*1 494, 499, Accordingly, Ill. 2d the trial N.E.2d court rejected erred when it this statement of fact the context within described granted the defendants’ motion to dismiss based on sec- reason, tion 2—615. For this we must reverse the dismissal of count plaintiffs IV of the fifth amended complaint alleged which defamation per se. remand the proceedings We case to the trial court for further ruling. ruling, strictly consistent with this In so adhere we legal principles established opinion and offer no as to the ultimate procedural viability or actual of this count. stated,
For the ruling reasons we affirm the circuit Cook County that dismissed I and II plaintiffs complaint, counts which sounded in breach express implied contract. We affirm the ruling that denied the plaintiff leave to file a sixth amended complaint. We affirm the ruling that denied the motion to reconsider her request injunctive relief. We reverse the circuit grant court’s of the defendants’ section 2—615 motion to dismiss count IV of the plaintiff’s fifth complaint, amended alleged which per defamation se. We remand this cause to the circuit court for further proceedings consistent ruling with this respect to count IV fifth amended complaint. in part
Affirmed and reversed in part; cause remanded. CHRISTMAS, TYKEESHA Special Christmas, Adm’r of the Estate of Vernice Plaintiff-Appellant, HUGAR, LTD., al., v. DR. DONALD W. et Defendants-
Appellees. (2nd Division) First District No. 1 — 10—1743 Opinion April 5, Rehearing filed May denied 2011. *2 Gorman, Stephen Chicago, appellant. A. of for Bell, Schultz, EC., & K. McVisk and Carl M. both of Johnson of William Chicago, appellees Hospital and T. for Loretto Mack. Dakich, Cray H. of Huber Horst-
James K. Horstman and Melissa both LLC, Chicago, appellees Hugar, W man & Vanausdal Dr. Donald Heil Ltd., Hugar. and Ronald W court, with judgment
JUSTICE CONNORS delivered opinion. judgment opinion. Karnezis concurred in the
Justice dissented, opinion. Harris Justice
OPINION Tykeesha appeals from the dismissal with Plaintiff Christmas malpractice complaint pursuant medical prejudice of her (735 (West 2008)) the Code Civil Procedure ILCS 2—619 of 5/2 — 619 report support that the who authored a ground on the required by section 2—622 of the Code Civil her (West 1998)) (735 properly was not licensed. Procedure 5/2 — 622 We affirm.
I. BACKGROUND straightforward. facts of are to this this case appeal, As relevant an ailment in her surgery Christmas underwent Vernice by Hugar Dr. defendants right surgery performed foot. The was Unfortunately, Vernice Mack, podiatrists. Dr. both Illinois-licensed allegedly complications due to surgery, died two weeks after about estate, Plaintiff, of Vernice’s filed as administrator operation. from the against action defendants medical instant (735 Procedure 2—622 of the Code of Civil by section required As (West an 1998)), complaint included affidavit ILCS 5/2 — 622 a cur stating attorney her that the had consulted “with attorney in a writ rently practicing podiatric physician,” who had “determined *** for the report ten that there is a reasonable and meritorious cause filing against copy report of this action” defendants. A was also attached, but the author of the was not named. The author of *** “professional opinion stated that it was his based on a certainty” reasonable of ac degree medical/podiatric cause against tion defendants had merit. the author identified Specifically, “substandard defendants that were “deviations omissions/actions” from acceptable significant standard of care and served as contribut ing factors” in Vernice’s death. filed,
After the complaint parties proceeded discovery was However, and litigated years. the case for about four about three before the trial begin, months was scheduled to defendants deposition Wojciehoski, conducted the of Dr. Randal whom had identified as an expert expected testify witness at trial. As it out, turned Wojciehoski Dr. the author of report. the 2006 However, during deposition Wojcie- defendants discovered that Dr. hoski had not been licensed podiatrist as a at the time that he au- report. Wojciehoski thored the Dr. graduated as a doctor of medicine in and he later osteopathy became doctor of in 1989. However, allowed lapse his license to *3 1990, sometime around point and from that on he maintained only his osteopathic physician licenses as an and emergency physi- cian. Wojciehoski during deposition mentioned his that his osteopathic license, Wisconsin corresponding as well as the licenses states, that he held in other allowed him provide full-scope practice that included podiatric medical services without the need for the additional Wojciehoski license. Dr. did not obtain new podiatric license until shortly 2010, before the deposition when he was retained as a expert podiatrist defense for a in a case unrelated to this one.
