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06/14/96 SAMME CUTHBERTSON v. EPHRAIM AXELROD

June 14, 1996

SAMME CUTHBERTSON, INDIV. AND AS SPECIAL ADM'R OF THE ESTATE OF JOSEPH CUTHBERTSON, DECEASED, PLAINTIFF-APPELLANT,
v.
EPHRAIM AXELROD, SHAKUNTALA RAJAGOPAL, YANG JA ALRENGA, AND WESTLAKE COMMUNITY HOSPITAL, DEFENDANTS-APPELLEES (JOHN A. BENAGES, JOHN A. BENAGES, M.D., S.C., A CORPORATION, YOUNG PAE, AND RONG S. TU, DEFENDANTS).



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. No. 93 L 5806. THE HONORABLE KENNETH L. GILLIS, JUDGE PRESIDING.

Rehearing Denied August 28, 1996. Released for Publication September 16, 1996.

The Honorable Justice Cousins delivered the opinion of the court. McNULTY, P.j., and Hourihane, J., concur.

The opinion of the court was delivered by: Cousins

The Honorable Justice COUSINS delivered the opinion of the court:

The plaintiff, Samme Cuthbertson, acting individually and as special administrator of the estate of Joseph Cuthbertson, deceased, filed a malpractice complaint against the appellees, Dr. Ephraim Axelrod, Dr. Shakuntala Rajagopal, Dr. Yang Alrenga, and Westlake Community Hospital. The appellees moved to dismiss plaintiff's complaint under sections 2-619 and 2-622 of the Code of Civil Procedure (735 ILCS 5/2-619, 2-622 (West 1994)) because the complaint's affidavit and medical report did not comply with section 2-622. The trial court granted the motion to dismiss with prejudice and later denied plaintiff's motion to reconsider, which included an amended affidavit and medical report. Plaintiff appeals, contending that dismissal should have been without prejudice and that her motion to reconsider should have been granted because its amended report and affidavit fully complied with section 2-622.

We affirm.

BACKGROUND

Plaintiff and decedent filed a complaint on May 13, 1993, and filed their third amended complaint on October 8, 1993. That complaint alleged that the appellee doctors were pathologists who had incorrectly diagnosed decedent's tumor as benign in 1989. The pathologists had been negligent by failing to report that tissue samples from decedent in 1989 were insufficient to exclude the diagnosis of cancer. The complaint also alleged that Westlake Hospital was liable for its employment of the negligent pathologists as its agents. Lastly, the complaint contained allegations against other doctors in various fields: Dr. Rong Tu, a pulmonary specialist; Dr. Young Pae, a thoracic surgeon; and Dr. John Benages, a general practitioner. Attached to the complaint was a medical report from a physician and an affidavit from plaintiff's attorney stating his belief that plaintiff's cause was meritorious based on consulting with the physician.

On March 23, 1994, Dr. Axelrod moved to dismiss with prejudice pursuant to sections 2-619 and 2-622. Section 2-622 states:

"(a) *** The plaintiff's attorney *** shall file an affidavit *** declaring one of the following:

1. That the affiant has consulted and reviewed the facts of the case with a health professional who the affiant reasonably believes: (i) is knowledgeable in the relevant issues involved in the particular action; (ii) practices or has practiced within the last 6 years or teaches or has taught within the last 6 years in the same area of health care or medicine that is at issue in the particular action; and (iii) is qualified by experience or demonstrated competence in the subject of the case; that the reviewing health professional has determined in a written report, after a review of the medical record and other relevant material involved in the particular action that there is a reasonable and meritorious cause for the filing of such action; and that the affiant has concluded on the basis of the reviewing health professional's review and consultation that there is a reasonable and meritorious cause for filing of such action. If the affidavit is filed as to a defendant who is *** a dentist, a podiatrist, or a psychologist, the written report must be from a health professional licensed in the same profession, with the same class of license, as the defendant. For affidavits filed as to all other defendants, the written report must be from a physician licensed to practice medicine in all its branches. *** A copy of the written report *** must be attached to the affidavit ***." 735 ILCS 5/2-622(a) (West 1994).

Section 2-622(g) states that failure to file the required certificate shall be grounds for dismissal under section 2-619. 735 ILCS 5/2-622(g) (West 1994). Dr. Axelrod alleged that the physician in the medical report could not possibly meet the requirement of section 2-622(a)(1)(ii) because of the vastly different specialties involved in the case. Dr. Axelrod also argued that section 2-622(a)(1)(i) could not be satisfied because the physician had not reviewed the pathology slides that formed the basis of Dr. Axelrod's alleged negligence.

On April 5, 1994, during the hearing on Dr. Axelrod's motion, the other appellee pathologists asked to join in the motion. At the hearing, plaintiff addressed the lack of review of the pathology slides by arguing that a report by Dr. Axelrod had specifically stated the amount of the sample and that plaintiff's medical consultant had examined Dr. Axelrod's report. The court responded that the sufficiency of the section 2-622 affidavit must be established on its own merits without reference to another report. The court also noted that section 2-622(b) called for separate consideration of each doctor, while the report had a paragraph with allegations against two defendants together. Plaintiff requested leave to amend the report, and the court stated:

"The claim seems to be that the tissue was taken from one area and it was too small to detect cancer, so that, apparently, when they tested the sample they got a negative as to cancer when, in fact, according to the plaintiff, the patient did have cancer. I think on the substance of it that it does state a reasonable meritorious cause of action if it is too small. That is what the plaintiff is saying.

All right. I will grant leave to plaintiff to amend the 2-622 affidavit."

On that day, the court granted the appellees' motion without prejudice and granted leave for plaintiff to file an ...


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