounded in healing art malpractice, plaintiff asked to file an affidavit complying with section 2 \u2014 622(a)(2) of the Code. Subsequently, defendant filed a motion to dismiss asserting the complaint failed to comply with section 2 \u2014 622 of the Code.\nAt a hearing on the motion, the court found that the complaint contained two disparate allegations of negligence. The court noted that the negligent transportation alleged would not fall under section 2 \u2014 622 of the Code. However, a negligent failure to provide adequate equipment fell under the healing art provision. The trial judge then stated that the requirements of section 2 \u2014 622 of the Code were to be followed. However, he granted plaintiff\u2019s motion to file a late affidavit and gave plaintiff additional time to fully comply with section 2 \u2014 622 of the Code. Plaintiff\u2019s counsel filed an affidavit stating he was unable to consult with a physician as provided in subsection (a)(1) because the statute of limitations would impair the action. Subsequently, defendant filed an additional motion to dismiss for failure to file a certificate and written report as provided in section 2 \u2014 622(a)(2) of the Code. The court granted this motion and dismissed count V in its entirety.\nThe appellate record was supplemented with plaintiff\u2019s mother\u2019s deposition. She stated that, although the van had the words \u201crescue unit\u201d painted on it, it did not contain any medical equipment.\nSection 2 \u2014 622 of the Code states in part:\n\u201cHealing 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\u2019s attorney or the plaintiff *** shall file an affidavit *** declaring one of the following:\n1. That the affiant has consulted and reviewed the facts of the case with a health professional who the affiant reasonably believes is knowledgeable in the relevant issues involved *** [and] that the reviewing health professional has determined in a written report *** that there is a reasonable and meritorious cause for the filing of such action ***.\n2. That the affiant was unable to obtain a consultation required by paragraph 1 because a statute of limitations would impair the action and the consultation required could not be obtained before the expiration of the statute of limitations. If an affidavit is executed pursuant to this paragraph, the certificate and written report required by paragraph 1 shall be filed within 90 days after the filing of the complaint. The defendant shall be excused from answering or otherwise pleading until 30 days after being served with a certificate required by paragraph 1.\n(g) The failure to file a certificate required by this Section shall be grounds for dismissal under Section 2 \u2014 619.\n(h) This Section does not apply to or affect any actions pending at the time of its effective date, but applies to cases filed on or after its effective date.\u201d (Ill. Rev. Stat. 1985, ch. 110, par. 2-622.)\nSection 2 \u2014 1704 of the Code states:\n\u201cMedical Malpractice Action. As used in this Part, \u2018medical malpractice action\u2019 means 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 term \u2018healing art\u2019 shall not include care and treatment by spiritual means through prayer in accord with the tenets and practices of a recognized church or religious denomination.\u201d Ill. Rev. Stat. 1985, ch. 110, par. 2\u20141704.\nInitially, plaintiff argues that section 2 \u2014 622 of the Code is inapplicable to the allegations of negligence contained in count V. Plaintiff maintains that the term \u201chealing art malpractice\u201d should be interpreted as applying only to licensed health-care professionals and does not include ambulance services. Defendant argues that the term should be given a broad interpretation.\nThe scope of the term \u201chealing art malpractice\u201d has not been interpreted by the courts. However, other malpractice provisions have been reviewed. In Bernier v. Burris (1986), 113 Ill. 2d 219, 229, 497 N.E.2d 763, 768, the court stated that the legislative history demonstrates that the provisions were enacted as a response to a perceived crisis in medical malpractice. The court declared certain provisions dealing with healing art malpractice unconstitutional. It did not address the constitutionality of section 2 \u2014 622 of the Code. However, the court noted that section 2 \u2014 622 of the Code applied to \u201cwhat is termed \u2018healing art\u2019 malpractice, a broad category that is not confined to actions against physicians and hospitals, but rather, as some of the provisions indicate, may also include actions against other health professionals such as dentists or psychologists.\u201d Bernier v. Burris (1986), 113 Ill. 2d 219, 226-27, 497 N.E.2d 763, 767.\nSection 2 \u2014 622 of the Code states that it applies to all actions in which plaintiff seeks recovery for \u201cmedical, hospital, or other healing art malpractice.