Less than two weeks after deposition, the defendants moved to the complaint dismiss under section 2—619 of the Code of Civil (735 (West Procedure 2008)), ILCS arguing plaintiff had 5/2 — 619 failed comply with section 2—622 because Dr. not a podiatrist licensed when he authored the report. Because a valid sec tion 2—622 is a statutory requirement filing a medical action, malpractice defendants asserted that plaintiffs complaint must be Plaintiff argued Wojciehoski’s dismissed. that Dr. an license as osteopathic physician the requirements satisfied of section 2—622 law, because under Wisconsin according plaintiff, osteopaths may practice podiatric obtaining medicine without license. the trial briefing arguments, full and extensive oral
Following 2—622 and complied found that had not with section timely filed a notice Plaintiff complaint prejudice. dismissed the with and is now before us. appeal, this case
II. ANALYSIS (1) plaintiff complied two issues: whether appeal presents This a medical statutory requirements pleading the with (735 Procedure ILCS 2—622 of the Code of Civil claim under section (2) (West not, 2006)); if whether dismissal and 5/2 — 622 under section 2—619 prejudice was warranted (West 2008)). (735 Civil Procedure Code of 5/2 — 619 Section 2—622 Compliance A. With require plaintiff complied with initially examine whether We legal the current 622, first must mention but we ments section 2— affected several 2—622 has been of this section. Section status enactments, in Lebron recently most legislative and judicial decisions 217, See also Ill. 2d Hospital, 237 v. Gottlieb Memorial 421, Illinois, 229 Ill. Society & Aid v. Children’s Home O’Casek 339, Price, Ill. 2d 424-25, generally See Cookson judicial actions the effect of the various (explaining 341-42 622). inis legislature The amendments to section legislative 2 — it existed before Lebron 2 — 622 as reenacting process (see Sess.; 97th Ill. Gen. Assem., Bill Ill. House 97th Gen. yet has not Sess.), legislation Assem., Bill but Senate the convoluted Despite appeal. as of the date of this passed been that is at specific language history of section procedural 2— altered, version of and so which has never been appeal issue this textual there are some Although immaterial. the statute we refer to is currently stands 2—622 as it version of section differences between the Lebrón, phrase “licensed prior to the version that existed license,” change did with the same class profession, the same following reenactment will remain the same presumably (West Assem., 2008); Ill. Gen. 97th 735 ILCS legislature. 5/2 — 622 Bill 2011 Sess. House 2—622 that stands, of section currently portion
As it this case reads as follows: relevant to otherwise, tort, in which *4 action, in contract or any “In whether medical, by reason of injuries or death damages seeks plaintiff attorney malpractice, plaintiffs healing art hospital, or other se, file an af- pro shall plaintiff proceeding if the is plaintiff, or the complaint, copies of the fidavit, original and all attached to following: declaring one of the That the affiant has consulted and reviewedthe facts of reasonably professional the affiant case with a health who (i) in knowledgeable
believes: is in the relevant issues involved (ii) action; particular practices practiced or has within years in years taught last 6 or teaches or has within the last 6 in the the same area of health care or medicine that is at issue (iii) action; by experience and or demon particular qualified is case; reviewing competence subject strated in the of the professional report, health determined in a after a has written of the medical record and other relevant material review involved meritorious cause for the particular there and action that is reasonable action;
