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11/04/96 BRADLEY JACOBS v. RUSH NORTH SHORE MEDICAL

November 4, 1996

BRADLEY JACOBS, PLAINTIFF-APPELLANT,
v.
RUSH NORTH SHORE MEDICAL CENTER AND NORTHWESTERN MEMORIAL HOSPITAL, DEFENDANTS-APPELLEES, AND IRVING R. SAVIN, MELVIN J. GOLDSTEIN, DOUGLAS R. NORMAN, JOSE MANUEL VELASCO, AVRUM JOSHUA EPSTEIN, DAVID GREEN, HOWARD SCHACHTER, JOHN STEVEN STRYKER, JAS. T. YAO, AND DRES BLIE, DEFENDANTS.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE KENNETH L. GILLIS, JUDGE PRESIDING.

Rehearing Denied December 11, 1996. Released for Publication December 22, 1996.

The Honorable Justice Wolfson delivered the opinion of the court: Braden, J., concurs. Buckley, J., dissents.

The opinion of the court was delivered by: Wolfson

The Honorable Justice WOLFSON delivered the opinion of the court:

Plaintiff Bradley Jacobs (Jacobs) appeals from an order of the circuit court that dismissed, with prejudice, defendants Rush North Shore Medical Center (Rush) and Northwestern Memorial Hospital (Northwestern) in Jacobs' medical malpractice action. Jacobs asks us to find that the trial court abused its discretion when it held that the section 2-622 attorney affidavit and reviewing health professional's report he submitted were insufficient as to these defendants. In the alternative, he asks us to find that the trial court abused its discretion when it refused to allow him to file a second amended complaint. For reasons that follow, we affirm the order of dismissal.

Section 2-622 of the Illinois Code of Civil Procedure requires a plaintiff "in any action, whether in tort, contract or otherwise, in which the plaintiff seeks damages for injuries or death by reason of medical, hospital or other healing art malpractice" 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, 117 Ill. Dec. 132 (1988); Tucker v. St. James Hospital, 279 Ill. App. 3d 696, 665 N.E.2d 392, 216 Ill. Dec. 332 (1996).

According to the statute, the health professional must be "knowledgeable in the relevant issues involved in the particular action * * * and qualified by experience or demonstrated competence in the subject of the case." 735 ILCS 5/2-622 (West 1994). The report itself must clearly identify "the reasons for the reviewing health professional's determination that a reasonable and meritorious cause for the filing of the action exists." 735 ILCS 5/2-622 (West 1994). Failure to comply with these requirements is grounds for dismissal under section 2-619 of the Code of Civil Procedure. 735 ILCS 5/2-622(g) (West 1994). When the trial court dismisses a party because plaintiff has failed to satisfy the requirements of section 2-622, that ruling will not be disturbed unless it is clear that the trial court abused its discretion. Winters v. Podzamsky, 252 Ill. App. 3d 821, 621 N.E.2d 72, 190 Ill. Dec. 203 (1993).

In the present case, Jacobs filed his initial complaint on January 24, 1992, without a section 2-622 health professional's report. Plaintiff sought, and was granted, a 90-day extension for the filing of the report. None was filed. Instead, on June 24, 1992, Jacobs sought and obtained a voluntary dismissal.

On June 19, 1993, Jacobs refiled the complaint, again without a section 2-622 report attached, as required. He was granted a 90-day extension, but did not file the report until October 19, 1993. When the sufficiency of the report was challenged by the defendants, Jacobs was given until January 3, 1994, to file an amended report. The amended report was not ready and Jacobs was given a "final extension" until January 26, 1994, to file the amended report.

The amended report was filed on January 25, 1994. But the defendants again moved to dismiss because the report still failed to comply with the requirements of section 2-622. On January 27, 1994, Jacobs was granted leave to file a second amended report and a brief in response to the motions to dismiss, up to and including February 4, 1994.

On February 4, 1994, Jacobs filed with the court a first amended complaint, to which he attached his affidavit and second amended report. At the hearing on February 18, 1994, the court entered an order allowing Jacobs to file the amended complaint and second amended report. The court, however, found that the report was insufficient as to Rush and Northwestern and dismissed them from the case.

The affidavit does not identify the reviewing physician's qualifications. It merely tracks the language of the statute, stating that the affiant has consulted "a health professional who the affiant reasonably believes is knowledgeable in the relevant issues * * * and this health care professional has determined * * * a meritorious cause for filing" the action.

The report, which is 25 pages in length, does not indicate the qualifications of the reviewing physician, nor does the physician claim to be "licensed in all its branches." *fn1 The report does, however, discuss, at length, the reviewer's analysis of the hospital records for the plaintiff's stay at Rush and Northwestern.

According to the report, Jacobs was admitted to the emergency room at Rush on February 13, 1990, complaining of pain in his right side, constipation, nausea, vomiting, and a fever. Diagnostic tests were performed and Jacobs was admitted to the hospital due to "liver abnormalities." More tests were done and several physicians were brought in for consultation. Although at least one doctor hypothesized on February 14 or 15, that Jacobs was suffering from "hepatic vein thrombosis, i.e. Budd-Chiari syndrome," a venography (identified by the ...


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