Cookson v. Price
239 Ill. 2d 339
Ill.2010Background
- Cookson filed a two-count medical malpractice complaint on Oct 25, 2007 against Price and Institute of Physical Medicine and Rehabilitation.
- Plaintiff's attorney attached an affidavit stating inability to obtain a qualifying consultation before the statute of limitations but would file a written health professional's report within 90 days as allowed by 2-622(a)(2).
- On Jan 28, 2008, the attorney filed an affidavit and a written report by Dr. Jeffrey Kornriech (physician), not a physical therapy assistant.
- Defendants moved to dismiss, arguing the report must be authored by a health professional in the same class as the defendant (PTA).
- On Jul 18, 2008, Cookson amended with a new report by a physical therapy assistant, Jim Modglin, but defendants objected since this was more than 90 days after the first extension.
- Appellate court later reversed; this court later held Public Act 94-677 unconstitutional and void; statute reverted to prior version; case remanded to determine how the current version applies.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 2-622, as affected by Lebron, governs in this case. | Cookson seeks applicability of current standards. | Defendants urge application of the pre-Lebron framework. | Statute void; merits not reached; remand to apply current law. |
| Whether the appeal should be dismissed given the void statute. | Proceed under current procedural framework. | Discretion to dismiss pending valid statute. | Appeal dismissed; supervisory order to remand for current requirements. |
| Whether the appellate court should vacate and remand to determine current 2-622 requirements. | Remand appropriate to resolve proper reporting requirements. | Proceed under existing procedural posture. | Remanded to circuit court to vacate order and determine current 2-622 requirements. |
Key Cases Cited
- Lebron v. Gottlieb Memorial Hospital, 237 Ill.2d 217 (2010) (struck down Public Act 94-677; void in its entirety)
- O'Casek v. Children's Home & Aid Society of Illinois, 229 Ill.2d 421 (2008) (public act retroactivity limited to naprapaths added to list)
- People v. Gersch, 135 Ill.2d 384 (1990) (statutory changes revert to pre-amendment when unconstitutional)