Appeal from the Circuit Court of Cook County. The Honorable Jennifer Duncan-Brice, Judge Presiding.
Released for Publication May 26, 1995.
The Honorable Justice Egan delivered the opinion of the court: McNAMARA, P.j., and Rakowski, J., concur.
The opinion of the court was delivered by: Egan
JUSTICE EGAN delivered the opinion of the court:
The plaintiff, James E. Walsh, appeals from the order dismissing his complaint with prejudice on the ground that the statute of limitations barred his claim against the defendants: Barry-Harlem Corporation, doing business as the Desnick Eye Center ("the Center"); James H. Desnick, M.D.; and Mark A. Glazer, M.D.
On September 16, 1992, the plaintiff filed a complaint containing allegations of medical malpractice against the defendants and Robert Levy, M.D. Specifically, the plaintiff alleged that James Desnick did business as the Desnick Eye Center, a medical eye-care facility, and that the Center employed Levy and Glazer to provide eye care and surgery. On or about September 4, 1990, Glazer examined the plaintiff's eyes, and, on or about September 20, 1990, Levy performed surgery on the plaintiff's right eye.
The plaintiff alleged that the defendants and Levy had a duty to exercise reasonable care in treating the plaintiff and to obtain his informed consent, yet they committed the following negligent acts or omissions:
"a. Failed to inform the plaintiff that the surgery to be done included replacement of the lens of the right eye;
b. Failed to advise the plaintiff that he had a minimal cataract on the right eye which did not require immediate surgery;
c. Operated on the right eye prematurely to remove a minimal cataract that had not fully developed;
d. Removed the lens of the plaintiff's right eye and replaced it with [an] artificial lens without the plaintiff's consent."
The plaintiff discovered this injury when he visited another physician on December 3, 1990. The plaintiff alleged that, as a result of the defendants' and Levy's acts or omissions, he suffered the loss of the lens of his right eye, damage requiring additional surgery and impairment of the vision in his right eye. Consequently, he suffered and will suffer great physical and mental pain and incurred and will incur great medical expenses.
With the September 1992 complaint, the defendant's attorney filed an affidavit stating that she could not obtain a physician's affidavit, as section 2-622 of the Illinois Code of Civil procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2-622) requires. On April 21, 1993, Judge Joseph Casciato granted the defendants' and Levy's motion to dismiss the plaintiff's September 1992 complaint with prejudice under sections 2-619 and 2-622 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, pars. 2-619, 2-622).
On September 10, 1993, the plaintiff filed another complaint, in which he claimed that the defendants violated the Consumer Fraud and Deceptive Business practices Act ("the Consumer Fraud Act") (Ill. Rev. Stat. 1989, ch. 121 1/2, par. 261 et seq.). In the September 1993 complaint, the plaintiff alleged the following. Barry-Harlem owned and operated several eye-care centers, including the Desnick Eye Center located at ...