The Honorable Justice Heiple delivered the opinion of the court. Chief Justice Bilandic, specially concurring.
The opinion of the court was delivered by: Heiple
JUSTICE HEIPLE delivered the opinion of the court:
Plaintiff, Cindy Miller, filed an action in the circuit court of Marion County against Dr. Narendra K. Gupta alleging in two counts medical malpractice and spoliation of evidence. *fn1 The trial court dismissed Miller's first-amended complaint in its entirety with prejudice. The appellate court reversed, finding that the trial court abused its discretion in dismissing the medical malpractice count, and remanded so that Miller could amend her pleadings regarding spoliation of evidence. 275 Ill. App. 3d 539, 656 N.E.2d 461, 212 Ill. Dec. 138. We granted Gupta's petition for leave to appeal (155 Ill. 2d R. 315).
In both counts of her first-amended complaint, Milleralleges that in February 1989, Gupta performed a surgical procedure on her left foot. In March of 1991, she contacted a podiatrist, Dr. William Hess, because of additional problems with her left foot, including stumbling, loss of balance and misalignment of one of her toes. Hess told Miller that she suffered from a transfer wound and misalignment of her toe and that these conditions may have resulted from medical malpractice committed by Gupta. Hess informed Miller that he would need to see the X rays taken prior to and after the surgery performed by Gupta to determine if Gupta had committed malpractice.
In August of 1991, Miller's attorney requested her medical records from Gupta. On October 30, 1991, Gupta informed the attorney that Miller's X rays had been inadvertently destroyed by the St. Mary's Hospital housekeeping department.
Understanding the above facts is not complete without mentioning two discovery depositions appearing in the record. In the first, Gupta stated that he took X rays of Miller's foot on an X-ray machine in his office at the time of her surgery, that the X rays were obtained from his files in October 1991 in response to the attorney's request, and that he placed the X rays on the floor against the wall and behind his chair so that he could take them to St. Mary's for copying. Gupta admitted that his wastebasket was approximately three feet from where he placed the X rays. Gupta stated that his office is located in a building separate from but adjacent to St. Mary's and that he contracted with St. Mary's for his office to be cleaned. In the second deposition, Cathy Joliff, an employee of St. Mary's housekeeping department, testified that she was assigned to clean Gupta's office and that she regularly disposed of X-ray jackets which were in the trash or located near the trash. She believed that Miller's X rays were thrown out when shecleaned Gupta's office and later destroyed in the hospital's incinerator.
In the first count (hereinafter, medical malpractice count) of her first-amended complaint, Miller further alleges that Gupta performed a procedure on her foot that was not required by preoperative observations, failed to perform the procedure with ordinary skill, failed to perform a medically preferred procedure, and failed to obtain her consent. Miller did not attach a certificate of merit and written report of a health professional to her complaint, as required by statute in medical malpractice actions (735 ILCS 5/2-622 (West 1994)). Rather, Miller's attorney attached an affidavit to the complaint stating that he had requested Miller's medical records, that 60 days had passed since his request, and that Gupta had informed him that the subject records had been destroyed. See 735 ILCS 5/2-622(a)(3) (West 1994).
In the second count (hereinafter, spoliation of evidence count), Miller alleges spoliation of evidence in that Gupta destroyed her X rays in violation of the X-Ray Retention Act and in that Gupta negligently or intentionally caused or permitted the destruction of her X rays. Miller then alleges that she was unable to obtain a certificate of merit and written report because her X rays had been destroyed, thereby depriving her of any remedy obtainable under the medical malpractice count.
The trial court granted Gupta's motion to dismiss both counts, finding that Miller failed to attach the required certificate of merit and written report and that Gupta did not have a duty to preserve and maintain the X rays. The appellate court reversed in part, concluding that the trial court abused its discretion in dismissing the medical malpractice count for Miller's failure to file a section 2-622 certificate of merit. In so ruling, the appellate court stated that as a substitute for the section 2-622 written report, Miller should attach to her complainta physician's certificate confirming that the missing X rays are necessary to the determination of whether Gupta committed malpractice. Regarding the spoliation of evidence count, the appellate court found that while Miller could not state a cause of action against Gupta for a violation of the X-Ray Retention Act, she should have the opportunity to amend this count to conform with this court's decision in Boyd v. Travelers Insurance Co., 166 Ill. 2d 188, 209 Ill. Dec. 727, 652 N.E.2d 267 (1995), which was issued while the instant cause was on appeal.
The issues before this court are whether the appellate court erred in (1) finding that the trial court abused its discretion in dismissing the medical malpractice count and (2) allowing Miller the opportunity to amend the spoliation of evidence count to conform with this court's decision in Boyd.
Section 2-622(a)(1) of the Code of Civil Procedure requires that the plaintiff in a medical malpractice action attach an affidavit to the complaint stating that a health professional has been consulted and that the health professional has determined "that there is a reasonable and meritorious cause" for filing the action. Further, a copy of the health professional's written report, indicating the basis for the "meritorious" determination, must be attached to the affidavit. 735 ILCS 2-622(a)(1) (West 1994). Section 2-622(a)(3) provides that a plaintiff can file an affidavit stating that a request for the examination and copying of medical records has been made and that the party responsible for complying with the request has failed to produce the requested medical records within 60 days. Section 2-622(a)(3) allows a plaintiff 90 days from the receipt of the requested medical records to file the certificate and written report required by section 2-622(a)(1). The Code further provides that the failure to file a certificate of merit"shall be grounds for dismissal." 735 ILCS 5/2-622(g) (West 1994).
In the instant cause, Gupta asserts that a trial court's decision to dismiss an action for the plaintiff's failure to file a section 2-622 certificate of merit should not be overturned absent a manifest abuse of discretion. See Winters v. Podzamsky, 252 Ill. App. 3d 821, 827, 190 Ill. Dec. 203, 621 N.E.2d 72 (1993); Peterson v. Hinsdale Hospital, 233 Ill. App. 3d 327, 330, 174 Ill. Dec. 538, 599 N.E.2d 84 (1992). Gupta argues that the trial court did not abuse its discretion in dismissing the instant medical malpractice count because section 2-622 requires a certificate of merit and Miller failed to attach one. Gupta further argues that the appellate court's decision effectively allows Miller to proceed with her medical malpractice claim without requiring her to show that the action is meritorious as contemplated by section 2-622. Miller counters that a pleading requirement, such as the filing of a 2-622 certificate of merit, should not be turned into a substantive defense which forever bars a decision on the merits.
In spite of Miller's argument, the legislature has made the filing of a section 2-622 certificate of merit a condition of proceeding with a meritorious medical malpractice action. 735 ILCS 5/2-622 (West 1994). Here, the trial court did not abuse its discretion in dismissing the medical malpractice count for Miller's failure to file a certificate of merit. In her complaint, Miller specifically alleges that "the accuracy of Dr. Gupta's observations and an assessment of his judgment and skill could not be determined with certainty absent review of the subject x-rays." In addition, in her brief before this court Miller concedes that she will never be able to comply with the section ...