Docket No. 92691–Agenda 27–September 2002.

BETTY LOU EADS, Appellee, v. HERITAGE ENTERPRISES, 

								INC., et al., Appellants.

Opinion filed February 21, 2003.

	JUSTICE RARICK delivered the opinion of the court:

	The sole issue in this case is whether a plaintiff asserting a

private right of action under the Nursing Home Care Act (210

ILCS 45/1–101 et seq. (West 2000)) must attach to her complaint the certificate of merit and supporting report required by section

2–622 of the Code of Civil Procedure (735 ILCS 5/2–622 (West

2000)), popularly known as the Healing Arts Malpractice Act. On

a permissive interlocutory appeal brought pursuant to Supreme

Court Rule 308 (155 Ill. 2d R. 308), the appellate court answered

this question in the negative, holding that section 2–622 is

inapplicable to claims arising under the Nursing Home Care Act.

325 Ill. App. 3d 129. One justice dissented. We granted leave to

appeal from the appellate court’s judgment (177 Ill. 2d R. 315) and

now affirm.

	The litigation which gave rise to this appeal commenced when

plaintiff, Betty Lou Eads, brought an action in the circuit court of

Sangamon County to recover damages for personal injuries she

sustained in a fall at Memorial ContinuCare (ContinuCare), a for-

profit, extended-term nursing facility located in Springfield, Illinois.

Named as defendants were ContinuCare’s three owners, Heritage

Enterprises, Inc.; Rutledge Joint Ventures, L.L.C.; and Memorial

Health Ventures.

	Plaintiff’s complaint, as amended, alleged that she resided at

ContinuCare for approximately one week in July of 1998. Plaintiff

had gone to the facility following her release from Memorial

Medical Center, where she had been hospitalized for transient

ischemic attacks. At the time she arrived at ContinuCare, plaintiff

was weak, unsteady, and suffering from confusion. She

subsequently became feverish, which caused additional confusion,

hallucinations, weakness, unsteadiness, and an inability to

comprehend instructions given to her by the facility’s staff.

	Plaintiff’s amended complaint alleged that defendants, as the

owners and operators of ContinuCare, by and through their staff, agents or employees, were aware that she was suffering from the

foregoing problems. The complaint further alleged that defendants

were aware that plaintiff repeatedly got out of bed without

assistance to go to the bathroom. On one such trip, she fell. The

fall caused her to fracture her hip and produced severe bruises on

her head and body.

	Plaintiff sought to impose liability on defendants for her

injuries pursuant to the Nursing Home Care Act (210 ILCS

45/1–101 et seq. (West 2000)). Specifically, plaintiff asserted that, under the Act, defendants owed her a duty to “ensure that [she]

was assisted at all times when she needed to ambulate from her bed

to the bathroom.” Plaintiff contended that defendants breached that

duty by failing to provide adequate surveillance and supervision;

failing to promptly respond to her call light, which forced her to

attempt to use the bathroom without assistance; failing to equip her

bed with a pressure-release alarm that would have alerted the

facility’s staff when she got out of bed so that they could come and

assist her; failing to provide adequate staff to ensure that residents,

including plaintiff, would have assistance when they required it;

failing to attend to plaintiff’s needs; and allowing plaintiff to fall in

her room as she attempted to go to the bathroom. For her relief,

plaintiff sought an award of damages plus her costs and attorney

fees.

	Defendants moved to dismiss plaintiff’s cause of action under

section 2–619.1 of the Code of Civil Procedure (735 ILCS

5/2–619.1 (West 2000)). As grounds for their motion, defendants

argued that plaintiff should be precluded from proceeding with her

claims because she did not attach to her complaint the certificate

of merit and supporting report required by section 2–622 of the

Code of Civil Procedure (735 ILCS 5/2–622 (West 2000)), the

Healing Arts Malpractice Act. The circuit court found this

contention to be meritorious. It therefore dismissed plaintiff’s

complaint with leave to replead.

	On plaintiff’s motion, the circuit court subsequently made a

written finding pursuant to Supreme Court Rule 308(a) (155 Ill. 2d

R. 308(a)) that its dismissal order involved a question of law as to

which there is substantial ground for difference of opinion and that

immediate appeal from the order may materially advance the ultimate termination of the litigation. The specific question of law

identified by the court was as follows:

			“In a case where the Plaintiff has sued a nursing home

for injuries sustained as a result of alleged violations by the

nursing home, its staff and employees, of the Illinois

Nursing Home Care Act [210 ILCS 45/1–101 et seq. (West 2000)], and the regulations promulgated pursuant

thereto at 77 Illinois Administrative Code Section 300, et seq., is the Plaintiff required to comply with the mandates of *** the Healing Arts Malpractice Act [735 ILCS

5/2–622 (West 2000)]?

	Once the circuit court made its written finding, plaintiff applied

to the appellate court for leave to appeal from the circuit court’s

dismissal order. The appellate court granted her application. Over

the dissent of one justice, the court then answered the foregoing

question of law in the negative, holding that actions brought under

the Nursing Home Care Act are not subject to the mandates of the

Healing Arts Malpractice Act. 325 Ill. App. 3d at 138.

	Defendants subsequently petitioned our court for leave to

appeal from the appellate court’s judgment. We granted that

petition, and the matter is now before us for review. Because the

appeal concerns a question of law certified by the circuit court

pursuant to Supreme Court Rule 308, because it presents a

question of statutory interpretation, and because it arose in the

context of an order granting a section 2–619 motion to dismiss,

our review is de novo. Weatherman v. Gary-Wheaton Bank of Fox Valley, N.A., 186 Ill. 2d 472, 480 (1999); Michigan Avenue National Bank v. County of Cook, 191 Ill. 2d 493, 503 (2000); Nowak v. St. Rita High School, 197 Ill. 2d 381, 389 (2001).

