*1 insufficient. demand need, to find defendant’s though, not We do rights were statutory sufficient, defendant’s demand was if the Even 61, 60, Nos. trial case speedy requested Defendant not violated. made defendant pending when first, cases where those and 62 they pend- knew were case, the State in this demand speedy-trial 22, 60, 61, July on and 62 Nos. in case was rendered ing. Judgment in both cases subsequent trying 160-day period time 2005. The therefore, demands, did 3, 2004, 2003, 1, and March July August trial on defendant’s Because July until 2005. begin to run rendered, was judgment July days after 160-day time well within No. 172 was trial for case defendant’s period.
III. CONCLUSION As judgment. court’s stated, affirm the trial we For the reasons be that defendant request grant we the State’s judgment, of our part appeal. for this assessed as costs $50
Affirmed. MYERSCOUGH, J.,
STEIGMANN, EJ., concur. Deceased, Crull, CRULL, the Estate of Novalene Special Adm’r of DAN al., Defendants-Appellees. SRIRATANA et Plaintiff-Appellant, v. PRAMERN 4—06—0952 Fourth District No. Rehearing denied Opinion
Argued July filed October 2007. 2007. 29, 2007. November *2 MYERSCOUGH, J., specially concurring part dissenting part. and Geleerd, Jr., LLC, Guy Chicago, Group, ap- Delson of Law of for pellant. Hughes Gunn, Hughes, Tenney, S. both Hill
Charles C. Jonathan of & LLC, M.D., Decatur, Sriratana, appellees of for and Mid-Illinois Pramern Hematology OncologyAssociates, & Ltd. Johnston, Pretorius, Jr., Chaddock, Quinn, P. of Murvel and Adam both Jordan, Pretorius, Peoria, Chtrd., appellees
Henderson & Kenneth N. of D.O., Clinic, and Madison Street P.C. opinion
PRESIDING JUSTICE STEIGMANN delivered court: Crull, of plaintiff, special
In Dan as administrator December complaint Crull, medical-malpractice filed a Novalene the estate of Hematology Sriratana, M.D.; Mid-Illinois defendants, Pramern against D.O.; Jordan, Madison Ltd.; Associates, Kenneth N. Oncology & Clinic, PC. Street plaintiffs complaint dismissed
In the trial court October profes- reviewing health-care learning that the prejudice, upon with the Code of 2—622 of required by section report, which was sional’s (West (735 2004)), by had been written ILCS Civil Procedure 5/2—622 practice medicine. person not licensed (1) ordering trial court erred arguing that the appeals, Plaintiff report the section identity of the author of him to reveal the (2) disagree and affirm. prejudice. We dismissing the case with
I. BACKGROUND medical-malpractice filed his December When reviewing health-care report he failed to attach a complaint, 90-day and, instead, statutory invoked the automatic professional 622(a)(2) the Code ILCS under section extension 5/2— 622(a)(2) (West 2004)). However, any plaintiff did not file a 90-day stay before the automatic reviewing expired of limitations on expired March 2005. The statute on December 2004. hematology and on- Sriratana, specialist early March *3 filed a motion to dismiss
cology, corporation prematurely and his plaintiffs complaint based on failure to file a section professional. On March report qualified reviewing from a health-care osteopathic 21, 2005, Jordan, orthopedics and muscular specialist dismiss, that medicine, alleging corporation and his filed a motion failed to in that he comply failed to with section 2— affidavit, report, or a professional’s health-care attorney submit an 90-day report time file the within motion for an extension of period. mo- hearing held a on defendants’ day,
The next the trial court counsel, Guy hearing, plaintiffs tions to At the start of the dismiss. 2—622 af- Geleerd, identical section for leave to file three moved and tendered reports instanter professional’s fidavits and health-care af- Each of Geleerd’s reports sought and he to submit. affidavits the facts of this and reviewed stated that he had consulted fidavits (1) to be he believed professional whom case with a health-care action, involved this cause knowledgeable in the relevant issues (2) health in the same area of years the last six practiced had within (3) action, qualified was medicine at issue in this cause care or subject of this competence in the by experience and demonstrated case. Each affidavit copy also stated that a profes- health-care attached, sional’s clearly identifying the reasons for the professional’s determination that a reasonable and meritorious cause filing of this cause of action existed.
