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04/21/88 Donald G. Rumer, M.D., v. Zeigler Coal Company

April 21, 1988





522 N.E.2d 830, 168 Ill. App. 3d 568, 119 Ill. Dec. 168 1988.IL.576

Appeal from the Circuit Court of Douglas County; the Hon. Frank W. Lincoln, Judge, presiding.


JUSTICE KNECHT delivered the opinion of the court. GREEN, P.J., and LUND, J., concur.


Defendant, Zeigler Coal Company (Zeigler), failed to amend its third-party complaint against plaintiff, Donald G. Rumer, M.D. (Rumer), in a prior action for medical malpractice. The circuit court of Douglas County dismissed the complaint with prejudice for noncompliance with the healing art malpractice statute. (Ill. Rev. Stat. 1985, ch. 110, par. 2-622.) Rumer sued Zeigler in the instant case for malicious prosecution. Rumer appeals the dismissal of his case for failure to state a cause of action. We affirm.

This case arose out of an action filed by Russell Vaught (Vaught) on September 30, 1985, against Zeigler. In part, Vaught alleged Zeigler recklessly and maliciously coerced him to return to work before he had fully recovered from his on-the-job injury. In its answer to Vaught's complaint, Zeigler included a two-count third-party complaint for medical malpractice against Rumer. The third-party complaint sought contribution from Rumer as Vaught's treating physician who certified Vaught could return to work.

Rumer filed and was granted a motion to dismiss the third-party complaint for Zeigler's failure to comply with the pleading requirements of the statute. (Ill. Rev. Stat. 1985, ch. 110, par. 2-622.) Specifically, Zeigler did not file an affidavit and written report prepared by a reviewing health professional stating that a reasonable and meritorious reason for filing the cause of action existed.

Zeigler was given leave to file an amended third-party complaint within 21 days. Zeigler elected not to exercise its right to amend and on June 30, 1986, the trial court dismissed the third-party complaint with prejudice. Zeigler did not appeal that decision.

On January 7, 1987, Rumer filed a complaint alleging malicious prosecution by Zeigler. Zeigler filed a motion to dismiss Rumer's complaint for failure to state a cause of action, alleging the dismissal of the third-party complaint for noncompliance with the statute did not satisfy the "favorable termination" element of Rumer's cause of action for malicious prosecution. The trial court agreed and dismissed Rumer's complaint with prejudice. The sole issue on appeal is whether the trial court's dismissal of Zeigler's third-party complaint alleging contribution for medical malpractice constituted a termination of that cause of action in Rumer's favor sufficient to sustain a claim for malicious prosecution.

The purpose of the healing art malpractice statute as contained in section 2-622 of the Illinois Code of Civil Procedure (Code) is to eliminate frivolous and non-meritorious medical malpractice lawsuits at the pleading stage. (Ill. Rev. Stat. 1985, ch. 110, par. 2-622; Ill. Ann. Stat., ch. 110, par. 2-109, Historical and Practice Notes, at 21 (Smith-Hurd Supp. 1987).) Section 2-622 requires an affidavit of merit and written report of an expert be attached to every complaint for medical malpractice to certify there is a legitimate basis for the action. (Ill. Rev. Stat. 1985, ch. 110, par. 2-622(a)(1).) Failure to comply with this requirement is grounds for involuntary dismissal under section 2-619 of the Code. Ill. Rev. Stat. 1985, ch. 110, par. 2-622(g).

To sustain a motion to dismiss for failure to state a cause of action for malicious prosecution Rumer's complaint must have alleged facts which satisfy five essential elements: "'(1) the commencement or continuance of an original criminal or civil judicial proceeding by the defendant; (2) the termination of the proceeding in favor of the plaintiff; (3) the absence of probable cause for such proceeding ; (4) the presence of malice; and (5) damages resulting to the plaintiff.'" (Joiner v. Benton Community Bank (1980), 82 Ill. 2d 40, 45, 411 N.E.2d 229, 232, quoting Ritchey v. Maksin (1978), 71 Ill. 2d 470, 475.) Section 2-109 of the Code has eliminated the need to plead or prove special injury in a medical malpractice action. (Ill. Rev. Stat., 1986 Supp., ch. 110, par. 2-109.) The second, or favorable termination, element is the sole issue in this case.

Rumer's position is that under Goldberg v. Swedish Covenant Hospital (1987), 160 Ill. App. 3d 867, 869-70, 513 N.E.2d 919, 920-21, and Supreme Court Rule 273 (87 Ill. 2d R. 273), the dismissal with prejudice of the third-party complaint was an adjudication on the merits terminated in Rumer's favor, rather than a dismissal for want of prosecution as characterized by the trial court. Goldberg held a dismissal for noncompliance with section 2 -- 622 should be with prejudice because such a dismissal "constitutes an adjudication on the merits, not a dismissal for lack of jurisdiction or for want of prosecution." (Goldberg, 160 Ill. App. 3d at 869-70, 513 N.E.2d at 921.) Rule 273 provides: "Unless the order of dismissal or a statute of this State otherwise specifies, an involuntary dismissal of an action, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join an indispensable party, operates as an adjudication on the merits." 87 Ill. 2d R. 273.

Rumer's reliance on Goldberg is misplaced. Goldberg does not address the favorable termination element of malicious prosecution actions. Rather, it concludes failure to comply with section 2 -- 622 is automatic grounds for dismissal with prejudice. Such a Conclusion conflicts with ...

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