	The Nursing Home Care Act, upon which plaintiff’s cause of

action is founded, was adopted more than 20 years ago “amid

concern over reports of ‘inadequate, improper and degrading

treatment of patients in nursing homes.’ ” Harris v. Manor Healthcare Corp., 111 Ill. 2d 350, 357-58, quoting Senate Debates, 81st Ill. Gen. Assem., May 14, 1979, at 184 (statements

of Senator Karl Berning). It was described by one of its principal

sponsors as a “ ‘full reform of the nursing home industry.’ ”

Harris, 111 Ill. 2d at 358, quoting Senate Debates, 81st Ill. Gen. Assem., May 14, 1979, at 181 (statements of Senator Richard M.

Daley).

	The Act repealed the nursing homes, sheltered care homes and

homes for the aged act (Ill. Rev. Stat. 1977, ch. 1111⁄2, par. 35.16 et seq.) and

		“replaced it with a comprehensive statute which

established standards for the treatment and care of nursing

home residents; created minimum occupational

requirements for nurses aides; and expanded the power of

the Illinois Department of Public Health to enforce the

provisions of the Act.” Harris v. Manor Healthcare Corp., 111 Ill. 2d at 358.

	A principal component of the Act is the residents’ “bill of

rights,” under which nursing home residents are guaranteed certain

rights, including the right to manage their own finances, the right

to refuse treatment, and the right to be free from abuse and neglect

by nursing home personnel. See 210 ILCS 45/2–101 through

2–113 (West 2000); see also Harris v. Manor Healthcare Corp., 111 Ill. 2d at 358.

	To ensure that nursing homes comply with the Act, the

legislature invested the Department of Public Health with expanded

regulatory and enforcement powers, and created civil as well as

criminal penalties. See, e.g., 210 ILCS 45/3–119, 3–301 through 3–318 (West 2000); see also Harris v. Manor Healthcare Corp., 111 Ill. 2d at 358-59. It also expressly granted nursing home

residents a private cause of action for damages and other relief

against nursing home owners and operators who violate its

provisions. 210 ILCS 45/3–601, 3–602, 3–603 (West 2000).

Fisher v. Lexington Health Care, Inc., 188 Ill. 2d 455, 461 (1999).

	In granting private remedies to nursing home residents, the

General Assembly embraced the concept of a “private attorney

general.” It realized that the Department of Public Health could not

police every nursing home on a daily basis and could not detect

every violation of the Act. It also realized that nursing home

residents themselves are in the best position to know of and seek

redress for violations. See Springwood Associates v. Lumpkin, 239 Ill. App. 3d 771, 777 (1992).

	Under section 3–601 of the Act, owners and licensees of a

facility are liable to a resident for injuries caused by the intentional

or negligent acts or omissions of their employees or agents. 210

ILCS 45/3–601 (West 2000). Section 3–602 requires licensees to

pay actual damages and costs and attorney fees to nursing home

residents whose rights under the Nursing Home Care Act are

violated. 210 ILCS 45/3–602 (West 2000). Section 3–603 permits

nursing home residents to maintain an action under the Nursing

Home Care Act for any other type of relief permitted by law,

including injunctive and declaratory relief. 210 ILCS 45/3–603

(West 2000).

	The cause of action asserted by plaintiff in the case before us

is premised on the foregoing statutory provisions. There is no

dispute that the allegations of plaintiff’s complaint, if proved,

would entitle her to relief under the Act. Defendants’ challenge to

her cause of action is based solely on procedural grounds. They

argue that plaintiff should be precluded from proceeding against

them under the Nursing Home Care Act because she did not

comply with section 2–622 of the Code of Civil Procedure (735

ILCS 5/2–622 (West 2000)), commonly referred to as the Healing

Arts Malpractice Act.

	The Nursing Home Care Act itself contains no special

procedures regulating the conduct of private rights of action

brought pursuant to its provisions. Such actions are therefore

governed by article II of the Code of Civil Procedure (735 ILCS

5/2–101 et seq. (West 2000)), also known as the Civil Practice Law (735 ILCS 5/1–101(b) (West 2000)), and by the Illinois

supreme court rules on civil proceedings in the trial court (134 Ill.

2d R. 1).

	Among the provisions of article II of the Code of Civil

Procedure is section 2–622 (735 ILCS 5/2–622 (West 2000)), the

Healing Arts Malpractice Act. That statute, however, does not

apply to all civil actions. By its terms, it is applicable only to

“action[s], 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.” 735 ILCS 5/2–622(a)

(West 2000).

	In damage actions based on “medical, hospital or other healing

art malpractice,” section 2–622 requires the plaintiff’s attorney or

the plaintiff, if the plaintiff is proceeding pro se, to file an affidavit, attached to the complaint, declaring that he has consulted with a

health-care professional who has determined, by written report,

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,” must be attached to the affidavit. 735 ILCS

5/2–622(a)(1) (West 2000). Failure to comply is grounds for

dismissal under section 2–619 of the Code of Civil Procedure (735

ILCS 5/2–619 (West 2000)). 735 ILCS 5/2–622(g) (West 2000).

	No affidavit or report of the type described by section 2–622

was attached to plaintiff’s complaint. The absence of such

supporting documentation was the basis for the circuit court’s

order granting defendants’ motion to dismiss. The circuit court

correctly recognized, however, that its dismissal order can be

sustained only if plaintiff’s cause of action under the Nursing Home

Care Act is subject to the requirements of the Healing Arts

Malpractice Act. That is why the court certified the question of law

before us today.

