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Fox v. Gauto

Court of Appeals of Illinois, Fifth District

September 5, 2013

RICKIE FOX and RUTH FOX, Plaintiff-Appellees,
v.
SUZANNE GAUTO, Executor of the Estate of Nelson Gauto, Deceased, Defendant-Appellant.

Held[*]

In an appeal involving three certified questions arising from a medical malpractice action in which plaintiffs initially filed a complaint and a certificate of merit stating that there was no meritorious basis for the claim, and six months later sought to file an amended complaint and certificate, the appellate court answered the questions by first stating that the “prejudice to the opposing party” standard, rather than the “good cause” standard, should be applied in determining whether the amendments should be allowed, then stating that the question as to whether the trial court had the discretion to find “good cause” for filing a late amended certificate was rendered moot by the finding that the “prejudice to the opposing party” standard applied, and thirdly stating that the trial court had the discretion to find “no prejudice” to defendant from the late amendments.

Appeal from the Circuit Court of Williamson County, No. 10-L-122; the Hon. Brad K. Bleyer, Judge, presiding.

Charles E. Schmidt, of Brandon, Schmidt & Goffinet, of Carbondale, for appellant.

John Womick, of Womick Law Firm, Chtrd., of Herrin, for appellees.

Panel JUSTICE STEWART delivered the judgment of the court, with opinion. Justices Wexstten and Cates concurred in the judgment and opinion.

OPINION

STEWART, JUSTICE.

¶ 1 This interlocutory appeal, brought pursuant to Illinois Supreme Court Rule 308 (eff. Feb. 26, 2010), arises from a medical malpractice case filed by the plaintiffs, Rickie Fox and Ruth Fox. The questions certified by the circuit court are related to the statutory requirement that a medical malpractice complaint include an affidavit of merit and a doctor's report. Specifically, section 2-622(a)(1) of the Code of Civil Procedure (the Code) requires that in any action alleging medical malpractice, the plaintiffs must file an affidavit attached to the complaint that states that they have or their attorney has consulted with a health professional in whose opinion there is a "reasonable and meritorious cause" for the filing of the action. 735 ILCS 5/2-622(a)(1) (West 2010). In addition, section 2-622(a)(1) requires the plaintiffs to file the written report of the health professional along with the complaint and affidavit of merit.

¶ 2 The circuit court certified three questions of law related to section 2-622 on which it found that there were substantial grounds for a difference of opinion and that the answers to the questions might materially advance the termination of the litigation. The certified questions are as follows:

"A. Where plaintiff files a Complaint with Certificate of Merit stating there is no meritorious basis for filing a medical malpractice claim, and then nearly six (6) months later seeks to file an Amended Complaint and an Amended Certificate of Merit disclosing the basis for the 'erroneous' certificate, should the Court apply the 'good cause' standard for late filing of a certificate pursuant to Section 2-622 of the Code of Civil Procedure, or the 'prejudice to opposing party' standard for amending a Complaint in determining whether to allow the filing of the Amended Complaint and the new Certificate of Merit?
B. Where plaintiff files a Complaint with Certificate of Merit stating there is no meritorious basis for filing a medical malpractice claim, and then nearly six (6) months later, seeks to file an Amended Complaint and a new Certificate of Merit asserting a meritorious claim, does the Trial Court have discretion to find 'good cause' to permit the late filing of a new Certificate of Merit under the provisions of the Code of Civil Procedure, Section 2-622?
C. Where plaintiff files a Certificate of Merit stating there is no meritorious basis for filing a medical malpractice claim, and then nearly six (6) months later seeks to file an Amended Complaint and Amended Certificate of Merit asserting a meritorious claim, does the Court have discretion to find 'no prejudice' to the defendant to permit the filing of an amendment under those circumstances?" (Emphasis in original.)

¶ 3 We granted the defendant's request for an interlocutory appeal for this court to address the circuit court's certified questions of law. We begin our discussion of the certified questions with a brief outline of the procedural history leading up to the circuit court certifying the questions.

