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10/22/87 Michael E. Gray, v. A. K. Roy

October 22, 1987

MICHAEL E. GRAY, PLAINTIFF-APPELLEE

v.

A. K. ROY, DEFENDANT (ST. MARY'S HOSPITAL OF STREATOR, DEFENDANT-APPELLANT)



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

515 N.E.2d 333, 162 Ill. App. 3d 67, 113 Ill. Dec. 524 1987.IL.1578

Appeal from the Circuit Court of La Salle County; the Hon. William P. Denny, Judge, presiding.

APPELLATE Judges:

JUSTICE HEIPLE delivered the opinion of the court. BARRY, P.J., concurs. JUSTICE SCOTT, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HEIPLE

On August 8, 1985, the plaintiff, Michael E. Gray, filed a two-count complaint against the defendant, A. K. Roy, M.D., seeking damages for injuries allegedly sustained as the result of medical malpractice. On July 18, 1986, the plaintiff obtained leave to file an amended complaint adding St. Mary's Hospital (hospital) as a defendant in count III. On November 12, 1986, the defendant hospital filed a motion to dismiss count III of the amended complaint, alleging the plaintiff failed to file an affidavit of merit as required by section 2-622(a) of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-622(a)). The circuit court entered an order denying St. Mary's Hospital's motion to dismiss. St. Mary's Hospital has perfected an appeal from this order pursuant to Supreme Court Rule 308 (107 Ill. 2d R. 308).

Section 2 -- 622(a) provides that absent special circumstances not present here, in any action in which a plaintiff seeks damages for injuries or death by reason of medical, hospital, or other healing art malpractice, the plaintiff or his attorney must file an affidavit attached to the complaint declaring that the case was reviewed by a knowledgeable health professional who determined in a written report that there is a reasonable and meritorious cause for filing the action. Section 2 -- 622(a) also requires that a copy of the reviewing health professional's written report be attached, and that the affiant declare that he concluded on the basis of the professional's review that there is a reasonable and meritorious cause for filing the action.

Section 2 -- 622 also provides:

"(b) Where a certificate and written report are required pursuant to this Section a separate certificate and written report shall be filed as to each defendant who has been named in the complaint and shall be filed as to each defendant named at a later time.

(g) The failure to file a certificate required by this Section shall be grounds for dismissal under Section 2 -- 619.

(h) This Section does not apply to or affect any actions pending at the time of its effective date, but applies to cases filed on or after its effective date." Ill. Rev. Stat. 1985, ch. 110, pars. 2-622(b),(g),(h).

Section 2 -- 622 became effective on August 15, 1985. The complaint against Dr. Roy was filed prior to August 15, 1985, but the amended complaint adding St. Mary's Hospital as a defendant was not filed until July 18, 1986, more than 11 months after the effective date of the statute.

The issue presented to this court for determination is whether section 2-622 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-622) applies to a defendant named as a party after August 15, 1985, the effective date of the Act, where the original complaint was filed prior to August 15, 1985. We find that it does not and therefore affirm the order of the trial court.

Subsection (h) provides that the statute does not apply to "any actions pending" at the time of its effective date, but it does apply to "cases filed" on or after the effective date. The hospital argues that this subsection is ambiguous because it contains two independent clauses, one with the phrase "actions pending" and one with the phrase "cases filed," which have different meanings. It asserts that the section should be construed to require compliance with the new provisions in "actions" commenced on or after August 15, 1985, even if the "case" was filed before that date. The hospital also urges that certain principles of statutory construction should be applied in an effort to divine the true meaning of the statute. The plaintiff argues, and we ...


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