	When the applicability of section 2–622 was raised in the

circuit court, the threshold issue addressed by the parties and

considered by the court was whether plaintiff’s cause of action

sounded in “medical, hospital or other healing art malpractice”

within the meaning of that statute. In holding that it did, the trial

court relied on Taylor v. City of Beardstown, 142 Ill. App. 3d 584 (1986), and Kolanowski v. Illinois Valley Community Hospital, 188 Ill. App. 3d 821 (1989). Those cases, however, involved

claims against hospitals based on common law negligence

principles, not statutory actions against nursing home owners or

licensees pursuant to the Nursing Home Care Act. In addition, both

concerned situations where there was an issue as to whether and in

what manner patients should have been physically restrained.

	There is no question that the decision to physically restrain a

hospital patient requires the exercise of medical judgment. The

same is true of the decision to restrain the resident of a nursing

home. The Nursing Home Care Act specifically states that restraints or confinements may not be employed “except as ordered

by a physician.” 210 ILCS 45/2–106(b) (West 2000). In the case

before us, however, restraints are not at issue. No claim is made

that plaintiff should have been restrained and was not or that her

injuries were the proximate result of some failure by defendants to

employ appropriate physical confinements.

	Under the Nursing Home Care Act, actionable neglect

includes a failure to provide adequate “personal care” which failure

results in physical injury to the resident. 210 ILCS 45/1–117 (West

2000). “Personal care” is defined to mean assistance with, among

other things, “movement, bathing or other personal needs or

maintenance, or general supervision and oversight of the physical

and mental well-being” of the resident. 210 ILCS 45/1–120 (West

2000). These are the predicate for plaintiff’s claim here. As

described earlier in this disposition, the gravamen of plaintiff’s

complaint is that defendants breached their statutory duties to her

by failing to provide the supervision and assistance necessary under

the circumstances to enable her to move safely from her bed to the

bathroom in her room.

	A similar situation was presented in Owens v. Manor Health Care Corp., 159 Ill. App. 3d 684 (1987). In that case, a nursing home resident who had fallen and broken his hip while attempting

to get out of his wheel chair brought suit against the facility under

the Nursing Home Care Act. Among his allegations were that the

facility had failed to provide adequate supervision, failed to attend

to his needs, and negligently allowed him to remove himself from

his wheelchair.

	The nursing home moved to dismiss on the grounds that

plaintiff’s complaint was fatally defective because it did not include

a written report from a health professional, as required by section

2–622. The circuit court granted that motion, but the appellate

court reversed. It held that the negligence alleged in the complaint

did not constitute “healing art malpractice” within the meaning of

section 2–622 because it did not arise from medical diagnosis or

treatment.

	In the appellate court’s view,

		“[t]he plaintiff merely fell as he attempted to remove

himself from his wheelchair. Expert testimony from a health-care professional is not required to assess the acts

of the defendant. The determination to be made is not

inherently one of medical judgment.” Owens v. Manor Health Care Corp., 159 Ill. App. 3d at 688-89.

Accordingly, the court concluded that plaintiff was not required to

comply with section 2–622. It therefore reversed the judgment

dismissing plaintiff’s claim with prejudice and remanded the cause

to the circuit court for further proceedings. Owens v. Manor Health Care Corp., 159 Ill. App. 3d at 689.

	Although the appellate court in the case before us reached the

same result, it employed a different analysis. The Owens court focused on the nature of the particular wrongdoing alleged in the

complaint. Under its approach, the pivotal inquiry is whether the

negligence claimed by a nursing home resident could be construed

as “healing arts malpractice.” If it cannot, section 2–622 is

inapplicable. If it can, however, the reasoning of Owens would require that section 2–622 be followed.

	Under the Owens approach, a possibility remains that some claims under the Nursing Home Care Act will be subject to section

2–622’s requirements. The appellate court in this case, however,

found that an irreconcilable conflict existed between the Nursing

Home Care Act, on the one hand, and the legislative package with

which section 2–622 was enacted, on the other. It resolved the

conflict by holding: (1) that the Nursing Home Care Act was more

specifically applicable to plaintiff’s cause of action than section

2–622 and (2) that requiring nursing home residents to comply

with section 2–622 as a condition of filing suit under the Nursing

Home Care Act would thwart the purpose of the Act. Based on

these principles, the appellate court found it unnecessary to assess

whether particular conduct would otherwise constitute “healing art

malpractice.” It ruled simply that the mandates of section 2–622

are not binding on plaintiffs who seek recovery under the Nursing

Home Care Act. 325 Ill. App. 3d at 136-38.

	The approach taken by the appellate court is sound. In

construing the statutes at issue in this case and the relationship

between them, the court may consider the reason and necessity for

the legislation, the evils it was designed to remedy, and the objects

and purposes the General Assembly sought to achieve. See People v. Woods, 193 Ill. 2d 483, 487 (2000). Section 2–622 post-dates the Nursing Home Care Act and had a different objective than that

statute. As indicated earlier in this disposition, the Nursing Home

Care Act was directed specifically at reforming the nursing home

industry. Section 2–622, on the other hand, is one of a number of

provisions added to the Code of Civil Procedure in 1985 by Public

Act 84–7, eff. August 16, 1985, in response to what was perceived

by the General Assembly to be a crisis in the area of medical

malpractice litigation. Miller v. Rosenberg, 196 Ill. 2d 50, 60 (2001).

