## Facts

- Patricia K. Cohen was admitted to St. Joseph Memorial Hospital to deliver a baby and was advised she needed a cesarean section.
- Cohen and her husband, Joe Cohen, allegedly told the physician that, for religious reasons, Cohen could not be seen unclothed by a male.
- The physician allegedly informed hospital staff of these beliefs and assured the Cohens their beliefs would be respected.
- During the cesarean section, Roger Smith, a male nurse, allegedly observed and touched Cohen’s unclothed body.
- The Cohens sued Smith and the hospital, asserting battery, intentional infliction of emotional distress (IIED), and violation of the Illinois Right of Conscience Act.

## Issues

1. Whether the complaints alleged sufficient facts to state claims for battery and IIED based on allegedly unconsented viewing and touching that conflicted with expressly communicated religious restrictions.
2. Whether the allegations stated a claim under the Illinois Right of Conscience Act based on disregard of sincerely held religious convictions in the course of medical care.
3. Whether the claims were “healing art malpractice” subject to the affidavit requirement of 735 ILCS 5/2-622, or instead intentional tort claims not governed by that requirement.

## Decision

- The appellate court reversed the trial court’s dismissals and remanded for further proceedings.
- The court held the complaints sufficiently pleaded battery and IIED.
- The court held the complaints sufficiently pleaded a violation of the Illinois Right of Conscience Act.
- The court held the gravamen was intentional, unconsented contact (a battery theory), not negligent medical treatment; therefore, § 2-622 did not apply.

## Legal Principles

- On a motion to dismiss for failure to state a claim, well-pleaded allegations are taken as true and viewed in the plaintiff’s favor; dismissal is proper only when no set of alleged facts would permit recovery.
- Battery includes intentional contact that is harmful or offensive; “offensive” contact can include contact that violates personal dignity or bodily integrity.
- In medical settings, consent can be limited; proceeding after notice of a patient’s expressly stated restriction may render otherwise routine contact “offensive” if performed in knowing contravention of that restriction.
- A claim centered on unconsented touching is an intentional tort distinct from medical negligence; malpractice-specific pleading requirements (including § 2-622) do not apply when negligent medical care is not the theory of liability.
- IIED may be adequately pleaded where defendants allegedly knew of a patient’s special susceptibility or protected interests (including religious convictions) and, despite that knowledge and assurances, engaged in conduct a factfinder could deem extreme and outrageous, causing severe emotional distress.
- The Illinois Right of Conscience Act may support a civil claim where medical personnel allegedly act contrary to a patient’s sincerely held religious convictions concerning the conditions under which care may be provided.

## Conclusion

The appellate court held that allegations of a knowingly disregarded religious restriction against male viewing or touching during surgery stated plausible claims for battery, IIED, and a statutory conscience violation, and that the action was not subject to Illinois malpractice affidavit requirements because it was pleaded as intentional, unconsented contact rather than negligent treatment.


Cohen v. Smith, 269 Ill. App. 3d 1087, 648 N.E.2d 329 (Ill. App. Ct. 1995)