filing of such and that the affi- reviewing profes ant has concluded on the basis of the sional’s review and health that there and consultation is reasonable filing meritorious cause If filed of such action. the affidavit is as to a defendant is a licensed treat ail who human drugs opera ments without the use of or and medicines without dentist, surgery, podiatrist, psychologist, tive or a or a naprapath, the written must be a health from license, profession, licensed the same with the same class added.) 622(a) (West (Emphasis 735 ILCS 5/2 — defendant.” 1998). The individual are podiatrists defendants this case law, therefore, under requires Illinois and section 2—622 at- torney to consult with a health professional who is licensed to podiatry prior to filing disagreement the lawsuit. The between the parties this case is over the term it meaning “license” as that, used in time undisputed the statute. It is at the filed her lawsuit in did not hold a license. However, plaintiff argues Wojciehoski’s that Dr. license as a Wisconsin doctor of osteopathy satisfy licensing requirement is sufficient to of section osteopathy 2—622 because Wisconsin law allows doctors of practice podiatric medicine licensing. without additional Defendants’ position is that the statute means authors of section license, reports any must hold a current other regardless qualifications they might have. interpret meaning novo, general
We of a statute de and Markets, principles statutory are Acme construction well known. See Callanan, Inc. v. primary objective 236 Ill. 2d Our is to give intent, legislature’s “[t]he effect to the most reliable indica legislature’s statute, given tor of the its language intent is the plain, ordinary, meaning.” Gardner v. Mul popularly understood lins, a statute leaves terms When undefined, may dictionary plain we consult a to determine their
96
ordinary meaning. People Daley Systems Corp., See ex rel. v. Datacom (1991). deal Additionally, 15 where two statutes matter, give in order to subject they together same must be considered Ill. 2d 133 People McCarty, them a harmonious effect. See 223 (2006). unambiguous a court is “[W]here an enactment is clear language meaning liberty depart plain not at from or by reading exceptions, statute into it limitations conditions Kraft, Ill. legislature express. Edgar, [Citations.]” did not Inc. v. by not define what it means the term Section 2—622 does “license,” In of dictionary. so we turn to the the context permission granted “a or in ac- regulation, right a license is defined as in some busi- by competent authority engage law a cordance with act, engage or to in some transaction occupation, ness or to do some Third license would be unlawful.” Webster’s New which but for such Illinois, of Dictionary International Act by the Podiatric Medical Practice of podiatry is controlled (225 (West 2008)). the Act public policy The behind seq. ILCS et 100/1 medicine, “only persons” practice podiatric qualified is to ensure that medicine practice podiatric shall person and the Act declares that “no to do existing in without a valid license so.” the State of Illinois (West 2008) (West 2008); 225 ILCS see also ILCS 100/11 100/1 designates Department The Act (prohibiting practice). unlicensed (DFPR) body as the Regulation Financial and Professional of licenses, promulgates application and it podiatric authorized to issue mandatory qualifications requirements and examination as well licensing DFPR’s board. See 225 receiving a license from the (West 2008). through 10 100/8 is read 2—622 of the Code of Civil Procedure
