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By:Jason G. Schutte


Plaintiff’s simple allegation that medications were administered to plaintiff without plaintiff’s consent did not require 2-622 merit report as allegations did not present healing art malpractice allegations and were not beyond the ken of layperson’s understanding.


In Fiala v. Bickford Senior Living Group, LLC, a resident (Fiala) of a long term care facility (Bickford) brought a lawsuit against a doctor who prescribed drugs to the resident while at Bickford.[i]  The lawsuit asserted claims of medical battery against the doctor as well as other claims against the doctor and facility.  Defendant doctor filed a motion to dismiss the medical battery count of the lawsuit on the basis that the plaintiff failed to file a required health-professional’s report pursuant to 735 ILCS 5/2-622.[ii]

Plaintiff resided at Bickford from October 2012 through August of 2013. Plaintiff was confined to a wheelchair when admitted and carried diagnosis of Lewy Body dementia. The plaintiff’s medical chart indicated that his children held medical powers of attorney and that no medications were to be administered to plaintiff without prior consent.  Further, the use of Paxil was prohibited.[iii] Paxil was eventually administered at Bickford.[iv]

The plaintiff alleged that defendant doctor prescribed the drugs administered to plaintiff at Bickford for use at night.  He never met or consulted with plaintiff at any time before, during or after his stay at Bickford.  Neither plaintiff’s wife nor children were given the opportunity to discuss or consult with defendant regarding the prescriptions.  Plaintiff asserted in his Complaint that the use of Paxil and other drugs diminished the quality of his life and caused him physical and emotional problems.[v]

Plaintiff specifically alleged within his medical battery cause of action that neither he nor his authorized representatives consented to the prescription or administration of various medications. Plaintiff further asserted that the administration of the medications was contrary to the expressed desires of the plaintiff and that consent of plaintiff or his representatives was required prior to the administration of these medications, as indicated in his chart.  Plaintiff also asserted that the administration of these medications constituted an unwanted touching of the plaintiff’s person.[vi]

Appellate Opinion.

A battery is an intentional tort of unauthorized touching of the person of another.[vii] The main focus in a medical battery case focuses on the plaintiff’s consent.  In a medical battery case, a plaintiff may recover if they establish “a total lack of consent to the procedure performed, that the treatment was contrary to the patient’s will, or that the treatment was a substantial variance with the consent granted.”[viii]

Section 2-622 requires the plaintiff to file an Affidavit of Merit with the Complaint 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.[ix]  This section requires the plaintiff to attach a copy of the report to the Affidavit, and the medical report must identify the plaintiff and the reasons the medical professional believes there to be a reasonable and meritorious cause of action.  The Affidavit and report are required in any cause of action by reason of medical, hospital or other healing art malpractice.[x]

Defendant asserted in Fiala that a medical-battery claim based on lack of informed consent falls within medical-malpractice claims, hence, requiring compliance with section 2-622.

The Fiala court noted that it must look past a party’s characterization of their claim and examine the underlying allegations and facts to determine whether they raise issues requiring expertise to aid in the understanding of matters beyond the ken of laypersons, thus invoking the requirements of 2-622.[xi]

The court found that when taken as true, the plaintiff’s Complaint successfully pleaded a complete lack of consent to the administration of medications.[xii]  The court cited prior case law which established that in “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.”[xiii]

The plaintiff alleged that he refused the administration of all medication without prior consent, thereby pleading medical battery.  Plaintiff did not allege any incorrect or inappropriate medication was prescribed and administered. Further, plaintiff did not assert any deviation from the appropriate medical standards based upon healing arts malpractice.  In light of these facts and allegations, the Fiala court did not find any basis to apply section 2-622 to the facts of that case.[xiv]

The court made a notable distinction between the case at bar and McDonald v. Lipov.  In McDonald, the plaintiff alleged that the subject treatment substantially deviated from the consent granted.[xv]  The court emphasized that the substantial deviation allegation sounded more in medical or healing arts malpractice and required a medical expert to opine whether the treatment performed fell within the scope of the consent provided.  The facts of Fiala were simpler in that there was a complete lack of consent alleged by the plaintiff, which is a much less complex issue.[xvi]

The plaintiff’s allegations of total lack of consent, rather than a deviation from consent given, kept the plaintiff’s medical battery cause of action outside the scope of section 2-622.[xvii] 

Practical effect of Case:

The simplicity of the medical battery allegations exempted this particular claim from the requirements of section 2-622.  The plaintiff’s allegations simply stated that a particular thing should not be done without consent [administration of medication/Paxil] and this particular thing was done, without consent. The allegations of wrongdoing had nothing to do with medical diagnosis or judgment. The plaintiff only asserted that he was provided the medication when he should not have been.

Had the plaintiff asserted that the medication was not required for the conditions presented by plaintiff or that the medication was contraindicated in some way other than simply lack of consent, rule 2-622 likely would have been invoked and an expert report required.