	The Nursing Home Care Act sought to achieve its purposes by

expanding the criminal and civil liability of nursing home owners

and licensees and by encouraging nursing home residents to press

their claims as private attorneys general. Under the Act, litigation

was viewed as an engine of reform. Just the opposite was true of

the medical malpractice reform legislation with which section

2–622 was enacted. That set of laws viewed private damage claims

as detrimental. Rather than expand opportunities for plaintiffs to

seek redress, the medical malpractice reform legislation was

designed to protect defendants. Its provisions were enacted with

a view to reducing the number of medical malpractice suits and

lowering the size of the awards in medical malpractice cases where

plaintiffs succeed in establishing their claims. Miller v. Rosenberg, 196 Ill. 2d at 60-61, quoting Ill. Ann. Stat., ch. 110, 2–109,

Historical & Practice Notes, at 30 (Smith-Hurd Supp. 1992).

	The opposing nature of the two sets of laws is evident from

their provisions. The medical malpractice reform legislation

expressly bans recovery of punitive damages in all cases in which

the plaintiff seeks damage by reason of medical, hospital or other

healing art malpractice. 735 ILCS 5/2–1115 (West 2000). By

contrast, the Nursing Home Care Act allows plaintiffs to recover

common law punitive damages upon proof of willful and wanton

misconduct on the part of defendants. Dardeen v. Heartland Manor, Inc., 186 Ill. 2d 291, 300 (1999).

	In medical malpractice actions, plaintiffs must pay their own

attorney fees. In addition, the amount of fees a plaintiff may pay his

or her own lawyer on a contingency basis is limited. The higher

recovery, the lower the permissible rate. 735 ILCS 5/2–1114 (West 2000). Private rights of action for damages under the Nursing

Home Care Act, on the other hand, actually benefit from a fee-

shifting provision. The attorney fees for a successful plaintiff must

be paid by the defendant nursing home licensee, not the plaintiff,

and the amount of fees that the plaintiff’s attorney may receive is

not subject to any statutory maximum. 210 ILCS 45/3–602 (West

2000).

	In addition to authorizing statutory fee awards, the Nursing

Home Care Act contains a number of additional provisions whose

purpose is to encourage plaintiffs to bring private rights of action.

Under the Act, damages may be recovered through class actions.

210 ILCS 45/3–604 (West 2000). Exhaustion of administrative

remedies is not required prior to commencing suit. 210 ILCS

45/3–604 (West 2000). The damages a plaintiff recovers may not

be taken into consideration for purposes of considering the

plaintiff’s eligibility for medical assistance under the Public Aid

Code (305 ILCS 5/1–1 et seq. (West 2000)). 210 ILCS 45/3–605 (West 2000). In addition, a nursing home licensee is prohibited

from taking any retaliatory action against a resident who asserts a

private right of action to recover damages from it, regardless of the

outcome. 210 ILCS 45/3–608 (West 2000).

	The medical malpractice legislation of which section 2–622 is

a part contains no corresponding incentives for pursing damage

claims. To the contrary, it provides a disincentive for the filing of

healing arts malpractice claims. It does so by subjecting

unsuccessful litigants to suits for malicious prosecution in which

the medical provider is relieved of the obligation to plead and

prove special injury. 735 ILCS 5/2–109 (West 2000); Miller v. Rosenberg, 196 Ill. 2d at 63-64.

	The applicability of section 2–622 to Nursing Home Care Act

proceedings cannot be assessed independently of the remainder of

the medical malpractice legislative package with which it was

enacted. If plaintiff’s private right of action for damages under the

Nursing Home Care Act were bound by the terms of section

2–622, it would likewise be bound by the other statutes directed at

medical malpractice which were inserted into the Code of Civil

Procedure by the legislature when it adopted section 2–622. There

would be no principled way to differentiate between the various statutory restrictions. As a result, the remedies available to plaintiff

would be drastically curtailed and her right to recover attorney fees

would be lost. Core provisions of the Nursing Home Care Act

would be rendered inoperable. Such a result would be contrary to

a basic rule of statutory interpretation, namely, that whenever

possible courts must construe statutes so that no part is rendered

a nullity. See Bonaguro v. County Officers Electoral Board, 158 Ill. 2d 391, 397 (1994).

	In reaching this conclusion, we are aware that many types of

claims actionable under the Nursing Home Care Act have nothing

whatever to do with medical or healing art malpractice. Nursing

home residents are entitled to invoke the provisions of the Nursing

Home Care Act to obtain damages for violation of any of the rights

enumerated in the statute. 210 ILCS 45/3–602 (West 2000). These

include the right to manage financial affairs (210 ILCS 45/2–102

(West 2000)); the right to retain and use personal property (210

ILCS 45/2–103 (West 2000)); the right to be free from abuse or

neglect (210 ILCS 45/2–107 (West 2000)); the right to unimpeded

private and uncensored communication (210 ILCS 45/2–108 (West

2000)); the right to free exercise of religion (210 ILCS 45/2–109

(West 2000)); the right to be discharged after giving written notice

of desire to be discharged (210 ILCS 45/2–111 (West 2000)); and

the right to refuse to perform labor for the facility (210 ILCS

45/2–113 (West 2000)). In addition, the Act imposes liability on

the owner and licensee of a nursing home for any intentional or negligent act or omission by their agents or employees which

injures a resident. 210 ILCS 45/3–601 (West 2000).

	Where the intentional or negligent act or omission does not

involve a resident’s medical care and the situation is not one where

expert testimony from a health-care professional is necessary in

order to assess the defendant’s actions, there is no possible basis

for invoking the Healing Arts Malpractice Act. In such cases, it is

undisputed that a nursing home resident’s complaint would not be

subject to dismissal for failure to comply with section 2–622 of the

Code of Civil Procedure (735 ILCS 5/2–622 (West 2000)). See Owens v. Manor Health Care Corp., 159 Ill. App. 3d at 688-89. As a result, the broad remedial provisions of the Nursing Home

Care Act would retain some viability even if 2–622 were applied to Nursing Home Care Act claims involving a resident’s medical care.