When section in the Podiatric Medi- licensing regime described conjunction with “license,” that the term readily apparent cal Practice Act of it is refers to a applied podiatrists, and as as it is used section 2—622 of Financial and Department been obtained from the license that has and satisfaction following an examination Regulation Professional podi- who holds current Consequently, someone qualifications. other The of section 2—622. licensing requirement atric license satisfies indicate that would any limiting language statute does not contain license, so we as- podiatric an it be satisfied Illinois can another license from podiatric that a current deciding sume without 2—622. also jurisdiction satisfies Wojciehoski did not hold is that Dr. problem The here report, he wrote the section any jurisdiction when license from as a his license whether Wisconsin question now becomes and so licensing requirement. osteopathy satisfies the statute’s doctor of the intricacies analysis us extensive provided has with an Plaintiff rests on point position this in her brief. Plaintiffs law on Wisconsin regime a license podiatry licensing premise that under Wisconsin’s within the “lawfully practicing required is not for someone who license, granted this scope permit, or certification registration of a §448.62(1) (West Ann. government.” federal Wis. Stat. state or the 2006). Wojciehoski was licensed in argues that Dr. Plaintiff because physicians to allows licensed Wisconsin as Wisconsin (see their Wis. Stat. practices engage part medicine as (9) (West 2006)), was therefore §§448.01(5), Ann. then section 2—622. practice podiatry meaning within “licensed” *6 rely However, this case not need to on based on the facts of we do the Wisconsin law in order to resolve this issue because substantially licensing regimes of Illinois and Wisconsin are accord (West 2006), Compare §448.62 on Ann. with 225 point. this Wis. Stat. (West 2006) that the Medical Practice (stating Podiatric 100/3 prohibit “[a]ny practice Act not person of 1987 does surgery in under medicine and all of its branches in this State the engaging Medical Practice Act of from for which 1987 licensed”). Illinois statute, he or she is Given that section 2—622 is an legislature’s light we the law. As we determine intent of Illinois see it, dispositive question an doctor is this: could Illinois-licensed of against author a osteopathy section 2—622 for a claim an distinguish podiatrist? Illinois-licensed Section 2—622 does not granted by jurisdictions, analysis between licenses different and our must guided presumption legislature be did not intend absurd, inconvenient, statute to an result. produce unjust or See Mercola, Brucker v. 227 Ill. 2d 514 If an Illinois-licensed situation, can author a osteopath section 2—622 in this then plain there is no reason based language on of statute to prohibit authoring from osteopath Wisconsin-licensed one. of part package
Section 2—622 enacted as of a medical malpractice underlying policy reforms in behind the filed statute is “to reduce the of frivolous suits that are and to number stage, litiga at early expenses eliminate such actions an before the tion 147 Ill. 2d Hospital, have mounted.” DeLuna v. St. Elizabeth’s health to review the requires The statute it is and meritori claim to determine whether “reasonable ous,” action, malpractice and in the context a medical one questions applicable crucial factual medical standard of is whether care Hospital, has been violated. See Sullivan v. Edward Ill. (2004) claim). (listing the of a elements medical
This means that the initial review of a potential cause of action for medical malpractice under section 2 — 622 includes a review of the standard of care.
This consequently narrows the issue down to whether a physician
legally
can
opine on the standard of care
podiatrists
that
owe to their
patients, and the supreme court answered that very question in Dolan
(1979).1
Galluzzo,
Dolan,
supreme
considered
whether a
can testify as an expert witness in a
medical malpractice
against
action
a podiatrist, and, specifically,
whether a physician who is not also
podiatrist
licensed as a
competent
testify
about the standard of care applicable
medicine. See id. at
Noting
that a “practitioner
particular
of a
school of medicine is entitled to have his conduct
tested
school,”
standards
his
the supreme court held
“in
order to
testify
expert
as an
on the standard of care in
given
school of
medicine, the witness must be
283, 285;
licensed therein.” Id. at
see
Foster,
also Gill v.
