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Lee v. Berkshire Nursing & Rehab Center, LLC

Court of Appeals of Illinois, First District, First Division

July 16, 2018

EARNEST LEE and MILDRED LEE, Plaintiffs-Appellants,
v.
BERKSHIRE NURSING & REHAB CENTER, LLC, d/b/a APERION CARE FOREST PARK, APERION CARE, INC., JUAN COBO, M.D., RUSH OAK PARK HOSPITAL, INC., d/b/a RUSH OAK PARK PHYSICIANS GROUP ADULT MEDICINE, NUCARE SERVICES CORPORATION, d/b/a ARIA POST ACUTE CARE, ARIA POST ACUTE CARE, LLC, HARIS HAMSAKUTTY, M.D., KRISHNA PATEL, M.D., DILIP PATEL, M.D., MIDTOWN PHYSICIANS, SC and LOYOLA UNIVERSITY MEDICAL CENTER, Defendants. (Rush Oak Park Hospital, Inc., d/b/a Rush Oak Park Physicians Group Adult Medicine, and Juan Cobo, M.D., Defendants-Appellees.)

          Appeal 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.

          OPINION

          HARRIS JUSTICE

         ¶ 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 reconsider.

         ¶ 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.

         ¶ 3 JURISDICTION

         ¶ 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).

         ¶ 5 BACKGROUND

         ¶ 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.

         ¶ 10 ANALYSIS

         ¶ 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 ...


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