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Giegoldt v. Condell Medical Center

April 04, 2002

VIRGINIA GIEGOLDT, PLAINTIFF-APPELLANT,
v.
CONDELL MEDICAL CENTER, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Lake County. No. 00-L-101 Honorable John R. Goshgarian, Judge, Presiding.

The opinion of the court was delivered by: Justice Byrne

Released for publication May 1, 2002.

VIRGINIA GIEGOLDT, PLAINTIFF-APPELLANT,
v.
CONDELL MEDICAL CENTER, DEFENDANT-APPELLEE.

Appeal from the Circuit Court of Lake County. No. 00-L-101 Honorable John R. Goshgarian, Judge, Presiding.

The opinion of the court was delivered by: Justice Byrne

PUBLISHED

 Plaintiff, Virginia Giegoldt, appeals the circuit court's order dismissing her complaint against defendant, Condell Medical Center, because she failed to comply with section 2--622 of the Code of Civil Procedure (735 ILCS 5/2--622 (West 2000)). Plaintiff contends that (1) she did not have to comply with section 2--622 because her complaint alleged simple negligence rather than healing art malpractice; (2) the documents she submitted complied with the statute; and (3) the court erred in denying her leave to amend her complaint to allege res ipsa loquitur.

Plaintiff's original complaint alleged that on July 2, 1998, she was a patient at defendant hospital. Plaintiff had just undergone surgery and "was not able to care for herself in any way." Knowing her condition, defendant undertook her custody and control. Defendant failed to closely monitor plaintiff as a post-surgical patient, failed to put bed rails up while plaintiff was sleeping, and failed to secure plaintiff with bed straps. As a result of defendant's negligent acts, plaintiff fell out of bed, fracturing her back.

Defendant moved to dismiss, arguing that plaintiff did not comply with section 2--622. Thereafter, plaintiff filed an "affidavit of plaintiff's attorney" and a designation of opinion witnesses pursuant to Supreme Court Rule 213 (177 Ill. 2d Rs. 213(f), (g)). The attorney's affidavit states that he consulted with a health care professional who had determined that "there is a reasonable and meritorious cause for the filing of such action." The affidavit states that the reviewing health professional "is a nurse licensed to practice medicine in all branches." The Rule 213 notice named as potential opinion witnesses Dr. Marvin Primack and Mary Jean Kelley and attached their curricula vitae.

On May 30, 2000, the trial court continued the motion to dismiss, giving plaintiff until July 14 to comply with section 2--622. After a further continuance, plaintiff filed the joint affidavit of her attorney and Kelley, a registered nurse. The affidavit stated in essence that Kelley was qualified to render an opinion on the merits of the case and after reviewing relevant materials had concluded that plaintiff had a "reasonable and meritorious cause of action." Defendant renewed its motion to dismiss, arguing that section 2--622 required that the reviewing health care professional be a physician. On August 10, 2000, the court granted the motion and dismissed the cause without prejudice, allowing plaintiff 30 days to replead.

On September 19, 2000, nine days after the court-imposed deadline, plaintiff filed a purported routine motion for leave to file an amended complaint. The proposed amended pleading made the same allegations as the original complaint and had attached an "Affidavit of Merit" from Dr. James Herron. The affidavit states in its entirety as follows:

"1. That the cause of action is grounded in the malpractice against the agents of Condell Memorial Hospital.

2. That I, Dr. James Herron practice and have practiced within the same area of health care that is at issue in this action.

3. That I have determined, after review of relevant materials, that there is a reasonable and ...


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