Dolan dealt expert testimony trial, with at principles but the same apply to the potential review of a pursuant cause of action to section 2—622. Among things, other the underlying policy of the statute is to provide preliminary potential malpractice review of a action in order to determine whether the defendant has fallen short of the applicable osteopathy 1Illinois synonymously law treats doctors of with medical doc (225 (West 2008)), types tors ILCS and both of doctor must be licensed as 62/5 (225 (West physicians seq. under the Medical Practice Act of 1987 et 60/1 2008)) in order in medicine Illinois. that are professionals health Dolan, the care. Under standard of podiatric of care the standard to evaluate legally competent who are physicians podiatrists, medicine at trial are licensed cannot evaluate whether regulatory regime under a different licensed unless of care the standard complied have with podiatrists defendant cannot physicians that It follows they podiatrists. are licensed as also against of action deems a cause report that author a section meritorious” because “reasonable and to be podiatrists defendant of care the standard to evaluate legally competent physicians are met. has been that standard opine medicine and whether podiatric policy absurd, legislative the given be Any contrary result would at lawsuits weeding out unmeritorious 2—622 of underlying section Dolan, one court noted supreme As the possible point. the earliest testify about the allowing physicians to with problem podiatrist’s in the evaluation of a may that it result standard of care is the actually profes- common in higher standard than is actions under a physicians that Analogously, possibility the exists sion. See id. at 282. meritorious may deem lawsuits reports author section 2—622 who applicable of care of the standard perceived based on the violation the standard allowing proceed, yet when physicians, suits the expert witnesses applied by qualified podiatrist of care is at trial contrary to a result would be lawsuits are found to be meritless. Such claims ensuring only malpractice that objective section 2—622’s with, therefore be and it would begin with some merit are filed to initially professional the health who require unreasonable not to that on the standard legally competent opine for merit is reviews case By mandating that particular of care that is at issue in a case. profession in the same reviewing health be licensed defendant, requires. precisely this is what section 2—622 regarding intent
Additionally, reading legislature’s our language licensing reinforced when we consider requirement and is in effect before Lebrón the version of section 2—622 that was version, one of the currently in the of reenactment. that process they meet was that requirements for section 2—622 authors 8—2501 of expert promulgated standards2 witness (West (735 2008)), which Code of Civil Procedure ILCS 5/8 — 2501 the witness is of “whether nearly includes the identical consideration license as the the same class of profession the same statutes, parallel language defendant.” Given the two language rephrased requirement 2This section 2—622’s old subject by experience competence in the “qualified author be or demonstrated 622(a)(1)(iii) (West 1998). of the case.” 735 ILCS 5/2 — *8 legislature undoubtedly intended for the professional qualifica same tion apply standards to to both report section 2—622 authors and expert witnesses at trial.
In light discussion, of the above we hold that section 2—622 requires that report author of a must hold a current license when the defendant in the podiatrist, case is licensed and it is not sufficient only for the author to be physician. as a case, this although was licensed as an osteopathic physician in Wisconsin at the time that he authored the section 2—622 report, he did not podiatrist’s hold a license and therefore was not a health licensed in the same profession, with same license, class of as defendants meaning within the of section 2—622. result, plaintiffs As a section 2—622 was defective.
B. Prejudice Dismissal With We next consider whether complaint dismissal prejudice 622, was warranted. Under section the failure to file a 2— professional’s health attorney’s or an that complies affidavit with the statute grounds for dismissal under section 2—619 of the (735 (West 2008)). Code of Civil Procedure ILCS See 735 5/2 — 619 (West 1998). 622(g) However, section 2—622 does not 5/2 — mandate dismissal with prejudice every require violation of its M.D., ments. See Ltd., McCastle v. Mitchell B. Sheinkop, 121 Ill. 2d 188, 194 Whether cause of action should be dismissed with or without prejudice for violation of section 2—622 is a decision that is left to the sound discretion of the trial court.3 See id. We will reverse a trial court’s decision on this issue absent an abuse of discre (see id.), tion an abuse of discretion occurs when the trial fanciful, court’s “arbitrary, decision is or unreasonable or when no (Sbarboro person Vollala, reasonable would take the same view” v. 392 Ill. App. 3d (citing People Illgen, v. (1991))). 353, 364
The test
type
this
of situation is whether
the trial court
specific
considered the
facts
circumstances of the case before
dismissing
complaint
denying plaintiff
leave to amend. See
Peterson v.
Hospital,
App.
(1992);
Hinsdale
233 Ill.
3d
accord
Ingold
Irwin,
App.
