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09/03/87 Doris Jean Huff Et Al., v. H. R. Hadden Et Al.

September 3, 1987

DORIS JEAN HUFF ET AL., PLAINTIFFS-APPELLANTS

v.

H. R. HADDEN ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

513 N.E.2d 541, 160 Ill. App. 3d 530, 112 Ill. Dec. 127 1987.IL.1283

Appeal from the Circuit Court of McLean County; the Hon. Luther H. Dearborn, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE SPITZ delivered the opinion of the court. GREEN and McCULLOUGH, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SPITZ

Plaintiffs filed a medical malpractice suit for injuries sustained when plaintiff, Doris Jean Huff, was treated by defendant podiatrists, H. R. Hadden and J. L. McLaughlin. Both defendants moved to dismiss the complaint on the ground that no written report from a reviewing health professional had been attached to the complaint as required by the applicable statute. The trial court sustained defendants' motions on that basis and dismissed the complaint with prejudice. Plaintiffs filed motions to reconsider and a motion to amend their complaint, all of which were denied. Plaintiffs appeal these decisions. This appeal raises a question as to the sufficiency of the complaint to withstand a motion to dismiss with prejudice.

Plaintiffs filed suit in the circuit court of McLean County on June 2, 1986, for injuries plaintiff Doris Jean Huff allegedly suffered as a result of the malpractice of defendant podiatrists, H. R. Hadden and J. L. McLaughlin. Attached to the complaint at the time of filing was the affidavit of attorney Michael L. Hanley, attesting that he had consulted with a licensed podiatrist who held the opinion that the defendants' treatment fell below reasonable medical standards of care and caused a disabling injury to Mrs. Huff's feet. The affidavit further stated the treatment which allegedly violated the standard of care. On June 3, 1986, plaintiffs filed another affidavit, identical to the one submitted with the complaint but with a handwritten notation purportedly made by a podiatrist to the effect that he concurred in the statements set forth in the affidavit.

On September 26, 1986, defendant Hadden filed a motion to dismiss the complaint on the ground that it did not meet the requirements of section 2-622 of the Illinois Code of Civil Procedure (Code) (Ill. Rev. Stat. 1985, ch. 110, par. 2-622). On October 2, 1986, defendant McLaughlin filed a similar motion to dismiss. Following a hearing on these motions on December 9, 1986, the court entered an order dismissing the complaint in toto with prejudice, pursuant to section 2-619 of the Code. Ill. Rev. Stat. 1985, ch. 110, par. 2-619.

On December 24, 1986, the plaintiffs filed a motion to reconsider the order, alleging that the statute of limitations did not begin to run in this case until May 6, 1986, the date the alleged malpractice was discovered, and not, as the complaint stated, on June 1, 1984, the date the alleged substandard treatment was administered. In addition, plaintiffs filed a motion for leave to amend the complaint on January 27, 1987, requesting permission to correct the dates above and to submit a medical report which comported with the standards of the statute.

On January 29, 1987, defendant McLaughlin filed his objection to the plaintiffs' motion to reconsider, claiming the court's order dismissing the complaint with prejudice was not based on the running of the statute of limitations, but on failure of the plaintiffs to comply with the requirements for pleading a malpractice case. Both defendants also filed motions to strike plaintiffs' motion for leave to amend the complaint, arguing that the court's dismissal with prejudice effectively precluded the plaintiffs from amending the complaint. Plaintiffs then filed a motion for leave to supplement their motion for leave to amend by substituting an attached amended complaint.

On February 7, 1987, the court entered its order denying plaintiffs' motion to reconsider and granting defendants' motion to strike plaintiffs' motion to amend the complaint. Another motion to reconsider was filed by the plaintiffs on February 17, 1987. This motion was argued and denied. Plaintiffs filed a timely notice of appeal on March 4, 1987.

On appeal, plaintiffs argue that the trial court erred in granting defendants' motion to dismiss with prejudice for plaintiffs' failure to attach a medical report to the complaint at the time it was filed. Section 2-622 of the Code (Ill. Rev. Stat. 1985, ch. 110, par. 2-622) provides, in pertinent part:

"Sec. 2 -- 622. Healing art malpractice. (a) In any action, 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, the plaintiff's attorney or the plaintiff, if the plaintiff is proceeding pro se, 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 and who practices in the same specialty as the defendant if the defendant is a specialist; that the reviewing health professional has determined in a written report, after a review of the medical record and other relevant material involved in the particular action 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. If the affidavit is filed as to a defendant who is a physician licensed to treat human ailments without the use of drugs or medicines and without operative surgery, a dentist, a podiatrist, or a psychologist, the written report must be from a health professional licensed in the same profession, with the same class of license, as the defendant. For affidavits filed as to all other defendants, the written report must be from a physician licensed to practice medicine in all its branches. In either event, the affidavit must identify the profession of the reviewing health professional. A copy of the ...


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