That viability, however, would be more theoretical than real.

	The overwhelming majority of civil cases against nursing

homes arising from the treatment of residents involve falls, as this

case does. Indeed, one commentator has observed that nursing

home cases involving causes of injuries other than falls are too few

to permit statistical analysis. Annotation, L. Frantz, Patient Tort Liability of Rest, Convalescent, or Nursing Homes, 83 A.L.R.3d 871, 878 (1978). As defendants’ conceptualize these cases, a

nursing home’s failure to take the precautions necessary to prevent

a resident from taking an injurious fall implicates the exercise of

medical judgment. If defendants’ position were accepted, there

would therefore be few cases involving private rights of action

against nursing homes where compliance with section 2–622 and

the related provisions governing medical malpractice provisions

would not be necessary. Correspondingly, there would be few

opportunities for injured nursing home residents to avail

themselves of the Nursing Home Care Act’s special remedies and

protections. As a practical matter, the opportunities the General

Assembly meant to confer on such residents to protect themselves

and enforce the law would be fundamentally compromised.

	Defendants complain that if nursing home residents are not

held to the requirements of section 2–622 when they bring

statutory claims under the Nursing Home Care Act, the courts will

be creating a synthetic, unreasonable and unworkable distinction

between nursing homes, on the one hand, and hospitals and

physicians, on the other. What defendants fail to appreciate is that

the decision to differentiate nursing home owners and licensees

from healing arts practitioners originated with the legislature, not

the judiciary. Section 2–622 was enacted after passage of the

Nursing Home Care Act. At the time section 2–622 was adopted

in 1985, the Nursing Home Care Act had already been in effect for

approximately five years. Had the General Assembly wished to

subject claims against nursing home owners and licensees to

section 2–622’s requirements, it could easily have included them

in the statute’s provisions, just as it did with hospitals. It did not.

	While defendants may find it anomalous to treat litigation

against the owners and licensees of nursing homes differently than actions against hospitals, the General Assembly may have had

sound reasons to do so. First and foremost, nursing homes have

been plagued by an extensive history of patient abuse not shared by

hospitals. In contrast to hospitals, which have historically delivered

care through professional physicians and nurses, most care in

nursing homes is delivered by nonprofessional or paraprofessional

aides. In addition, while the majority of private hospitals are not-

for-profit, the majority of nursing homes, including the nursing

home in this case, are profit-making enterprises, raising the concern

that profit motives may adversely affect the care that nursing home

patients receive. See Regan, Regulating the Business of Medicine, 30 Colum. J.L. & Soc. Probs. 635, 669 (1997).

	It is important to note, moreover, that while claims under the

Nursing Home Care Act may sometimes involve a resident’s

medical care, they do not directly implicate the individual health-

care providers. A failure to provide adequate medical care that

“results in physical or mental injury to a resident, or in the

deterioration of a resident’s physical or mental condition”

constitutes neglect (210 ILCS 45/1–117 (West 2000)) and is

prohibited by the Act (210 ILCS 45/2–107 (West 2000)). The only

defendants liable for damages, costs, and attorney fees under the

Act, however, are the owners and licensees of the nursing home.

See 210 ILCS 45/3–601, 3–602 (West 2000). Nothing in the

Nursing Home Care Act requires owners or licensees to be medical

professionals themselves, and nothing in the Act authorizes nursing

home residents to recover damages for medical malpractice from

the individuals who actually provided the care. Suits against those

individuals must be asserted independently of the Nursing Home

Care Act.

	The justification for section 2–622 is therefore absent when a

resident brings a statutory claim against the nursing home’s owner

or licensee under the Nursing Home Care Act. Such cases pose no

threat to the viability of the medical profession. They present no

danger of compromising the ability of medical professionals to

provide care to patients. They serve only to ensure that nursing

home owners and licensees are held to account for violation of

their legal obligations, as the General Assembly intended when it

passed the Nursing Home Care Act into law.

	For the foregoing reasons, the appellate court’s answer to the

question of law certified by the trial court was correct. Plaintiffs

who assert private rights of action under the Nursing Home Care

Act are not required to comply with the mandates of section

2–622. As a result, the circuit court should not have dismissed the

action brought by the plaintiff in this case based on her failure to

attach to her complaint the materials specified by that statute. The

appellate court’s judgment is therefore affirmed.

Affirmed.

	JUSTICE GARMAN, dissenting:

	I respectfully dissent. The majority finds that the Nursing

Home Care Act (Act) (210 ILCS 45/1–101 et seq. (West 2000)) and section 2–622 of the Code of Civil Procedure (Code) (735

ILCS 5/2–622 (West 2000)), known as the Healing Art

Malpractice Act, are wholly incompatible, so that section 2–622

does not apply to any claims brought under the Act. However,

when two statutes conflict, the court has a duty to interpret the

statutes in a way that avoids inconsistency and that gives effect to

both statutes where reasonably possible. McNamee v. Federated Equipment & Supply Co., 181 Ill. 2d 415, 427 (1998). To that end, I believe that section 2–622 does apply to claims under the Act

alleging that nurses or other health-care professionals employed by

nursing homes caused injury to residents because of healing art

malpractice.

