Williams v. Athletico, Ltd

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Appellate Court Date: 2017.05.25

15:56:08 -05'00'

Williams v. Athletico, Ltd., 2017 IL App (1st) 161902

Appellate Court JODINE WILLIAMS and CHRISTOPHER T. WILLIAMS,

Caption Individually; and JODINE WILLIAMS and CHRISTOPHER T.

WILLIAMS, as Plenary Coguardians of the Person of Drew Williams,

a Disabled Person, Plaintiffs-Appellees, v. ATHLETICO, LTD., a

Corporation; ACCELERATED REHABILITATION CENTERS,

LTD., a Corporation; and ALBERT BUZON, ATC a/k/a Wojciech

Buzun, Defendants-Appellants.

District & No. First District, Second Division

Docket No. 1-16-1902

Filed March 21, 2017

Decision Under Appeal from the Circuit Court of Cook County, No. 15-L-10041; the

Review Hon. Moira S. Johnson, Judge, presiding.

Judgment Certified questions answered; cause remanded.

Counsel on Cray Huber Horstman Heil & VanAusdal LLC, of Chicago (Stephen

Appeal W. Heil and Chase M. Gruszka, of counsel), for appellant Athletico,

Ltd.

Kaufman Dolowich & Voluck, LLP, of Chicago (David T. Brown and

Bradley S. Levison, of counsel), for other appellants.

Corboy & Demetrio, P.C., of Chicago (William T. Gibbs, of counsel),

for appellees.

Panel JUSTICE PIERCE delivered the judgment of the court, with opinion.

Presiding Justice Hyman and Justice Mason concurred in the

judgment and opinion.

OPINION

¶1 Plaintiffs Jodine Williams and Christopher Williams, both individually and as plenary

coguardians of Drew Williams, a disabled person, filed suit in Cook County circuit court

against Athletico, Ltd. (Athletico), Accelerated Rehabilitation Centers, Ltd. (ARC), and Albert

Buzon, ATC, a/k/a Wojciech Buzun1 (collectively, defendants), alleging that defendants were

negligent for failing to assess Drew for symptoms of head trauma during a high school football

game. Plaintiffs alleged that defendants failed to (1) assess Drew for symptoms of head trauma

“following a significant blow to the head,” (2) “evaluate [Drew] for a concussion until the

fourth quarter of the game,” and (3) “recognize the signs of [Drew] suffering a brain trauma.”

¶2 Defendants moved to dismiss plaintiffs’ complaint pursuant to section 2-619 of the Code of

Civil Procedure (Code) (735 ILCS 5/2-619 (West 2014)) on the ground that, because the

complaint sounded in healing arts malpractice, plaintiffs were required to comply with section

2-622 of the Code (735 ILCS 5/2-622 (West 2014)), and this failure warranted dismissal under

section 2-622(g) of the Code. The trial court denied defendants’ motion to dismiss; however, it

certified the following three questions of law pursuant to Illinois Supreme Court Rule 308 (eff.

Jan. 1, 2016):

“1. Whether it is necessary for a plaintiff to attach a certificate from a health care

professional, pursuant to section 2-622 of the Code of Civil Procedure (735 ILCS

5/2-622), where the complaint alleges negligent conduct by an Athletic Trainer during

a high school football game in which the trainer was hired to provide on-site injury

evaluation to ensure the health and well-being of the participating athletes.

2. Whether it is necessary for a plaintiff to attach a certificate from a health care

professional pursuant to section 2-622 of the Code where the complaint alleges

negligent conduct by a licensed Athletic Trainer for failing to evaluate an athlete for a

concussion following a head trauma suffered while participating in an athletic program.

3. If so, must the health care professional that issues the certificate pursuant to

section 2-622 of the Code be someone in the same profession, with the same class of

license as the defendant Athletic Trainer.”

¶3 We allowed defendants’ application for leave to appeal pursuant to Rule 308(a). For the

following reasons, we reframe the first and second certified questions and answer in the

affirmative and answer the third certified question in the negative. We remand for further

proceedings consistent with this opinion.

