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Hobbs v. Lorenz

March 14, 2003

BRIAN L. HOBBS, PLAINTIFF-APPELLANT,
v.
MARK LORENZ AND STANLEY FRONCZAK, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Du Page County. No. 01-L-718 Honorable Hollis L. Webster, Judge, Presiding.

The opinion of the court was delivered by: Presiding Justice Hutchinson

Released for publication March 18, 2003.

BRIAN L. HOBBS, PLAINTIFF-APPELLANT,
v.
MARK LORENZ AND STANLEY FRONCZAK, DEFENDANTS-APPELLEES.

Appeal from the Circuit Court of Du Page County. No. 01-L-718 Honorable Hollis L. Webster, Judge, Presiding.

The opinion of the court was delivered by: Presiding Justice Hutchinson

PUBLISH

Plaintiff, Brian L. Hobbs, sued defendants, Mark Lorenz, M.D., and Stanley Fronczak, M.D., for medical malpractice. On defendants' motion (see 735 ILCS 5/2-619(a)(9) (West 2000)), the trial court dismissed the complaint with prejudice because it did not comply with section 2-622 of the Code of Civil Procedure (the Code) (735 ILCS 5/2-622 (West 2000)). On appeal, plaintiff contends that (1) the trial court erred when it assumed that it had to dismiss the complaint for noncompliance with section 2-622, and (2) even if the court recognized that dismissal was discretionary, the court abused its discretion when it dismissed the complaint. We affirm.

Plaintiff's complaint, filed in Cook County on February 2, 2001, alleged that, on or about February 5, 1999, defendants performed surgery on plaintiff, who was suffering from a herniated disc. Plaintiff was in defendants' care until May 1999. On or about August 1, 1999, plaintiff learned that his vagus nerve was damaged. Plaintiff further alleged that he suffered serious and permanent injuries as a result of defendants' deviation from the standard of care before, during, and after the surgery. A health professional's report was not attached to the complaint. However, the complaint did include an affidavit from plaintiff's attorney, David Baum, stating that he had been unable to consult with a health professional before the limitations period expired.

On plaintiff's motion, the case was transferred to Du Page County. On July 31, 2001, defendants moved to dismiss the complaint, citing section 2-622(g) of the Code, which provides that the failure to file a section 2-622 certificate shall be grounds for dismissal. See 735 ILCS 5/2-622(g) (West 2000). Defendants observed that, although the 90-day extension under section 2-622(a)(2) had expired on May 8, 2001, plaintiff had not filed the required report from a health professional or sought an extension. In his response, plaintiff sought leave to amend his complaint to attach an updated affidavit pursuant to section 2-622(a)(3) to notify the court of the current status of plaintiff's medical records request.

In the accompanying affidavit prepared pursuant to section 2-622(a)(3) of the Code, Baum asserted that on February 7, 2001, he asked Northwestern Memorial Hospital for records of the treatment plaintiff received after defendants treated him but that the hospital was still searching for the records. Baum also stated that on July 18, 2001, he had sent defendants' counsel a notice to produce (see 166 Ill. 2d R. 237(b)) copies of plaintiff's medical records but that defendants had not complied. Plaintiff sought leave to amend his complaint to include this information so that he could file the health professional's affidavit within 90 days after he received the records.

Defendants replied that plaintiff could not now invoke section 2-622(a)(3) of the Code because his original complaint did not inform the trial court that plaintiff was awaiting the receipt of the records he needed from defendants. Defendants observed that, when plaintiff filed his complaint, he could not have invoked section 2-622(a)(3) because he did not send defendants the notice to produce until five months later. Defendants also noted that plaintiff could have obtained the pertinent records in ample time simply by requesting them directly from defendants under section 8--2003 of the Code (735 ILCS 5/8--2003 (West 2000)).

After hearing arguments, the trial court granted defendants' motion and dismissed the complaint with prejudice. The trial court commented, "Based upon the facts that I am now aware of, if I did not grant this [2-619] motion to dismiss, that would not be enforcing [2-622] at all." The trial court added:

"I am aware of no case law that would allow a plaintiff to completely fail to comply with the plain language of [2-622] based upon the procedural history of this case. There were opportunities for you to request extensions and now at this late date I simply cannot grant any further time *** for you to go out and find a report that could have been done [sic] prior to the filing of the suit.

Based upon my review of the procedure, based upon the oral argument, based upon the plain language of [2-622], I do grant the motion to dismiss by both *** ...


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