The professional’s health-care reports, dated March stated that the author was a “physician licensed practice medicine branches, all of its residency trained and board certified in [the] specialty of internal medicine/nephrology.” The report signed was not and did not reveal the reviewing professional’s health-care name and 622(a)(1) address, required by as of the Code ILCS 622(a)(1) (West 2004)). 5/2 —
The recognized trial court that the reports health-care were not signed. When the court asked why Geleerd reports did not reveal the identity, author’s responded that “Illinois law does not require that signed we tender reports [section] 2—622 along with our [section] 2—622 affidavit.” Sriratana’s objected, counsel following colloquy between the court and Geleerd occurred: Well,
“THE COURT: aside from what the requires, give law me your expert. name of MR. GELEERD:I don’t want to do that. Well, you
THE may regret COURT: that. I want to know from you, court, as an officer of you have got somebody.I want is, to know who he I why and want to know his name on is not here.
MR.
experts.
GELEERD: I have two
One is board[-]certified
internal medicine
nephrologist [expert];
and one is board[-]
certified internal medicine and
expert.
infectious disease
And until
Cargill
Czelatdko,
[v.
353 Ill.
MR. GELEERD: No that. about you any THE COURT:Do authority have other than speaks to the you issue that would excuse from identifying the expert? *4 [(166 23)]
MR. GELEERD: There is a Rule 23 order Ill 2d. R. by Appellate that was issued the First District Court that we have of, trying get copy been to get copy that we have been to unable by of. Appellate But there is a Rule 23 order the First District Cargill. waiting. Court that did not follow And now we are kind of Cargill THE COURT: is out of what District? District,
MR. out of I believe it GELEERD: is is the Fifth Your Honor. Fourth,
MR. I it Your GUNN: believe is the Honor. District,
THE might COURT: Fourth that be correct. you THE I going give opportunity, COURT: am an Mr. Gel- eerd, you your experts today. to state who it is are me Give physical their names and their locations.
MR. GELEERD: Can I do cameral THE COURT: No. presence
MR. GELEERD: Can I do that outside defense counsel? THE COURT: No. *** veiy
MR. GELEERD: I feel I am in a THE I going you going give COURT: am not to order to. I am you opportunity provide some assurance to the court identification of people you actually these have them. Oh,
MR. I happy GELEERD: will be more than on to state record.
THE COURT: I am not interested in that. There I is a test here. you will know if got you give have them if me their names and ad- they deposed time, dresses. And then are particular point at a they say yes, will I was on board with Mr. Geleerd on March 22, 2005; or, yes, me, really this man had talked I but didn’t No, going you know, know what was on. whatever. I want to be as- sured. I [a]ppellate [c]ourt want the you to be assured that have someone on right board now opinion that has seen this letter to you said, Geleerd, and has sign Mr. I will that. question.
Let me ask this experts signed opinion Have these these already? letters
MR. GELEERD: One has not. The board[-]certified internist specialty with the in infectious disease has not. And board[-] certified internal [physician] specialty neph- medicine with the rology has reviewed the And he gave records. is the one who me a draft of the letter that I [section] attached to the 2—622. The actual I [section] 2—622 is what sent down to him on March I copy which have not received of them. you now,
THE your posses- COURT: As sit there there not in is signed opinion by anyone. sion a letter Would that be true or not true? No, opinion
MR. GELEERD: I signed that is not true. do have a letter of a consultant who an physician. internal[-]medicine is However, happy I am [c]ourt disclose to this the names of the experts just two I put jury. that would on the stand in front of the I *5 counsel, would ask not to do that in front of defense unless this so, then, ordering happy [c]ourt is me to do I would be to do so. point I But both the individuals who will disclose at this time testify experts will come on board as for the to case. Well, you represent going
THE I to plaintiff. COURT: am let you you going decide what it is that have to do. I am not to order you you going malpractice, to. If to are be sued for this will be a you say- subjected yourself liability. call that made that to I am not you ing going how I am to rule. But I want the record clear that today opportunity give have an the identification of these two that, experts. going you going You are either do or to do are not your you your that. And that is call. And live with decision.” an opportunity Geleerd then asked for to consult with the beneficiaries [cjourt’s request go are I they of the estate “so made aware of the decision, against plaintiff’s considering wrong what the bar is being Cargill.” going Geleerd wanted to let them know was on what split plaintiffs “since there is a the law between the bar and the Best, proceeding pre- defense bar.” Geleerd indicated he was under existed, split case. The then stated no in the law responded opinion split which Geleerd that he was of the there was a the First Appellate between District and the Fourth District Courts. they The court then asked Geleerd if he aware that in the were District, responded Fourth and Geleerd that he was.
