Court of Appeals of Illinois, First District, First Division
from the Circuit Court of Cook County. No. 16 L 007561
Honorable John H. Ehrlich, Judge Presiding.
JUSTICE HARRIS delivered the judgment of the court, with
opinion.Presiding Justice Pierce and Justice Mikva concurred
in the judgment and opinion.
1 Plaintiffs-appellants, Earnest Lee and Mildred Lee, filed a
medical negligence complaint against defendants-appellees
along with several other entities and doctors stemming from
the time Earnest was under their respective care. At the time
the appellants filed their initial complaint, their attorney
attached an affidavit, alleging that, pursuant to section
2-622(a)(2) of the Code of Civil Procedure (735 ILCS
5/2-622(a)(2) (West 2016)), the attorney was unable to obtain
the requisite physician's report and would need a 90-day
extension. Appellants did not file the physician's report
and attorney affidavit within the 90 days. The day after the
90-day period expired, appellees moved to dismiss. At a
hearing a few days later, the trial court granted
appellees' motion to dismiss with prejudice. The circuit
court subsequently denied appellants' motion to
2 Appellants now appeal the dismissal of the two counts
brought against appellees to this court. They raise two
issues before us: (1) the circuit court abused its discretion
when it dismissed the two counts against appellees and (2)
the circuit court erred when it denied their motion to
reconsider. For the reasons stated below, we agree with
appellants that the circuit court abused its discretion, and
we therefore reverse the dismissal with prejudice. The issue
involving the motion to reconsider is therefore moot, and we
decline to consider it.
4 On November 29, 2016, the circuit court dismissed with
prejudice count V and count VI of appellants' fourth
amended complaint. These were the only counts directed
against appellees. On February 10, 2017, the trial court
denied appellants' motion to reconsider the dismissal
with prejudice. On May 12, 2017, the trial court found
"pursuant to Illinois Supreme Court Rule 304(a) that
there is no just cause to delay an appeal from this
court's orders of November 29, 2016, and February 10,
2017." We note that while the order of May 12 does not
strictly recite Illinois Supreme Court Rule 304(a) (eff. Mar.
8, 2016), its reference to Rule 304(a) and
"appealability" is sufficient to confer
jurisdiction on this court. In re Application of the Du
Page County Collector, 152 Ill.2d 545, 550-51 (1992)
(holding a reference to appealability sufficient to confer
appellate jurisdiction pursuant to Rule 304(a)). Accordingly,
this court has jurisdiction over this matter pursuant to
article VI, section 6, of the Illinois Constitution (Ill.
Const. 1970, art. VI, § 6) and Illinois Supreme Court
Rules 301 (eff. Feb. 1, 1994) and 304(a) (eff. Mar. 8, 2016).
6 Appellants filed their original complaint on July 29, 2016,
against Berkshire Nursing & Rehab Center, LLC, d/b/a
Aperion Care Forest Park, and Aperion Care, Inc. On August
22, 2016, appellants filed an amended complaint against the
appellees, Juan Cobo, M.D., and Rush Oak Park Hospital, Inc.,
d/b/a Rush Oak Park Physicians Group Adult Medicine. The
count against Cobo alleged medical negligence, while the
claim against Rush Oak alleged medical negligence/loss of
consortium. Appellants' attorney attached an affidavit to
the amended complaint, stating he was unable to obtain the
health professional's report required by section
2-622(a)(1) but it would be filed within 90 days. Appellants
filed a second amended complaint on August 26, 2016. The
second amended complaint added new parties but did not raise
any new allegations against appellees. A third amended
complaint was filed on September 13, 2016. This added more
defendants but no new allegations against the appellees. The
affidavit attached to the amended complaint was also attached
to the second and third amended complaints.
7 On September 30, 2016, appellants filed a fourth amended
complaint. This complaint dropped some defendants but also
added new ones. The allegations against the appellees
remained the same. An attorney affidavit attached to the
fourth amended complaint opined that appellants' attorney
was unable to obtain the required health professional's
report but one would be filed within 90 days.
8 On November 23, 2016 (91 days after the amended complaint
was filed), appellees Dr. Cobo and Rush Oak filed a motion to
dismiss pursuant to section 2-619 based on the failure of the
appellants to attach the health professional's report
within the required 90 days. The motion further noted the
two-year statute of limitation had expired. Appellees'
motion to dismiss was scheduled for a hearing on November 29,
2016. Appellants filed no response to the motion to dismiss,
but on the day of the hearing, they tendered a motion for an
extension of time to file the health professional's
report. The motion for an extension of time made several
claims. Appellants' counsel claimed that, prior to
leaving his old firm, he believed the medical records had
been transmitted to the medical professional for review. When
appellant's counsel later contacted the professional, he
was informed the records had never been received. Based on
this, counsel requested an additional 45 days to file the
report. The motion further noted several other defendants had
not yet appeared and answered. The November 29 order denied
the motion for extension of time and granted appellees'
motion to dismiss. The dismissal was with prejudice.
9 On December 29, 2016, appellants filed a motion to
reconsider the dismissal with prejudice. The motion claimed
the circuit court abused its discretion when it dismissed
appellants with prejudice. Attached to this motion was an
affidavit from appellants' counsel, which reiterated the
explanation contained in the motion for an extension of time.
Also attached to the motion to reconsider were a section
2-622 attorney affidavit and health professional's
report. The circuit court denied the motion to reconsider on
February 10, 2017. On May 10, 2017, the court granted
appellants' request for Rule 304(a) language and this
timely appeal followed.
11 In their first issue before this court, appellants argue
the circuit court erred in dismissing the two counts brought
against the appellees based on a failure to ...