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03/31/88 Heather Marie Ushman, By v. Sterling Drugs

March 31, 1988

FRIEND, PLAINTIFF-APPELLANT

v.

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

THE PROVISIONS OF SECTION 2-622 OF THE CODE (ILL. RE

v.

STAT. 1985, CH. 110, PAR. 2-622) WHICH ARE RELEVANT TO A RESOLUTION OF THIS DISPUTE ARE AS FOLLOWS:



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

HEATHER MARIE USHMAN, by Cindy Ushman, her Mother and Next

521 N.E.2d 313, 166 Ill. App. 3d 726, 118 Ill. Dec. 245 1988.IL.481

Appeal from the Circuit Court of Sangamon County; the Hon. Richard E. Mann, Judge, presiding.

APPELLATE Judges:

JUSTICE SPITZ delivered the opinion of the court. GREEN, P.J., and McCULLOUGH, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SPITZ

On August 5, 1978, plaintiff Heather Marie Ushman was born at Memorial Medical Center in Springfield, Illinois, with severe brain damage. She filed a complaint on November 24, 1986, by Cindy Ushman, her mother and next friend, alleging that defendant Memorial Medical Center negligently and carelessly administered the drug Marcaine to plaintiff's mother during labor, thereby proximately causing injuries to plaintiff. Along with the complaint, plaintiff filed an affidavit by Bruce N. Cook, plaintiff's counsel, pursuant to section 2-622(a)(3) of the Illinois Code of Civil Procedure (Code) (Ill. Rev. Stat. 1985, ch. 110, par. 2-622(a)(3)). In this affidavit, counsel stated that he had requested the perinatal records of plaintiff, including plaintiff's fetal heart monitor strips, more than 60 days prior to the filing of the affidavit, and that defendant had failed to produce the heart monitor strips.

On March 20, 1987, defendant Memorial Medical Center filed a motion to dismiss plaintiff's claim for failure to comply with the provisions of section 2-622(a)(3) of the Code (Ill. Rev. Stat. 1985, ch. 110, par. 2-622(a)(3)). Defendant Memorial Medical Center's motion to dismiss was supported by the statement of Memorial Medical Center personnel that attorney Bruce Cook's office was called on September 24, 1986, by Edna Matthews, director of medical records, explaining that the monitor strips could not be located. Defendant Memorial Medical Center's motion to dismiss stated that plaintiff's complaint was filed on November 24, 1986, and that plaintiff's counsel was informed that Memorial Medical Center did not have a fetal heart monitor strip for the plaintiff on or before September 24, 1986. Plaintiff has never filed any pleading disputing this notification. The motion alleged that plaintiff failed to file a certificate and written report within 90 days of September 24, 1986, the date the hospital informed plaintiff's counsel that the fetal heart monitor strip was unavailable, and that, consequently, plaintiff had not complied with section 2-622(a)(3) of the Code. Ill. Rev. Stat. 1985, ch. 110, par. 2-622(a)(3).

On June 30, 1987, the circuit court granted defendant's motion to dismiss plaintiff's complaint with prejudice.

The only issue presented for review is whether the trial court erred in dismissing plaintiff's complaint for failure to comply with the provisions of section 2 -- 622(a)(3) of the Code.

"(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 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. . . . 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.

[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 produce 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.

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


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