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06/02/97 MICHAEL A. APA v. DAVID ROTMAN

June 2, 1997

MICHAEL A. APA, PLAINTIFF-APPELLANT,
v.
DAVID ROTMAN, M.D., AND MICHAEL W. ELLIOTT, M.D., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Crawford County. No. 95-L-32. Honorable David M. Correll, Judge, presiding.

The Honorable Justice Welch delivered the opinion of the court. Chapman and Hopkins, JJ., concur.

The opinion of the court was delivered by: Welch

The Honorable Justice WELCH delivered the opinion of the court:

Plaintiff, Michael A. Apa, appeals from an order of the circuit court of Crawford County dismissing with prejudice his medical malpractice suit against defendants, David Rotman, M.D., and Michael W. Elliott, M.D. For reasons which follow, we reverse the judgment of the circuit court of Crawford County and remand this cause for further proceedings.

Plaintiff's complaint was dismissed, on motion of defendants, for the failure to comply with section 2-622 of the Illinois Code of Civil Procedure (Code) (735 ILCS 5/2-622 (West 1992)). That statute requires that in any action for medical malpractice the plaintiff or his attorney shall file an affidavit that he has consulted with a qualified medical expert who has concluded in a written report that a meritorious cause of action exists. The statute further requires that the medical expert's written report be attached to the affidavit. It is undisputed that plaintiff did file such an affidavit and report in a timely fashion. Defendants argue, however, that the affidavit and written report do not comply with the statute's substantive requirements.

On July 11, 1994, plaintiff filed in the circuit court of Cook County a complaint against defendants, seeking damages for their negligence in treating a fractured finger. Attached to the complaint was the affidavit of plaintiff's attorney, in accordance with section 2-622 of the Code (735 ILCS 5/2-622 (West 1992)). The affidavit stated that the affiant had been unable to obtain the required consultation with a medical expert because the statute of limitations would impair the action and the consultation could not be obtained before the expiration of the statute of limitations. Pursuant to the statute, the filing of this affidavit extended the time for filing the required affidavit and medical report for 90 days after the filing of the complaint. 735 ILCS 5/2-622 (West 1992).

On August 26, 1994, defendant Elliott filed a motion for a change of venue to Crawford County. This motion was granted on September 16, 1994. However, the file was not transferred to Crawford County until November 20, 1995.

On October 11, 1994, within the 90 days allowed by law, plaintiff's attorney filed an affidavit pursuant to section 2-622, stating that he had consulted and reviewed the facts of the case with a qualified health professional, that the health professional had determined in a written report, after a review of the medical records and other relevant materials, that there is a reasonable and meritorious cause for filing the cause of action, and that based thereon the attorney had concluded that there is a reasonable and meritorious cause for filing the action. Attached to the affidavit is the written report of a licensed medical doctor, stating:

"I ***, after a review of the facts of Michael A. Apa's case involving the Crawford Memorial Hospital and medical professionals, conclude on the basis of my review that there is a reasonable and meritorious case for filing of a malpractice action."

The record does not indicate that the affidavit was ever served on the defendants.

On April 2, 1996, defendant Rotman filed a motion to vacate any defaults theretofore entered against him, and Rotman's motion sought leave to file instanter a motion to dismiss the complaint. A notice of the motion to vacate defaults and a hearing to be held on April 15, 1996, was served on plaintiff by deposit in the United States mail on March 29, 1996. Rotman's motion to dismiss was not filed until April 15, the date of the hearing. It was not served on plaintiff. Rotman's motion to dismiss seeks dismissal pursuant to sections 2-622 and 2-615 of the Illinois Code of Civil Procedure (735 ILCS 5/2-622, 2-615 (West 1992)). The motion alleges that plaintiff had failed to file the affidavit and written report required by section 2-622.

On April 12, 1996, defendant Elliott filed a motion to dismiss the complaint pursuant to sections 2-619 and 2-622 of the Code (735 ILCS 5/2-619, 2-622 (West 1992)), alleging that plaintiff had failed to comply with section 2-622. Attached to the motion is defendant's memorandum stating that plaintiff had failed to file the affidavit required by section 2-622 and that it was within the discretion of the trial court to dismiss plaintiff's complaint with or without prejudice. The motion, memorandum, and notice of hearing thereon scheduled for April 15, 1996, were served on plaintiff by being deposited in the United States mail on April 11, 1996.

The matter came on for hearing on April 15, 1996. Plaintiff failed to appear. No report of proceedings of the hearing on the motion to dismiss is included in the record on appeal. It is clear from the defendants' motions to dismiss, however, that they were unaware that plaintiff had, indeed, filed an affidavit and written report pursuant to section 2-622. Whether the trial court was also unaware of this fact is not clear from the record. In any event, the circuit court entered an order dismissing plaintiff's complaint with prejudice for failure to comply with section 2-622.

On May 14, 1996, plaintiff filed a motion to vacate the order of dismissal. Plaintiff's motion to vacate alleges that he had not received notice of Elliott's motion to dismiss by mail until the day of the hearing, at which point it was too late for plaintiff's attorney to travel to the hearing. Plaintiff did receive notice of Rotman's motion to vacate defaults and for leave to file a motion to dismiss, but plaintiff had intended to reply to the motion to dismiss in writing when it was filed. Plaintiff did not know that the motion to dismiss would be filed and heard on April 15. Attached to the motion to vacate is a copy of a facsimile message which plaintiff's attorney sent to the trial court and defendants' attorneys immediately upon receiving notice of the hearing on Elliott's motion to dismiss. That message recites that the section 2-622 affidavit had been filed and explains plaintiff's attorney's failure to ...


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