\u201d (Ill. Rev. Stat. 1985, ch. 110, par. 2\u2014622.) Section 2 \u2014 622(a)(1) of the Code refers to review of the action by a \u201chealth professional.\u201d (Ill. Rev. Stat. 1985, ch. 110, par. 2\u2014622(a)(1).) Section 2 \u2014 1704 of the Code repeats the language of section 2 \u2014 622 of the Code and specifically states that the term \u201chealing art\u201d does not include faith healing. (Ill. Rev. Stat. 1985, ch. 110, par. 2\u20141704.) The phrase is not otherwise defined.\n\u201cHealing\u201d is defined as: \u201cThe restoration to a normal mental or physical condition ***.\u201d (Taber\u2019s Cyclopedic Medical Dictionary 725 (15th ed. 1985).) \u201cArt\u201d is defined as a skill acquired by experience, study, or observation and as a branch of learning. (Webster\u2019s Ninth New Collegiate Dictionary 105 (1986).) \u201cMalpractice\u201d is defined as incorrect or negligent treatment of the patient by a person responsible for his health care. (Taber\u2019s Cyclopedic Medical Dictionary 1001 (15th ed. 1985).) It is also defined as a dereliction from a professional duty or a failure to exercise an adequate degree of care in rendering service. Webster\u2019s Ninth New Collegiate Dictionary 721 (1986).\nInterpretation and construction of statutes are governed by the principle that the legislature\u2019s intent should be ascertained and given effect. (Benjamin v. Cablevision Programming Investments (1986), 114 Ill. 2d 150, 499 N.E.2d 1309.) In determining legislative intent, consideration must be given to the entire statute, its nature, object, and purpose. If the intent of the legislature can be ascertained from the language of the statute, then that intent will prevail without resort to construction aids. (Benjamin v. Cablevision Programming Investments (1986), 114 Ill. 2d 150, 499 N.E.2d 1309.) The language of the statute should be given its plain and ordinary meaning. (Coldwell Banker Residential Real Estate Services of Illinois, Inc. v. Clayton (1985), 105 Ill. 2d 389, 475 N.E.2d 536.) We note also that under the concept of ejusdem generis, when a statutory clause specifically describes several classes of persons or things and then includes a general statement of \u201cother\u201d persons or things, the \u201cother\u201d is interpreted as \u201cother such as\u201d the specifically enumerated class. Coldwell Banker Residential Real Estate Services of Illinois, Inc. v. Clayton (1985), 105 Ill. 2d 389, 475 N.E.2d 536.\nConsidering the above principles, we find that the term \u201chealing art malpractice\u201d is broad in scope. In the instant case, it includes allegations of negligence in providing adequate equipment for foreseeable emergencies during transportation by ambulance. Plaintiff argues that the term should be limited to the negligence by health-care professionals, relying on the language of Bernier.\nThe Bernier court stated that the statutory language may include health professionals other than medical doctors. However, it did not limit the application of the healing art provisions to health professionals. The statute specifically includes hospitals in the coverage of its provisions. A hospital is not a health-care professional, although it provides related health-care services. It is also licensed and regulated by the State. Therefore, under principles of statutory construction, \u201chealing art\u201d could include negligence by a licensed health-care service and need not be limited to a licensed professional practitioner. The phrase \u201chealing art\u201d by definition implies an entire branch of learning dealing with the restoration of physical or mental health. Malpractice implies the lack of skill in practicing the art or profession. Thus, the phrase may be interpreted as broad enough to cover negligence in the interrelated health-care services. Additionally, we note that ambulance services are licensed by the State and regulated through the Emergency Medical Services (EMS) Systems Act (Ill. Rev. Stat. 1985, ch. 111\u00bd, par. 5501 et seq.).\nThe ambulance service in the instant case had both a duty to provide adequate transportation for its client and a duty to provide equipment necessary and precautionary to render emergency medical care to its client during the transportation. (See Brooks v. Herndon Ambulance Service, Inc. (Fla. App. 1985), 475 So. 2d 1319, 1321; Sigmon v. County of Thomkins (1982), 113 Misc. 2d 655, 449 N.Y.S.2d 621.) Count V contained an allegation of a failure to adequately maintain and service the ambulance as a vehicle. We agree that this allegation is not encompassed within section 2 \u2014 622 of the Code. Thus, the trial court erred in dismissing count V in its entirety.\nA more difficult question is presented by the allegation of a failure to adequately equip the ambulance. The nature of the negligent act alleged should determine whether the activities of the ambulance service fall within the term \u201chealing art malpractice.