Appeal from the Circuit Court of McHenry County. No. 11-LA-207 Honorable Michael T. Caldwell, Judge, Presiding.
The opinion of the court was delivered by: Justice Schostok
JUSTICE SCHOSTOK delivered the judgment of the court, with opinion. Justices Hutchinson and Birkett concurred in the judgment and opinion.
¶ 1 At issue in this appeal is whether the dismissal of the medical malpractice complaint that plaintiff, Cameron Stoelting, filed against defendant, Steven J. Betzelos, was properly dismissed with prejudice when plaintiff's attorney failed to file an attorney affidavit as required by section 2-622 of the Code of Civil Procedure (Code) (735 ILCS 5/2-622 (West 1994))*fn1 and the court believed that it had no discretion to grant plaintiff additional time to file the necessary document. For the reasons that follow, we determine that dismissal with prejudice was improper. Accordingly, we reverse and remand.
¶ 2 On June 1, 2011, plaintiff filed her medical malpractice complaint, alleging that defendant, a dentist, committed various acts and omissions that constituted medical malpractice. Specifically, plaintiff alleged that defendant misdiagnosed plaintiff's condition, broke an endodontic file in plaintiff's first molar, failed to evaluate a post-operative radiograph, failed to timely refer plaintiff to a specialist when such a referral was needed, failed to appropriately treat plaintiff's condition, and failed to obtain proper informed consent. Plaintiff alleged that, as a proximate result of these acts and omissions, she suffered economic and non-economic damages. Attached to plaintiff's complaint was the report of Dr. James S. Wasilewski, a dentist who attested that defendant was negligent in treating plaintiff. Although plaintiff's complaint is signed by plaintiff's attorney, her attorney did not file with plaintiff's complaint an attorney affidavit as required by section 2-622 of the Code.
¶ 3 On November 16, 2011, defendant moved to dismiss plaintiff's medical malpractice complaint (see 735 ILCS 5/2-619 (West 2010)). Citing section 2-622(g) of the Code (735 ILCS 5/2-622(g) (West 1994)), which provides that "[t]he failure to file a certificate required by this Section shall be grounds for dismissal under Section 2-619,"*fn2 defendant claimed that plaintiff's medical malpractice complaint must be dismissed because, among other things, she did not attach to her complaint an attorney affidavit. Defendant also asserted that, unless plaintiff could establish good cause for her failure to file an attorney affidavit, the dismissal should be with prejudice.
¶ 4 In answer to defendant's motion to dismiss, plaintiff claimed that she attempted in good faith to comply with the requirements of section 2-622 of the Code, that her attorney's signature on the complaint satisfied the attorney affidavit requirement of section 2-622, and that, if an attorney signature on the complaint was not sufficient, then the court should allow her to file an attorney affidavit. No attorney affidavit was attached to plaintiff's answer.
¶ 5 Defendant filed a reply, stating that plaintiff's counsel's mere signature on the medical malpractice complaint was not sufficient to meet the attorney affidavit requirement of section 2-622 of the Code. Moreover, defendant asserted that, even if it were, the attorney affidavit requirement still was not satisfied, as neither the complaint nor the doctor's report contained the information that needed to be contained in an attorney affidavit. Because plaintiff failed to establish good cause for why she did not file an attorney affidavit along with her complaint and the doctor's report, defendant reiterated, plaintiff's complaint should be dismissed with prejudice.
¶ 6 Plaintiff did not appear at the hearing on the motion to dismiss, and the trial court granted the motion to dismiss with prejudice. Plaintiff moved to reconsider, arguing that her counsel could not appear at the hearing on the motion to dismiss because counsel was in another courtroom attending to another matter. Attached to her motion to reconsider was an attorney affidavit.
¶ 7 At the hearing on the motion to reconsider, a new attorney appeared for plaintiff. This attorney urged the court to vacate the dismissal with prejudice and allow plaintiff to file an attorney affidavit or dismiss the complaint without prejudice so that plaintiff could refile the complaint within one year (see 735 ILCS 5/13-217 (West 2010)). Defendant argued that plaintiff's motion to reconsider, which did not suggest in any way that the court erred when it granted the motion to dismiss with prejudice, was not a proper motion to reconsider and that it was too late for plaintiff to file an attorney affidavit. Defendant claimed that, if plaintiff wanted to file an attorney affidavit, she should have done so when she filed the answer to defendant's motion to dismiss.
¶ 8 The trial court denied the motion to reconsider. In doing so, the court stated:
"[T]he provisions of this statute tend to be somewhat harsh. But the fact of the matter is this statute requires, A, that the affidavit and the report be filed with the complaint, or, B, within a 90-day period following the filing of the complaint.
The report was filed but the affidavit wasn't. And if you look at the statute, it requires the filing of both.
This isn't a situation where counsel simply forgot it. One of the problems with the response is he responded to the substance of the motion by saying I already signed the complaint. I don't have to sign it again. And my ruling *** in that ...