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03/09/89 Larry E. Moss, v. Everett Gibbons Et Al.

March 9, 1989

LARRY E. MOSS, PLAINTIFF-APPELLANT

v.

EVERETT GIBBONS ET AL., DEFENDANTS (VAN MANH ET AL., DEFENDANTS-APPELLEES)

THIS IS AN APPEAL FROM THE DISMISSAL WITH PREJUDICE OF A MEDICAL MALPRACTICE ACTION (ILL. RE

v.

STAT. 1985, CH. 110, PAR. 2-622).



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

536 N.E.2d 125, 180 Ill. App. 3d 632, 129 Ill. Dec. 441 1989.IL.295

Appeal from the Circuit Court of Livingston County; the Hon. Charles H. Frank, Judge, presiding.

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE KNECHT

We affirm.

The plaintiff, Larry E. Moss, is a prisoner at the Pontiac Correctional Center. On February 29, 1984, he was attacked in his cell and suffered an injury to his left eye. Following the attack, the plaintiff was taken to the medical unit at the correctional center where he was assigned to the care of Everett Gibbons, M.D., John Hatala, M.D., Van Manh, M.D., Raspal Dalal, M.D., Syed Ali, M.D., and Timothy Miller, an optometrist.

The medical unit took orbital X rays of the plaintiff. The X rays were sent for review to N. Gutierrez, M.D. Gutierrez is a radiologist at St. James Hospital in Pontiac, Illinois. He read the X rays as negative for fractures of the left orbit.

On May 10, 1984, the plaintiff was examined by Dennis Lockhart, M.D. Lockhart is an ophthalmologist at Gailey Eye Clinic in Bloomington, Illinois. He ordered orbital X rays with waters view of the plaintiff. Lockhart read the X rays as questionable for a blow-out fracture of the left orbital floor. He recommended additional X rays be taken of the plaintiff.

On May 22, 1984, orbital X rays with waters view and a tomogram were taken of the plaintiff at St. James Hospital. Gutierrez read the X rays and tomogram as positive for blow-out fracture of the left orbital floor.

On June 1, 1984, Lockhart reexamined the plaintiff. He recommended surgery be performed to correct the eye disorders of the plaintiff. The surgery was unsuccessful. The plaintiff now suffers intractable double vision with his left eye rolled upward.

On May 6, 1986, the plaintiff filed a five-count medical malpractice complaint (Ill. Rev. Stat. 1985, ch. 110, par. 2-622) against defendants Gibbons (count I), Hatala (count II), Manh (count III), Dalal (count IV), and Ali (count V) in the circuit court of Livingston County. On May

On August 4, 1986, the 90th day after the filing of the complaint, the plaintiff filed a motion to extend the time of filing of the medical report. Attached to the motion was the section 2 -- 622(a)(1) consultation affidavit. On August 18, 1986, without the leave of the circuit court, the plaintiff filed the medical report.

Defendants Gutierrez, Manh, and St. James Hospital filed motions to dismiss the counts directed against them in the complaint. The motions attacked (1) the manner and timing of the filings of the pleadings under the statute of limitations; (2) the plaintiff's failure to consult with a health professional practicing in their respective medical specialties; and (3) the meritoriousness determination in the medical report of the reviewing health professional. In response, the plaintiff filed a motion for leave to amend the May 6, 1986, complaint and the May 7, 1986, consultation affidavit. The plaintiff did not offer any proposed amendments to the circuit court. On April 3, 1987, the circuit court granted the motions to dismiss of defendants Gutierrez and St. James Hospital. On July 28, 1987, the circuit court granted the ...


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