When you suffer injuries due to another person’s negligence, you may have the option of asserting several different causes of action to recover compensation. Knowing which causes of action to assert and whether you need to follow certain procedural requirements with each cause of action is a critical step in your lawsuit. As seasoned Chicago personal injury lawyers, we have substantial experience with numerous causes of action and can ensure that your rights are protected. A recent Illinois appellate case demonstrates the importance of asserting the appropriate cause of action and complying with any procedural requirements.
In 2014, the plaintiff underwent a number of plastic surgery procedures performed by the same plastic surgeon. After these procedures, the plaintiff filed a complaint alleging that the doctor owed her damages for breach of contract, medical battery, and consumer fraud. In her complaint, the plaintiff stated that she had a consultation with the doctor to learn about the procedures she wanted to have, including the removal of a breast implant. She further alleged that she and the doctor agreed that new implants would be placed below the pectoral muscle and agreed upon a price for the procedure. A formal written proposal was created in writing with an itemization of the procedures. The proposal did not discuss the placement of the new implants, but the plaintiff alleged that the parties had reached a verbal agreement. During the procedure, the doctor placed the implants above the pectoral muscle.
In response to the complaint, the defendants submitted a motion to dismiss, arguing that the complaint was one for medical negligence and that as a result, the plaintiff was required to comply with certain statutory requirements for medical malpractice in Illinois, including the submission of an affidavit from a licensed medical professional substantiating the plaintiff’s claims of medical negligence. The plaintiff rejected this characterization of her complaint as one involving medical negligence. Instead, she alleged that her consumer fraud claim did not involve medical negligence but instead deceptive business practices because he agreed to perform the surgery one way and then did it another way. It was not the standard of care used during the procedure that the plaintiff challenged, but instead the businesses practices that the defendant used before the procedure.
The trial court ultimately ruled in favor of the defendant and granted its motion to dismiss the plaintiff’s complaint, finding that the complaint sounded in medical negligence rather than consumer fraud, as the plaintiff contended. The trial court then dismissed the plaintiff’s claim with prejudice. The trial court denied the plaintiff’s motion to reconsider, and the plaintiff appealed.
On review, the appellate court affirmed the lower court’s holding. In rejecting the plaintiff’s argument that the matter was not beyond an ordinary layperson’s understanding, the appellate court concluded that the issue of the placement of the implants required knowledge of surgical procedures that falls beyond common knowledge. Therefore, an average juror would not be able to understand the medical differences between the two placements, which may have been pertinent to the defendant’s conduct.
If you were harmed as a result of another person’s carelessness, the seasoned personal injury lawyers at Therman Law Offices are standing by to help you navigate the legal process. We have represented many victims and their families throughout Illinois and understand exactly what you are going through. To schedule your free consultation, call us now at 773-545-8849 or contact us online to get started.
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