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October 6, 1995


Appeal from the Circuit Court of Marion County. No. 92-L-127. Honorable Michael R. Weber, Judge, presiding.

Petition for Leave to Appeal Denied January 31, 1996.

Presiding Justice Maag delivered the opinion of the court: Goldenhersh, J., and Hopkins, J., concur.

The opinion of the court was delivered by: Maag

PRESIDING JUSTICE MAAG delivered the opinion of the court:

Plaintiff, Cindy Miller, appeals from a Marion County circuit court order dismissing all four counts of her amended complaint with prejudice.

In her original complaint, plaintiff alleged medical malpractice and negligent and/or intentional spoilation of evidence against defendant, Dr. Narendra K. Gupta. She claimed that he was responsible for the destruction of X rays necessary for her to prevail on a medical malpractice case against him. She also alleged a cause of action under the X-Ray Retention Act (210 ILCS 90/1 (West 1994)) against defendant, St. Mary's Hospital. Pursuant to motions to dismiss filed by Dr. Gupta and St. Mary's Hospital, the circuit court dismissed the original complaint in its entirety. Plaintiff then filed an amended complaint, the allegations of which are similar to the original complaint except that she pleaded her causes of action in four separate counts. (Count I against Dr. Gupta alleged malpractice; count II against Dr. Gupta alleged spoilation of evidence; count III against St. Mary's alleged violation of the X-Ray Retention Act; and count IV against St. Mary's alleged spoilation of evidence.) The circuit court dismissed the amended complaint in its entirety with prejudice. It is from this dismissal order that plaintiff appeals.

Plaintiff's amended complaint alleges that on February 9, 1989, Dr. Gupta performed a surgical procedure known as a "left foot second and third metatarsal osteotomy" on plaintiff at St. Mary's Hospital in Centralia, Illinois. In March 1991, plaintiff consulted with Dr. William Hess, a licensed podiatrist, for stumbling, loss of balance, and misalignment of a toe on her left foot, all of which had progressively worsened since Dr. Gupta's treatment. Dr. Hess diagnosed plaintiff's condition as a "transfer wound" and misalignment of her toe. Dr. Hess told plaintiff that her condition may have been the result of malpractice on the part of Dr. Gupta, but that he would need to study her pre- and postoperative X rays to make that determination.

On August 6, 1991, Dr. Gupta received a letter from plaintiff's attorney, Thomas Q. Keefe, Jr., requesting plaintiff's medical records and X rays. On August 9, 1991, St. Mary's Hospital also received a letter from plaintiff's attorney requesting plaintiff's medical records and X rays. On October 30, 1991, Dr. Gupta informed Mr. Keefe that the requested X rays were inadvertently destroyed by the St. Mary's Hospital housekeeping department.

According to Dr. Gupta's discovery deposition, after reviewing the X rays, Dr. Gupta placed them in a corner against a wall behind his desk to be later taken to St. Mary's for copying. This location was approximately three feet from the waste basket and was a place where Dr. Gupta was in the habit of placing important items.

St. Mary's Hospital had a contract with Dr. Gupta to provide cleaning services for his office. Cathy Jolliff, an employee of St. Mary's housekeeping department, stated in her deposition that she disposed of an X ray jacket in Dr. Gupta's office because she believed it was trash. The jacket apparently was destroyed in the incinerator.

We must first address Dr. Gupta's argument that plaintiff waived her claim of error and right of appeal. Dr. Gupta asserts that during the hearing on defendants' motion to dismiss, plaintiff's counsel suggested: "Perhaps one possible solution is that the court can dismiss count one, dismiss count two, and I can go up as the appellant." The trial court later dismissed all four counts with prejudice. Dr. Gupta argues that Mr. Keefe's suggestion was a request to the court to enter judgment in favor of defendants so that plaintiff could gain appellate review of a procedural dilemma facing the trial court. Defendant supports his argument with the recent Illinois supreme court case, Morris v. Banterra Bank (1994), 159 Ill. 2d 551, 640 N.E.2d 932, 203 Ill. Dec. 782, in which the court held that a plaintiff could not request that a trial court enter judgment in favor of defendant and then later claim error and appeal that judgment.

We believe that Morris is inapplicable to the facts of this case. In Morris, plaintiffs made a formal motion that judgment be entered in favor of defendants. ( Morris, 159 Ill. 2d at 552, 640 N.E.2d at 933.) Our review of the record in the case at bar indicates that Mr. Keefe neither made a motion for dismissal nor requested the court to dismiss the case. When read in context, it is clear that Mr. Keefe's "suggestion" is part of an argument to the trial court in which Mr. Keefe is merely articulating the three courses of action he thought were available to the court, one of which was dismissal upon which, he stated, he would appeal. We do not think this rises to the level of a motion or request. Morris is inapplicable.

Turning now to plaintiff's appeal, plaintiff first contends that the trial court erred in dismissing her medical malpractice action (count I), despite her failure to file a certificate of merit pursuant to section 2-622 of the Illinois Code of Civil Procedure. (735 ILCS 5/2-622 (West 1994).) Plaintiff argues that she was unable to comply with the statute because Dr. Gupta negligently or intentionally destroyed plaintiff's preoperative and postoperative X rays. She claims that she cannot find a physician who is able to review her case and determine whether a reasonable and meritorious cause of action for medical malpractice exists without the preoperative X rays.

Section 2-622 requires, in relevant part, that the plaintiff's attorney in a medical malpractice case must attach an affidavit to the complaint, stating that the attorney conferred with a knowledgeable physician and that the physician has determined in an attached, written report that his or her review of the records indicates that there is a reasonable and meritorious cause of action. (735 ILCS 5/2-622(a)(1) (West 1994).) The statute also provides that the ...

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