APPELLATE COURT OF ILLINOIS, THIRD DISTRICT
CHARLOTTE J. WALTER, Adm'r of the Estate of Richard L.
509 N.E.2d 804, 156 Ill. App. 3d 708, 109 Ill. Dec. 143 1987.IL.873
Appeal from the Circuit Court of Knox County; the Hon. Stephen G. Evans, Judge, presiding.
JUSTICE STOUDER delivered the opinion of the court. SCOTT and HEIPLE, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE STOUDER
Plaintiff, Charlotte J. Walter, appeals from the judgment of the circuit court of Knox County which dismissed her medical malpractice claim with prejudice for failure to file an affidavit of merit as required by section 2-622 of the Illinois Code of Civil Procedure (the Code) (Ill. Rev. Stat. 1985, ch. 110, par. 2-622). Walter contends that the trial court improperly construed section 2-622 as a limitations statute under which the court had no discretion to permit a late filing of the affidavit.
Walter filed this action on February 13, 1986, alleging certain acts of medical malpractice against the defendant, Dr. Jeffrey Hill, occurring on or before April 26, 1983. These acts of malpractice in the diagnosis and treatment of her husband allegedly caused his death. Under the "discovery rule" provisions of section 13-212 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 13-212), the statute of limitations established February 14, 1986, as the final day to file her action, one day after it was initially filed.
A 1985 amendment to the Code requires that an affidavit of merit accompany the complaint when it is filed. Section 2 -- 622 states, in pertinent part, that when an action is filed seeking damages for medical malpractice:
"[Plaintiff's] attorney or the plaintiff . . . shall file an affidavit, attached to the original and all copies of the complaint, declaring one of the following:
1. That the affiant has consulted and reviewed the facts of the case with a health professional who the affiant reasonably believes is knowledgeable in the relevant issues involved . . .; that the reviewing health professional has determined in a written report . . . that there is a reasonable and meritorious cause for the filing of such action; and that the affiant has concluded on the basis of the . . . review and consultation that there is a reasonable and meritorious cause for filing of such action. . . . [or]
2. That the affiant was unable to obtain a consultation required by paragraph 1 because a statute of limitations would impair the action and the consultation required could not be obtained before the expiration of the statute of limitations. If an affidavit is executed pursuant to this paragraph, the certificate and written report required by paragraph 1 shall be filed within 90 days after the filing of the complaint.
At the time of filing, Walter had attached neither the affidavit of merit as required by section 2 -- 622(a)(1), nor an affidavit asserting the inability to comply with the section 2 -- 622(a)(1) requirement pursuant to section 2 -- 622(a)(2) to her complaint. Hill responded with a section 2 -- 619 motion to dismiss based on Walter's failure to file an affidavit. Walter subsequently filed a motion for leave to file the affidavit. She claimed that an expert had been retained prior to the filing of the lawsuit and that the affidavit "was inadvertently not attached to said Complaint." Hill then filed his "Objection and Motion to Strike" and a "Memorandum in Support of his Motion to Dismiss." Walter filed her response, in which she apparently changed her position, stating that she was unable to obtain a consultation and opinion prior to the expiration of the limitations period and requesting she be allowed to file the affidavit pursuant to section 2 -- 622(a)(2). This request was made 64 days after the filing of the complaint.
A hearing was held and an order dismissing the complaint with prejudice was entered. This ...