Later, hearing, same the trial court and had the fol- at the lowing discussion: your you
“THE don’t want to COURT: What is reason that you today? you you going Are are disclose them as sit there afraid reputation? your to besmirch their What’s concern? No, at all. I feel that as a member of the
MR. GELEERD: not bar, recognizing— Well, forget you Why THE But have clients. COURT: the club. doctors, you just say, these are the this is don’t want to names Be clear they say. your reasoning. what I don’t understand because got we have a record here. said, My only reason, you being a member of
MR. GELEERD: as club, you say, put my I as the Illinois Trial the club. don’t want to Association, I conceded to Lawyers position into a where have 23 order from the First Cargill where I know that there is Rule way up trying get its Appellate District Court is [cjourt [cjourt Cargill. can look at [sjupreme [sjupreme so the club, your You asked is the and not clients. THE COURT: So it they get permission. And are for a to talk to the clients to recess going to understand one iota. not absolutely right. legal[-] MR. GELEERD:Youare But that is the [cjourt
malpractice objection, I absolutely issue. But have no if the begs my indulgence, get people.” I can these objected 90-day statutory Sriratana’s counsel then because the deadline passed had had signed still offered a report. objected. Counsel for the other defendants also The ruling gave plaintiff court reserved time to file a motion for leave deadline, to extend statutory urged but Geleerd to furnish the signed opinion letters possible. as soon as hearing,
At the end of the January Geleerd indicated that on partner his law died unexpectedly result, of a heart attack. As a Geleerd had to review over 300 files and overlooked the deadline to file the section 2—622 report. affidavit and
In April Geleerd sent a disclosing letter the name of physi- *6 cian purported who Geleerd reviewing was the profes- health-care [cjourt’s letter, In sional. this Geleerd stated that “in accord with the order, and having engaged after plaintiffs expert in accord with the order,” [c]ourt’s he expert’s received the draft letter via e-mail and indicated he would be forwarding the same to defendants’ counsel. Later in April plaintiff filed a motion for an extension of time in which to file the section 2—622 report. Attached thereto was the report reviewing of a health-care identifying Bruce R. Les- lie, M.D., as the report author. This was different in both format and content reports from the presented at the March 2005 hearing. his report, Leslie stated that he was board certified in internal medicine but did not specialty mention a in either nephrology or infectious disease. Geleerd revealed for the May first time in 2005 that Leslie was not the author of the unsigned reports tendered at the March 2005 hearing.
In July parties the were before the trial court hearing for a on defendants’ motion to dismiss and plaintiffs motion an exten- sion of time file to the section report. 2—622 The court denied defendants’ and, motion to dismiss over defendants’ objections, granted plaintiffs motion for extension and the filing allowed late the report. section 2—622 pointed Sriratana’s counsel identity out the original author of the reports section 2—622 tendered at the March hearing had not been they disclosed and asked that be disclosed. Because the issue had not been point briefed to the the court felt that it decision, could make an informed the court stated that counsel could raise the issue later and new motion described “separate^] it as a very meaty issue.”
