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Garrison v. Choh

September 30, 1999

JUDY GARRISON, INDIVIDUALLY, AND AS INDEPENDENT ADMINISTRATOR OF THE ESTATE OF BETTY GARRISON,
PLAINTIFF-APPELLANT, COURT OF COOK COUNTY V.
JOONG H. CHOH, M.D., PAUL BATTY, M.D., ELGIN CARDIAC SURGERY, LTD., AN ILLINOIS CORPORATION, SHERMAN HOSPITAL, AN ILLINOIS CORPORATION, MARSHALL GOLDIN, M.D., CARDIOVASCULAR SURGICAL ASSOCIATES, S.C., AN ILLINOIS CORPORATION, RUSH-PRESBYTERIAN ST. LUKE'S MEDICAL CENTER, AN ILLINOIS CORPORATION, AND DOUGLAS TRAVIS, M.D.,
DEFENDANTS-APPELLEES.



The opinion of the court was delivered by: Justice Gordon

Appeal from the Circuit Honorable Frank Orlando, Judge Presiding.

The plaintiff, Judy Garrison, individually and as independent administrator of the estate of Betty Garrison, deceased, filed two medical malpractice actions, subsequently consolidated, against the named defendants. On the eve of trial, defendant Douglas Travis, M.D., Betty's primary care physician, filed a motion in limine seeking to exclude all evidence pertaining to his treatment of Betty prior to July 30, 1991, arguing that the plaintiff's amended complaint did not reference such conduct. (The health professional's report appended to the attorney's affidavit attached to the amended complaint, as required by section 2-622 of the Code of Civil Procedure (the Code) (735 ILCS 5/2-622 (West 1992)), identified conduct by Travis that occurred during the three months preceding July 30, 1991 and set forth an opinion relative to that treatment.) The trial court granted the motion in limine, and the matter proceeded to trial. Thereafter, the jury returned a verdict in favor of all of the defendants, and the trial court entered judgment on the verdict. The plaintiff appeals the trial court's ruling with respect to defendant Travis. The sole issue she raises is whether a written report prepared by a health professional and attached to the section 2-622 affidavit (735 ILCS 5/2-622 (West 1992)) constitutes part of the complaint. *fn1 This issue is one of first impression. For the reasons discussed below, we find that the health professional report and the section 2-622 affidavit to which it is attached do not constitute part of the complaint.

BACKGROUND FACTS

Betty Garrison, the decedent, died on August 2, 1991 at the age of 45 following surgery to repair a dissecting aneurysm in her ascending aorta. Betty's daughter, Judy, filed suit against defendant Travis on August 2, 1993, alleging that "[o]n or about July 30, 1991, and thereafter" Travis rendered medical treatment to Betty who was experiencing chest pain. The complaint alleged that Travis hospitalized Betty at Sherman Hospital on July 30, 1991 and diagnosed a ruptured aneurysm of the ascending aorta on July 30, 1991. (Betty was transferred to another hospital where surgery was performed upon her by another surgeon on August 1, 1991 and where she subsequently died on August 2, 1991.) The complaint alleged, among other things, that Travis failed to take a reasonable history of Betty upon her admission to the hospital, failed to reasonably perform a physical examination upon admission to the hospital and periodically thereafter, failed to reasonably monitor Betty's medical condition, failed to perform necessary emergency surgery to treat the leaking aneurysm, failed to arrange for emergency transfer to another hospital, and failed to inform Betty that he was not qualified to manage her condition. The complaint further alleged that, as a result of Travis' negligence, Betty suffered severe complications of heart and lung disease that resulted in her death. Plaintiff's complaint did not have attached to it the attorney's certification and health professional report required by section 2-622 of the Code. 735 ILCS 5/2-622 (West 1992).

On October 1, 1993, plaintiff filed an amended complaint pursuant to leave of court. That complaint was identical to that which was filed on August 1, 1993 except that attached thereto was the attorney affidavit and health professional report. The attorney affidavit averred that a physician and surgeon licensed to practice medicine and knowledgeable concerning the issues in the case reviewed the medical records and that there was "a reasonable and meritorious cause for filing suit against Douglas Travis." Referenced in the affidavit and attached thereto was a letter from the physician. In his letter the physician stated that he had reviewed the medical records relative to Betty Garrison and had concluded that a reasonable and meritorious basis existed for the filing of the complaint. The physician's letter also stated the following:

"I base this opinion upon the facts that Dr. Travis saw Betty Garrison on April 26, 1991, May 9, 1991, and May 28, 1991, during which times she complained of chest pain and severe hypertension which was negligently evaluated by history, physical examination and testing. When Mrs. Garrison was admitted to the hospital, there was a negligent delay in evaluating her persistent chest pains. Mrs. Garrison was admitted to Sherman Hospital on July 23, 1991, at which time she had a chest xray [sic]. She had a second chest xray [sic] on July 25, 1991 and an xray [sic] of her esophagus and stomach on July 27, 1991. The delay in evaluation and diagnosis caused and contributed to the death of the patient."

During discovery, plaintiff's experts, who were deposed by Travis, discussed and criticized Travis's treatment of Betty on April 26, 1991, May 28, 1991 and July 23, 1991. Defendant's answers to plaintiff's Supreme Court Rule 220 interrogatories (134 Ill. 2d R. 220) showed that the defendant's experts would rebut the opinions of plaintiff's experts regarding the defendant's care of Betty prior to and subsequent to her hospitalization at Sherman. On March 19, 1997, on the eve of trial, Travis filed a motion in limine seeking to exclude at trial any direct or indirect reference to his treatment of Betty prior to July 30, 1991. Travis argued that exclusion was proper because the plaintiff's complaint alleged only that he was negligent "'on July 30, 1991 and thereafter.'" He contended that the plaintiff could not amend her complaint to include treatment prior to July 30, 1991 because the amendment would violate the statute of limitations and repose since pre- July 30, 1991 conduct did arise out of the same transaction or occurrence as the post-July 30, 1991 conduct. The trial court granted Travis's motion and denied plaintiff leave to file an amended complaint to include pre-July 30, 1991 conduct by Travis. The court allowed the plaintiff to make an offer of proof regarding evidence of treatment rendered to Betty by Travis prior to July 30, 1991. The jury returned a verdict against the plaintiff and in favor of all of the defendants including Travis.

ANALYSIS

The instant case raises the question of whether a written report of a health professional appended to a section 2-622 affidavit which is attached to a medical malpractice complaint is considered part of the complaint. *fn2 We hold that it does not.

Section 2-622 of the Code requires that a medical malpractice plaintiff attach to the complaint an attorney affidavit (or affidavit of the plaintiff if the plaintiff is pro se), declaring:

"That the affiant has consulted and reviewed the facts of the case with a health professional ***; 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 [sic] filing of such action." 735 ILCS 5/2-622(a) (West 1992).

Section 2-622(a) further provides:

"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, but information which would identify the reviewing health professional may be deleted from the copy so attached." 735 ILCS 5/2-622(a) (West 1992).

The plaintiff contends that the health professional report attached to her medical malpractice complaint should be treated as an exhibit to the complaint for purposes of section 2-606 of the Code which provides that exhibits are considered to be part of a complaint. See 735 ILCS 5/2-606 (West 1996). She contends that the health ...


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