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06/13/89 Guadalupe Deluna, Indiv. v. St. Elizabeth's Hospital

June 13, 1989

GUADALUPE DELUNA, INDI

v.

AND AS SPECIAL ADM'R OF THE ESTATE OF ALICIA DELUNA, DECEASED, PLAINTIFF-APPELLANT,

v.

ST. ELIZABETH'S HOSPITAL ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

540 N.E.2d 847, 184 Ill. App. 3d 802, 132 Ill. Dec. 925 1989.IL.882

Appeal from the Circuit Court of Cook County; the Hon. Willard J. Lassers and the Hon. Thomas R. Rakowski, Judges, presiding.

APPELLATE Judges:

JUSTICE SCARIANO delivered the opinion of the court. BILANDIC, P.J., and FREEMAN, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SCARIANO

Section 2-622(a)(1) of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-622(a)(1)) provides that in any action for medical malpractice the plaintiff or his attorney must attach to the complaint an affidavit stating that he has consulted with a health professional in whose "determination" there is a "reasonable and meritorious cause" for the filing of the action. In addition, the plaintiff must also attach the written report of the health professional indicating the basis for his determination. Section 2-622(a)(2) (Ill. Rev. Stat. 1985, ch. 110, par. 2-622(a)(2)) allows for a 90-day extension for the filing of the affidavit if the statute of limitations is near expiration, and section 2-622(a)(3) (Ill. Rev. Stat. 1985, ch. 110, par. 2-622(a)(3)) provides that if the plaintiff is having difficulty obtaining necessary medical records, he is given 90 days upon receipt of the medical records in which to file the affidavit. Section 2-622(g) (Ill. Rev. Stat. 1985, ch. 110, par. 2-622(g)) provides that "failure to file a certificate required by this Section shall be grounds for dismissal under Section 2-619."

Plaintiff brought an action for damages for professional and hospital negligence against the defendants but failed to attach to his complaint the written declarations required by the provisions of the statute set forth above. The trial court granted the defendant hospital's motion to dismiss plaintiff's complaint for failure to comply with section 2 -- 622, specifying that such dismissal was without prejudice to refiling. Plaintiff filed his notice of appeal, but the appeal was stayed awaiting the result in McCastle v. Sheinkop, then pending in the Illinois Supreme Court. The trial court later granted with prejudice defendant Dr. Treister's motion to dismiss plaintiff's complaint for failure to conform with the provisions of section 2 -- 622. Plaintiff filed a notice of appeal from this order as well. After the supreme court decided McCastle without having to reach the constitutional issues which had been presented therein (McCastle v. Sheinkop (1988), 121 Ill. 2d 188, 520 N.E.2d 293), the stay of the instant appeal was vacated.

Plaintiff raises the following issues on appeal: (1) whether section 2 -- 622 unconstitutionally delegates judicial authority to health professionals, and invades the power of courts to hear and determine cases, in violation of the separation of powers mandated by article II, and section 1 of article VI of the Illinois Constitution; (2) whether section 2 -- 622 unconstitutionally deprives victims of medical malpractice of access to courts and recovery of damages for injuries without an opportunity to be heard, in violation of the due process clause of article I, section 2, of the Illinois Constitution and the fourteenth amendment to the United States Constitution; (3) whether section 2 -- 622 deprives victims of medical malpractice of the equal protection of the laws guaranteed in article I, section 2, of the Illinois Constitution and the fourteenth amendment to the United States Constitution; (4) whether section 2 -- 622 unconstitutionally restricts free and open access to the courts for the vindication of rights by victims of medical malpractice, in violation of article I, section 12, of the Illinois Constitution and the first amendment to the United States Constitution; (5) whether section 2 -- 622 is void for vagueness in delegating unguided authority in terms so vague and uncertain as to provide no standard for the exercise of that authority by a health professional; (6) whether the circuit court erred in the application of section 2 -- 622; (7) whether the circuit court erred in entering an order dismissing the complaint against defendant Treister with prejudice; and (8) whether this court has jurisdiction to entertain an appeal from an express interlocutory dismissal order which was made expressly without prejudice and subject to refiling.

On April 16, 1986, plaintiff filed his complaint for medical malpractice, in counts I through III of which he alleged that decedent Alicia DeLuna underwent surgery as a patient of defendant hospital; that hospital employees were negligent in that they lacerated the common iliac artery during surgery; failed to properly monitor vital signs; failed to recognize the signs of massive internal bleeding and failed to promptly respond thereto. Count I was brought under the Wrongful Death Act (Ill. Rev. Stat. 1985, ch. 70, pars. (1), (2)), count II under the Survival Act (Ill. Rev. Stat. 1985, ch. 110 1/2, par. 27-6), and count III under the family expense act (Ill. Rev. Stat. 1985, ch. 40, par.

1015).

Counts IV through VI alleged that defendant Treister performed a lumbar laminectomy upon plaintiff's decedent, during which he negligently lacerated the common iliac artery, and that he failed to promptly recognize the signs of massive internal bleeding, to identify the laceration and to promptly respond with treatment. Count IV was brought under the Wrongful Death Act, count V under the Survival Act, and count VI under the family expense act.

In all counts, plaintiff alleged that the negligent acts and omissions of the defendants were the proximate cause of the death of Alicia DeLuna. In the discharge summary contained in the records of defendant hospital for plaintiff's decedent, Dr. Treister reported the "iatrogenic laceration of the common iliac artery" and his Conclusion that the proximate cause of death was coagulopathy which resulted from bleeding from surgical laceration. A copy of the discharge summary was filed with plaintiff's memoranda in opposition to defendants' motion to dismiss. I

Plaintiff contends that section 2 -- 622 unconstitutionally delegates judicial authority to health professionals and invades the power of courts to hear and determine cases and, more specifically, that it delegates the function of reviewing the facts of a case and determining whether a claim has merit, in violation of article II and section 1 of article VI of the Illinois Constitution. The requirements of the statute, plaintiff reasons, preclude a court from making its own determination on the merits, and as such violate the separation of powers mandated by the Illinois Constitution.

Defendants respond that section 2 -- 622 does not encroach on powers properly belonging to the judicial branch, nor does it vest in the medical profession "judicial power" properly reserved for the supreme court and its subordinate courts. They further point out that it is well settled under Illinois law that "a strong presumption of constitutionality attaches to any legislative enactment and that the burden rests upon the challenger to demonstrate its invalidity." (People v. Joseph (1986), 113 Ill. 2d 36, 41, 495 N.E.2d 501.) Moreover, defendants note, it is equally well recognized that the wisdom of the legislation ...


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