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08/16/88 Jean Relaford, v. Myo M. Kyaw Et Al.

August 16, 1988

JEAN RELAFORD, PLAINTIFF-APPELLEE

v.

MYO M. KYAW ET AL., DEFENDANTS-APPELLANTS

3. WHETHER A PLAINTIFF HAS A RIGHT TO REFILE A THIRD ACTION PURSUANT TO SECTION 13-217 OF THE CODE OF CIVIL PROCEDURE [ILL. RE

v.

STAT. 1985, CH. 110, PAR. 13-217], AFTER TWO PREVIOUS LAWSUITS HAVE BEEN VOLUNTARILY DISMISSED."



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

527 N.E.2d 1328, 173 Ill. App. 3d 1034, 123 Ill. Dec. 553 1988.IL.1260

Appeal from the Circuit Court of Madison County; the Hon. Horace Calvo, Judge, presiding.

APPELLATE Judges:

JUSTICE LEWIS delivered the opinion of the court. KARNS and WELCH, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LEWIS

The plaintiff, Jean L. Relaford, brought an action for medical malpractice against Myo M. Kyaw, M.D., J. H. Hooker, M.D., D. E. Callahan, M.D., and Northwest Radiologists, Inc., on December 31, 1985. Separate counts were filed against each of the four defendants alleging that each was negligent in failing to diagnose plaintiff's lung cancer in X rays which they had interpreted at different times in the past. Various motions to dismiss were filed by defendants which were ultimately denied by the trial court.

After denying the motions to dismiss and further denying the motion for reconsideration, the trial court on July 17, 1987, certified for review three issues pursuant to Supreme Court Rule 308 (107 Ill. 2d R. 308). They are as follows:

"1. Whether a plaintiff in a medical malpractice action can subsequent to filing the original complaint untimely file the affidavit of counsel and report from a health care professional pursuant to Section 2-622 of the Code of Civil Procedure [Ill. Rev. Stat. 1985, ch. 110, par. 2-622].

2. Whether the affidavit of counsel and report from the health care professional are sufficient to comply with the requirements of Section 2 -- 622 of the Code of Civil Procedure.

A brief history of this action is necessary before we discuss the issues certified on appeal. Plaintiff originally filed a complaint against all the defendants in the instant case on May 21, 1985, in the circuit court of Madison County. A motion was made to voluntarily dismiss said action and an order was entered on June 3, 1985, dismissing the case without prejudice. On the same date, June 3, 1985, plaintiff filed an action in the United States District Court for the Southern District of Illinois. Plaintiff subsequently filed a motion to voluntarily dismiss this action and an order was entered granting the motion without prejudice.

On December 31, 1985, plaintiff filed a third identical complaint in the circuit court of Madison County, Illinois, seeking to recover damages from defendants for personal injuries allegedly sustained because of the defendants' alleged malpractice.

It should be noted that section 2-622 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-622) became effective on August 15, 1985. Further, it appears to be undisputed that the applicable statute of limitations began running on or about February 19, 1984. Therefore, plaintiff's third cause of action was filed within the applicable two-year statute of limitations. Ill. Rev. Stat. 1985, ch. 110, par. 13-212.

At the time of the filing on December 31, 1985, the complaint was not appended with an affidavit of counsel or a report from a health care professional as required by the statute. On January 9, 1986, defendants filed a motion to dismiss for failure to comply with section 2-622. On January 31, 1986, plaintiff filed an affidavit of counsel and two reports, prepared by the same physician, after first obtaining leave of court. At the hearing on the motion to dismiss based upon failure to file the proper affidavits, motions to dismiss as to the sufficiency of the affidavit and reports and as to whether the plaintiff had a right to file a third lawsuit after two previous dismissals under section 13-217 of the Code of Civil Procedure were also presented and argued (Ill. Rev. Stat. 1985, ch. 110, par. 13-217). Those three issues were certified for appeal after the trial court denied all the defendants' motions.

As to the first issue raised, the defendants claim that the failure to attach the requisite affidavit and reports mandate dismissal and their motion for involuntary dismissal under section 2-619 of the Illinois Code of Civil Procedure (Code) (Ill. Rev. Stat. 1985, ch. 110, ...


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