The spelling of Wojciech’s last name appears as both “Buzon” and “Buzun” throughout the

1

record. We refer to Wojciech in this opinion as “Buzun,” as that is the spelling used by his counsel on

appeal.

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¶4 BACKGROUND

¶5 Plaintiffs’ first amended complaint asserts four counts. Counts I and III allege negligence

against Athletico and ARC/Buzun, respectively, and counts II and IV assert claims under the

family expense provision of the Rights of Married Persons Act (750 ILCS 65/15 (West 2014))

against Athletico and ARC/Buzun, respectively. For purposes of this appeal, we set forth only

the relevant allegations dealing with the negligence claims.

¶6 Count I alleges that Athletico was under contract with Chicago public schools “to assign

and maintain an adequate staff of competent personnel that was fully equipped, licensed as

appropriate, available as needed, and qualified to provide on-site injury care and evaluation

and assist on all matters pertaining to the health and well-being of the athletes participating” in

an October 4, 2013, high school football game between Lane Tech High School and Dunbar

High School, in Chicago. Drew participated in the game on behalf of Lane Tech. During the

first quarter of the game, Drew “violently collided” with a teammate, causing Drew’s

teammate to suffer a broken rib and ruptured spleen.2 Following the collision, Drew “was not

assessed or evaluated for symptoms of Concussive Brain Trauma.” According to the

complaint, Athletico trainers “watch for signs of concussion and must evaluate and assess a

player following a sign of brain trauma.” Drew continued participating in the game,

“sustaining numerous additional impacts to his head.”3 The complaint asserts that “Second

Impact Syndrome occurs when the brain swells rapidly and catastrophically as a result of

additional blows to the head following a Concussive Brain Trauma.” During the fourth quarter

of the game, Drew “appeared on the sideline, dazed,” and “suffered numerous brain bleeds as a

result of continuing to play football following a Concussive Brain Trauma.” Plaintiffs assert

that Athletico was negligent in failing to (1) “assess [Drew] for symptoms of head trauma

following a significant blow to the head,” (2) “evaluate [Drew] for a concussion following

head trauma,” and (3) “recognize the signs of [Drew] suffering a brain trauma” and that, “as a

direct and proximate result of one or more of the above negligent acts or omissions, [Drew]

sustained injuries of a personal and pecuniary nature, rendering him disabled.”

¶7 Count III alleges that ARC had an agreement with Lane Tech whereby ARC was “required

to provide athletic trainer services to Lane Tech students participating in all varsity football

games during the 2013 season in order to evaluate and treat athletic injuries sustained during

the games.” ARC assigned Buzun as Lane Tech’s athletic trainer. Plaintiffs allege that after

Drew collided with his teammate, Drew “was not properly assessed or evaluated for symptoms

of Concussive Brain Trauma by [Buzun] or any other agent or employee of [ARC], despite

demonstrating a sign of concussive brain trauma.”4 Count III repeats the allegations that Drew

continued to participate in the game, “sustaining numerous additional impacts to his head,”

that “Second Impact Syndrome occurs when the brain swells rapidly and catastrophically as a

result of additional blows to the head following a Concussive Brain Trauma,” and that during

the fourth quarter of the game, Drew “appeared on the sidelines, dazed.” The complaint alleges

that “during the fourth quarter incident, [ARC] by and through its duly authorized agent and

employee, [Buzun], performed a concussion assessment” and that during the assessment, Drew

“began seizing and became unresponsive.” Plaintiffs again allege that Drew “suffered

2

The complaint does not describe the collision in any further detail.

3

The complaint does not describe these “additional impacts” in any further detail.

4

The complaint does not describe the “sign of concussive brain trauma” in any manner.

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numerous brain bleeds as a result of continuing to play football following a Concussive Brain

Trauma.” Plaintiffs alleged that ARC and Buzun failed to (1) “assess [Drew] for symptoms of

head trauma following a significant blow to the head,” (2) “evaluate [Drew] for a concussion

until the fourth quarter of the game,” and (3) “recognize the signs of [Drew] suffering a brain

trauma” and that “as a direct and proximate result of one or more of the above negligent acts or

omissions, [Drew] sustained injuries of a personal and pecuniary nature, rendering him

disabled.”

