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03/24/88 Monica Edwards, By Claire v. Sterling Drugs

March 24, 1988

FRIEND, ET AL., PLAINTIFFS-APPELLANTS

v.

STERLING DRUGS, INC., DEFENDANT (MEMORIAL MEDICAL CENTER, DEFENDANT-APPELLEE)



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

MONICA EDWARDS, by Claire Edwards, her Mother and Next

521 N.E.2d 296, 167 Ill. App. 3d 181, 118 Ill. Dec. 228 1988.IL.422

Appeal from the Circuit Court of Sangamon County; the Hon. Raymond Terrell, Judge, presiding.

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE KNECHT

Claire Edwards, individually and as mother and next friend of Monica Edwards (plaintiff), filed a four-count complaint in Sangamon County circuit court June 26, 1986, against Sterling Drug, Inc., and Memorial Medical Center (defendant). The trial court dismissed the counts against defendant on July 27, 1987, for failure of the attorney's affidavit to comply with section 2-622(a)(1) of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1985, ch. 110, par. 2-622(a)(1).) Plaintiff appeals, contending her attorney's affidavit substantially complied with section 2-622(a)(1), and in the alternative, the trial court erred in dismissing the counts with prejudice.

Counts I and II of plaintiff's complaint alleged a cause of action in products liability against Sterling Drug, Inc., and are not involved in this appeal. Counts III and IV alleged defendant, through its agent Dr. R. W. Roller, negligently and carelessly administered certain drugs to plaintiff during the labor preceding Monica's birth June 27, 1976.

Plaintiff filed her complaint June 26, 1986. Attached to the complaint was an affidavit filed pursuant to section 2-622(a)(2) of the Code (Ill. Rev. Stat. 1985, ch. 110, par. 2-622(a)(2)) in which Ellen Dauber, one of plaintiff's attorneys, stated a consultation or report from a health care professional could not be obtained prior to the running of the statute of limitations.

Defendant filed two motions to dismiss counts III and IV. The first, filed August 5, 1986, alleged essentially that plaintiff's attorney failed to attach to the complaint either a report or an affidavit stating a consultation could not be obtained prior to the running of the statute of limitations as required by section 2-622(a)(2). The Disposition of this motion is unclear from the record. The second, filed October 10, 1986, repeated the allegations of the first motion and added that plaintiff failed to file the attorney's affidavit and the reviewing health professional's report within 90 days of the filing of the complaint as required by section 2-622(a)(2) (Ill. Rev. Stat. 1985, ch. 110, par. 2-622(a)(2)).

At a November 7, 1986, hearing on the motion to dismiss, attorney Bruce Cook, another of plaintiff's attorneys, filed an affidavit under section 2 -- 622(a)(3), stating defendant had failed to furnish complete medical records relating to plaintiffs. Specifically, defendant had not furnished a portion of the fetal heart monitor strip despite repeated written requests. At the November 7 hearing, the court granted plaintiff leave to file affidavits or other proofs in opposition to the motion to dismiss. On November 18, 1987, plaintiff filed a supplemental affidavit relating to whether the fetal heart monitor strip was missing. On December 24, 1986, the court granted plaintiff's motion to amend the complaint by adding Dr. Roller as a party defendant. Defendant moved January 15, 1987, to consolidate the instant action with the case previously filed against Dr. Roller.

On January 28, 1987, plaintiff filed a motion to amend the complaint by adding an affidavit by attorney Cook. Cook's affidavit, dated December 12, 1986, stated he was plaintiff's attorney, he had consulted with a health care professional, a specialist in obstetrics and gynecology, pursuant to section 2 -- 622, and that after reviewing incomplete medical records, the professional determined in a written report that plaintiff had a reasonable and meritorious cause of action against Dr. Roller. The report was attached to the affidavit.

At the July 15, 1987, hearing on the motion to dismiss, the trial court did not decide whether plaintiff had timely filed the affidavit under section 2 -- 622(a)(3). It concluded the January 28, 1987, affidavit was fatally deficient in that it failed to state (1) the attorney believed there was a meritorious cause of action against the defendant, and (2) the attorney consulted with a health care professional he believed knowledgeable concerning the case. The Judge stated the report's additional failure to state a meritorious cause of action existed against Memorial itself was not as defective as the other two omissions. The court found no just reason for delaying enforcement or appeal from the order. The written order, entered July 27, 1987, was silent as to whether the dismissal was with or without prejudice, though it did state the counts were dismissed pursuant to section 2 -- 619 of the Code. Plaintiff filed her notice of appeal August 3, 1987. Supreme Court Rule 273 (107 Ill. 2d R. 273) states that unless the order provides otherwise, an involuntary dismissal operates as an adjudication on the merits. Therefore, the dismissal here was with prejudice.

Plaintiff argues the defects in the affidavit do not warrant dismissal with prejudice without reasonable leave to amend. Defendant contends failure to adhere to the statutory requirements requires dismissal with prejudice. We need not reach this question, as the facts require that we ...


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