	According to section 1–108(b) of the Code (735 ILCS

5/1–108(b) (West 2000)), article II of the Code applies to

proceedings brought under a statute that does not itself regulate

procedure. The Act does not regulate pleadings. Nonetheless, the

majority correctly notes that section 2–622 does not apply to all

actions. Section 2–622 applies to: “any action *** in which the

plaintiff seeks damages for injuries or death by reason of medical,

hospital, or other healing art malpractice.” 735 ILCS 5/2–622(a)

(West 2000). Therefore, we should determine whether a “healing

art malpractice” claim can ever be alleged under the Act.

	The phrase “healing art” includes “an entire branch of learning

dealing with the restoration of physical or mental health.” Lyon v. Hasbro Industries, Inc., 156 Ill. App. 3d 649, 654 (1987); see also Owens v. Manor Health Care Corp., 159 Ill. App. 3d 684, 687 (1987). “Malpractice” is defined as“[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.” Black’s Law

Dictionary 959 (6th ed. 1990). In evaluating whether a claim

involves healing art malpractice, Illinois courts have focused on the

nature of the negligent act rather than the location where the

conduct occurred. Milos v. Hall, 325 Ill. App. 3d 180, 184 (2001); Lyon, 156 Ill. App. 3d at 655.

	Nursing homes may employ health-care professionals. For

example, nursing homes that employ nurses and provide nursing

services are subject to the Act, which states that it applies to

facilities that “provide[], through its ownership or management,

personal care, sheltered care or nursing for 3 or more persons.” (Emphasis added.) 210 ILCS 45/1–113 (West 2000). Healing art

malpractice claims can be brought against nurses. See, e.g., Moyer v. Southern Illinois Hospital Service Corp., 327 Ill. App. 3d 889, 903-04 (2002); Shanks v. Memorial Hospital, 170 Ill. App. 3d 736, 737 (1988).

	The Act clearly authorizes the courts to hold nursing homes

liable for the actions of its employees. Section 3–601 provides:

“The owner and licensee are liable to a resident for any intentional

or negligent act or omission of their agents or employees which

injures the resident.” 210 ILCS 45/3–601 (West 2000). Medical

malpractice is a type of negligence claim. See Black’s Law

Dictionary 959 (6th ed. 1990). It logically follows that a nursing

home can be held liable under section 3–601 when its health-care

professional employee commits healing art malpractice, causing

injury to a resident. The majority seems to acknowledge as much.

Slip op. at 11-12.

	The majority correctly recognizes that there are some conflicts

between the Act and the medical malpractice reform legislation.

Slip op. at 9-10. The reform legislation, including section 2–622, includes certain procedural and remedial rules that differ from rules

of the Act. A conflict arises between these two sets of legislation,

then, when a plaintiff raises a healing art malpractice claim under

the Act. While the majority views this conflict as proof of the

“opposing nature” of these statutes, rendering them mutually

exclusive, I view them as conflicts to be resolved through the

application of statutory construction principles. Slip op. at 9. When

two statutes conflict, the more specific statute controls over the

more general provisions unless the legislature makes it clear that it

intends the more general statute to be controlling. Stone v. Department of Employment Security Board of Review, 151 Ill. 2d 257, 266 (1992).

	The appellate court applied this statutory construction

principle. 325 Ill. App. 3d 129, 135-36. The majority briefly

acknowledges and agrees with the appellate court’s conclusion that

the Act should apply because it is more specifically applicable to

plaintiff’s cause of action than section 2–622. Slip op. at 8. In

reaching this conclusion, the appellate court discussed two

approaches: the traditional approach examining the nature of the

cause of action and the Tosado plurality approach looking to the category of defendants (Tosado v. Miller, 188 Ill. 2d 186, 195 (1999)). 325 Ill. App. 3d at 135-36.

	In Tosado, we evaluated whether to apply the two-year statute of limitations from the Code (735 ILCS 5/13–212(a) (West 1992))

or the one-year limitations period from the Tort Immunity Act (745

ILCS 10/8–101 (West 1996)) to a medical malpractice claim.

Tosado, 188 Ill. 2d at 190-91. The Tosado plurality focused on the class of defendants in determining which was more specific because

the Tort Immunity Act was enacted with the legislative intent to

provide protection to a specific class of defendants, local

governmental entities. Tosado, 188 Ill. 2d at 195. Five members of the court did not agree with this approach in that case. Tosado, 188 Ill. 2d at 197-98 (Freeman, C.J., specially concurring); 188 Ill.

2d at 198-200 (Heiple, J., specially concurring); 188 Ill. 2d at 200

(Harrison, J., dissenting); 188 Ill. 2d at 201-11 (McMorrow, J.,

dissenting, joined by Rathje, J.). The Act, in contrast, is not

designed to protect defendant nursing homes. Therefore, I conclude that the Tosado approach is not relevant to the present case.

	I do agree with the appellate court’s conclusion in this case

that we should apply the traditional rule that the nature of the

cause of action determines which statute is more specific and

therefore controlling. See, e.g., Hernon v. E.W. Corrigan Construction Co., 149 Ill. 2d 190, 196 (1992). However, I believe the appellate court incorrectly focused on the nature of plaintiff’s cause of action. We should not review plaintiff’s claims because of

the procedural posture of the present case. We review only the

general certified question, which requires us only to determine

when, if ever, section 2–622, and impliedly the other medical

malpractice reform legislation, applies to claims brought under the

Act. Slip op. at 3. These sets of laws conflict only with regard to

medical malpractice claims. Thus, we must assess whether the Act

or the medical malpractice reform legislation more specifically

addresses medical malpractice claims.

	The Act and the medical malpractice reform legislation both

encompass malpractice claims. As discussed above, the Act

generally addresses negligence claims by enabling claimants to hold

liable the owner and licensee of a nursing home facility for “any intentional or negligent act or omission of their agents or employees which injures the resident.” (Emphasis added.) 210

ILCS 45/3–601 (West 2000). Medical malpractice is one type of

negligence claim. See Black’s Law Dictionary 959 (6th ed. 1990).

