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06/07/88 Mary Fay Shanks, v. Memorial Hospital

June 7, 1988

MARY FAY SHANKS, PLAINTIFF-APPELLEE

v.

MEMORIAL HOSPITAL, DEFENDANT-APPELLANT

THE ILLINOIS LEGISLATURE PASSED THE ACT IN ORDER TO REDUCE THE NUMBER OF FRIVOLOUS MALPRACTICE SUITS FILED IN THE STATE. (MCCASTLE

v.

SHEINKOP (1987), 121 ILL. 2D 188, 193, 520 N.E.2D 293, 296.) THE PERTINENT PROVISIONS OF THE ACT PROVIDE AS FOLLOWS:



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

525 N.E.2d 177, 170 Ill. App. 3d 736, 121 Ill. Dec. 371 1988.IL.885

Appeal from the Circuit Court of St. Clair County; the Hon. Stephen M. Kernan, Judge, presiding.

APPELLATE Judges:

JUSTICE CALVO delivered the opinion of the court. HARRISON, P.J., and LEWIS, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE CALVO

Plaintiff, Mary Shanks, sued defendant, Memorial Hospital, alleging that the malpractice of defendant's nursing staff resulted in her injuries. The Healing Art Malpractice Act (the Act) (Ill. Rev. Stat. 1985, ch. 110, par. 2-622) requires that at the time of filing a malpractice complaint, a plaintiff must also file an affidavit that he or she has consulted with a health care professional who believes that there is a reasonable and meritorious cause for filing the suit. (Ill. Rev. Stat. 1985, ch. 110, par. 2-622(a)(1).) A written report by the health care professional must be attached to the affidavit. (Ill. Rev. Stat. 1985, ch. 110, par. 2-622(a)(1).) If plaintiff files an affidavit with the complaint stating that the consultation could not be obtained before the expiration of the statute of limitations, however, section 2-622(a)(2) gives plaintiff 90 days after the filing of the complaint to obtain the consultation and submit the report pursuant to section 2-622(a)(1).

Plaintiff in the case at bar filed her complaint and section 2 -- 622(a)(2) affidavit on December 17, 1986, stating that she could not obtain the consultation prior to the running of the statute of limitations. On March 13, 1987, and within the 90-day period which ended on March 17, 1987, plaintiff filed an affidavit under section 2 -- 622(a)(1) stating that she had consulted with a registered nurse who opined that reasonable and meritorious grounds existed for filing the suit. Defendant thereafter filed a motion to dismiss alleging that plaintiff did not comply with the requirements of section 2 -- 622(a)(1). The trial court denied the motion and certified this issue for appeal pursuant to Supreme Court Rule 308 (107 Ill. 2d R. 308). The primary issue before us is whether plaintiff's consultation with a registered nurse fulfilled the requirements of section 2 -- 622(a)(1).

"(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. If the affidavit is filed as to a defendant who is a physician licensed to treat human ailments without the use of drugs or medicines and without operative surgery, a dentist, a podiatrist, or a psychologist, the written report must be from a health professional licensed in the same profession, with the same class of license, as the defendant. For affidavits filed as to all other defendants, the written report must be from a physician licensed to practice medicine in all its branches. In either event, the affidavit must identify the profession of the reviewing health professional. 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.

2. That the affiant was unable to obtain a consultation required by paragraph 1 because a statute of limitations would impair the action and the consultation required could not be obtained before the expiration of the statute of limitations. If an affidavit is executed pursuant to this paragraph, the certificate and written report required by paragraph 1 shall be filed within 90 days after the filing of the complaint. The defendant shall be excused from answering or otherwise pleading until 30 days after being served with a certificate required by paragraph 1." (Emphasis added.) (Ill. Rev. Stat. 1985, ch. 110, par. 2-622(a).)

Plaintiff argues that under section 2 -- 622(a)(1) the reviewing health care professional must be a registered nurse when the suit alleges that registered nurses committed malpractice. Defendant contends that under the circumstances of this case the health care professional must be a physician licensed to practice medicine in all its branches. We believe that this is a case of first impression inasmuch as neither party cited, nor are we able to find, any case law interpreting this particular provision of the statute.

We agree with defendant's interpretation of the statute. The statute defines the type of health care professional to be consulted based on the type of defendant sued. If the defendant is "a physician licensed to treat human ailments without the use of drugs or medicines and without operative surgery, a dentist, a podiatrist, or a psychologist," the health care professional must be one licensed in the same profession as the defendant. (Ill. Rev. Stat. 1985, ch. 110, par. 2-622(a)(1).) For all other defendants, however, the health care professional must be a "physician licensed to practice medicine in all its branches." (Ill. Rev. Stat. 1985, ch. 110, par. 2-622(a)(1).) In the case at bar, defendant is a hospital and therefore does not fall under the first category of defendants. Consequently, defendant falls under the second category of "all other defendants," and plaintiff must thus consult a physician licensed to practice medicine in all its branches. Because plaintiff consulted with a registered nurse, plaintiff's affidavit did not comply with the requirements of section 2-622(a)(1).

Plaintiff focuses on the following language of the statute: "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 . . .." (Ill. Rev. Stat. 1985, ch. 110, par. 2-622(a)(1).) That language, however, is not contrary to our interpretation of the statute. That part of the statute merely provides that regardless of which health care professional is consulted, the professional must have knowledge of the particular issues involved in the suit. This is a logical requirement because knowledge of the issues bears on the relevancy of the professional's opinion of the merit of the suit. The professional can have knowledge of the issues in the case without being a member of the same health care field as the defendant.

Plaintiff points out that under our interpretation, physicians would be determining the validity of claims in situations where they have little knowledge of or interest in the particular health care field. Plaintiff suggests, for example, that a physician's report would be required in suits against physical therapists, occupational therapists, operating room and lab technicians, pharmacists, hospital administrators, dieticians, respiratory therapists, X-ray technicians, orderlies, optometrists, oculists, opticians, dental hygienists, medical records personnel, nurses aides, as well as nurses. Plaintiff argues further that because physicians would not be appropriate experts in the malpractice actions involving the foregoing professions, requiring a plaintiff to incur the extra cost of obtaining a report from a ...


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