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04/05/88 Catherine L. Hauk Et Al., v. John H. Day Et Al.

April 5, 1988

CATHERINE L. HAUK ET AL., PLAINTIFFS-APPELLEES

v.

JOHN H. DAY ET AL., DEFENDANTS-APPELLANTS



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

521 N.E.2d 1243, 167 Ill. App. 3d 758, 118 Ill. Dec. 550 1988.IL.489

Appeal from the Circuit Court of Fulton County; the Hon. Charles Wilhelm, Judge, presiding.

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE STOUDER

The plaintiffs, Catherine L. Hauk and Jeffery Hauk, filed a complaint against the defendants, John H. Day and Narenda K. Gupta, alleging medical negligence. Pursuant to the healing art malpractice provision (Ill. Rev. Stat. 1985, ch. 110, par. 2-622), the plaintiffs attached an affidavit to the complaint stating that the statute of limitations was about to run and that the plaintiffs were availing themselves of the additional 90-day extension provided by the statute to have the case reviewed by an appropriate health care professional.

The plaintiffs did not file an affidavit of a health care professional until 12 days after the 90-day extension period expired. Both 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), based upon the plaintiffs' failure to comply with the provisions of section 2-622.

The trial court denied the defendants' motion to dismiss and allowed the plaintiffs leave to file the physician's affidavit beyond the 90-day time period. The defendants have appealed pursuant to Supreme Court Rule 308 (107 Ill. 2d R. 308).

Previously, we decided in favor of the defendants and reversed the trial court. However, the plaintiffs filed a petition for rehearing which called our attention to the Illinois Supreme Court case of McCastle v. Sheinkop (1987), 121 Ill. 2d 188. McCastle was decided after we had issued our previous decision. After withdrawing the previous opinion and giving both parties an opportunity to brief their respective positions in light of McCastle, we now affirm the decision of the trial court.

On appeal, the defendants contend that the trial court erred by allowing the plaintiffs to file an affidavit of merit and physician's report after the 90-day period had expired.

Section 2 -- 622 states, in pertinent part, that when an action is filed seeking damages for medical malpractice:

"[Plaintiff's] attorney or the plaintiff . . . 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 . . .; that the reviewing health professional has determined in a written report . . . 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 . . . ...


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