Originally an Illinois Supreme Court Rule 23 opinion, pursuant to motion, the First District Appellate Court published its decision in Ripes v. Schlechter, 2017 IL App (1st) 161026. In Ripes, the Plaintiff sought relief by pleading, inter alia, violations of the Consumer Fraud Act when a physician placed breast implants above her pectoral muscles. Plaintiff alleged that there existed an oral agreement that the physician place the implants below her pectoral muscles. Accordingly, Plaintiff alleged that such a breach triggers a Consumer Fraud Act claim because the action stems from the physician’s “decision to engage in a ‘dishonest act for financial gain.’” The Appellate Court disagreed and found that the Plaintiff failed to state a cause of action because “breast augmentation surgery, however, is a type of medical procedure, and…medical services do[] not constitute a trade or commerce under the Act.” Moreover, the Appellate Court noted that because the Plaintiff was seeking relief for a private (not a public) wrong, she could not rely on the Consumer Fraud Act to sustain a cause of action.
Although it is clear that such a breach of an oral agreement can trigger a cause of action against a physician, Plaintiffs must be cautious in alleging anything other than traditional healing arts malpractice claims. This is so because Illinois treats the business of medicine differently than virtually any other business. Whether such a policy is warranted may be debatable, but the law in this area is clear. Thus, Plaintiffs who wish to challenge Illinois law in this area should also plead a traditional healing arts malpractice claim to ensure that a cause of action remains if the Consumer Fraud Act claim fails.
— Ryan M. Griffin
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