Governor’s report indicates that Confidentiality Act was intended to apply to persons entering into a therapeutic relationship
How later courts described this case
- Governor’s report indicates that Confidentiality Act was intended to apply to persons entering into a therapeutic relationship
- declining to apply professional standard of care to social workers
Written by the judges who cited it.
The opinion
PRESIDING JUSTICE WEBBER, concurring in part and dissent-
ing:
I concur in the dismissal of counts II and IV, the malpractice counts, but I dissent from the reinstatement of counts I, III and V.
As to count I, breach of contract: I find a close analogy in the prior authorities in which a plaintiff sought damages for malpractice against a physician based on (1) negligence and (2) breach of contract. An appropriate summary is contained in Rogala v. Silva (1973), 16 Ill. App. 3d 63, 65 , 305 N.E.2d 571 , 573:
“Our research indicates that heretofore no court of review in Illinois has been required to consider whether an action based upon the contract of a physician to effect a particular cure will lie, although it appears that such an action has been recognized in other jurisdictions. [Citations.] These jurisdictions have insisted that the contract be set forth explicitly in the complaint, proved by clear and convincing evidence and supported by some consideration separate from the plaintiff’s agreement to pay the physician for his services. [Citation.] After reviewing these authorities we are inclined to agree with our statement in Gault v. Sideman (1963), 42 Ill. App. 2d 96 , 191 N.E.2d 436 , that if the Illinois courts would consider enforceable such a warranty by a physician, it would be necessary to allege and prove the making of the warranty, the plaintiff’s reliance thereon and a separate consideration.”
In Gault, cited in Rogala above, the court quoted at length from an article entitled “The Contractual Liability of Physicians and Surgeons' by Arnold J. Miller in Wash. U.L.Q. 413 (1953), a portion of which states:
“ ‘There are compelling arguments, then, as outlined in the foregoing, that a strong public policy permeates all aspects of any contractual arrangement between physician and patients and operates to lift it out of the field of discourse of ordinary commercial contracts. It operates to prevent the physician from escaping his responsibilities to the society he serves, and should operate, it is here contended, to protect the physician in the pursuit of his healing art against strict liability for the consequences of unguarded utterances and from the fertile imaginations of the fraudulently minded.’ ” Gault v. Sideman (1963), 42 Ill. App. 2d 96, 109 , 191 N.E.2d 436, 443 .
Admittedly the defendant Family Service Agency against which the contract count is directed is not a physician, but in my judgment the rationale is the same. Family Service provides services in the mental health field; it is staffed by persons who have had professional training; it is not a farmer selling carrots in the common market; and hence any contracts which it might make are “out of the field of discourse of ordinary commercial contracts.” (Gault.) The allegations in count I of the third amended complaint tell us about this contract only this:
“On or about October 7, 1979, Plaintiff and Defendant, Family Service Agency, entered into an agreement whereby Defendant would provide counseling services in an effort to improve the marital relationship between Plaintiff and her husband and Plaintiff would pay fees for such services pursuant to the Defendant’s fee schedule. The agreement was oral.”
This fails the tests mandated in Rogala; the contract is not explicitly set forth and there is no allegation of a separate consideration. We have only the bare-bones allegation of an oral contract, and under the circumstances of such a special contract it is not sufficient to say that further information might be developed by discovery.
By remanding for trial on this “contract” the majority has accomplished a severe degringolade on the law of professional agreements.
As to counts III and V, violation of the Confidentiality Act: I agree that the statute creates a cause of action, but I cannot agree that the damages have been sufficiently pleaded. The majority states, “The damages a client might receive from the improper practice of social work are unlikely to be pecuniary in nature and extremely unlikely to be physical in nature.” I agree and further conclude that the damages must therefore be pleaded with great specificity. The cause of action was unknown at common law and therefore a general and traditional allegation of damage is entirely insufficient. Plaintiff had four opportunities to rectify this omission and failed each time.
I would affirm the trial court’s order in its entirety.