In October Sriratana filed a motion to compel plaintiff to reveal the identity reviewing professionals. At January hearing, the trial court described the issue as whether identify
“plaintiff compelled should be to the individuals have already had been described as consultants.” Geleerd stated that he disclosing experts one of his and would be the other disclosed two clarified expert, expert. who an infectious-disease He then was prohibit [was] disclosure only identity “seeking the he was from signed [section] [Geleerd] one consultant who 2—622 that tendered open [in 2005].” court March Geleerd also stated that the second Dr. expert report submitting whose he would be was Frank Rhame. acknowledged Geleerd that he relied on the undisclosed author of being the March 2005 as within the confines of section auspices “[u]nder [was] but stated this was that he a nondisclosed asked if he expert” discovery under rules. The trial court Geleerd person prevent [defendants] wanted “to hide whoever row, really ascertaining from had ducks in a whether [he] [his] whether denied that malpractice [he] had the solid basis for a action.” Geleerd litigating the under the doing he was that and reiterated he was case law, which, Geleerd, according require did not pre-Cargill state of identity professional. of a section 2—622 health-care right reveal argued plaintiff Defendants forfeited to defeat identity the consultant’s since used the consultant engaged defendants’ motion to dismiss. The trial court and Geleerd dialogue why required should not be to reveal the as Geleerd reports authored the section 2—622 identity of the consultant who they my take responded, “Why tendered in March 2005. Geleerd can’t yours?” suggested identify he could the consultant word word that a the court and defendants could then take the court’s signed report. sup- stated that no law medical doctor had right not to disclose the ported theory that a forfeits *7 identity by using the consultant to defeat motion consultant’s argument failed because the dismiss. Geleerd also stated that extending plaintiff could court entered an order the time within which report signed by report, 2—622 and Geleerd filed file the section Leslie. legislature in 1998 the argued
Defendants’ counsel then that Code, right gave 2—622 of the which defendants passed section Thus, argu- against the case them. Geleerd’s certifying know who was prior to the decision required ment that disclosure was not merit. lacked mo- argument, granted the trial court defendants’
Following more unsigned the author of the identity disclosure of the compel tion to time gave Geleerd a short tendered in March 2005. The court reports if he refused identity the consultant but indicated to reveal the 811 so, do the court would dismiss the case. The trial court then stated as follows: you use, “I simply requiring finding am have chosen to — reason,
good you keep your have this individual chosen case you kept your And using alive. have case alive him. And fair play right contemplated by and the to enforce the law as [l]egislature entitles the defense he to know who is.” February filed a motion to reconsider the trial January ruling requiring court’s 2006 disclosure of the consultant. At April motion, an hearing on that the court asked Geleerd if Les- lie had 22, 2005, been contacted and was “on as of the board” March hearing. responded Geleerd that he had contacted both Leslie and However, Rhame in acknowledged November 2004. he that as of March (1) 22, 2005, he had yet sent Leslie or Rhame all the medical (2) case, records in the neither Leslie nor Rhame had sufficient records upon which they opinion could make an as to whether the case (3) presented action, a meritorious only cause of person who could opinion make such an was his unnamed consultant. The court plaintiffs denied motion to April 2006, reconsider. Later revealed to defendants consultant Dr. Bernard was R. Lerner.
During May counsel, conference call with the trial court was advised question that a had arisen as to whether Lerner was practice licensed to medicine at opinion the time his given. was Gel- eerd get was to an affidavit and documentation regarding that issue. The record does not show that produced Geleerd ever such an af- fidavit.
