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04/15/96 RICHARD TUCKER v. ST. JAMES HOSPITAL

April 15, 1996

RICHARD TUCKER, PLAINTIFF-APPELLANT,
v.
ST. JAMES HOSPITAL, GOOD SAMARITAN HOSPITAL AND DR. MICHAEL ZINDRICK, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. Honorable Sidney A. Jones, III, Judge Presiding.

The Honorable Justice Buckley delivered the opinion of the court: Campbell, P.j., and Braden, J., concur.

The opinion of the court was delivered by: Buckley

JUSTICE BUCKLEY delivered the opinion of the court:

Plaintiff, Richard Tucker, brought a medical malpractice action against defendant, Michael Zindrick, and codefendants, St. James Hospital and Good Samaritan Hospital (the hospitals). Plaintiff did not attach to his complaint an attorney's affidavit or a health professional's report, as required by the Illinois Code of Civil Procedure. 735 ILCS 5/2-622 (West 1994). The hospitals filed motions to dismiss, which the trial court granted. Plaintiff does not appeal those rulings. Defendant subsequently filed a motion to dismiss. The trial court granted the motion without prejudice and allowed plaintiff time to file the affidavit and report. However, plaintiff's subsequent filings were found to be inadequate. The trial court then dismissed the complaint with prejudice and denied plaintiff's motion to vacate the dismissal. Plaintiff appeals, contending that the trial court abused its discretion in refusing to allow the case to be tried on the merits.

Defendant is a physician licensed in Illinois and specializing in orthopedic surgery. Plaintiff suffered from a back condition which defendanttreated sometime prior to December 5, 1988, by surgically fusing two vertebrae in plaintiff's back. That operation is not part of the negligence alleged by plaintiff.

On December 5, 1988, plaintiff fell down and went to the emergency room of St. James Hospital. The complaint alleges that defendant was informed of plaintiff's discharge diagnosis of "contusion to the lumbar sacral area of the back," and concurred with it. In January 1989, plaintiff was admitted to Good Samaritan Hospital for the treatment of severe back pain stemming from his fall. He was discharged with a diagnosis of "lumbar sacral sprain." On October 25, 1989, plaintiff was admitted into the Mayo Clinic in Rochester, Minnesota, and diagnosed with a "bi-lateral breakage of the previously performed fusion."

Defendant filed a medical malpractice action against the hospitals and defendant, alleging that they were negligent in failing to diagnose the broken fusion. On January 9, 1991, however, plaintiff voluntarily dismissed the lawsuit because he was unable to obtain a health professional's report. Section 2-622 of the Illinois Code of Civil Procedure requires a medical malpractice plaintiff to attach to the complaint (1) an affidavit from the plaintiff or his attorney that a qualified health professional has determined in a written report that there is a meritorious cause of action, and (2) the health professional's written report indicating the basis for his determination. 735 ILCS 5/2-622 (West 1994); McCastle v. Sheinkop, 121 Ill. 2d 188, 190, 520 N.E.2d 293, 294, 117 Ill. Dec. 132 (1987).

On January 3, 1992, plaintiff filed a second lawsuit, naming the same defendants. Again, the complaint did not have attached an affidavit or a health professional's report, but rather, plaintiff asserted that section 2-622 is unconstitutional, relying on DeLuna v. St. Elizabeth's Hospital, 184 Ill. App. 3d 802, 540 N.E.2d 847, 132 Ill. Dec. 925 (1989). On February 20, 1992, however, the Illinois Supreme Court reversed the appellate court, in a decision that became final on March 30, and ruled that section 2-622 is constitutional. DeLuna v. St. Elizabeth's Hospital, 147 Ill. 2d 57, 588 N.E.2d 1139, 167 Ill. Dec. 1009 (1992). Therefore, on May 4, 1992, the trial court granted plaintiff an extension to file the affidavit and report.

On June 11, 1992, plaintiff filed an unsworn, undated affidavit declaring that Dr. Thomas Mitchell is knowledgeable in the relevant issues and has determined in a written report that there is a meritorious cause of action. The affidavit stated that it was made under oath, however, spaces for the date and signature of a notary public were left blank. There was no indication that an oath was actually administered. Attached to the affidavit was a copy of Dr. Mitchell'sreport. The report states that the physicians at the Mayo Clinic determined plaintiff's actual injury, whereas defendant did not. Dr. Mitchell also stated in his report that he is not a surgeon and that he is unable to assess whether defendant was negligent. He stated that he would concur with the opinion of the physicians at the Mayo Clinic.

The hospitals filed motions to dismiss which the trial court granted on August 10, 1992, holding that the affidavit and health professional's report were inadequate. Plaintiff has not appealed those dismissals.

On August 13, 1992, defendant filed a motion to dismiss, claiming that the affidavit and report were defective for failing to establish (1) how Dr. Mitchell is knowledgeable in the relevant issues, (2) that Dr. Mitchell has practiced or taught in the same area of health care as defendant for at least six years, (3) that Dr. Mitchell is qualified by experience or demonstrated competence, or (4) that Dr. Mitchell believes there is a meritorious cause of action. See 735 ILCS 5/2-622 (West 1994) (requiring each of these elements to be included in the health professional's report). On August 16, 1992, the trial court granted defendant's motion, but allowed plaintiff 21 days to file a new affidavit and report that adequately satisfy section 2-622.

On October 1, 1992, plaintiff filed a second health professional's report written by Dr. Mitchell. In this report, Dr. Mitchell stated that he is knowledgeable in the relevant issues, he has practiced neurology for eight years, he is qualified as an expert, and he believes there to be a meritorious cause of action in this case. The report provided no supporting facts or information for any of these assertions. No attorney affidavit was filed.

On October 23, 1992, defendant renewed his motion to dismiss, arguing that plaintiff had still failed to submit an adequate affidavit, and that Dr. Mitchell is not qualified because he is not a surgeon and is not licensed in Illinois. On November 11, 1992, the trial court granted defendant's motion, and dismissed the case with prejudice.

On December 21, 1992, plaintiff filed a motion to vacate the dismissal. A third health professional's report was attached to the motion. The report was essentially the same as the second report, adding only that Dr. Mitchell has been licensed for 11 years and is legally qualified as an expert in all branches of medicine. On January 27, 1993, the trial court ...


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