\u201d (Sigmon v. County of Thomkins (1982), 113 Misc. 2d 655, 449 N.Y.S.2d 621.) Here, it is alleged that the equipment necessary and precautionary to treat a person in plaintiffs condition was lacking. The duty to provide equipment necessary to facilitate emergency health care is thus at issue. The determination of which equipment is necessary and precautionary to meet a person in plaintiff\u2019s condition\u2019s needs is inherently one of medical judgment. The negligence alleged is in an intrinsic part of the provision of the facilities for emergency health care. We believe the allegation that defendant failed to adequately equip its ambulance thus falls within the ambit of the term \u201chealing art malpractice\u201d and section 2 \u2014 622 of the Code. It was necessary for plaintiff to provide a physician\u2019s affidavit stating that a meritorious cause of action under the facts of the instant cause existed.\nPlaintiff argues that even if section 2 \u2014 622 of the Code applies, the negligence alleged is within the knowledge of ordinary jurors. Therefore, no expert evaluation would be needed at trial. Since expert testimony would not be necessary to prove negligence at trial, plaintiff maintains that the lack of an affidavit from an expert at the pleading stage should not subject the cause to dismissal under section 2 \u2014 622 of the Code.\nWe disagree. The legislative history of section 2 \u2014 622 of the Code reveals that its purpose was to eliminate frivolous lawsuits at the pleadings stage. (84th Ill. Gen. Assem., House Proceedings, May 23, 1985, at 406 (Representative Hawkinson).) Thus, that expert testimony would not be needed at trial to establish negligence does not address the necessity of complying with the provisions contained in section 2 \u2014 622 of the Code at the pleading stage. Section 2 \u2014 622 states that it applies in any action. Ill. Rev. Stat. 1985, ch. 110, par. 2-622.\nPlaintiff next argues that section 2 \u2014 622 of the Code is being applied retroactively. Defendant argues that an action refiled under section 13 \u2014 217 of the Code is a new action. Therefore, the provisions of section 2 \u2014 622 of the Code, which were effective on August 15, 1985, apply. The instant cause of action arose in 1977. Plaintiff filed an action in 1982 but took a voluntary dismissal. He refiled pursuant to the provisions of section 13\u2014217 of the Code (Ill. Rev. Stat. 1985, ch. 110, par. 13\u2014217). Section 13\u2014217 provides that after a voluntary dismissal, the plaintiff may file \u201ca new action\u201d within a year or the remaining period of limitation. (Ill. Rev. Stat. 1985, ch. 110, par. 13\u2014217.) Thus, under the language of section 13 \u2014 217 of the Code, the complaint here was a new action, filed after the effective date of section 2 \u2014 622 of the Code.\nEssentially, plaintiff argues that the application of section 2 \u2014 622 of the Code is unfair because this action accrued prior to the effective date of section 2 \u2014 622 of the Code. During the legislative debates, it was suggested that the provision be changed to apply to the actions accruing after the effective date. This suggestion was specifically rejected. Representative Daniels stated that the filing date of the action was determined to be the cut-off point. (84th Ill. Gen. Assem., House Proceedings, May 23, 1985, at 403 (Representative Daniels).) Section 2 \u2014 622 of the Code is not being applied retroactively in the instant case.\nFor the above reasons, we affirm that portion of the trial court\u2019s order which dismissed the allegations of a failure to adequately equip the ambulance with necessary and precautionary equipment because plaintiff failed to comply with section 2 \u2014 622 of the Code. However, we remand the cause to the trial court with directions that plaintiff be allowed 30 days after the issuance of the mandate of this court to replead his allegations of negligent transportation due to a failure to mechanically maintain the ambulance.\nAffirmed in part, reversed in part, and remanded with directions.\nGREEN and LUND, JJ., concur.", "type": "majority", "author": "JUSTICE McCULLOUGH" } ], "attorneys": [ "Robert I. Auler, of Auler Law Offices, P.C., of Urbana, for appellant.", "John D. Dodson, of Dodson & Mann Law Offices, of Champaign, for ap-pellee." ], "corrections": "", "head_matter": "MICHAEL LYON, a Minor by his Parent and Next Friend, Letitia Lyon, Plaintiff-Appellant, v. HASBRO INDUSTRIES, INC., Defendant (Ed Pi-raino, d/b/a Arrow Medical Services, Defendant-Appellee).\nFourth District\nNo. 4\u201486\u20140742\nOpinion filed June 8, 1987.\nRobert I. Auler, of Auler Law Offices, P.C., of Urbana, for appellant.\nJohn D. Dodson, of Dodson & Mann Law Offices, of Champaign, for ap-pellee." }, "file_name": "0649-01", "first_page_order": 671, "last_page_order": 678 }