In May Lerner stating submitted a letter the last medi- cal license he held inwas New Mexico. He Chicago later moved to pursue a career medical consulting, and longer because he was no practicing medicine, pay he did not his fees or dues. After moving to Chicago, he learned that practice his license to medicine had been suspended. provided
Defendants the trial court showing with evidence the fol lowing. Lerner’s Illinois practice license to medicine was revoked in July 1990 after he was felony charges. convicted of narcotics-related Lerner’s New Mexico medical expired license in June and he was not licensed in any other state when he authored the March 2005 section report. 2—622 In January this court recognized that Ler ner misrepresented qualifications his licensures and authoring when Mathew, See Long v. report. 336 Ill. App. 3d 783 N.E.2d Long published in the official (Official April 2, advance sheet on Reports Advance Sheet No. 7 *8 2, 2003)), complaint filed the December (April well before Geleerd professional’s 2004 and the section 2—622 affidavit and hoard certified in internal report in March 2005. Lerner was not stated, medicine, report but rather as the March 2005 section 2—622 (when licensed). neurosurgeon he was practiced as a In October the trial court ordered that Lerner’s physician. a be stricken because he was not licensed 2005 affidavit be stricken The court also ordered that Geleerd’s March stated, report. The court “It is because it was based on Lerner’s [section 622] that the of absolutely requirements clear this case that, The further stated Absolutely have not been met. clear.” sense, defendants, upon” fraud has committed very “[i]n a real been explained of The court as fol- system, people the court and the Illinois. lows: a cause plaintiff relying
“The on Lerner was never entitled to have plaintiff’s The case was dead in the water. Mr. pursued. of action physician. And the record must be [licensed] Lerner was not a one, very no was on board with the made clear here. No one else 17, [2005,] 90-day period when the required opinion on March expired.” good made it clear that while it had found cause for
The court also good “it for the late filing report, of the section 2—622 cause late report by a doctor who was on board March filing of health-care prejudice. the case [2005].” The court then dismissed with This appeal followed. REPLY BRIEF
II. MOTIONS TO STRIKE PLAINTIFF’S to April Sriratana and Jordan each filed motion brief, satisfy require it failed to plaintiffs reply alleging strike 341) Ill. 2d because Supreme Court Rule 341 R. ments Illinois (1) making did the official record when statements not cite to (3) (2) fact, appeal, the record on referenced matters within agree and strike authority legal arguments. We legal failed to cite for brief. plaintiffs reply are not mere concerning appellate briefs procedure
The rules of this court’s discretion to strike suggestions, and it is within Rule 341. failing comply Supreme with Court plaintiffs brief 735, 737, 1082, 1084 Ill. 714 N.E.2d Fry, App. Niewold v. 3d brief, reply provides to file a 341(j), appellant which authorizes an Rule brief, strictly reply reply any, if shall be confined as follows: “The appellee and need contain in the brief of ing arguments presented 341(h)(7) appel requires 341(j). 210 Ill. 2d R. Rule only [a]rgument.” of the authori contentions “with citation give reasons for their lants 341(h)(7). ties and the of the pages record relied on.” 210 Ill. 2d R. This court has stated that to the requirement “[s]trict adherence citing pages relevant necessary expedite record is justice.” facilitate the Department administration of Maun v. of Profes Regulation, sional 299 Ill. 701 N.E.2d *9 (1998). A supported by contention that is argument some but no authority does not requirements meet the of Rule 341 and is considered forfeited. Spanos, App. 1084, Sakellariadis v. 163 Ill. 3d (1987). 1089, 324, 517 N.E.2d 328 reply pages
Plaintiffs brief is 14 long, contains assertions that are either not in contrary record, the record or are to the and contains no citations addition, to the record. In instead of being strictly confined replying arguments brief, raised in appellee plaintiff devotes (1) much of his reply brief to justifying Geleerd’s timely failure to obtain a health-care professional requirements who met the of section (2) 2—622 and explaining why Geleerd did not know Lerner did not have the necessary qualifications to meet section requirements.
III. ANALYSIS A. Plaintiffs Claim That the Trial Court Erred by
Ordering Him To Reveal Identity Lerner’s argues Plaintiff first that the trial court by erred ordering him to reveal identity. Lerner’s Specifically, he contends that the court abused by its applying discretion Cargill. disagree. We
1. Cargill: What Does Section 2—622 Require? legislature The 622(a)(1), enacted section requires which 2— medical-malpractice plaintiff to file an affidavit and accompanying (735 professional’s report with the complaint ILCS 5/2— 622(a)(1) (West 2004)), to minimize medical-malpractice frivolous suits. Hull v. Southern Hospital Services, Illinois 300, 356 Ill. App. 3d (2005). 304, 930, 826 N.E.2d 933 The health professional’s report is supposed to demonstrate plaintiff has a meritorious claim and grounds reasonable exist for pursuing the action. Sullivan v. Edward Hospital, 100, 209 Ill. 806 N.E.2d
In Cargill, plaintiffs voluntarily dismissed their medical- malpractice complaint they because could not obtain physician’s 622(a)(1). report required by section plaintiffs The then refiled 2— their complaint and asked for a 90-day extension ILCS 5/2— 622(a)(2) (West 2004)) to obtain the physician’s report. The defendants argued that section 2—622 does not allow for a 90-day extension for plaintiffs physician’s to file a report plaintiffs when have previously Cargill, on the same acts.
