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11/27/95 JOHN STEINBERG AND JANE STEINBERG AS

November 27, 1995

JOHN STEINBERG AND JANE STEINBERG AS ADMINISTRATORS OF THE ESTATE OF SHANNAN STEINBERG, DECEASED, PLAINTIFFS-APPELLANTS,
v.
DR. WARD DUNSETH, DR. JANA PETRA, PASSAVANT AREA HOSPITAL AND DR. PETER ROODHOUSE, DEFENDANTS-APPELLEES.



Appeal from Circuit Court of Morgan County. No. 92L4. Honorable Ronald F. Robinson, Judge Presiding.

As Corrected January 9, 1996. Petition for Rehearing Denied and Released for Publication January 18, 1996.

Honorable Robert W. Cook, J., Honorable James A. Knecht, P.j., Concurring, Honorable Robert J. Steigmann, J., Concurs IN Part; Dissents IN Part. Justice Cook delivered the opinion of the court:

The opinion of the court was delivered by: Cook

The Honorable Justice COOK delivered the opinion of the court:

The trial court struck the written report of plaintiffs' reviewing health professional (735 ILCS 5/2-622 (West 1992)), dismissed certain counts and denied leave to file others after the statute of limitations had run. Plaintiffs appeal. We reverse and remand.

Plaintiffs' second-amended complaint alleges plaintiffs' decedent, Shannan Steinberg, was involved in an automobile accident on July 11, 1991, which resulted in her admission to defendant Passavant Area Hospital (Passavant). Shannan developed a respiratory problem in her right lung, and in the early morning hours of July 18 Shannan's treating physician, Dr. James Drennan, examined her and ordered X rays. Dr. Drennan had previously made arrangements with defendant Dr. Ward Dunseth to cover for him when he was unavailable. Dr. Drennan was unavailable when the results of the X rays were received about midmorning. Dr. Dunseth accordingly began treating Shannan and on July 18 performed a rigid bronchoscopy, a visual examination of the bronchus, the tube which connects the lung to the trachea. Defendant Dr. Jana Petra provided standby anesthesiology during the bronchoscopy. Defendant Dr. Peter Roodhouse is head of the department of anesthesiology at Passavant and was present during a portion of the surgery. Shannan died July 29 after being removed from life supports.

Plaintiffs' expert, Dr. John C. McCabe, made the following comments in his written report of January 16, 1992:

"In reviewing the hospital records, I find her care to be appropriate until she was taken to the Operating Room the second time. At that time she had a totally collapsed right lung. Review of the anesthesia record when she was taken into the Operating Room reveals a pulse oximeter oxygen saturation of 60%. She had no arterial line for the evaluation of blood gasses nor did she have an endotracheal tube to control this rather unstable blood gas situation. Rather she had an intercostal nerve block over multiple ribs on the left side which was the only expanded lung. One of the known complications of an intercostal nerve block is a pneumothorax. This is particularly likely to occur in an hyperexpanded lung as was the case here. To compromise the left lung would have obviously had disastrous results in this already extremely compromised patient. It is always easier in retrospect after a problem has occurred to criticize what has been done. However, I think it is fair to say that most physicians in this situation would have intubated this patient and gained airway control prior to doing any further diagnostic or therapeutic procedures. The primary effort should have been directed at clearing the secretions in the airway to the right lung. I think pain relief was of secondary importance and clearly presented a threat to this patient. Both the anesthesiologist and the primary surgeon in this case can be faulted for a breach in acceptable therapy of this compromised patient."

I. DISMISSAL OF COUNTS XV AND XVI (DR. ROODHOUSE) AND RELATED VICARIOUS LIABILITY COUNTS XVII AND XVIII

(PASSAVANT)

Plaintiffs' original complaint, filed January 3, 1992, named Dr. Roodhouse as a defendant. The court dismissed those counts pursuant to section 2-622 of the Code of Civil Procedure (Code) (735 ILCS 5/2-622 (West 1992)) because the report of the reviewing health care professional did not mention Dr. Roodhouse. Plaintiffs were given leave to amend but instead moved for voluntary dismissal on May 26, 1992 (allowed June 26, 1992). On May 18, 1993, plaintiffs filed additional counts IX and X against Dr. Roodhouse on the theory that Dr. Roodhouse was liable, respondeat superior, for the acts of Dr. Petra. Dr. McCabe's report that there was reasonable and meritorious cause for filing an action against Dr. Petra was sufficient support for those counts under section 2-622 of the Code. (See Comfort v. Wheaton Family Practice (1992), 229 Ill. App. 3d 828, 594 N.E.2d 381, 171 Ill. Dec. 529.) On December 16, 1993, plaintiffs sought leave (granted February 22, 1994) to file additional counts XV and XVI against Dr. Roodhouse, based on Dr. Roodhouse's own negligence and supported by a December 10, 1993, supplemental report of Dr. McCabe. Plaintiffs explained the delay by saying that on October 15, 1993, Dr. Roodhouse's discovery deposition was taken, which revealed the existence of a doctor-patient relationship, and that Dr. Roodhouse had examined and treated Shannan.

