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04/27/88 Joyce Bassett, v. Chen Chii Wang Et Al.

April 27, 1988

JOYCE BASSETT, PLAINTIFF-APPELLANT

v.

CHEN CHII WANG ET AL., DEFENDANTS (JIA HSING HWANG, DEFENDANT-APPELLEE)



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

523 N.E.2d 1020, 169 Ill. App. 3d 663, 120 Ill. Dec. 109 1988.IL.609

Appeal from the Circuit Court of Cook County; the Hon. Thomas E. Hoffman, Judge, presiding.

APPELLATE Judges:

JUSTICE FREEMAN delivered the opinion of the court. McNAMARA and RIZZI, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE FREEMAN

This appeal arises out of the trial court's granting of the motion to dismiss of defendant-appellee, Jia Hsing Hwang, M.D., against plaintiff, Joyce Bassett. Bassett named Dr. Hwang as a defendant in her amended complaint alleging medical malpractice. The motion to dismiss was based on plaintiff's failure to attach to the amended complaint the attorney's affidavit and report of a health professional as required by section 2-622 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-622).

For the reasons stated below, we vacate the judgment of the circuit court of Cook County and remand this cause for further consideration.

The relevant sections of the Code of Civil Procedure provide that in any action for medical malpractice the plaintiff must attach to the complaint an affidavit stating that he has consulted with a health professional in whose opinion there is a "reasonable and meritorious cause" for the filing of the action. In addition, the plaintiff must attach the written report of the health professional indicating the basis for his determination. (Ill. Rev. Stat. 1985, ch. 110, par. 2-622(a)(1).) Section 2-622(a)(2) (Ill. Rev. Stat. 1985, ch. 110, par. 2-622(a)(2)) allows for a 90-day extension for the filing of the certificate and written report if the statute of limitations is near expiration. Section 2-622(a)(3) (Ill. Rev. Stat. 1985, ch. 110, par. 2-622(a)(3)) provides that if the plaintiff is having difficulty obtaining necessary medical records, he is given 90 days upon receipt of the medical records in which to file the certificate and written report. Section 2-622(g)(Ill. Rev. Stat. 1985, ch. 110, par. 2-622(g)) states that "failure to file a certificate required by this Section shall be grounds for dismissal under Section 2-619." Further, section 2-622(h) (Ill. Rev. Stat. 1985, ch. 110, par. 2-622(h)) provides that the statute "does not apply to or affect any actions pending at the time of its effective date, but applies to cases filed on or after its effective date." The effective date of the statute is August 15, 1985.

Plaintiff's original, single-count complaint was filed on June 18, 1985. The complaint alleges medical malpractice against a sole defendant, Dr. Chen Chii Wang (not a party to this appeal), occurring on or about April 10, 1984, at South Shore Hospital. Plaintiff's three-count amended complaint, filed on February 26, 1986, names two additional defendants, appellee, Dr. Hwang, and South Shore Hospital. The amended complaint sounds in negligence against each of the three defendants. The negligence allegedly arose out of the same medical treatment referenced in the original complaint.

On August 29, 1986, appellee, Dr. Hwang, filed a motion to dismiss the amended complaint against him for plaintiff's failure to comply with the requirements of section 2-622 (Ill. Rev. Stat. 1985, ch. 110, par. 2-622). At the September 19, 1986, hearing on the motion to dismiss, plaintiff's counsel tendered the report of Dr. David Petty and an affidavit of plaintiff's counsel. In response to the trial court's question regarding the date of the doctor's report, plaintiff's counsel stated that the date had been deleted from the report. The court noted for the record that the affidavit of plaintiff's counsel was notarized on the date of the hearing, September 19, 1986.

The court found that plaintiff failed to attach to the amended complaint the affidavit or report as required by section 2-622. Further, the court stated that, even if it excused submission of the affidavit, plaintiff still should have submitted the doctor's report within the 90-day period provided for in subsection (a)(3) of section 2-622 (Ill. Rev. Stat. 1985, ch. 110, par. 2-622(a)(3)). The court sustained defendant's motion to dismiss on the ground that plaintiff failed to bring any proof that she complied with section 2-622 prior to the September 1986 hearing.

In support of its decision, the court also cited subsection (h) of section 2-622 (Ill. Rev. Stat. 1985, ch. 110, par. 2-622(h)), which provides that the statute does not apply to or affect any actions pending at the time of its effective date but applies to cases filed on or after its effective date. The court found that there was no action pending against appellee, Dr. Hwang, on or before the effective date of the statute, August 15, 1985. Appellee was named as a defendant only after the statute became effective, when plaintiff filed her amended complaint, on February 26, 1986. Therefore, the court stated, the statute applies to plaintiff's action against appellee, Dr. Hwang.

On appeal plaintiff asserts that the trial court erred in determining that section 2-622 (Ill. Rev. Stat. 1985, ch. 110, par. 2-622) applies to the cause of action against Dr. Hwang, since the original complaint was filed prior to the effective date of the statute. Plaintiff contends that since the action in the original complaint and the amended complaint arose out of the same conduct and alleges the same theory of liability, i.e., negligence, a new cause of action was not added by the amended complaint. Therefore, plaintiff asserts, the amended complaint should have been deemed to relate back to the original complaint filed prior to the enactment date of the statute.

We hold that the trial court properly found that the statute applied to plaintiff's action against appellee, Dr. Hwang. The court was correct in finding that there was no cause of action pending against Dr. Hwang prior to the filing, in February 1986, of plaintiff's amended complaint, and that the amended complaint constituted a new cause of action or a new "case" against Dr. Hwang to ...


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