voluntarily dismissed an action based
This
held that under sec
“Prior as *** damages seeks any ‘In action which medical, healing injuries hospital, or other or death reason *** affidavit, attorney file shall an malpractice, art original copies complaint, declar- attached to the and all following: ing one of the the facts of has consulted and reviewed 1. That the affiant *** determined in with a health who has
the case record and report, after a review of the medical a written particular action that involved in the other relevant material filing of for the is a reasonable and meritorious cause there *** clearly copy report, ***. A of the written such action *10 reviewing for the identifying plaintiff the and the reasons reasonable and determination that a professional’s health exists, be filing of the action must meritorious cause for the affidavit, but information which would attached to the may deleted identify reviewing professional health be the copy attached. from the so unable to obtain a consultation
2. That the affiant was of limitations 1 a statute required paragraph because required could action and the consultation impair would the of limita- expiration the of the statute not be obtained before 1994). (a)(2) (West 622(a)(1), ILCS tions.’ 735 5/2 — 1995, on a did not include a restriction Prior to section 2—622 refile the suit right voluntarily dismiss an action and consultation at required obtain the plaintiff if was unable to the reviewing Further, of the the name and address filing. the time of report. required in the written professional was not health 1995, the General Amendments of the Civil Justice Reform With of Public through the enactment Assembly amended section 2—622 (1995 (Act) (Pub. 9, Ill. 7, §15, 1995 Act eff. March Act 89—7 89— 1994))). (West 291) Fol 284, (amending ILCS 735 Laws 5/2—622 amendment, pertinent provided, lowing the 1995 follows: part, as
815 of ‘1. That the has consulted and reviewed the facts affiant *** a in a the case with health who has determined of other report, after review the medical record and written particular the relevant material involved in action that there is filing cause for the of such action reasonable meritorious *** copy identifying ***. the report, clearly A of written reviewing professional’s and the reasons for the health determination that a for the reasonable meritorious cause exists, filing of action must be attached to the affidavit. The report shall include the name and the address the health of professional. previously voluntarily
2. That the
has not
dismissed
acts,
upon
an action based
substantially
same or
the same
omissions, or occurrences and that
the affiant was unable to
required by
obtain a
paragraph
consultation
1
because
statute
of limitations
impair
would
the action and the consultation
required could not be
expiration
obtained before the
added.)
(Emphasis
statute of limitations.’
735 ILCS 5/2—
(a)(2) (West 1996).
622(a)(1),
1997,
In
Supreme
Illinois
Court
opinion
issued its
in Best v.
Taylor
Works,
367,
Machine
179 Ill. 2d
Governor Public Act Along 90—579 into law. with adding setting a subsection forth effective date amend ment, language: Public Act the emphasized 90—579 added
‘If the physician affidavit is filed as to a defendant is a who licensed to treat drugs human ailments without the of or use *** medicines!,] psychologist, naprapath, or a the written professional must be from a health licensed in the same license, profession, with the same of class as the defendant.’ added.) (Emphasis 579, §5, 1, Pub. May Act eff. 1998 90— 49). Ill. Laws at 816 language requiring Act same the
Public 90—579 also contained the of the health and the affidavit name address previously voluntarily not requirement that a had substantially or the same an action based on the same dismissed in the 735 ILCS language acts. That remains statute. See 5/2—622 (West 2002).” 656-58, Cargill, Ill. at at App. 353 3d 818 N.E.2d 901-03. Act the
The court that Public 90—579 resurrected Cargill concluded 7, Act which to section 2—622 as inserted Public amendments 661, Ill. at Cargill, App. Best found unconstitutional. 353 3d the court at 905. 818 N.E.2d
2. the in This Case Application Rule of clearly 2—622 the Accordingly, Cargill, under of Code medical-malpractice plaintiffs the name and ad- requires that disclose profes- physician prepared dress of the who the health-care that the trial did not abuse its report. sional’s We thus conclude court by ordering identity. Lerner’s discretion reveal require Cargill would Although Geleerd conceded below name, he professional’s argued the disclosure of decided in necessarily apply subsequent not because a case Cargill did ques- holding the into Appellate Cargill the District Court called First tion. attorneys this all and circuit courts the reject argument.