¶8 ANALYSIS

¶9 Illinois Supreme Court Rule 308 allows a trial court, upon a finding that an order involves

a question of law as to which there is substantial ground for difference of opinion, to make an

otherwise interlocutory order immediately appealable if an appeal may materially advance the

ultimate termination of the litigation. Ill. S. Ct. R. 308(a) (eff. Jan. 1, 2016). Our review is

generally confined to the certified question. De Bouse v. Bayer AG, 235 Ill. 2d 544, 550

(2009); Cincinnati Insurance Co. v. Chapman, 2012 IL App (1st) 111792, ¶ 21. However, we

may limit our consideration of the question as necessary if answering the question as certified

would not materially advance the ultimate determination of the litigation. See Crawford

County Oil, LLC v. Weger, 2014 IL App (5th) 130382, ¶ 11 (citing De Bouse, 235 Ill. 2d at

557). Certified questions under Rule 308 are issues of law, and our review is de novo. Doe No.

2 v. Boy Scouts of America, 2016 IL App (1st) 152406, ¶ 67.

¶ 10 Because the first and second certified questions are similar, we can consider them together

under a single analysis. See Simmons v. Homatas, 236 Ill. 2d 459, 466 (2010). The parties

agree, and we concur, that the first and second certified questions, while worded differently,

apply to licensed athletic trainers and seek an answer to the question of whether plaintiffs were

required to attach an affidavit and report, pursuant to section 2-622 of the Code, to their

complaint. In the circuit court, the parties expressed concern over the wording of the questions

to be certified, with each side advancing an advocate’s perspective on what was essentially the

same question: plaintiffs were concerned with the alleged failures to assess, evaluate, and

recognize head and brain trauma, whereas defendants were focused on the alleged negligence

and the provision of on-site injury evaluation and prevention. Neither party has raised any

issue regarding the licensing requirements for athletic trainers. 5 The circuit court took a

middle ground and proposed submission of both the first and second questions so that “the

Appellate Court might have a better understanding of what exactly it is that’s being asked of

them. *** I don’t think that they are overburdensome, because they flow. They make it much

more understandable what it is that you’re asking.”

¶ 11 Although the circuit court should ensure that a certified question is concise and clearly

states the question to be answered, considering the first and second question presented, we can

comply with our responsibilities under the requirements of Rule 308 by combining questions

one and two to ensure that our answers are limited to the questions presented. See De Bouse,

235 Ill. 2d at 557. As presented in both question one and question two, the core question of law

to be answered is whether the alleged negligent conduct concerns the area of healing art

malpractice and whether compliance with section 2-622 of the Code is required. We are

essentially being asked the following question:

5

We discuss licensure of athletic trainers below.

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“Whether it is necessary for a plaintiff to attach a certificate from a health

professional pursuant to section 2-622 where the complaint alleges negligent conduct

by a licensed athletic trainer hired to provide on-site injury evaluation and treatment to

participants in an athletic competition for failing to assess and evaluate a participating

athlete for a concussion and for failing to recognize the signs of a concussion following

a trauma sustained by the participant.”

¶ 12 Whether a Section 2-622 Certificate Is Required

¶ 13 Section 2-622 of the Code states in relevant part that

“(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 ***; 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 filing of such action. *** 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

***

(g) The failure to file a certificate required by this Section shall be grounds for

dismissal under Section 2-619.” 735 ILCS 5/2-622(a)(1), (g) (West 2014).

¶ 14 A plain reading of section 2-622(a) provides that, where a claim is filed alleging healing art

malpractice, an affidavit from a pro se plaintiff or his attorney must be attached to the

complaint. The affiant must state that he has consulted with a health professional, that the

health professional has reviewed the relevant records and has determined in a written report

that there is reasonable and meritorious cause for filing a complaint, and that in light of the

report and consultation, the affiant concludes that there is reasonable and meritorious cause for

filing the complaint. A copy of the report must be attached to the affidavit. If the plaintiff fails

to attach the required affidavit and report containing the required information, the complaint is

subject to dismissal under subsection (g). Typically, where the complaint is against a doctor,

physician, nurse, or a hospital, there is little question that section 2-622 applies. However,

where the defendant is not considered to be within one of these professions, a reasonable

question exists as to section 2-622’s applicability. See Jackson v. Chicago Classic Janitorial &

Cleaning Service, Inc., 355 Ill. App. 3d 906, 910-11 (2005).

