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08/31/87 Robert M. Abbey, v. P. G. Ravingdranathan Et

August 31, 1987

ROBERT M. ABBEY, PLAINTIFF-APPELLANT

v.

P. G. RAVINGDRANATHAN ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

513 N.E.2d 131, 160 Ill. App. 3d 161, 111 Ill. Dec. 885 1987.IL.1268

Appeal from the Circuit Court of White County; the Hon. Terrence J. Hopkins, Judge, presiding.

APPELLATE Judges:

JUSTICE KASSERMAN delivered the opinion of the court. KARNS, P.J., and WELCH, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE KASSERMAN

Plaintiff, Robert M. Abbey, has perfected this appeal from the judgment of the circuit court of White County which dismissed with prejudice his medical malpractice complaint against defendants, P. G. Ravingdranathan, M.D., and P. G. Ravingdranathan, M.D., Ltd. The complaint was dismissed for failure of plaintiff to file an affidavit with his complaint as required by section 2-622 of the Civil Practice Law. (Ill. Rev. Stat. 1985, ch. 110, par. 2-622.)

On March 21, 1986, plaintiff filed his complaint consisting of essentially identical counts against each defendant. The complaint alleged that plaintiff saw Dr. Ravingdranathan on four occasions in early 1984, the last being March 21, 1984, and that because of the doctor's improper care, plaintiff went into a diabetic coma on March 22, 1984, resulting in permanent disability.

Section 2-622 of the Civil Practice Law, adopted by Public Act 84-7, was specified to be effective as to cases filed on or after August 15, 1985 (Ill. Rev. Stat. 1985, ch. 110, par. 2-622(h)), and was part of the legislature's attempt to deter frivolous or non-meritorious medical malpractice lawsuits. (See generally Ill. Ann. Stat., ch. 110, pars. 2-109, 2-622, Historical and Practice Notes, at 21, 71 (Smith-Hurd 1987 Supp.).) Section 2-622(a) provides in pertinent part:

"In any action . . . in which the plaintiff seeks damages for injuries or death by reason of . . . healing art malpractice, the 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 in the particular action . . .; 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 reviewing health professional's review and consultation that there is a reasonable and meritorious cause for filing of such action. . . .

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. The defendant shall be excused from answering or otherwise pleading until 30 days after being served with a certificate required by paragraph 1.

3. That a request has been made by the plaintiff or his attorney for examination and copying of records pursuant to (Ill. Rev. Stat. 1985, ch. 110, par. 8-2001, pertaining to inspection of hospital records) and the party required to comply under those Sections has failed to produce such records within 60 days of the receipt of the request." (Ill. Rev. Stat. 1985, ch. 110, par. 2-622(a).)

At the time of filing the complaint on March 21, 1986, plaintiff did not attach an affidavit pursuant to this section. Subsection (g) of section 2-622 provides that "[the] failure to file a certificate required by this Section shall be grounds for dismissal under Section 2-619." Ill. Rev. Stat. 1985, ch. 110, pars. 2-622(g), 2-619.

On April 16, 1986, defendants filed a motion to dismiss, alleging that the complaint should be dismissed with prejudice on two grounds: (1) because of plaintiff's failure to attach an affidavit to his complaint as required by section 2 -- 622(a); and (2) because the cause of action was barred by the statute of limitations. The motion also alleged that count two failed to allege sufficient facts to support a recovery under the theory of ...


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