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03/10/88 Pamela J. Whamond Et Al., v. Leon K. Mcgill Et Al.

March 10, 1988

PAMELA J. WHAMOND ET AL., PLAINTIFFS-APPELLEES

v.

LEON K. MCGILL ET AL., DEFENDANTS-APPELLANTS

(G) THE FAILURE TO FILE A CERTIFICATE REQUIRED BY THIS SECTION SHALL BE GROUNDS FOR DISMISSAL UNDER SECTION 2-619." (ILL. RE

v.

STAT. 1985, CH. 110, PAR. 2-622.)



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

522 N.E.2d 211, 168 Ill. App. 3d 66, 118 Ill. Dec. 756

Appeal from the Circuit Court of Cook County; the Hon. Thomas Rakowski, Judge, presiding. 1988.IL.340

APPELLATE Judges:

JUSTICE JOHNSON delivered the opinion of the court. JIGANTI, P.J., and LINN, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE JOHNSON

This proceeding was instituted when plaintiffs, Pamela J. Whamond and Wilbur O. Whamond, Jr., filed suit to recover damages occasioned by the alleged medical malpractice of defendants Leon K. McGill, M.D., Louis B. Leone, M.D., Edil Trudes S. Caviles, executrix of the estate of Alfredo P. Caviles, M.D., deceased, and OB-GYN Specialists, S.C. Defendants appeal from an order, entered December 4, 1986, which granted plaintiffs' motion to voluntarily dismiss their complaint. This appeal raises questions on the pleadings and presents the following issues: (1) whether the trial court erred when it denied a motion to dismiss plaintiffs' complaint with prejudice; and (2) whether the trial court erred by granting plaintiffs' motion to voluntarily dismiss and refusing to hear or rule on defendants' previously filed motion to reconsider.

We affirm.

The relevant facts are few. On November 14, 1985, plaintiffs filed a complaint alleging medical malpractice against the defendants. The complaint, because of the date of filing, was subject to the pleading requirements of section 2-622 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-622) (the Code), which provides, in pertinent part, as follows:

"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 . . . 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 had 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 of filing of such action. . . . 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.

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 Part 20 of Article VIII of this Code and the party required to comply under those Sections has failed to provide such records within 60 days of the receipt of the request. If an affidavit is executed pursuant to this paragraph, the certificate and written report required by paragraph 1 shall be filed within 90 days following receipt of the requested records. All defendants except those whose failure to comply with Part 20 of Article VIII of this Code is the basis for an affidavit under this paragraph

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

In the instant case, plaintiffs attached to their complaint the affidavit of their attorney stating that they were unable to obtain such an expert consultation ...


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