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07/13/88 Marcos Espedido Et Al., v. St. Joseph Hospital Et Al.

July 13, 1988

MARCOS ESPEDIDO ET AL., FOR AND ON BEHALF OF THEMSELVES AND ELIZABETH ESPEDIDO, THEIR MINOR CHILD, PLAINTIFFS-APPELLEES

v.

ST. JOSEPH HOSPITAL ET AL., DEFENDANTS-APPELLANTS

PLAINTIFFS HAVE NOT FILED A RESPONSIVE APPELLEE'S BRIEF IN THIS COURT, AND WE CONSIDER THESE APPEALS UNDER THE STANDARDS SET FORTH IN FIRST CAPITOL MORTGAGE CORP

v.

TALANDIS CONSTRUCTION CORP. (1976), 63 ILL. 2D 128, 133, 345 N.E.2D 493.



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

526 N.E.2d 664, 172 Ill. App. 3d 460, 122 Ill. Dec. 405 1988.IL.1085

Appeal from the Circuit Court of Kane County; the Hon. James F. Quetsch, Judge, presiding.

APPELLATE Judges:

JUSTICE NASH delivered the opinion of the court. INGLIS and UNVERZAGT, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE NASH

In these consolidated cases, defendants in this medical malpractice action appeal from an order of the circuit court vacating its earlier order which had dismissed plaintiff's complaint with prejudice, as to each defendant, for failure to attach an attorney's affidavit and physician's report, as is required by section 2-622 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, pars. 2-622(a)(1), (a)(2)), and granted plaintiffs' motion for voluntary dismissal pursuant to section 2-1009 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-1009). Defendants raise these issues: (1) whether the trial court lacked jurisdiction under Elg v. Whittington (1987), 119 Ill. 2d 344, 518 N.E.2d 1232, to consider plaintiffs' motions to vacate the dismissal order and for voluntary dismissal of the complaint; (2) whether the court abused its discretion in vacating its order dismissing the complaint with prejudice; and (3) whether plaintiffs were entitled to voluntary dismissal pursuant to section 2-1009 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-1009).

On September 29, 1986, plaintiffs, Marcos and Rosalinda Espedido, filed a seven-count complaint on behalf of themselves and their minor child, Elizabeth, in which it was alleged that the negligence of defendants, St. Joseph Hospital, Dr. Kuo-Chung Sun, Dr. Isabello Lim, Dr. Bharti Belani, Dr. Horng Yang Fang, Sally Rhymes, R.N., and L. Lamontague, R.N., during the care and treatment of the minor's mother caused injury to the child at her birth on September 29, 1984. Plaintiffs alleged that defendants' negligence allowed a decreased amount of amniotic fluid and lack of oxygen to cause their child to suffer from hypotonia and delay in motor development for which the recovery of damages was sought by the parents and also for the child.

Plaintiff's counsel attached to the complaint his affidavit made pursuant to section 2-622(a)(2) of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-622(a)(2)), stating that he and his cocounsel were not able to obtain a physician's report certifying that the action was reasonable and meritorious prior to the expiration of a statute of limitations. Under the provisions of section 2-622(a)(2), the affidavit gave plaintiffs a 90-day extension, until December 28, 1986, to file the required certificate.

On January 5, 1987, as no physician's certificate had been filed by plaintiffs within the extension period, the defendants moved to dismiss the complaint, with prejudice, pursuant to sections 2-622(g) and 2-619 of the Code of Civil Procedure. (Ill. Rev. Stat. 1985, ch. 110, pars. 2-622(g), 2-619.) These motions were heard on March 12, 1987, and, although duly notified, neither plaintiffs nor their counsel appeared at the hearing. (There is a message attached to the record directed to the motion Judge, apparently from a deputy circuit clerk, stating that plaintiffs' attorneys were in San Francisco and would not be appearing at the hearing. The note advised the Judge that plaintiffs were filing a motion for a voluntary non-suit of the case, and that defendants would not agree to continue the hearing of their motions. Plaintiffs' attorneys wished the Judge to know why there were absent and what was forthcoming.) In their similar motions to dismiss, the defendants urged that failure to file the physician's certificate required by section 2-622 mandated dismissal of the complaint, with prejudice, pursuant to section 2-619. Attached in support of defendants' motions were copies of a letter of opinion by a Du Page County Judge in a similar case who had held that dismissal with prejudice was required. The trial court did on March 12 dismiss plaintiffs' complaint as to each defendant, with prejudice, finding also that there was no just cause to delay enforcement or appeal. 107 Ill. 2d R. 304(a).