¶ 15 Defendants argue that the plaintiffs’ claims fall within the ambit of “healing art

malpractice” because the procedures employed by an athletic trainer, a person that receives

specialized training and must be licensed to practice in Illinois, are not within the grasp of an

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ordinary lay juror. Defendants argue that the recognition, evaluation, and assessment of an

athlete for a concussion following a head trauma requires the use of medical judgment.

According to defendants, plaintiffs will need to present expert testimony with respect to the

applicable standard of care and defendants’ alleged breach to prevail since a determination of

those issues is beyond the knowledge of the average lay juror.

¶ 16 Plaintiffs argue that their allegations sound in ordinary negligence, not in healing art

malpractice. They contend that defendants were “negligent in performing the activities they

contracted to provide” and by that failing to assess Drew for concussive head trauma, by

failing to timely evaluate Drew for a concussion, and by failing to recognize that Drew was

suffering from brain trauma, the defendants were not employing medical judgment but instead

were “simply shirking their agreed upon tasks.” Plaintiffs argue that defendants cannot

“credibly argue” that the athletic trainers were “rendering any services ordered by a physician

or part of a comprehensive treatment plan” for Drew. They argue that compliance with section

2-622 is only required in cases that require expert analysis of a medical condition, treatment

procedure, or diagnosis.

¶ 17 The legislature has not defined “healing art malpractice.” Defendants argue that it must be

construed broadly (see Woodard v. Krans, 234 Ill. App. 3d 690, 703 (1992)) and that the

individual terms “healing art” and “malpractice” must be given their plain and ordinary

meaning (see Jackson v. Chicago Classic Janitorial & Cleaning Service, Inc., 355 Ill. App. 3d

906, 910-11 (2005)).

¶ 18 In Jackson, the plaintiff sustained injuries during a physician-ordered evaluation

performed by a licensed occupational therapist. Id. at 907-08. The negligence claim against the

occupational therapist was dismissed for failing to attach a section 2-622 certification. Id. at

908. In answering a certified question of law pursuant to Rule 308, we found that plaintiff was

required to comply with section 2-622. Id. at 909.

¶ 19 We first looked to our decision in Lyon v. Hasbro Industries, Inc., 156 Ill. App. 3d 649, 653

(1987), in which we examined the term “healing art.” We defined “healing” as “[t]he

restoration to a normal mental or physical condition” and “art” as “a skill acquired by

experience, study, or observation and as a branch of learning.” (Internal quotation marks

omitted.) Id. We concluded that the phrase “healing art” includes “an entire branch of learning

dealing with the restoration of physical or mental health.” Id. at 654.

¶ 20 Next, the Jackson court observed that “malpractice” is defined as the “ ‘[f]ailure of one

rendering professional services to exercise that degree of skill and learning commonly applied

under all the circumstances in the community by the average prudent reputable member of the

profession with the result of injury *** to the recipient of those services.’ ” Jackson, 355 Ill.

App. 3d at 910 (quoting Black’s Law Dictionary 959 (6th ed. 1990)); see also Loman v.

Freeman, 375 Ill. App. 3d 445, 452 (2006) (“ ‘Malpractice’ is ‘[a]n instance of negligence or

incompetence on the part of a professional.’ ” (quoting Black’s Law Dictionary 978 (8th ed.

2004))).

