Christmas v. Dr. Donald W. Hugar, Ltd.
949 N.E.2d 675
Ill. App. Ct.2011Background
- Vernice Christmas underwent foot surgery in 2004 by podiatrists Dr. Hugar and Dr. Mack; Vernice died ~2 weeks later from alleged surgical complications.
- Tykeesha Christmas, as special administrator, filed a 2006 medical malpractice action against the podiatrists.
- Plaintiff attached a section 2-622 affidavit with a report authored by a reviewing health professional who did not name himself; the author was not licensed as a podiatrist at the time.
- The author, Dr. Wojciehoski, was licensed as a podiatrist in 1986 but did not hold a podiatric license at the 2006 time of the report; he later obtained a podiatry license in 2010.
- Defendants moved to dismiss under section 2-619 arguing noncompliance with 2-622; the trial court dismissed with prejudice.
- The appellate court affirmed the dismissal, holding that 2-622 requires the report author to hold a current podiatric license and the Wisconsin osteopathic license was insufficient.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiff complied with section 2-622 | Christmas argues the Wisconsin DO license sufficed under 2-622. | Hugar/others contend only a current podiatric license satisfies 2-622. | No compliance; report author not licensed podiatrist in 2006. |
| Whether dismissal with prejudice was proper under section 2-619 | Court should allow amendment; harsh to dismiss given lack of prejudice. | Noncompliance justifies dismissal; four-year litigation not a basis to amend here. | Yes, dismissal with prejudice affirmed; amendment would not cure the defect. |
Key Cases Cited
- Lebron v. Gottlieb Memorial Hospital, 237 Ill.2d 217 (2010) (discusses 2-622 amendments and statutory status)
- Dolan v. Galluzzo, 77 Ill.2d 279 (1979) (requires licensing in the same profession to testify on standard of care)
- McCastle v. Mitchell B. Sheinkop, M.D., Ltd., 121 Ill.2d 188 (1987) (trial court discretion on 2-622 dismissals)
- Apa v. Rotman, 288 Ill.App.3d 585 (1997) (liberal pleading and amendment principles in 2-622 context)
- Crull v. Sriratana, 388 Ill.App.3d 1036 (2009) (distinguishes when amendment can cure 2-622 defect)
- Cammon v. West Suburban Hospital Medical Center, 301 Ill.App.3d 939 (1998) (amendment guidance in 2-622 context)