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12/30/87 James Mccastle, v. Mitchell B. Sheinkop

December 30, 1987

JAMES MCCASTLE, APPELLANT

v.

MITCHELL B. SHEINKOP, M.D., LTD., ET AL., APPELLEES



SUPREME COURT OF ILLINOIS

520 N.E.2d 293, 121 Ill. 2d 188, 117 Ill. Dec. 132

Appeal from the Circuit Court of Cook County, the Hon. William A. Kelly, Judge, presiding.

Rehearing denied April 5, 1988 1987.IL.1942

APPELLATE Judges:

JUSTICE MORAN delivered the opinion of the court. JUSTICE SIMON took no part in the consideration or decision of this case. JUSTICE MILLER, specially Concurring. JUSTICE RYAN joins in this special concurrence.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MORAN

On February 5, 1986, plaintiff James McCastle filed a medical malpractice action in the circuit court of Cook County against defendants Mitchell Sheinkop, M.D., and Rush-Presbyterian-St. Luke's Medical Center. Thereafter, defendants filed motions to dismiss for failure to attach to the complaint the attorney's affidavit and health professional's report as required by section 2-622 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-622). The trial court granted the defendants' motions and dismissed the cause with prejudice. Appeal is taken directly to this court under Rule 302(b). 107 Ill. 2d R. 302(b).

On appeal, the plaintiff raises several constitutional challenges to section 2 -- 622; however, our Disposition of the case makes it necessary to consider only the following issue: whether it was error to dismiss plaintiff's complaint with prejudice.

A brief summary of the relevant provisions of section 2-622 is necessary. Section 2-622(a)(1) (Ill. Rev. Stat. 1985, ch. 110, par. 2-622(a)(1)) provides that in any action for medical malpractice the plaintiff must attach to the complaint an affidavit stating that he has consulted with a health professional in whose opinion there is a "reasonable and meritorious cause" for the filing of the action. In addition, the plaintiff must also attach the written report of the health professional indicating the basis for his determination. Section 2-622(a)(2) (Ill. Rev. Stat. 1985, ch. 110, par. 2-622(a)(2)) allows for a 90-day extension for the filing of the affidavits if the statute of limitations is near expiration, and section 2-622(a)(3) (Ill. Rev. Stat. 1985, ch. 110, par. 2-622(a)(3)) provides that if the plaintiff is having difficulty obtaining necessary medical records he is given 90 days upon receipt of the medical records in which to file the affidavits. Section 2-622(g) (Ill. Rev. Stat. 1985, ch. 110, par. 2-622(g)) provides that "failure to file a certificate required by this Section shall be grounds for dismissal under Section 2-619."

Plaintiff contends that it was error for the trial court to dismiss the action with prejudice. At the hearing on the motion to dismiss, the plaintiff argued that dismissal should be made without prejudice and he requested leave to file an amended complaint. The trial court, however, granted defendants' motions to dismiss with prejudice. And while it is not entirely clear, it appears from the record that the trial court felt that it had no discretion but to dismiss the action with prejudice. The record suggests that the trial court viewed dismissal with prejudice as statutorily required.

Plaintiff argues that dismissal with prejudice was improper since it is usually within the discretion of the trial court whether to grant dismissal with or without prejudice and because section 2-622, by its terms, does not mandate dismissal with prejudice. Moreover, plaintiff notes that since failure to file the affidavits could be cured by amendment, it was error for the trial court to deny plaintiff leave to file an amended complaint. Defendants argue that section 2-622 requires that dismissals be with prejudice. They argue that because dismissals under section 2-622 are pursuant to section 2-619 (Ill. Rev. Stat. 1985, ch. 110, par. 2-619), which concerns defects and defenses that cannot be cured by amendment, rather than section 2-615 (Ill. Rev. Stat. 1985, ch. 110, par. 2-615), which concerns defects which can be cured by amendment, it was therefore the legislature's intent that section 2-622 dismissals be with prejudice. Defendants also contend that this legislative intention is further evidenced by provisions in section 2-622 which lessen the harshness of the rule. They note that section 2-622(a)(2) provides for a 90-day filing extension if the statute of limitations is near expiration and that section 2-622(a)(3) provides for a 90-day filing extension if there is difficulty in obtaining medical records and argue that these provisions were included in order to eliminate any unfairness which would otherwise obtain if the plaintiff's action were dismissed with prejudice. They view these provisions as illustrating the legislature's intent that dismissals be with prejudice by underscoring legislative concern that the rule not operate to forever bar a plaintiff where the failure to file the affidavits was outside of the plaintiff's control. Alternatively, defendants argue that even if the trial court is given discretion as to whether dismissals should be with or without prejudice, the dismissal with prejudice here was proper since the plaintiff never offered to submit the affidavits.

Our examination of the legislative history of section 2 -- 622 reveals that the legislature did not intend to require dismissal with prejudice. During legislative debate, one of the sponsors of section 2 -- 622 indicated that the court had the authority to grant leave to file an amended complaint with new affidavits where the plaintiff seeks to alter his theory of liability. The following exchange took place during debate in the House of Representatives between Representative Daniels, a sponsor of section 2 -- 622, and Representative Preston:

"Representative Preston: . . . What happens in the case after you enter into discovery, you then find out, which is frequently the situation, that at that point you want to rely on the doctrine of res ipsa loquitur, where you ...


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