¶ 21 Jackson then considered whether the complaint sounded in healing art malpractice,

requiring compliance with section 2-622, or whether the complaint alleged ordinary

negligence. Three factors were considered: (1) whether the standard of care involves

procedures not within the grasp of the ordinary lay juror, (2) whether the activity is inherently

one of medical judgment, and (3) the type of evidence that will be necessary to establish

plaintiff’s case. Jackson, 355 Ill. App. 3d at 911-13. As to the first factor, we found that

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occupational therapists conducting the evaluations at issue in Jackson “employ specialized

knowledge and skill that is not within the grasp of the ordinary lay juror,” and we

acknowledged that occupational therapists are licensed by and subject to discipline by the

State. Id. at 911. As to the second factor, we found that occupational therapists exercised

medical judgment when determining which exercises were appropriate in conducting the

evaluations. Id. at 912; see also Lyon, 156 Ill. App. 3d at 655 (finding that an ambulance

company’s determination of which equipment was necessary and precautionary to meet the

needs of a patient is inherently one of medical judgment). Finally, as to the third factor, we

observed that the evidence necessary to prove the allegations against the occupational therapist

was “beyond the ken of the average lay juror” and, as such, would require expert testimony.

Jackson, 355 Ill. App. 3d at 913. We concluded that the allegations of the plaintiff’s complaint

fell within the “ambit” of the term “ ‘healing art malpractice’ and section 2-622 of the Code.”

Id.

¶ 22 We believe the analysis in Jackson is sound and applicable to the case before us. First, we

consider whether the standard of care for athletic trainers in evaluating concussions involves

procedures not within the grasp of the ordinary lay juror. As a matter of public policy, the

legislature enacted the Illinois Athletic Trainers Practice Act (Athletic Trainers Practice Act)

(225 ILCS 5/1 (West 2014)), which requires those who hold themselves out as athletic trainers

in Illinois be licensed, with certain exceptions not relevant here.

¶ 23 The Athletic Trainers Practice Act defines a “licensed athletic trainer” as:

“[A] person licensed to practice athletic training as defined in this Act and with the

specific qualifications set forth in Section 9 of this Act who, upon the direction of his or

her team physician or consulting physician, carries out the practice of

prevention/emergency care or physical reconditioning of injuries incurred by athletes

participating in an athletic program conducted by an educational institution ***.” 225

ILCS 5/3(4) (West 2014).

Section 3(4) of the Athletic Trainers Practice Act sets forth a nonexhaustive list of the specific

duties of an athletic trainer, which includes “[p]rovision of on-site injury care and evaluation

*** for all injuries sustained by athletes in the program.” 225 ILCS 5/3(4)(H) (West 2014).

Section 4 of the Athletic Trainers Practice Act provides that: “[N]o person shall provide any of

the services set forth in subsection (4) of Section 3 of this Act, or use the title ‘athletic trainer’

or ‘certified athletic trainer’ *** or the letters *** ‘A.T.C.’ *** after his [or her] name, unless

licensed under this Act.” 225 ILCS 5/4 (West 2014). Licensed athletic trainers are subject to

discipline through the Illinois Department of Financial and Professional Regulation. 225 ILCS

5/16 (West 2014).

¶ 24 Here, the complaint alleges that Athletico was hired by Chicago public schools and ARC

and Buzun were hired by Lane Tech to provide on-site injury evaluation and treatment to

athletes participating in the October 4, 2013, football game.6 Defendants were hired to provide

services that only a licensed athletic trainer could provide, and they held themselves out as

licensed athletic trainers. Defendants were therefore subject to the requirements of the Athletic

Trainers Practice Act and were required to meet the qualifications for licensure and comply

with the statutory duty to provide injury care and evaluation to all participating athletes under

6

The complaint alleges that ARC “agreed to provide athletic training services for Lane Tech,”

although the complaint does not allege the existence of a written contract.

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their care, including Drew. See 225 ILCS 5/3(4)(H) (West 2014); see also Sellers v. Rudert,

395 Ill. App. 3d 1041, 1053 (2009) (finding that the Athletic Trainers Practice Act

“demonstrates the existence of a standard of care for athletic trainers”). With respect to the first

Jackson factor, the duty to evaluate and treat on-site injuries is vested in athletic trainers

licensed by and subject to discipline by the State. In the context of the negligence allegations in

this case, a determination of the standard of care required of the defendants, including the

specialized knowledge and skill involved in carrying out an athletic trainer’s duties to assess,

evaluate, and recognize an athlete’s condition, is not within the grasp of a lay juror. See

Jackson, 355 Ill. App. 3d at 911. The first Jackson factor weighs in favor of finding that

plaintiffs’ complaint alleges healing art malpractice for the purposes of section 2-622 of the

Code.