Attorneys, claims adjusters and risk management professionals should pay close attention to the facts of the case and the allegations within the plaintiff’s Complaint.  If the allegations involve concerns of medical judgment and/or failure to meet the standard of care, the plaintiff’s claim almost certainly will require a 2-622 merit report.  Failure of the plaintiff to file such a report can lead to dismissal of their claim.  If the plaintiff’s claim is a simple medical batter claim, similar to Fiala, the plaintiff may be able to proceed without such a report.

[i] Fiala v. Bickford Senior Living Group, LLC, 2015 IL App (2d) 150067

[ii] Fiala at ¶14.

[iii] Fiala ¶6;

[iv] Fiala ¶8;

[v] Fiala ¶9;

[vi] Fiala ¶10;

[vii] Fiala ¶ 20;

[viii] Fiala ¶20 citing Curtis v. Jaskey, 326 Ill.App.3d 90 (2001);

[ix] 735 ILCS 5/2-622(a)(1);

[x] Id.;

[xi] Fiala ¶29;

[xii] Fiala ¶32;

[xiii] Fiala ¶ 32, citing McDonald v. Lipov, et al., 2014 IL App (2d) 130401;

[xiv] Fiala ¶ 33;

[xv] Fiala ¶34, citing McDonald;

[xvi] Fiala ¶34;

[xvii] Fiala ¶35.

By Jason G. Schutte

The implied warranty of habitability(herein warranty) protects the initial buyer of a new house from latent defects that would render the house not reasonably fit for its intended use.[1]  A central concept and justification for creation of the warranty was the Illinois Supreme Court’s observance that buyers of newly constructed houses have little opportunity to inspect a home and that they must rely on the skill and integrity of the builder-vendor of the house.[2]

Our Supreme Court further asserted that a buyer has a right to receive  what he has bargained for and what the builder-vendor has agreed to construct and convey to the buyer – “a house reasonably fit for use as a residence.”[3] The Supreme Court stressed that the warranty arises from the contract for the sale of the property and by execution of the sale agreement between vendor and vendee.[4] Essentially, the warranty is an implied covenant by the builder-vendor that the house/residence which he contracted with the purchaser to build/convey is reasonably suited for its intended use.[5]

Our Supreme Court has stated that the warranty can be waived and such waivers are not against public policy.[6] The court has also stated that the warranty can be extended to a second purchaser of a house.[7]

In the case at hand, Lubeck was the first purchaser of a house in 2007. Lubeck waived any right to assert the warranty against Masterklad, Inc., the builder of the house. Defendant Bim was president of Masterklad. Lubek sold the house to plaintiff Fattah “as is” in May of 2010.[8] In February of 2011 parts of the retaining wall around the rear of the patio of the house gave away, resulting in portions of the patio collapsing.[9] Plaintiff Fattah filed a one count complaint against Bim (Masterklad had been voluntarily dissolved) asserting violation of the warranty.

The trial court dismissed the case, finding that allowing such an action to proceed would violate the policy favoring enforcement of knowing waivers.[10] The Appellate Court reversed.[11]

Analysis by Supreme Court

The Supreme Court noted that plaintiff Bim was not simply seeking to recover damages that would have been available to Lubeck, the first purchaser, but rather the plaintiff was “seeking to recover more than what Lubeck would have been entitled to”  since Lubeck had waived the right to assert a cause of action under the warranty.[12] The court noted that extending the warranty under these circumstances would “significantly alter the burdens and expectations of defendants and would be inequitable.”[13]

The court noted that the builder/vendors of the property who sells a home with a bargained for waiver of the warranty had given consideration exchange for the waiver.[14] Extending the warranty to a second purchaser in the face of a valid waiver of the warranty would result in the builder/vendor losing the financial certainty it had bargained for and assumed it had obtained.[15] A builder/vendor would have a no way of knowing when a latent defect might appear, thus creating liability.  Moreover, in such a case of Lubeck, the builder/vendor might perform under the express warranty provided, and face liability anyway.  This creates and unreasonable situation.[16]

Further, allowing the warranty to be revived at the time a subsequent sale would render such a waiver of the warranty meaningless, ensuring that builder/vendors would not enter into such agreements in the future; these agreements being expressly approved by the court.[17] 

Hence, the Illinois Supreme Court held that a valid bargained for waiver of the implied warranty of habitability between a builder/vendor and a first purchaser prevents a subsequent purchaser from pursuing a cause of action under the implied warranty of habitability against that builder/vendor.

[1] Fattah v. Bim, 2016 IL 119365 ¶ 19;

[2] Id.;

[3] Fattah ¶19 citing Petersen v. Hubschman Const. Co., 76 Ill. 2d. 31 (1979);

[4] Fattah ¶20;

[5] Fattah ¶20;

[6] Fattah ¶21;

[7] Fattah ¶ 1;

[8] Fattah ¶¶4-7;

[9] Fattah ¶7;

[10] Fattah ¶9;

[11] Fattah ¶11;

[12] Fattah ¶¶28-29;

[13] Fattah ¶28;

[14] Fattah ¶29;

[15] Fattah ¶30;

[16] Fattah ¶30;

[17] Fattah ¶33.

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