2018 IL App (1st) 171344
Ill. App. Ct.2019Background
- Plaintiffs Earnest and Mildred Lee sued multiple medical providers for malpractice arising from care between August 5–25, 2014; amended complaints naming Dr. Cobo and Rush Oak Park were filed August 22, 2016.
- Under 735 ILCS 5/2-622(a)(2) plaintiffs’ counsel attached an affidavit saying a medical professional’s report could not be obtained before filing and would be furnished within 90 days (invoking the §2-622 extension because the statute of limitations was near).
- Plaintiffs did not file the required health professional report within 90 days; appellees (Dr. Cobo and Rush Oak) moved to dismiss under §2-619 on November 23, 2016 (91 days after filing).
- On November 29, 2016 the circuit court granted the motion and dismissed counts against Dr. Cobo and Rush Oak with prejudice; plaintiffs moved to reconsider and attached the previously missing affidavit and report, but the trial court denied reconsideration.
- The appellate court reviewed whether dismissing with prejudice for failure to timely file a §2-622 report was an abuse of discretion, noting the statutory purpose to screen frivolous claims but also to permit meritorious claims to proceed.
- The court observed the trial court had granted post-deadline extensions for other defendants’ reports, and concluded the one-day-late dismissal with prejudice converted the 90-day procedural allowance into a hard bar inconsistent with the statute’s intent.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether dismissal with prejudice for failure to file a §2-622 report within 90 days was proper | Lee: dismissal with prejudice was an abuse of discretion; plaintiffs sought a short extension and ultimately produced the report | Cobo/Rush Oak: plaintiffs failed to comply with §2-622; dismissal with prejudice warranted, record insufficient to review trial court discretion | Reversed: dismissal with prejudice was an abuse of discretion; case remanded and dismissal should have been without prejudice |
| Whether the denial of plaintiffs’ motion to reconsider should be reviewed | Lee: trial court abused discretion and denial of reconsideration should be addressed | Cobo/Rush Oak: argue procedural sufficiency and record defects support affirmance | Court declined to reach because reversal of dismissal rendered the reconsideration issue moot |
Key Cases Cited
- Porter v. Decatur Memorial Hospital, 227 Ill. 2d 343 (discusses de novo review of §2-619 dismissals)
- McCastle v. Mitchell B. Sheinkop, M.D., Ltd., 121 Ill. 2d 188 (§2-622 failure does not automatically mandate dismissal with prejudice; purpose of report requirement)
- Schroeder v. Northwest Community Hospital, 371 Ill. App. 3d 584 (statute §2-622 meant to deter frivolous claims but be liberally construed)
- Walter v. Hill, 156 Ill. App. 3d 708 (§2-622 not intended to operate as an additional statute of limitations)
- Tucker v. St. James Hospital, 279 Ill. App. 3d 696 (affirming dismissal with prejudice where multiple opportunities to comply were given)
- Foutch v. O’Bryant, 99 Ill. 2d 389 (incomplete record consequences on appeal)
- Hansbrough v. Kosyak, 141 Ill. App. 3d 538 (medical malpractice plaintiffs should have reasonable opportunities to establish their case)
- Moss v. Gibbons, 180 Ill. App. 3d 632 (pleading amendments to decide cases on merits rather than procedural technicalities)
- Simpson v. Illinois Health Care Services, Inc., 225 Ill. App. 3d 685 (trial court initially determines sufficiency of §2-622 documentation)
- Cato v. Attar, 210 Ill. App. 3d 996 (same)