¶ 25 With respect to the second Jackson factor, defendants argue that the athletic trainers’

activity was “inherently one of medical judgment.” They argue that Illinois public policy

reflects that athletic trainers are considered competent to provide the medical judgment

necessary to evaluate concussions. In support, defendants point to Public Act 99-245 (eff. Aug.

3, 2015) (adding 105 ILCS 5/22-80), which amended the Illinois School Code to require that,

where a student is removed from an athletic activity due to a belief that the student sustained a

concussion, the student may not practice or compete until that student has been evaluated,

using established medical protocols, by a physician or athletic trainer.7

¶ 26 Plaintiffs argue that defendants’ medical judgment was never employed because the

defendants did not evaluate or treat Drew in response to the first-quarter collision. Plaintiffs

argue that Drew allegedly sustained “numerous additional impacts” to his head before

defendants evaluated him for the first time in the fourth quarter. We fail to see how this would

alter our analysis because a licensed professional’s failure to perform in accord with the

applicable standard of care can also be a basis for liability.

¶ 27 Plaintiffs’ first amended complaint alleges that Athletico and ARC/Buzun “watch for signs

of concussion and must evaluate and assess a player following a sign of brain trauma.” This

allegation clearly implicates a medical judgment. In order to watch for, evaluate, and assess the

signs of a brain trauma, the defendants are required to possess the specialized knowledge and

skill of a licensed athletic trainer, and they must be familiar with what signs to look for and

how to evaluate and assess those signs in order to respond appropriately. In Lyon, we held that

even though the plaintiff’s claim against an ambulance company for failing to properly equip

an ambulance sounded in ordinary negligence, plaintiff was not excused from the requirements

of section 2-622 of the Code because “the determination of which equipment is necessary and

precautionary to meet a person in plaintiff’s condition’s needs is inherently one of medical

judgment.” Lyon, 156 Ill. App. 3d at 655. In Jackson, we held that an occupational therapist’s

determination of the appropriate exercises in conducting the plaintiff’s evaluation was

inherently one of medical judgment where those determinations could “only be properly made

by individuals with the necessary training and expertise.” Jackson, 355 Ill. App. 3d at 912.

¶ 28 Here, a determination of whether to assess or evaluate Drew following the first-quarter

collision requires at least some degree of medical judgment. In our view, plaintiffs’ claim is

analogous to a medical negligence claim alleging a failure to diagnose, in which a

7

Defendants acknowledge that Public Act 99-245 became effective after plaintiffs filed their first

amended complaint in this cause but argue that we can consider it as part of our state’s public policy.

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professional’s conduct (e.g., the failure to assess or evaluate a patient and thereby failing to

diagnose a condition) falls below the standard of care, resulting in an injury. See, e.g., Kramer

v. Milner, 265 Ill. App. 3d 875, 876 (1994) (involving allegations that defendant physician was

negligent in failing to recommend or order a screening mammogram that could have revealed

decedent’s breast cancer and whether defendant’s conduct fell below the applicable standard of

care). We therefore find that the second Jackson factor weighs in favor of finding that

plaintiffs’ complaint alleges healing art malpractice for the purposes of section 2-622.

¶ 29 The final Jackson factor considers the type of evidence that will be necessary for plaintiffs

to prove their case. Defendants argue that since this is a professional negligence case, plaintiffs

will need expert testimony to establish both the standard of care (see Studt v. Sherman Health

Systems, 2011 IL 108182, ¶ 20 (“ ‘[I]n professional negligence cases, *** the plaintiff bears a

burden to establish the standard of care through expert witness testimony.’ ” (quoting

Advincula v. United Blood Services, 176 Ill. 2d 1, 24 (1996)))) and that a deviation from that

standard caused the plaintiffs’ injuries (Jones v. Chicago HMO Ltd. of Illinois, 191 Ill. 2d 278,

296 (2000)). Defendants argue that the evidence necessary in this case to prove negligence is

beyond the knowledge of a lay juror. Plaintiffs do not offer any counter-argument on this point.

