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Tykeesha Christmas, Special Administrator v. Dr. Donald W. Hugar

April 5, 2011

TYKEESHA CHRISTMAS, SPECIAL ADMINISTRATOR
ESTATE OF VERNICE CHRISTMAS,
PLAINTIFF-APPELLANT,
v.
DR. DONALD W. HUGAR, LTD., RONALD W. HUGAR, LORETTO HOSPITAL, AND T. MACK,
DEFENDANTS-APPELLEES.



Appeal from the of the Circuit Court of Cook County No. 06 L 5624 Honorable Eileen Mary Brewer Judge Presiding.

The opinion of the court was delivered by: Justice Connors

JUSTICE CONNORS delivered the judgment of the court, with opinion.

Justices Karnezis concurred in the judgment and opinion.

Justice Harris dissented, with opinion.

OPINION

Plaintiff Tykeesha Christmas appeals from the dismissal with prejudice of her medical malpractice complaint pursuant to section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 2008)) on the ground that the physician who authored a report in support of her complaint as required by section 2-622 of the Code of Civil Procedure (735 ILCS 5/2-622 (West 1998)) was not properly licensed. We affirm.

I. BACKGROUND

As relevant to this appeal, the facts of this case are straightforward. In 2004, Vernice Christmas underwent surgery for an ailment in her right foot. The surgery was performed by defendants Dr. Hugar and Dr. Mack, both Illinois-licensed podiatrists. Unfortunately, Vernice died about two weeks after the surgery, allegedly due to complications from the operation. Plaintiff, as administrator of Vernice's estate, filed the instant medical malpractice action against defendants in 2006.

As required by section 2-622 of the Code of Civil Procedure (735 ILCS 5/2-622 (West 1998)), plaintiff's complaint included an affidavit by her attorney stating that the attorney had consulted "with a currently practicing podiatric physician," who had "determined in a written report *** that there is a reasonable and meritorious cause for the filing of this action" against defendants. A copy of the report was also attached, but the author of the report was not named. The author of the report stated that it was his "professional opinion *** based on a reasonable degree of medical/podiatric certainty" that the cause of action against defendants had merit. Specifically, the author identified "substandard omissions/actions" by defendants that were "deviations from acceptable standard of care and served as significant contributing factors" in Vernice's death.

After the complaint was filed, the parties proceeded to discovery and litigated the case for about four years. However, in 2010, about three months before the trial was scheduled to begin, defendants conducted the deposition of Dr. Randal Wojciehoski, whom plaintiff had identified as an expert witness expected to testify at trial. As it turned out, Dr. Wojciehoski was the author of the 2006 report. However, defendants discovered during the deposition that Dr. Wojciehoski had not been licensed as a podiatrist at the time that he authored the report. Dr. Wojciehoski graduated as a doctor of podiatric medicine in 1986, and he later became a doctor of osteopathy in 1989. However, Dr. Wojciehoski allowed his podiatric license to lapse sometime around 1990, and from that point on he maintained only his professional licenses as an osteopathic physician and emergency physician. Dr. Wojciehoski mentioned during his deposition that his Wisconsin osteopathic license, as well as the corresponding licenses that he held in other states, allowed him to provide a full-scope practice that included podiatric medical services without the need for the additional podiatric license. Dr. Wojciehoski did not obtain a new podiatric license until shortly before the deposition in 2010, when he was retained as a defense expert for a podiatrist in a case unrelated to this one.

Less than two weeks after the deposition, defendants moved to dismiss the complaint under section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 2008)), arguing that plaintiff had failed to comply with section 2-622 because Dr. Wojciehoski was not a licensed podiatrist when he authored the report. Because a valid section 2-622 report is a statutory requirement for filing a medical malpractice action, defendants asserted that plaintiff's complaint must be dismissed. Plaintiff argued that Dr. Wojciehoski's license as an osteopathic physician satisfied the requirements of section 2-622 because under Wisconsin law, according to plaintiff, licensed osteopaths may practice podiatric medicine without obtaining a podiatric license.

Following full briefing and extensive oral arguments, the trial court found that plaintiff had not complied with section 2-622 and dismissed the complaint with prejudice. Plaintiff timely filed a notice of appeal, and this case is now before us.

II. ANALYSIS

This appeal presents two issues: (1) whether plaintiff complied with the statutory requirements for pleading a medical malpractice claim under section 2-622 of the Code of Civil Procedure (735 ILCS 5/2-622 (West 2006)); and (2) if not, whether dismissal of the complaint with prejudice was warranted under section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 2008)).

A. Compliance with Section 2-622 3

We initially examine whether plaintiff complied with the requirements of section 2-622, but we first must mention the current legal status of this section. Section 2-622 has been affected by several judicial decisions and legislative enactments, most recently in Lebron v. Gottlieb Memorial Hospital, 237 Ill. 2d 217, 250 (2010). See also O'Casek v. Children's Home & Aid Society of Illinois, 229 Ill. 2d 421, 424-25, 450 (2008). See generally Cookson v. Price, 239 Ill. 2d 339, 341-42 (2010) (explaining the effect of the various judicial actions and the legislative amendments to section 2-622). The legislature is in the process of reenacting section 2-622 as it existed before Lebron (see 97th Ill. Gen. Assem., House Bill 2887, 2011 Sess.; 97th

Ill. Gen. Assem., Senate Bill 1887, 2011 Sess.), but the legislation has not yet been passed as of the date of this appeal. Despite the convoluted procedural history of section 2-622, the specific language that is at issue in this appeal has never been altered, and so which version of the statute we refer to is immaterial. Although there are some textual differences between the version of section 2-622 as it currently stands and the version that existed prior to Lebron, the phrase "licensed in the same profession, with the same class of license" did not change and ...


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