In contrast, the medical malpractice reform legislation, including

section 2–622, makes procedural and remedial amendments

applicable specifically to medical malpractice claims rather than all

negligence claims. Thus, I conclude that the specific provisions of

the medical malpractice reform legislation should apply to healing

art malpractice claims brought under the Act, which addresses

negligence only generally, because the legislature did not clearly

indicate an intent that the general provisions apply. Stone, 151 Ill. 2d at 266.

	The Act became effective March 1, 1980, and Public Act

84–7, which contained section 2–622 and other medical

malpractice reform provisions, became effective August 15, 1985.

We presume the legislature acts rationally, enacting statutes with full awareness of all previous enactments. State v. Mikusch, 138 Ill. 2d 242, 247-48 (1990). We presume the legislature enacted reform

to medical malpractice actions with knowledge of the Act. If the

legislature wanted to make the Act completely immune to these

reform measures, it could have excluded professional health-care

services in nursing homes. It did not. We should not read into a

statute limitations or exceptions that depart from its plain meaning. Lauer v. American Family Life Insurance Co., 199 Ill. 2d 384, 390-91 (2002). In addition, where two statutes directly conflict,

typically the later–here the medical malpractice reform

legislation–should prevail because it constitutes the more recent

expression of legislative intent. Jahn v. Troy Fire Protection District, 163 Ill. 2d 275, 282 (1994).

	Apparently the majority eschews application of these statutory

construction principles because it concludes that these laws as a

whole are inherently in opposition. Slip op. at 9. I disagree. The

Act responded to “concern over reports of ‘inadequate, improper

and degrading treatment of patients in nursing homes.’ ” Harris v. Manor Healthcare Corp., 111 Ill. 2d 350, 357-58 (1986), quoting 81st Ill. Gen. Assem., Senate Debates, May 14, 1979, at 184

(statements of Senator Berning). The Act explicitly conferred

certain rights on nursing home residents, including “the right to

manage their own finances, the right to refuse treatment, and the

right to be free from abuse and neglect by nursing home

personnel.” Fisher v. Lexington Health Care, Inc., 188 Ill. 2d 455, 461 (1999); 210 ILCS 45/2–101 through 2–113 (West 2000).

	The purpose of section 2–622 and other medical malpractice

legislation enacted by Public Act 84–7 was to respond to “what

was perceived to be a crisis in the area of medical malpractice.”

Bernier v. Burris, 113 Ill. 2d 219, 229 (1986). The legislature sought to address this crisis by reducing the amount of frivolous

suits filed and to eliminate such suits at an early stage before

litigation expenses have mounted. DeLuna v. St. Elizabeth’s Hospital, 147 Ill. 2d 57, 65 (1992).

	The purposes of these two statutes should not be characterized

solely in terms of encouraging or discouraging litigation, or of

being pro-plaintiff or pro-defendant. The goal of improving nursing home care is not impeded by eliminating frivolous healing art

malpractice lawsuits against health-care professionals.

	The majority discusses the provisions of the medical

malpractice reform legislation that impose procedural and remedial

limitations absent from the Act, including a prohibition of recovery

of punitive damages (735 ILCS 5/2–1115 (West 2000)) and a lack

of corresponding availability of recovery of costs and attorneys’

fees (210 ILCS 45/3–602 (West 2000)). Slip op. at 9-10.

However, in some cases the majority overstates the importance of

certain provisions in support of its conclusion that the two statutes

are by nature in opposition. Slip op. at 9.

	For example, the majority asserts that the medical malpractice

reforms “provide[ ] a disincentive for the filing of healing arts

malpractice claims *** by subjecting unsuccessful litigants to suits

for malicious prosecution.” Slip op. at 10. The reform litigation

does remove the requirement of pleading and proving special injury

from malicious prosecution claims. 735 ILCS 5/2–109 (West

2000). However, claimants still must prove that the healing art

malpractice claim was filed without probable cause and with

malice. Miller v. Rosenberg, 196 Ill. 2d 50, 58 (2001). Therefore, all unsuccessful litigants will not be sued for malicious prosecution.

The purpose of section 2–109 was to “liberalize the availability of

a suit for malicious prosecution as a means of punishing and

discouraging the filing of ill-grounded medical malpractice cases.”

Miller, 196 Ill. 2d at 63, quoting Ill. Ann. Stat., ch. 110, par. 2–109, Historical & Practice Notes, at 31 (Smith-Hurd Supp.

1992). Thus, this provision should not deter plaintiffs with

potentially viable claims, and it should not impede the Act’s general

purpose of improving nursing home care.

	In addition, the majority notes that the medical malpractice

reform legislation limits contingency fees that can be paid to

attorneys. 735 ILCS 5/2–1114 (West 2000); slip op. at 9-10. When

evaluating the constitutionality of this contingency fee provision,

however, we stated that we did not believe that section 2–1114

“will work to limit litigants access to the courts.” Bernier v. Burris, 113 Ill. 2d 219, 251 (1986). Finally, the majority emphasizes

provisions in the Act that encourage plaintiffs to bring private

rights of action, including the ability of plaintiff to file class action suits. 210 ILCS 45/3–604 (West 2000). Class action suits will

rarely, if ever, be an appropriate format for raising medical

malpractice cases which by nature typically involve a specific

instance of negligence by an individual health-care professional in

the care of an individual patient rather than a consistent,

widespread pattern of negligence by the same defendant.

