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01/27/88 Walter Hagood, Adm'r of v. Richard O'conner Et Al.

January 27, 1988

WALTER HAGOOD, ADM'R OF THE ESTATE OF AMARYALESS HAGOOD, DECEASED, PLAINTIFF-APPELLANT

v.

RICHARD O'CONNER ET AL., DEFENDANTS-APPELLEES (DONALD MCRAVEN ET AL., DEFENDANTS)



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

519 N.E.2d 66, 165 Ill. App. 3d 367, 116 Ill. Dec. 476 1988.IL.87

Appeal from the Circuit Court of Peoria County; the Hon. Richard E. Eagleton, Judge, presiding.

APPELLATE Judges:

JUSTICE HEIPLE delivered the opinion of the court. Barry, P.J., and STOUDER, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HEIPLE

The plaintiff filed a medical malpractice action against a hospital and numerous physicians, charging that their negligent medical treatment was the proximate cause of his wife's death. The defendants moved to dismiss the complaint on grounds that the medical report and affidavit were insufficient. The trial court dismissed the complaint with prejudice and denied the plaintiff's motion for reconsideration of that order. The plaintiff filed the instant appeal. We reverse.

Amaryaless Hagood was hospitalized May 16, 1984, for coronary bypass surgery. She subsequently developed infectious diseases and received medical treatment from the various defendants. Her right leg was later amputated because of a serious infection, and she died in the hospital on August 10, 1984. Suit was filed on August 8, 1986, by Walter Hagood, the decedent's husband and administrator of her estate. The plaintiff attached to the complaint a report from a health professional which detailed the infectious disease treatment received by the decedent, as well as irregularities in that treatment. The plaintiff's attorney filed an affidavit stating he consulted and reviewed the case with the health care professional, whom he believed to be knowledgeable of the issues involved, and on the basis of that consultation, he concluded there was a reasonable and meritorious cause for filing the action.

The defendants filed motions to dismiss the complaint pursuant to section 2-619 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-619), alleging that the affidavit and medical report failed to comply with the requirements of the healing art malpractice act (Ill. Rev. Stat. 1985, ch. 110, par. 2-622) (the Act). The trial court agreed that attorney's affidavit and the health care professional's medical report did not meet the requirements of section 2-622 and dismissed the complaint with prejudice. The plaintiff thereafter filed a motion for reconsideration and requested the court to vacate its judgment in favor of the defendants and require them to respond to the allegations in the complaint. The court denied the motion to reconsider. The plaintiff next filed his appeal with this court, seeking reversal of the trial court's orders and reinstatement of the original complaint. On appeal, the plaintiff argued that the affidavit and medical report filed with the complaint were sufficient and, alternatively, if they were not sufficient, this court should grant leave to file an amended report and affidavit. For the reasons that follow, we reverse.

Initially, we address the defendants' argument that the plaintiff's failure to request leave to amend the affidavit and medical report in either his motion for reconsideration or his notice of appeal constitutes waiver. Supreme Court Rule 303(c)(2) requires that the notice of appeal specify the relief sought from the court of review. (107 Ill. 2d R. 303(c)(2).) Furthermore, a party desiring to file an amended pleading should make the request to amend part of the record on appeal. The plaintiff in the instant case initially elected to stand on his pleadings and chose not to request leave to amend from the trial court. In the brief on appeal, he made his first request for leave to amend in the event this court found that the affidavit and medical report were insufficient. Because the plaintiff deliberately chose to stand on his pleadings as filed and failed to request leave to amend at the trial level, we will not consider his prayer for this relief on appeal. See Continental Building Corp. v. Union Oil Co. (1987), 152 Ill. App. 3d 513.

The plaintiff's primary argument on appeal is that the medical report and affidavit attached to the complaint comply with the requirements of section 2 -- 622 of the Act. The defendants assert that several of the Act's technical requirements were not met and that dismissal of the complaint was appropriate. Section 2 -- 622 provides, in pertinent part, that in an action in which the plaintiff seeks damages for medical 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. . . . [The] affidavit must identify the profession of the reviewing health professional. A copy of the written report, clearly identifying the plaintiff and the reasons for the reviewing health professional's determination that a reasonable and meritorious cause for the filing of the action exists, must be attached to the affidavit, but information which would identify the reviewing health professional may be deleted from the copy so attached.

(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." Ill. Rev. ...


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