¶ 4 BACKGROUND

¶ 5 When the plaintiffs filed their medical malpractice complaint, the complaint included the affidavit of their attorney that is required by section 2-622 of the Code. The plaintiffs' attorney stated in his affidavit that a health professional "has determined in a written report, a copy of which is attached, that there is a reasonable and meritorious cause for the filing of such action." A doctor's report was attached to the attorney's affidavit that was authored by Dr. M. V. Altug. Contrary to the attorney's affidavit, however, Dr. Altug concluded in his report as follows: "By the review of the pathology reports and the surgical procedure records, I can not see any management problems in this case."

¶ 6 The defendant moved to dismiss the plaintiffs' complaint on the ground that Dr. Altug's report did not satisfy the requirements of section 2-622 of the Code because Dr. Altug did not opine that there is a "reasonable and meritorious cause" for the filing of the action. Instead, he did "not see any management problems in this case." After the defendant moved to dismiss the plaintiffs' complaint, the plaintiffs filed a motion for leave to amend their complaint. Specifically, the plaintiffs sought leave to amend their complaint to attach a new report from a different physician, Dr. Ralph Kelley. In his report, Dr. Kelley opined that, to a reasonable degree of medical certainty, the plaintiffs had a meritorious cause of action. The defendant objected to the motion for leave to amend the complaint with this new report.

¶ 7 The circuit court denied the plaintiffs' request to amend their complaint to attach Dr. Kelley's report and granted the defendant's request to dismiss the plaintiffs' complaint with prejudice. In its docket entry dismissing the complaint, the court wrote that the "defendant in the instant case would clearly be prejudiced if the amended complaint were allowed." The court held that section "2-622 is not so broad as to allow the amendment in this case."

¶ 8 The plaintiffs filed a motion to reconsider the dismissal of their complaint. The plaintiffs' attorney stated in an affidavit attached to the motion to reconsider that he had initially consulted with Dr. Altug concerning the facts of the case and that Dr. Altug indicated that he believed that "there was a violation of the standard of care." Based on this consultation, the plaintiffs' attorney submitted a draft of a report to Dr. Altug. However, when Dr. Altug reviewed medical records relevant to the plaintiffs' claim of malpractice, either he did not have all of the medical records that were relevant to the plaintiffs' claim or he overlooked some of the relevant medical records. After reviewing only part of the medical records, he concluded that "there had been proper management, " and he prepared a report consistent with this conclusion. The plaintiffs' attorney stated in his affidavit that this report was "accidently filed" with the complaint. The plaintiffs' attorney explained that he was out of town for depositions in an unrelated case when Dr. Altug delivered his report to his office. The attorney, believing that the report was consistent with his previous consultation with the doctor, told his assistant to file the report along with the complaint "based on the false assumption that the report was the one which had been sent to Dr. Altug in draft form."

¶ 9 Sometime after the complaint was filed, Dr. Altug conducted another review of all of the medical records that were relevant to the plaintiffs' medical malpractice claim, including the records he did not previously review. He then came to the conclusion that there was a violation of the appropriate standard of care. The plaintiffs' motion to reconsider included the affidavit of Dr. Altug in which he states, "[A]fter having reviewed all the records it is my opinion, to a reasonable degree of medical certainty, that a meritorious cause of action exists against Dr. Gauto pertaining to the care he provided to Mr. Fox."

¶ 10 The plaintiffs asked the court to reconsider the dismissal with prejudice. In their memorandum of law in support of the motion to reconsider, the plaintiffs argued that the court "should reconsider its order and allow the amendment by the filing of one of the two correct reports of a healthcare professional." The circuit court agreed and entered an order granting the motion to reconsider as follows: "The [plaintiffs'] Motion to Reconsider is hereby GRANTED, the Attorney Affidavit and Health Professional Report executed in compliance with 735 ILCS 5/2-622 are hereby filed instanter."

¶ 11 The defendant then filed a motion requesting the circuit court, pursuant to Rule 308, to certify the three questions of law quoted above. The circuit court certified the questions, and we granted the defendant's application for this interlocutory appeal to answer the certified questions.

¶ 12 DISCUSSION

¶ 13 Because the appeal involves certified questions of law pursuant to Supreme Court Rule 308, our review is de novo. In re M.M.D., 213 ...


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