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11/27/96 OSCAR DELUNA v. DR. MICHAEL TREISTER

November 27, 1996

OSCAR DELUNA, ADMINISTRATOR OF THE ESTATE OF ALICIA DELUNA, PLAINTIFF-APPELLANT,
v.
DR. MICHAEL TREISTER, AND ST. ELIZABETH'S HOSPITAL, DEFENDANTS-APPELLEES.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS. THE HONORABLE JENNIFER DUNCAN-BRICE, JUDGE, PRESIDING.

Rehearing Denied February 7, 1997. Released for Publication February 13, 1997.

The Honorable Justice Scariano delivered the opinion of the Court: Burke, J., concurs. DiVITO, J., dissents.

The opinion of the court was delivered by: Scariano

JUSTICE SCARIANO delivered the opinion of the Court:

This is the second appeal of this matter, again via the dismissal of plaintiff's medical malpractice claim, albeit on a different basis this time. *fn1 In 1987, the first action was dismissed by the circuit court on the ground that plaintiff had not complied with the requirements of § 2-622 of the Code of Civil Procedure (735 ILCS 5/2-622; hereinafter, "the Code"). In that case, plaintiff maintained that § 2-622 was an unconstitutional delegation of judicial power to lay persons, specifically, to health professionals from whom plaintiffs were required to obtain certification of the merits of their medical malpractice claims as a precondition to proceeding with their action. On appeal, we agreed with plaintiff, and the order of the circuit court was reversed ( DeLuna v. St. Elizabeth's Hospital (1989), 184 Ill. App. 3d 802, 540 N.E.2d 847, 132 Ill. Dec. 925). We, in turn, were reversed by our supreme court ( DeLuna v. St. Elizabeth's Hospital (1992), 147 Ill. 2d 57, 588 N.E.2d 1139, 167 Ill. Dec. 1009 ("DeLuna I")).

Plaintiff thereupon filed a new complaint, substantially identical to the first one, but now supported by the certification of a health professional as mandated by § 2-622 of the Code. Notably, this version of the complaint was filed as a new case, with a new case number. This time, the circuit court dismissed the action on the ground that it was barred by the doctrine of res judicata, the judge having concluded that the dismissal of the first case was an adjudication on the merits, citing Supreme Court Rule 273 (134 Ill. 2d R. 273). This appeal concerns the propriety of that decision.

I. Factual And Procedural Background

The facts of this case were fully described in the appeal of the first action ( DeLuna v. St. Elizabeth's Hospital (1989), 184 Ill. App. 3d 802, 132 Ill. Dec. 925, 540 N.E.2d 847; rev'd, DeLuna I, 147 Ill. 2d 57, 167 Ill. Dec. 1009, 588 N.E.2d 1139). We confine our recitation to those facts necessary to an understanding of our disposition of this matter.

The decedent, Alicia DeLuna, was admitted to defendant St. Elizabeth's Hospital in 1986, where defendant Dr. Michael Treister, her treating physician at the time, performed a laminectomy on her. It was alleged that he lacerated an artery during that procedure, that he negligently failed to recognize the injury, and that the resultant bleeding caused Mrs. DeLuna's death. We deem it necessary to emphasize that because of the prior dismissal orders, neither the truth nor the merits of these allegations have ever been submitted to a fact-finder for resolution.

As already noted, plaintiff filed suit against both defendants in 1986 (circuit court case number 86 L 8412), but failed to append to his complaint the requisite health professional's certificate attesting to the merits of the malpractice claims presented. When that initial action was filed in the circuit court, the constitutional challenge to § 2-622 posed by plaintiff was pending before our supreme court in another case, McCastle v. Sheinkop (1987), 121 Ill. 2d 188, 520 N.E.2d 293, 117 Ill. Dec. 132. Plaintiff made the conscious decision to assert the same challenge to the constitutionality of § 2-622 and chose not to attach the declarations to his complaint as required by the Code. As required by statute, the circuit court applied § 2-622 and dismissed the action as to both the hospital and Dr. Treister, though only the latter dismissal was entered "with prejudice." Plaintiff appealed both dismissals, which were consolidated in this court, and further action thereon was stayed pending decision in McCastle.