¶ 30 We take caution in not issuing advisory opinions as to how plaintiffs must prove their case,

and we do not intend to inadvertently stray beyond the issues germane to the certified

questions. The proof required to establish defendants’ liability is better left to the circuit court.

That stated, considering defendants’ status as licensed athletic trainers, their alleged acts and

omissions, and plaintiffs’ theory of liability, the third Jackson factor weighs in favor of finding

that plaintiffs’ complaint sounds in healing art malpractice. Based on the record before us, it

appears that plaintiffs will need to establish that defendants failed to employ the degree of

knowledge, skill, and ability that a reasonable athletic trainer would employ under similar

circumstances.

¶ 31 In sum, for the reasons set forth above, we answer the reframed version of the first and

second certified questions in the affirmative: plaintiffs were required to attach an affidavit and

health professional’s report pursuant to section 2-622 of the Code, where the complaint alleges

negligent conduct by a licensed athletic trainer hired to provide on-site injury evaluation and

treatment to participants of an athletic competition for failing to assess and evaluate an athlete

for a concussion and for failing to recognize the signs of a concussion following a head trauma

sustained by a participant in the athletic competition. On remand, the trial court is instructed to

allow plaintiffs a reasonable opportunity to comply with section 2-622.

¶ 32 What Type of Health Professional Must Author the Section 2-622 Report

¶ 33 Having answered the first and second certified questions in the affirmative, we consider the

third certified question:

“3. If so, must the health care professional that issues the certificate pursuant to

section 2-622 of the Code be someone in the same profession, with the same class of

license as the defendant Athletic Trainer.”

¶ 34 We start again with the plain language of section 2-622(a)(1) of the Code, which provides

in relevant part:

“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

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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 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 podiatric physician, 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 profession of the reviewing health professional.” (Emphasis added.) 735

ILCS 5/2-622(a)(1) (West 2014).

¶ 35 The parties do not dispute that “athletic trainers” fall within the category of “all other

defendants” in section 2-622(a)(1) of the Code. The statute plainly states: “For affidavits filed

as to all other defendants, the written report must be from a physician licensed to practice

medicine in all its branches.” (Emphasis added.) 735 ILCS 5/2-622(a)(1) (West 2014).

Defendants, however, argue that the report here should be “authored by a physician with

qualifications tailored to the field of athletic training” or, alternatively, that the written report

“should be authored by someone in the same profession, with the same class of license as the

defendant athletic trainer” because the initial review of a potential cause of action for medical

malpractice under section 2-622 necessarily encompasses a review of the applicable standard

of care, and in general, in order to testify as an expert on the standard of care in a given school

of medicine, a witness must be licensed in that school of medicine. We disagree.

¶ 36 Defendants’ argument cannot be accepted in light of the plain language of the statute. To

require plaintiffs in this case to file a written report from an athletic trainer with the same class

of license as defendants would be contrary to the plain language of the section 2-622 of the

Code and would therefore be contrary to the express intent of the legislature. See Paris v.

Feder, 179 Ill. 2d 173, 177 (1997) (“The best evidence of legislative intent is the language used

in the statute itself, which must be given its plain and ordinary meaning.”).

¶ 37 We therefore answer the third certified question in the negative: the health professional that

reviews the case and authors the written report pursuant to section 2-622(a) of the Code need

not be someone in the same profession, with the same class of license as the defendant athletic

trainer, but instead must be a physician licensed to practice medicine in all its branches who is

otherwise qualified under section 2-622(a) of the Code.

¶ 38 CONCLUSION

¶ 39 For the foregoing reasons, plaintiffs’ first amended complaint sounds in healing art

malpractice, and plaintiffs were therefore required to comply with section 2-622 of the Code

by attaching an affidavit accompanied by a written report from a physician licensed to practice

in all branches of medicine who meets the qualifications of section 2-622(a)(1). We remand

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this cause to allow plaintiffs a reasonable opportunity to comply with section 2-622 of the

Code and for further proceedings consistent with this opinion.

¶ 40 Certified questions answered; cause remanded.

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