Horlacher v. Cohen
96 N.E.3d 438
Ill. App. Ct.2018Background
- Barbara S. Horlacher (pro se) sued her dentist, William J. Cohen, for malpractice arising from treatment of lower right second molar (#31) and related dental injuries, asserting treatment dates around Sept. 2, 2008 and discovery in May 2013.
- Plaintiff filed successive complaints and amendments between May 2015 and Feb. 2016; the trial court repeatedly ordered her to attach the statutory reviewing-dentist report required by 735 ILCS 5/2-622(a)(1).
- Plaintiff submitted various affidavits and later claimed some x‑rays were missing from defendant’s production, invoking section 2-622(a)(3) (records exception) and seeking additional time to obtain a reviewing dentist’s written report.
- Defendant moved to dismiss under sections 2-615, 2-619 and 2-622, arguing plaintiff failed to timely attach the required written report and some claims were time‑barred.
- On June 1, 2016 the trial court dismissed the third amended complaint with prejudice for failure to comply with section 2-622; on Sept. 21, 2016 the court denied plaintiff’s motion to reconsider (plaintiff then appealed).
- On appeal the court affirmed: section 2-622 applies to pro se plaintiffs; plaintiff had multiple opportunities and did not timely file the written report or reasonably explain delay; the 90‑day safety-valve exceptions do not allow indefinite delay because of missing records.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether pro se plaintiff had to attach a reviewing‑dentist written report to the complaint under 735 ILCS 5/2-622(a)(1) | Horlacher argued she complied (or could rely on herself/the records exception) and later produced a report with her reconsideration motion | Cohen argued section 2-622 required a timely written report from a dentist and failure is grounds for dismissal | Held: Section 2-622 applies to pro se plaintiffs; written report from a same‑profession dentist must be attached to the affidavit filed with the complaint |
| Whether plaintiff could delay filing the report indefinitely because defendant allegedly lost initial x‑rays | Horlacher argued missing x‑rays meant the 90‑day clock never started and she therefore had unlimited time | Cohen argued the statute allows only a 90‑day extension under the records exception and plaintiff already received records in Aug. 2015 | Held: The statute’s exceptions only allow a 90‑day extension; missing records do not create an indefinite period; plaintiff’s delay (months) was untimely |
| Whether the complaint was time‑barred or subject to exceptions (statute of limitations/repose, fraudulent concealment) | Horlacher contended discovery occurred May 30, 2013 and suit was timely filed within limitations or saved by concealment | Cohen argued limitations/repose and failure to plead dates for certain teeth barred claims | Held: Court did not need to resolve these alternate defenses because dismissal for failure to comply with section 2-622 was a proper basis to affirm |
| Whether the trial court abused its discretion by denying plaintiff’s motion to reconsider after she attached a reviewing report to that motion | Horlacher submitted Dr. Steinberg’s written report with the motion and argued it constituted newly discovered evidence | Cohen argued the report was offered too late and plaintiff gave no reasonable explanation for the delay after multiple chances | Held: Denial affirmed; the report was not shown to be newly discovered with a reasonable explanation and the court did not abuse its discretion |
Key Cases Cited
- People v. Johnson, 237 Ill.2d 81 (affirmation may be upheld on any basis supported by the record)
- Sullivan v. Edward Hospital, 209 Ill.2d 100 (purpose of section 2-622 is to reduce frivolous malpractice suits at the pleading stage)
- Bernier v. Burris, 113 Ill.2d 219 (legislative history supports scope of section 2-622 to include nonphysician health professionals)
- McCastle v. Mitchell B. Sheinkop, M.D., Ltd., 121 Ill.2d 188 (trial court discretion regarding dismissal for noncompliance with affidavit/report requirements)
- State of Illinois ex rel. Pusateri v. Peoples Gas Light & Coke Co., 2014 IL 116844 (statutory interpretation principles)