Among
302 Ill.
3d
the factors
authority
proposition
may
3There is also
for the
that a trial court
excuse a
complaint
pursuant
section 2—622 violation and need not dismiss a
at all
See,
McCastle,
e.g.,
(Miller, J., specially
section 2—619.
that a trial court cure a defect amendment would are “whether amend or prejudiced would be party the other pleadings; whether *9 amendment; proposed of the timeliness surprised by proposed to amend opportunities amendment; previous there were and whether 432, Authority, Chicago v. Transit pleadings.” Lee 467-68 2—622 before the section litigated years for four
This case was and deposition, Wojciehoski’s during was uncovered violation that motion to dismiss arguments on the during defendant noted oral plaintiff been revealed had deficiency would have probably never the upcoming witness for Wojciehoski expert identified Dr. as an not during hearing that fact, the trial court found trial. Due to this and improper the defendants did not have notice not timely, though even it was to dismiss was that their motion discovery. brought nearly until the end of litigation time during pendency importantly, More at no deficiency in her the section 2—622 plaintiff attempt did to correct cause attempt good at did to demonstrate pleadings, point no she remedy why bring this to the court’s attention she failed to (1997) Drammis, Ill. App. the matter. Calamari v. 3d Cf. proper file a section (plaintiff good did not show cause for her failure to extensions). fact, early on report, despite multiple 2— 6 22 cor yet did not file a plaintiff complaint the case filed an amended It was by qualified expert. rected 2 — 622 authored a only defendants and after only deficiency after the was discovered to amend granted plaintiff sought that leave the motion to dismiss was complaint deficiency. her and correct the in order then, only complaint amend the plaintiff sought
Even a currently licensed as Wojciehoski to demonstrate that Dr. is problem suc- the essence of the podiatrist. captured The trial court hearing: at cinctly, observing to see have checked [plaintiff] COURT]: You should
“[THE not; this had been a and if the court—if whether he had license have said the court would brought to a court’s attention one. Youdon’t have get yourself proper expert witness. *** the 2.622 asking leave to amend Counsel]: I’m [Plaintiffs has a license. license.He Wojciehoskithen show his [sic]to have Dr. in 2006.” COURT]:He didn’t have a license [THE man understood, amending trial court As the because problem cure the for is insufficient to plaintiff ner that asked change Wojciehoski it cannot the fact that Dr. was not a licensed podiatrist report. 2006 when he wrote the section 2—622 Crull Cf. (2009) Sriratana, v. App. (observing 388 Ill. 3d that an qualified unlicensed “was not author section 2 — 622 report, and the defect by amending could not have been cured report”). The mere fact that Dr. is now licensed as a podiatrist retroactively cannot cure the defect in a report that was course, years ago. say dated filed four Of that is not to that such a cured, defect can never be and we take no position question. on that (which Rather, was, point only plaintiffs proposed our solution offered) importantly, nothing solution that plaintiff does lawsuit, filed, problem address the fundamental of the fact that her supported by report was authored someone who was at the time legally authorized to do so.
Finally, the section 2—622 violation here not a techni “minor might strictly cal error” that excuse plaintiffs comply failure to Rotman, the statute. Ill. Apa App. 589-90 (“[W]here involved, permitting a minor technical error is *10 closely purpose amend of section 2 — 622 than more furthers dismissing prejudice.”); with see also Cammon v. West Suburban (1998) Hospital Center, App. (finding 301 Ill. 950 Medical where, defendants, involving multiple abuse of discretion a case mistakenly filed a report section 2 — 622 that omitted discus defendants). sion of the Plaintiff did not ac deficiencies of some her cidentally comply technicality, fail to with a but instead based complaint against professional opinion on the of someone defendants of care for legally qualified opine podi- who was not on the standard goal weeding atric medicine. Section 2—622’s out meritless lawsuits they require before the statute’s depends compliance are filed on with by qualified profes ment that lawsuits be vetted health 2—622 that was sional. Plaintiffs submission of qualified not to author such a prepared someone who was contrary to the support particular directly of this cause of action is purpose of the statute and is not a mere technical error. result, given recognize prejudice