	The majority also asserts that the Act would be limited further

by the other medical malpractice reform provisions that were

passed with section 2–622. Slip op. at 10-11. I believe that these

other medical malpractice reforms will not frustrate the purposes

of the Act. Section 2–622 was a part of Public Act 84–7, which

amended sections 2–1109, 2–1205, 8–2001, and 8–2003 of the

Code (Ill. Rev. Stat. 1985, ch. 110, pars. 2–1109, 2–1205, 8–2001, 

8–2003) and added sections 2–114, 2–611.1, 2–622, 2–1010,

2–1012 through 2–1020, 2–1114, 2–1115, 2–1701 through

2–1719, and 8–2501 to the Code (Ill. Rev. Stat. 1985, ch. 110,

pars. 2–1020, 2–1114, 2–1115, 2–1701 through 2–1719, 8–2501).

	In examining all of these provisions, only one appears relevant

to the potential concern of discouraging litigation or reducing

recovery against nursing homes besides the attorney fees and

punitive damages issues already discussed. Section 2–1205 of the

Code (735 ILCS 5/2–1205 (West 2000)) addresses reduction in

amount of recovery, but we have interpreted the specific language

of this provision as limiting negligence actions against only

hospitals and physicians. Bernier v. Burris, 113 Ill. 2d 219, 242 (1986); 735 ILCS 5/2–1205 (West 2000) (section 2–1205 states

that it applies to “any judgment in an action to recover for that

injury based on an allegation of negligence or other wrongful act,

not including intentional torts, on the part of a licensed hospital or

physician”). Therefore, no other provision of the medical

malpractice reform legislation potentially conflicts with the

purposes of the Act.

	In addition, as the majority concedes, there are many types of

actionable claims under the Act that do not involve healing art

malpractice. Slip op. at 11. Given these numerous other claims that

will not be subject to the medical malpractice reform legislation, I

disagree with the majority’s assertion that “[c]ore provisions of the

Nursing Home Care Act would be rendered inoperable” in all

cases. Slip op. at 11. I do not believe that the handful of conflicting provisions and the majority’s characterization of the opposing

purposes of the statutes are sufficient to support its conclusion that

the medical malpractice reform legislation does not apply to any

claims brought under the Act, especially in the absence of

supporting statutory language.

	In fact, I do not believe that these differences about attorney

fees and punitive damages significantly limit the Act because these

limits would apply only to the narrow class of healing art

malpractice claims brought against health-care professionals

employed by nursing homes. The majority dismisses this distinction

because “[t]he overwhelming majority of civil cases against nursing

homes” involve falls, so the medical malpractice reform legislation

will apply to most claims brought under the Act. Slip op. at 12. I

disagree. It is not clear that many, much less all, falls resulting in

injury are caused by medical malpractice by health-care

professionals employed by nursing homes. Ordinary negligence

through inadequate staffing and unsafe premises conditions, for

example, may contribute to a fall by a nursing home resident. In

addition, again, the procedural posture of this case requires us to

review only the appellate court’s response to the broad certified

question of the trial court. Slip op. at 3. It is irrelevant and

inappropriate for us to evaluate whether plaintiff’s claims involving

her fall or hypothetical cases involving falls necessarily would be

subject to the medical malpractice reform legislation.

	The holding of the majority has the disturbing and illogical

consequence that healing art malpractice by the same health-care

professional will be subject to different procedural and remedial

rules solely based on the physical location of malpractice. The

majority responds that the legislature may have had sound reasons

to treat these two health-care service providers differently,

including the history of patient abuse unique to nursing homes and

the greater prevalence of care by nonprofessional or

paraprofessional aides in nursing homes. Slip op. at 13. However,

claims of patient abuse likely do not implicate efforts–or lack

thereof–to restore physical or mental health by health-care

professionals, so these claims do not sound in healing art

malpractice. In addition, nonprofessionals by definition are not

health-care professionals potentially subject to malpractice claims.

The majority’s explanations do not adequately address why the legislature would want to treat nursing homes differently from

hospitals specifically concerning healing art malpractice claims.

CONCLUSION

	I acknowledge that certain medical malpractice reform

provisions conflict with the Act when a plaintiff brings a healing art

malpractice claim under the Act. Several principles of statutory

construction indicate that we should resolve this conflict by

applying the medical malpractice reform provisions, including

section 2–622, to such claims. By applying the reform legislation,

all medical malpractice cases will be treated consistently, allowing

both statues to operate together. See McNamee, 181 Ill. 2d at 427. The reform legislation more specifically addresses healing art

malpractice claims. See Hernon, 149 Ill. 2d at 196. We presume the legislature enacted the reform legislation with knowledge of the

Act, and the reforms did not exclude claims brought under the Act

from their scope. See Mikusch, 138 Ill. 2d at 247-48. The reform legislation is the later enactment of the two conflicting sets of laws.

See Jahn, 163 Ill. 2d at 282. I believe the majority should have applied these principles in order to avoid the unwarranted

consequence that healing art malpractice claims will be subject to

differing procedural and remedial rules solely on the basis of the

physical location of where the malpractice occurred.

	I believe the appellate court and the majority are mistaken in

responding to the certified question that plaintiffs suing nursing

homes under the Act never have to comply with section 2–622. I

assert that we should follow established principles of statutory

construction by applying the medical malpractice reform legislation

to the narrow class of claims brought under the Act alleging

healing art malpractice by health-care professionals employed by

nursing homes that caused injury. Therefore, I would answer the

certified question by stating that a plaintiff bringing suit under the

Act is required to comply with the Healing Arts Malpractice Act

if he or she alleges a healing art malpractice claim.

	CHIEF JUSTICE McMORROW and JUSTICE THOMAS

join in this dissent.