Dr. Roodhouse's motion to strike, filed March 16, 1994, pointed out that Dr. McCabe, in his January 29, 1994, deposition, admitted that he knew, in December 1991, that Dr. Roodhouse was involved in the case and that Dr. McCabe's opinions had not changed since 1991. The motion to strike was joined with a motion to dismiss, which alleged that the two-year statute of limitations (735 ILCS 5/13-202 (West 1992)) had run and that Dr. McCabe's report had violated section 2-622 of the Code. The trial court struck Dr. McCabe's report as inconsistent with his deposition taken January 29, 1994, and dismissed counts XV and XVI. The trial court also dismissed counts XVII and XVIII. Those counts were directed to Passavant on the theory Passavant was vicariously liable for the conduct of Dr. Roodhouse. Plaintiffs appeal.

Section 2-622(a)(1) of the Code (735 ILCS 5/2-622(a)(1) (West 1992)) requires that in healing art malpractice actions plaintiff's attorney file an affidavit that he has consulted with a health professional who, in a written report, "after a review of the medical record and other relevant material," has determined that there is reasonable and meritorious cause for the filing of such an action. A copy of the written report must be attached to the affidavit. The attorney's failure to file such an affidavit is grounds for dismissal. (735 ILCS 5/2-622(g) (West 1992).) Untrue statements in the affidavit, made without reasonable cause, shall subject the attorney or the plaintiff to the payment of expenses and attorney fees. (735 ILCS 5/2-622(e) (West 1992).) A reviewing health professional who prepares his report in good faith is immune from civil liability which might otherwise result. 735 ILCS 5/2-622(f) (West 1992).

Section 2-622 of the Code allows a court to dismiss a complaint when no affidavit is attached, although the court has discretion to allow leave to amend and attach a new affidavit. ( McCastle v. Sheinkop (1987), 121 Ill. 2d 188, 192-94, 520 N.E.2d 293, 295-96, 117 Ill. Dec. 132.) Section 2-622 does not, however, provide that a defendant may secure a dismissal by showing that the written report is mistaken or inconsistent with depositions or other discovery materials. ( Thompson v. Heydemann (1992), 231 Ill. App. 3d 578, 582-83, 596 N.E.2d 664, 668, 173 Ill. Dec. 40.) Section 2-622 is a pleading requirement designed to reduce frivolous lawsuits, not a substantive defense which may be employed to bar plaintiffs who fail to meet its terms. ( McCastle, 121 Ill. 2d at 193, 520 N.E.2d at 296.) A complaint may be dismissed where the section 2-622 written report does not clearly identify the reasons for the health care professional's determination that there is a meritorious cause of action, but leave to amend should then be granted. In a medical malpractice case, plaintiff should be afforded every reasonable opportunity to establish his case. Peterson v. Hinsdale Hospital (1992), 233 Ill. App. 3d 327, 332, 599 N.E.2d 84, 89, 174 Ill. Dec. 538.

As in Thompson, the court here seems to have considered this situation similar to one where a party seeks to avoid summary judgment by filing an affidavit which conflicts with the affiant's prior testimony. That approach is mistaken. A motion for summary judgment, not a motion to strike or dismiss on the basis of a section 2-622 violation, is the proper vehicle to test whether there is any factual support for a claim. Even if the court had treated this motion as one for summary judgment, it should not have stricken Dr. McCabe's affidavit. A deponent may controvert his deposition statements so long as they do not amount to a judicial admission, a "'deliberate, clear, unequivocal statement of a party about a concrete fact within that party's peculiar knowledge.'" ( Van's Material Co. v. Department of Revenue (1989), 131 Ill. 2d 196, 212, 545 N.E.2d 695, 703, 137 Ill. Dec. 42 (deposition admissions are usually evidentiary admissions), quoting Hansen v. Ruby Construction Co. (1987), 155 Ill. App. 3d 475, 480, 508 N.E.2d 301, 303, 108 Ill. Dec. 140; see also Thompson, 231 Ill. App. 3d at 583, 596 N.E.2d at 668.) From the beginning Dr. McCabe faulted the performance of the anesthesiologist in this case, whoever that person might have been. Dr. McCabe states that he did not originally realize the degree of Dr. Roodhouse's involvement in this surgery. That statement is not contrary to any judicial admission on the part of Dr. McCabe. We do not see it as significant on this point that Dr. McCabe could have, or should have, previously known of Dr. Roodhouse's involvement. An expert, acting in good faith, may know more at the end of discovery than at the beginning. Lucht v. Stage 2, Inc. (1992), 239 Ill. App. 3d 679, 692, 606 N.E.2d 750, 758-59, 179 Ill. Dec. 918.

In addition to striking Dr. McCabe's report, the trial court dismissed counts XV and XVI against Dr. Roodhouse. Unfortunately the trial court did not provide any explanation for that dismissal, and we cannot tell whether the counts were dismissed because there was no longer a section 2-622 report or because the statute of limitations had run. As discussed ...


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