We that dismissal with is harsh parties argue do not on that this case was close to trial rightly claim lacks merit. As the dissent appeal plaintiffs observes, defendants suggestion there is also no in the record that amend her prejudiced by allowing plaintiff would have been 3d 106 App. the statute. See 409 Ill. complaint comply order to with (Harris, J., points, are valid and well-taken dissenting). Although these mindful the deference that we must accord to trial we are discretion. a decision that is committed to its sound when we review review, in this situation we are bound the standard We discretion, only for abuse review the trial court’s decision “ ‘the McCastle, 194. Abuse of discretion is de novo. See Ill. 2d at no exception with the most deferential standard of review available ” Coleman, (quoting 183 Ill. 2d (People review at all’ Review, Davis, A Judicial Martha S. Basic Guide Standards of (1986))), real on review is only question S.D. L. Rev. 480 and the weighed it “appli[ed] proper whether the trial court criteria when (Paul Associates, & facts” v. Gerald Adelman (2006)). extensively argued by parties briefed and
This issue was well court, fully aware of the before the trial and the trial court was it decided particular relevant facts and circumstances of this case when best, leave to amend. At complaint deny plaintiff to dismiss the and to four fac prejudice the lack of to defendants satisfies one of the supreme specified tors that the court has should be considered when deciding grant complaint, whether to leave to amend a proposed Lee, amendment fell Ill. 2d short on other three. See at During hearing, specifically 467-68. the trial court noted that plaintiff’s cure proposed amendment could not the section years original defect and that the amendment came four after the fil ing, both important of which are factors that should be considered in this situation. See id. The record that the trial court demonstrates 99), (Paul, considered the correct criteria 223 Ill. 2d at and its decision deny leave to amend consequently “arbitrary, cannot be considered 364). (Internal fanciful, or (Illgen, quota unreasonable” 145 Ill. 2d at omitted.) result, say tion marks As a cannot that the trial court we dismissing prejudice. abused its discretion in with
III. CONCLUSION reasons, For the foregoing we affirm the trial court’s order dismiss- ing the plaintiffs complaint prejudice.
Affirmed. *11 HARRIS, dissenting:
JUSTICE
I respectfully dissent. issuing
The trial court abused in the order of its discretion apply principle dismissal because it failed to the well-established section 2—622 liberally is to be construed and that amendments to complaints liberally granted in medical are to be actions so that upon cases of this nature are decided based the substantive rights parties, pleading of the not technicalities. require reports
Section 2—622 that medical does submitted at the pleading stage support negligence against to medical claims in podiatrists by podiatrist be authored a licensed Illinois. The statute profession” does not define the terms “same or “same class license.” given Those in the are to be their generally words used statute ac- cepted ordinary meaning. primary and Webster’s definitions for act”; action”; are “permission “permis- “license” to “freedom of and business, in granted by competent authority engage occupa- sion to a tion, activity or otherwise unlawful.” Webster’s Seventh New Col- legiate Dictionary Dr. Wojciehoski, employing these definitions, requirements satisfied the of section 2—622. Wojciehoski degree podiatry
Dr. earned his as a doctor of degree osteopathy In 1990 he earned a of doctor of and was licensed by examining permitted medical He to Wisconsin board. was engage practice surgery. of medicine and Wisconsin “podiatry” system” practice is a “branch or of medicine and separate a license to surgery. required practice He was not have medicine, podiatry any prohibition against or nor was there “doctor of referring “podiatrist,” podiatry” his to himself as a or Wojciehoski, physician, permitted “D.EM.” Dr. as a both licensed was by engage and authorized State Wisconsin podiatry exempt any requirement and was from that he have The separate podiatry and distinct license as a condition to do so. wholly Wisconsin licensure scheme is consistent with Dolan Gal luzzo, (1979), recognized supreme where our may “physician surgeon podiatrist that a or also be licensed testify to the of care owed may sufficiently qualified be as standard permit every law does not M.D. or D.O. podiatrists.” Wisconsin physi podiatrists. Wisconsin to declare themselves to be Wisconsin so, licensure, they if additional permitted cians are to do without dispute that Dr. are doctors of medicine. There is no also podiatry a doctor of in 1986. If a degree earned his as trial testify can at podiatrist who is also podiatrist, person of care of a this same regard to standard report. Wojciehoski, equally qualified to author a section The D.EM., are of the same school of medicine. and the defendants professional authored a health care who section 2—622 was defendants, who credentials as training had the same applicable based on the standards judging their conduct repeatedly articulated Courts of our state have podiatrists. not interfere with the technical of section 2—622 should requirements statute; compli technical the absence of strict spirit purpose or substance, form, not in this case is one of ance with the statute
