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04/28/88 Marie Alford, Independent v. L. A. Phipps Et Al.

April 28, 1988

LEDBETTER, DECEASED, PLAINTIFF-APPELLANT

v.

L. A. PHIPPS ET AL., DEFENDANTS (DAK R. BURNETT ET AL., DEFENDANTS-APPELLEES)



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

MARIE ALFORD, Independent Adm'r of the Estate of Leota

523 N.E.2d 563, 169 Ill. App. 3d 845, 119 Ill. Dec. 807 1988.IL.622

Appeal from the Circuit Court of Edgar County; the Hon. Richard E. Scott, Judge, presiding.

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SPITZ

On January 21, 1987, plaintiff Marie Alford, as independent administrator of the estate of decedent Leota Ledbetter, filed a wrongful death action in the circuit court of Edgar County against defendants Dr. L. A. Phipps, Dr. M. L. Obetz, Dr. Dak R. Burnett, Dr. J. M. Ingalls and Paris Community Hospital (hospital), alleging that during a sigmoidoscopy decedent sustained a perforated colon which was not promptly diagnosed or treated by her attending physicians and contributed to her death. Specifically, count I of plaintiff's five-count complaint alleged that defendant Phipps was negligent in failing to properly diagnose and treat the decedent for a perforated colon. Count II alleged that defendant Obetz was negligent in failing to properly administer a barium enema for a barium X ray. Count III alleged that defendant Burnett was negligent in failing to properly diagnose and treat the decedent for a perforated colon and in failing to properly place a Swan-Ganz catheter during a surgical procedure he performed on the decedent. Count IV alleged that defendant Ingalls, or agents of defendant Paris Community Hospital, were negligent in causing the decedent's colon to be perforated during the sigmoidoscopy procedure. Finally, count V alleged that defendant Paris Community Hospital was negligent in that its agents failed to consult with other physicians or take action to improve the quality of medical care being provided to the decedent. Attached to the complaint were separate affidavits as to each defendant stating that plaintiff's counsel was unable to obtain a written report from an expert physician because the statute of limitations would impair the action. Ill. Rev. Stat. 1985, ch. 110, par. 2-622(a)(2).

Then on April 9, 1987, the plaintiff filed a document entitled "Compliance with Section 2-622 of Chapter 110." (Ill. Rev. Stat. 1985, ch. 110, par. 2-622(a)(1).) This document stated that written reports of expert physicians and an affidavit of plaintiff's counsel were attached thereto in compliance with section 2-622 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1985, ch. 110, par. 2-622(a)(1)). The attached affidavit of counsel stated that the affiant had consulted and reviewed the facts of the case with qualified physicians, that the affiant reasonably believed the physicians were knowledgeable in the relevant issues involved in the action, and that one reviewing physician was a radiologist practicing in the same specialty as defendant Obetz and the other reviewing physician was a "physician/surgeon as are the remaining defendants, except for the Paris Community Hospital."

On April 16, 1987, defendant Paris Community Hospital filed a motion to dismiss counts IV and V of the complaint alleging that plaintiff's written reports were insufficient under section 2 -- 622 of the Code, that the complaint was not filed within the applicable statute of limitations period and that the complaint contained insufficient allegations of fact. On May 5, 1987, defendants Phipps, Burnett, and Ingalls filed a motion to dismiss counts I, III, and IV of the complaint, alleging that the affidavit of counsel and the written reports failed to comply with section 2 -- 622. Defendant Obetz filed an answer to the plaintiff's complaint and affirmative defense on April 29, 1987.

Following a hearing on June 19, 1987, the motions to dismiss were allowed. The trial court, in a letter opinion, dated June 30, 1987, stated that the first written report indicated that defendant Obetz' failure to properly diagnose the rectal perforation on the barium enema violated the standard of care for a radiologist. The court further stated that the second written report discussed defendant Phipps' involvement in the case and that the decedent's demise apparently resulted from the failure to promptly diagnose and definitively treat her for a rectal perforation. The court found that pursuant to section 2-622(b) of the Code (Ill. Rev. Stat. 1985, ch. 110, par. 2-622(b)), a certificate and written report "are required . . . as to each defendant who has been named in the complaint and shall be filed as to each defendant named at a later time." (Emphasis added.) The court further found that the plaintiff's two written reports did not discuss defendants Burnett and Ingalls and, therefore, were "defective" as to those defendants. Accordingly, the court dismissed counts III and IV without prejudice.

In addition, the court dismissed counts IV and V of the complaint, directed against Paris Community Hospital, for failure to adequately allege either a respondeat superior theory of liability or a theory of liability based upon a violation of an independent duty on the part of the hospital to review and supervise medical care administered to a patient. The court reasoned that a dismissal with prejudice pursuant to section 2-619 of the Code (Ill. Rev. Stat. 1985, ch. 110, par. 2-619) was not appropriate and granted the plaintiff leave to amend the complaint within 21 days.

On July 6, 1987, Paris Community Hospital filed a motion for rehearing or, alternatively, clarification of the court's June 30, 1987, dismissal order. The motion alleged that the plaintiff's failure to comply with section 2-622 required a dismissal with prejudice pursuant to section 2-619. (Ill. Rev. Stat. 1985, ch. 110, pars. 2-622, 2-619.) Thereafter, on August 7, 1987, the court issued a letter opinion stating that after further review of section 2-622 of the Code, it was the intent of the legislature that the failure to comply with that section mandated dismissal with prejudice pursuant to section 2-619. Thus, the court found that the dismissal of the counts directed against defendants Burnett, Ingalls, and Paris Community Hospital should be with prejudice. An order filed on September 30, 1987, incorporated these rulings and indicated that defendant Phipps' motion to dismiss was denied. Plaintiff now appeals.

The first issue on appeal is whether the trial court erred in dismissing the counts in plaintiff's complaint, directed against defendants Ingalls and Burnett, for failure to comply with section 2-622 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1985, ch. 110, par. 2-622).

Plaintiff first contends that the trial court's interpretation of section 2-622 of the Code (Ill. Rev. Stat. 1985, ch. 110, par. 2-622) creates unconstitutional barriers to the plaintiff's right to a trial by jury and denies the plaintiff due process of law. Defendants argue that the plaintiff has waived this issue. Defendants contend that the plaintiff filed no pleading in the court below challenging the constitutionality of section 2-622, failed to serve the Attorney General with appropriate notice pursuant to Supreme Court Rule 19 (107 Ill. 2d R. 19), and failed to support her contention on appeal with any citation of authority or argument.

Defendants correctly point out that the plaintiff cites no authority and makes no specific argument to support this contention. In any event, a recent decision by the Second District Appellate Court in Bloom v. Guth (1987), 164 Ill. App. 3d 475, 517 N.E.2d 1154, appeal denied (1988), 121 Ill. 2d 567, is dispositive of this issue. The Bloom court held that section 2 -- 622 does not deny the medical patient due process or equal protection of the law. The Bloom court looked to the supreme court's decision in Bernier v. Burris (1986), 113 Ill. 2d 219, 497 N.E.2d 763, for guidance and applied the rational basis test. In so doing, the court determined that the purpose of section 2 ...


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