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Mueller v. North Suburban Clinic

September 30, 1998

DENISE MUELLER, PLAINTIFF-APPELLANT,
v.
NORTH SUBURBAN CLINIC, LTD., HUMANA HOSPITAL OF HOFFMAN ESTATES, N/K/A HOFFMAN ESTATES MEDICAL CENTER, PETER PALERMO, M.D., JEFFREY LINDAHL, M.D., MANUEL PEREZ, M.D., DEFENDANTS-APPELLEES AND ELLEN JANSYN, M.D., DEFENDANT.



The opinion of the court was delivered by: Justice Hoffman

APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY

HONORABLE ROBERT J. QUINN, JUDGE PRESIDING.

The trial court dismissed this medical negligence action after finding that the physician's report filed in support of the plaintiff's complaint failed to comply with the requirements of section 2-622 of the Code of Civil Procedure (Code) (735 ILCS 5/2-622 (West 1994)). Thereafter, the plaintiff's motion for reconsideration and for leave to file an amended section 2-622 report was denied, and this appeal followed. For the reasons which follow, we affirm in part, reverse in part, and remand this action for further proceedings.

On March 1, 1995, the plaintiff, Denise Mueller, filed the instant action against 14 physicians, North Suburban Clinic Ltd. (North Suburban), and Humana Hospital of Hoffman Estates (Humana). The plaintiff sought recovery against the physician-defendants for injuries she allegedly sustained as a consequence of their medical negligence. The liability of North Suburban and Humana was premised on the doctrine of respondeat superior in that the physician-defendants are alleged to have been their employees or agents at the time of the acts and omissions set forth in the plaintiff's complaint.

When her complaint was originally filed, the plaintiff attached her attorney's affidavit stating that he was unable to consult with a health care professional as required by section 2-622 prior to the expiration of the applicable statute of limitations. Thereafter, on May 30, 1995, the plaintiff filed her attorney's section 2-622 affidavit, attesting, inter alia, that he had consulted with a physician he believed to be knowledgeable in the issues relevant to the case who determined that there was a reasonable and meritorious cause for the filing of this action. Attached to the attorney's affidavit was a copy of the report issued by the physician with whom he had consulted. A number of the defendants filed motions to dismiss the plaintiff's complaint arguing that the physician's report did not comply with the requirements of section 2-622 of the Code. On September 8, 1995, prior to a hearing on the defendants' motions, the plaintiff voluntarily dismissed 10 of the physician-defendants and was granted until October 6, 1995, to file an amended section 2-622 affidavit and physician's report as to the remaining defendants.The plaintiff failed to file an amended affidavit and report within the time allowed in the court's order of September 8, prompting several of the defendants to again move for dismissal by reason of her failure to comply with the requirements of section 2-622 of the Code. On November 17, 1995, the plaintiff filed her amended section 2-622 affidavit and a "superseding" physician's report. Thereafter, certain of the defendants again moved for dismissal citing inadequacies in the physician's report. On February 6, 1996, the court struck the physician's report filed on November 17, and ordered the plaintiff to file a second amended report by March 12, 1996, which date was extended to April 9, 1996, by a subsequent order.

When the plaintiff failed to file the second amended report by April 6, the defendant, Peter Palermo, again moved for dismissal by reason of the plaintiff's failure to comply with section 2-622 of the Code. On the date that Palermo's motion came on for hearing, the plaintiff moved for and was granted leave to file her second amended physician's report. On that same date, Palermo's motion was denied and the defendants were ordered to answer or otherwise plead to the plaintiff's complaint.

The defendants, Manuel Perez, Palermo, and North Suburban, again moved for dismissal citing deficiencies in the plaintiff's latest section 2-622 report. The trial court granted the motions on August 15, 1996, but again granted the plaintiff leave to file an amended report.