105 See, plaintiff a trial on its merits. applied deprive should not be Practice, 828, Family App. v. 229 Ill. 3d 832 e.g., Wheaton Comfort (1992). (1992); Rotman, 585, Apa App. 288 Ill. 3d Notwithstanding my colleagues adopting the trial court’s view the case Wojciehoski’s inadequate, that Dr. license was dismissal of prejudice pleading and leave to file an amended is without unreasonable and must be reversed as an abuse of the court’s discre- litiga- tion. The of purpose discourage section 2—622 is to frivolous tion. Sheinkop, McCastle v. The record here any suggestion plaintiff’s is absent that survival action and wrongful against any death claims are in manner these defendants contrary, complaint frivolous. To the sets out a medical malpractice event A allegedly which caused the death of decedent. death certainly way case in is serious one and no frivolous. It is well settled that a comply failure to with section 2—622 does not mandate the end, prejudice. dismissal of the case with To that medical malpractice pleadings liberally may should be allowed so that the case be decided Attar, on its merits rather than procedural technicalities. Cato v. Ill. App. 3d of Sound exercise discretion mandates that the plaintiff opportunity be at least afforded the to amend her complaint to comply complaint with section 2—622 before her prejudice. dismissed with Hospital See Cammon v. West Suburban Center, Medical Ill. App. (allowing 949-50 a plaintiff to amend a medical complaint where the failed to attach required affidavit and of a health care professional). majority’s Sriratana,
The reliance on App. Crull v. 388 Ill. 3d 1036 (2009), to affirm the trial court’s dismissal of this case without a trial on misplaced Crull, its merits is easily distinguished. plaintiffs initial complaint contained no report, affidavit or medical and neither day was filed within the 90 extension under the granted statute. provide Counsel refused to the name authoring medical professional in later filed reports. reports Other were tendered doctor Here, whose license had been revoked. plaintiffs counsel’s af- fidavit and the medical relied upon timely which he were filed. There an attempt Wojciehoski’s identity, never was to hide Dr. qualifications, or impor- license from defendants or the court. Most tantly, Crull, Wojciehoski fully unlike the consultant Dr. was licensed doctor osteopathy, practicing surgery medicine and allowed by that licensing having which included earned podiatry, as well as his a podiatry degree.
Upon plaintiffs filing of her the defendants parties engaged significant discovery. answered and the Over the years next four interrogatories, requests production written documents, parties, tendering third subpoenas the issuance of admit, place. noticing taking depositions took requests 23, 2010, Shortly August trial date of the defendants before the case licensing took the and learned of deposition had a in 1986 but in technicality. podiatry He testified that he license podiatry and the license was no licensing 1990 he obtained his medical podiatry. He also stated longer necessary for his continued license, valid, as he podiatry in 2010 he still obtained *13 attorney retained a defense another matter. expert as an on the eve granting The of defendant’s motion to dismiss this case ready try it on years preparation parties of trial after and both Denying plaintiff op- wrong its merits was and unreasonable. the technical defect the medical portunity to correct unreasonable, arbitrary. ignores purpose It rash and amendment which at- 2—622 and the rules of liberal construction give an of discretion. We need not tend it. As such there was abuse The the trial court where its action is unreasonable. deference to slightest if the court prejudiced defendant would not have been affidavit and order the amendment to the section 2—622 had allowed proceed the trial to on its merits. the trial court to vacate I would remand this case to
Accordingly, af- order, an amended section 2—622 filing dismissal allow the its proceed to trial on merits. fidavit al., et GOLDBERG, Plaintiff-Appellant, v. ELEANOR BROOKS JERROLD Defendants-Appellees. Division) (3rd No. 1 — 09—2578
First District Opinion April filed