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02/04/97 LOUISE CALAMARI v. JOHN DRAMMIS

February 4, 1997

LOUISE CALAMARI, PLAINTIFF-APPELLANT,
v.
JOHN DRAMMIS, JR., DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County. 95 L 10609. The Honorable Paddy H. McNamara, Judge Presiding.

Released for Publication March 13, 1997.

Presiding Justice DiVITO delivered the opinion of the court. McNULTY and Tully, JJ., concur.

The opinion of the court was delivered by: Divito

PRESIDING JUSTICE DiVITO delivered the opinion of the court:

In this appeal, we are asked to address the constitutionality of a recent amendment to section 2-622 of the Code of Civil Procedure (see Pub. Act 89-7, eff. March 9, 1995 (amending 735 ILCS 5/2-622 (West 1992))), the applicability of that amendment to a refiled complaint, and the propriety of the circuit court's dismissal of a medical malpractice complaint with prejudice.

Plaintiff Louise Calamari filed a complaint against defendant Dr. John Drammis, Jr., alleging that he was negligent in performing plastic surgery on her. Defendant moved to dismiss plaintiff's complaint for failure to file the attorney's affidavit of merit and physician's report that section 2-622 of the Code of Civil Procedure (735 ILCS 5/2-622 (West 1992)) requires. Plaintiff thereafter voluntarily dismissed her complaint.

Subsequent to this dismissal, an amendment to section 2-622 became effective. See Pub. Act 89-7, eff. March 9, 1995 (amending 735 ILCS 5/2-622 (West 1992)). Plaintiff refiled her complaint after the amendment became effective. Pursuant to defendant's motion, the court dismissed her refiled complaint with prejudice for failure to comply with the amended version of section 2-622.

Plaintiff argues that the court improperly dismissed her complaint because (1) the amendment to section 2-622 did not apply to her refiled complaint; (2) the amendment is unconstitutional; and (3) the circuit court abused its discretion in dismissing her complaint with prejudice.

PROCEDURAL HISTORY

On March 14, 1994, plaintiff filed a complaint alleging that, on or about April 8, 1992, defendant negligently performed surgery to install malar augmentation implants under her eyes. Plaintiff alleged that she first learned on May 22, 1992, that one of the implants had been improperly positioned. She attached an affidavit in which her attorney asserted that she had been unable to obtain a physician's report prior to the expiration of the statute of limitations. Based on this affidavit, plaintiff obtained a 90-day extension to file an attorney's affidavit of merit and physician's report pursuant to section 2-622.

On June 29, 1994, defendant filed a motion to dismiss the complaint on the basis that plaintiff had failed to comply with section 2-622 within the 90-day period. On July 7, 1994, the court granted plaintiff's motion to voluntarily dismiss her complaint.

On July 5, 1995, plaintiff refiled her complaint against defendant pursuant to section 13-217 of the Code of Civil Procedure (735 ILCS 5/13-217 (West 1992)). Plaintiff attached an affidavit, in which her attorney again asserted that she had been unable to obtain a physician's report prior to the expiration of the statute of limitations.

On August 15, 1995, defendant filed a motion to dismiss under section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 1992)) based on plaintiff's failure to comply with section 2-622. In response to the motion to dismiss, plaintiff filed a motion on October 5, 1995, for leave to file an amended complaint.

Her proposed amendment included an attorney's affidavit of merit and a physician's report. In the affidavit, her attorney stated that she had consulted with a knowledgeable, qualified, and experienced health professional who had determined in a report that there was reasonable and meritorious cause for filing the complaint.

The attached physician's report consisted of a letter from Dr. McCarthy DeMere. In the letter, Dr. DeMere did not address the merit of plaintiff's case, and plaintiff concedes that this letter did not meet the requirements of section 2-622.

At the same time she filed her motion for leave to amend, plaintiff filed a memorandum in opposition to the motion to dismiss. In this memorandum, she asserted that a medical expert had advised her that there was malpractice and that she was attempting to obtain a supplemental physician's report to more specifically address medical issues.

Based on the amendment to section 2-622, the court dismissed plaintiff's complaint with prejudice on October 10, 1995. Plaintiff filed a motion to reconsider this judgment but, in a six-page written order dated February 23, 1996, the court denied the motion to reconsider.

The court rejected plaintiff's argument that the amended version of the statute did not apply to her case and rejected plaintiff's claim that the amendment was unconstitutional. In denying the motion to reconsider the dismissal with prejudice, the court noted that plaintiff had failed to file a physician's report with her original complaint and had failed to attach the report of a physician to the complaint she refiled 39 months after the incident and two days before the expiration of the one-year refiling period. Five months after the refiling, plaintiff had still not filed the necessary report.

The court acknowledged that, after defendant filed a motion to dismiss the 1995 complaint, plaintiff had requested leave to file an amended complaint and the report of a physician. The court found that this report was insufficient under section 2-622 because the physician did not state that there was good cause to file the suit, but the court stated that it did not base its decision on the inadequacy of the report.

APPLICABILITY OF THE AMENDMENT

Plaintiff first argues that the amendment to section 2-622 did not apply to her complaint because her cause of action accrued before the amendment became effective. At the time plaintiff filed her complaint in March 1994, section 2-622 provided:

"(a) 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, the plaintiff's attorney or the plaintiff, if the plaintiff is proceeding pro se, shall file an affidavit, attached to the original and all copies of the complaint, 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. *** A copy of the written report, clearly identifying the plaintiff and the reasons for the reviewing health professional's determination that a reasonable and meritorious cause for the filing of the action exists, must be attached to the affidavit ***.

2. That the affiant was unable to obtain a consultation required by paragraph 1 because a statute of limitations would impair the action and the consultation required could not be obtained before the expiration of the statute of limitations. If an affidavit is executed pursuant to this paragraph, the certificate and written report required by paragraph 1 shall be filed within 90 days after the filing of the complaint. The defendant shall be excused from answering or otherwise pleading until 30 days after being served with a certificate required by paragraph 1.

3. That a request has been made by the plaintiff or his attorney for examination and copying of records *** and the party required to comply *** has failed to produce such records within 60 days of the receipt of the request. If an affidavit is executed pursuant to this paragraph, the certificate and written report required by paragraph 1 shall be filed within 90 days following receipt of the requested records. All defendants except those whose failure to comply *** is the basis for an affidavit under this ...


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