After the plaintiff failed to file an amended report by September 26, 1996, the date specified in the court's order of August 15, Perez again moved to dismiss this action by reason of the plaintiff's failure to comply with section 2-622 of the Code. All remaining defendants, with the exception of Ellen Jansyn who was never served with summons, joined in Perez's motion.

On December 4, 1996, the trial court granted the plaintiff leave to file her amended section 2-622 report over the defendants' objection, noting, however, that there was no adequate excuse for the tardy filing. Thereupon, the parties, including the plaintiff, agreed to an immediate hearing as to the adequacy of the report. After entertaining argument on the issue, the trial court found that the physician's report failed to comply with the requirements of section 2-622 of the Code and dismissed the action with prejudice.

On December 30, 1996, the plaintiff filed a motion requesting that the court reconsider its dismissal order of December 4, or, in the alternative, grant the plaintiff leave to file yet another amended section 2-622 report. The trial court denied the plaintiff's motion, and this appeal followed.

Prior to addressing the merits of this appeal, we find it necessary to address our standard of review. The defendants argue that we are to apply an abuse of discretion standard to the trial court's determination that the physician's reports filed by the plaintiff failed to comply with the requirements of section 2-622 of the Code. To be sure, there are a number of reported decisions which so hold. See Jacobs v. Rush North Shore Medical Center, 284 Ill. App. 3d 995, 997, 673 N.E.2d 364 (1996); Cuthbertson v. Axelrod, 282 Ill. App. 3d 1027, 1034, 669 N.E.2d 601 (1996); Winters v. Podzamsky, 252 Ill. App. 3d 821, 827, 621 N.E.2d 72 (1993); Moss v. Gibbons, 180 Ill. App. 3d 632, 638, 536 N.E.2d 125 (1989). We readily acknowledge that such a deferential standard must be applied to our review of a trial court's determination to dismiss an action with prejudice after finding that the plaintiff has failed to comply with section 2-622 and also to its decision on whether to permit further amendment. McCastle v. Sheinkop, Ltd., 121 Ill. 2d 188, 192-94, 520 N.E.2d 293 (1987). However, we believe that our review of the issue of whether a physician's report complies with section 2-622 is de novo.

Section 2-622(g) of the Code provides that a plaintiff's failure to comply with the pleading requirements of section 2-622(a)(1) shall be "grounds for dismissal under section 2-619 [735 ILCS 5/2-619 (West 1994)]." 735 ILCS 5-2-622(g) (West 1994). An appeal from a section 2-619 dismissal raises the issue of whether the trial court's order is proper as a matter of law, and is, therefore, given a de novo review. Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 116-17, 619 N.E.2d 732 (1993).

On the merits of her appeal, the plaintiff argues that the trial court erred in finding that her physician's reports did not satisfy the requirements of section 2-622 of the Code. The defendants contend that the trial court correctly found that the physician's reports submitted by the plaintiff failed to comply with the statute because they are vague, conclusory, and fail to identify the particular conduct of each defendant which is alleged to have been a breach of the medical standard of care owed to the plaintiff.

Section 2-622 of the Code provides that the plaintiff's attorney or the plaintiff, if proceeding pro se, in any medical malpractice action must attach to her complaint both an affidavit certifying that she consulted with a qualified health care professional in whose opinion there is a reasonable and meritorious cause for the filing of the action, and a copy of that health professional's written report setting forth the reasons for his determination. 735 ILCS 5/2-622(a)(1) (West 1994); McCastle, 121 Ill. 2d at 190. In the event that multiple defen-dants are named in a single medical malpractice action, the statute requires that a separate health professional's written report shall be filed as to each defendant. 735 ILCS 5/2-622(b) (West 1994). However, a single report may satisfy the requirements of section 2-622 of the Code if it is sufficiently broad to cover multiple defendants, adequately discusses the deficiencies in the medical care rendered by each, and contains reasons in support of the Conclusion that a reasonable and meritorious cause exists for the filing of the action as against each of the defendants. Comfort v. Wheaton Family Practice, 229 Ill. App. 3d 828, 832, 594 ...


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