The supreme court decided McCastle without having to reach the constitutional issue, consequently, the initial DeLuna appeal went forward. In this forum, plaintiff attacked both the constitutionality of § 2-622 and the propriety of the "with prejudice" language in the order dismissing his action against Dr. Treister. We ruled § 2-622 to be unconstitutional, thus finding it unnecessary to reach the second issue ( DeLuna v. St. Elizabeth's Hospital (1989), 184 Ill. App. 3d 802, 132 Ill. Dec. 925, 540 N.E.2d 847). Defendants appealed our decision, and the supreme court upheld the constitutionality of § 2-622 ( DeLuna I, 147 Ill. 2d 57, 167 Ill. Dec. 1009, 588 N.E.2d 1139). The supreme court further rejected plaintiff's repeated entreaties either to remand the case to permit plaintiff to attach the mandated certification to his complaint or to address the propriety of the "with prejudice" language in the dismissal of the action against Dr. Treister ( DeLuna I, 147 Ill. 2d 57, 76, 588 N.E.2d 1139, 167 Ill. Dec. 1009).

Accordingly, plaintiff opted to refile the suit as a new case, circuit court case number 93 L 13826. Dr. Treister moved to dismiss, this time asserting that the previous dismissal "with prejudice" was an adjudication on the merits by operation of Supreme Court Rule 273 (134 Ill. 2d R. 273), and thus a res judicata bar to the new action.

Plaintiff unsuccessfully renewed his attack on the propriety of the "with prejudice" clause of the order dismissing the action as to Dr. Treister in DeLuna I, and when the circuit court dismissed the new action as to the doctor, plaintiff appealed. The hospital moved that it be dismissed as well, urging that inasmuch as its liability was derivative of that of the doctor, dismissal of the new action against him required that the hospital also be dismissed (see, Towns v. Yellow Cab Co. (1978), 73 Ill. 2d 113, 382 N.E.2d 1217, 22 Ill. Dec. 519). The circuit court granted that request, plaintiff again appealed, and we again consolidated the cases in this forum.

II. Opinion

Reacting to the perceived crisis in medical malpractice claims, the legislature in 1985 adopted a comprehensive "reform" package which included the enactment of § 2-622 ( Bernier v. Burris (1986), 113 Ill. 2d 219, 229, 497 N.E.2d 763, 100 Ill. Dec. 585). That law was designed to weed out frivolous suits at the filing stage by requiring plaintiffs to "precertify" their claims, showing the existence of expert support by affidavit ( DeLuna I. 147 Ill. 2d 57, 65, 167 Ill. Dec. 1009, 588 N.E.2d 1139). The circuit court was vested with discretion to allow amendments to complaints and affidavits in order to insure that a mechanical application of this prophylactic rule would not cause any unjust result ( McCastle, 121 Ill. 2d 188, 117 Ill. Dec. 132, 520 N.E.2d 293). In adjudicating this case, we must be mindful of the legislature's intent in promulgating § 2-622 and give it effect, rather than thwart it.

On appeal, plaintiff raises three issues: (a) whether the dismissal of Dr. Treister in the first case was properly entered with prejudice; (b) whether that order, even if properly entered with prejudice, was an adjudication on the merits, thus establishing a res judicata bar; and (c) whether it was proper to dismiss the action as to the hospital, regardless of the propriety of the second dismissal of Dr. Treister. All three present questions of law rather than issues of fact; accordingly our review is de novo.

At its heart, plaintiff's appeal concerns the inequity inherent in the dismissal of his complaint. Dr. Treister concedes in this appeal that plaintiff's constitutional challenge in DeLuna I was "not baseless or frivolous." Indeed, in the first appeal, our ruling that § 2-622 was unconstitutional was unanimous, and the vote to reverse by the supreme court was 4-3. Nonetheless, it is clear that in 1987, plaintiff was faced with a difficult choice: either comply with the dictates of § 2-622 (thereby mooting irretrievably any issue regarding constitutionality), or accept a dismissal with prejudice (in order to gain access to our reviewing courts to obtain a definitive ruling as to the constitutionality of the law). Plaintiff elected to seek a final and conclusive ruling on that crucial threshold issue.