On April 10, 1987, plaintiffs filed a motion to reconsider, vacate or set aside the orders dismissing their complaint. In it they stated that the minor plaintiff has been retarded since birth, and when plaintiffs were unable to obtain the requisite physician's consultation certificate within 90 days of filing suit, plaintiffs offered to voluntarily dismiss the action, without prejudice, under section 2-1009 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-1009), but defendants refused, and went forward with their motions to dismiss. Plaintiffs requested that the trial court vacate its orders dismissing with prejudice and dismiss the complaint without prejudice. Alternatively, plaintiffs requested leave of court to voluntarily dismiss the cause without prejudice pursuant to section 2-1009.

In support of their motion, plaintiffs stated that there was no appellate precedent (at that time) determining whether a dismissal under section 2-622 was to be with or without prejudice and the circuit court letter of opinion in another case, cited by defendants, did not involve a minor. Plaintiffs also noted that the part of the action brought on behalf of the minor child could have been brought by that plaintiff for up to two years after reaching her majority under section 13-212 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 13-212), and that it would be inequitable to dismiss her action with prejudice when the minor child could have elected to wait several years to bring it. Plaintiffs argued that defendants should not be placed in any better position than if the complaint had not yet been filed.

Defendant Horng Yang Fang filed a response to plaintiffs' motion to reconsider the March 12 dismissal of the complaint, noting that the requisite certificate and physician's report had not yet been filed and asserting that the complaint was properly dismissed with prejudice. This defendant agreed that the minor plaintiff could have waited until two years after reaching her majority to bring the action, but elected not to do so; that the decision to file her cause of action now was entirely within plaintiffs' control and she had a duty to diligently prosecute her claim. This defendant asserted that plaintiff sought an order to invoke section 13-212 in order to gain 18 additional years to bring her action, which would unjustly prejudice defendant. In response to plaintiffs' alternate request to voluntarily dismiss the complaint without prejudice under section 2-1009, defendant argued that the hearing of the motions to dismiss for failure to comply with section 2-622 constituted a "hearing" under section 2-1009 which bars plaintiffs from voluntarily and unilaterally dismissing their action. Ill. Rev. Stat. 1985, ch. 110, par. 2-1009(a).

Plaintiffs' attorney, Michael T. Hannafan, appeared at the April 22, 1987, hearing of the motion to reconsider and vacate and acknowledged to the court that he had no excuse for not being present on March 12 when the complaint was dismissed. Counsel advised the court the case had been referred to his two-lawyer office by Ohio counsel shortly before the limitations period was to expire. They had consulted some physicians during the 90-day extension period, and later, but were not able to find a physician to execute the certificate. Counsel stated plaintiffs did not yet have a physician's certificate and did not know whether one could ever be obtained. When he learned, however, that the complaint had been dismissed with prejudice, particularly as to the child whose limitation period would ordinarily extend beyond reaching her majority, attorney Hannafan considered plaintiffs should seek a dismissal without prejudice.

In granting plaintiffs' motion to vacate the March 12 order dismissing their complaint with prejudice, the trial court noted that the motion was filed within 30 days of the entry of the March 12 order, and that plaintiffs' counsel admitted he had "goofed" in not appearing at that hearing. The court also gave consideration to the fact one plaintiff was a two-year-old minor and concluded that it would serve substantial Justice to allow plaintiffs' motions. The court vacated the March 12, 1987, order dismissing plaintiffs' complaint with prejudice, ...


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