Because the parties most interested in the outcome of this appeal are Mrs. DeLuna's minor children, plaintiff implores us to act solicitously with regard to their interests (see, Muscarello v. Peterson (1964), 20 Ill. 2d 548, 170 N.E.2d 564; Blakely v. Johnson (1976), 37 Ill. App. 3d 112, 345 N.E.2d 814). We agree that a wooden application of the res judicata doctrine, if allowed to stand, would effectively preclude plaintiff from ever testing defendants' negligence in an evidentiary hearing. We need not, however, respond to plaintiff's imprecations for judicial solicitude, for we believe this case turns on an appreciation of the role of the legislature contemplated for § 2-622.

(A) The Dismissal Of The First Action Against Dr. Treister

As in the circuit court, plaintiff begins with an attack on the "with prejudice" language in the order dismissing the first action against Dr. Treister. Though plaintiff offers a myriad of reasons for undoing (or, in plaintiff's analysis, "correcting") that order, we simply cannot agree. This result is mandated by three distinct, but independently adequate, reasons: (a) the issue has already been definitively resolved; (b) we have no jurisdiction to alter the order; and (c) plaintiff is judicially estopped from even advancing such a claim.

The Effect Of The Prior Appeal : We must reject out of hand the astounding claim implicit in plaintiff's argument: that this court is somehow empowered to overturn a supreme court decision (see, Shortridge v. Sherman (1980), 84 Ill. App. 3d 981, 406 N.E.2d 565, 40 Ill. Dec. 559). At any rate, since plaintiff challenged the "with prejudice" language of Dr. Treister's dismissal at all levels of the judicial system in DeLuna I, resulting in a final and conclusive determination of that issue in the supreme court, he cannot now renew that attack ( Kazubowski v. Kazubowski (1970), 45 Ill. 2d 405, 413, 259 N.E.2d 282).

The Scope Of Appellate Jurisdiction : The Notice of Appeal filed in this cause gives us jurisdiction over case number 93 L 13826; we have no jurisdiction over case number 86 L 8412 for any purpose. That case is simply not before us. (See, Dobsons Inc. v. Oak Park National Bank (1980), 86 Ill. App. 3d 200, 407 N.E.2d 993, 41 Ill. Dec. 495)

Judicial Estoppel : Plaintiff was entitled to challenge § 2-622 in this court on the basis of the circuit court's dismissal with prejudice of the first action against Dr. Treister. It goes without saying that had Dr. Treister been dismissed without prejudice, as happened in the case of the hospital, there would not have been the required final and appealable order to invoke the jurisdiction of any reviewing court in this state ( DeLuna I, 147 Ill. 2d 57, 76, 167 Ill. Dec. 1009, 588 N.E.2d 1139). Having obtained the benefit of an appealable order, it would be anomalous at best to permit plaintiff even to suggest that we rescind the jurisdiction of both the appellate and the supreme court in DeLuna I. The doctrine of judicial estoppel was intended for just this type of a situation ( Ceres Terminals Inc. v. Chicago City Bank & Trust Co. (1994), 259 Ill. App. 3d 836, 849-850, 635 N.E.2d 485, 200 Ill. Dec. 146).

For all these reasons, we decline plaintiff's invitation to tamper with the "with prejudice" language from the order dismissing Dr. Treister in the first action.

(B) Was The Dismissal "On The Merits"?

The doctrine of res judicata creates a bar to subsequent actions if three elements are present: (a) a final judgment on the merits; (b) identity of the causes of action; and (c), an identity of the parties or their privies ( Downing v. Chicago Transit Authority (1994), 162 Ill. 2d 70, 73-74, 642 N.E.2d 456, 204 Ill. Dec. 755). The parties agree that the ...


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