We As court, aware, appellate though “A of not decision the state are well districts, binding the courts binding is on circuit appellate on other Casualty Yapejian, Co. throughout State Farm Fire & v. State.” (1992). 533, 539, 539, “[A] circuit court 152 Ill. 2d 605 542 N.E.2d district, if appellate court its such precedent must follow exists, exists; circuit court must precedent if no such precedent Athletic Tiger districts.” Schramer v. precedent follow the of other 994, Aurora, Ill. 3d 815 N.E.2d App. Ass’n (2004). case, supreme District or In this until either Fourth otherwise, Cargill. See required are to follow holds circuit courts Caban, Ill. 743 N.E.2d People v. District, Fourth it this sat court in case Since trial to the argument by any required Cargill to follow contrary was without merit. the trial published before
Moreover, any case we are aware Instead, July on Cargill. did not follow this case that court dismissed case, trial court dismissed before the year over provisions of section stated “the First cited District *12 817 limiting exception have not plaintiffs the statute of limitations to who claim, substantially or already voluntarily dismissed the same the same consulting portion requiring physician’s as as the that the name well apply and address indicated on the with full force here.” report, be Zimmerman, 143, App. n.1, 149 N.E.2d Beauchamp v. 359 Ill. 3d 833 (2005). 877, Accordingly, 883 n.1 First District and District Fourth plaintiffs obligation identity were consistent as to a reveal the of to reviewing professionals health-care under 2—622. section concluding, recognize panel recently so we this court Cargill wrongly concluded that the effect of Act 90— assessed Public Society Illinois, 579. See v. & O’Casek Children’s Home Aid 374 Ill. (2007). 507, App. 3d 511-12 The O’Casek court concluded that amend (Pub. through ments to section 2—622 Public Act Act 94— 94—677 (2005 4995)) 677, §330, 25, 4964, August eff. 2005 Illinois Laws made it clear that Public Act 90—579 did not reenact the civil-reform O’Casek, language regarding voluntary App. 374 Ill. 3d dismissals. at distinguishable 508-09. is This case from O’Casek in that it does not 622(a)(2) language involve in section concerning voluntary 2— 622(a)(2) dismissals. The version of section in effect Cargill when 2— was decided did not a 90-day allow to reviewing extension file the professional’s report health-care if plaintiff had voluntarily dismissed (735 622(a)(2) (West the case 2002)), and then refiled it ILCS 5/2 — 622(a)(2) while the version of section effect when O’Casek was 2— decided no language concerning voluntary contains dismissals 622(a)(2)(West 2006)) (effective 2005). 25, ILCS August However, 5/2 — 622(a)(1) the issue in this case is whether required section 2— identify reviewing professional heath-care who authored the professional’s section 2—622 report health-care used defeat defendants’ initial motion to dismiss in March 2005.
Although present case and aspects O’Casek deal with different position section we to clarify regarding need this court’s 2— our earlier in Cargill, rely here, decision which upon we and which disagree the O’Casek incorrectly court concluded was decided. We with Cargill’s analysis. conclusion adhere both to result and To the extent case, that O’Casek is with inconsistent or hereby O’Casek is overruled.
B. by Plaintiffs Claim That the Trial Erred Court
Dismissing the With Prejudice Case argues Plaintiff also that the trial court its abused discretion dismissing disagree. the case with prejudice. We 622(a)(1) Code,
Under attach must report qualified from a stating health-care that he has professional report and has determined in a written
reviewed the medical records filing a ac that a cause exists for cause of reasonable meritorious 622(a)(1) (West 2004). This has that a tion. 735 ILCS court noted 5/2 — (1) knowledgeable must be as the relevant (2) (3) issues, medicine, practice practice or teach in be licensed Irwin, Ingold medical the defendants. v. 302 Ill. specialty the same as A failure to App. 3d 705 N.E.2d 622(g) ILCS grounds file a shall for dismissal. 735 be 5/2 — (West 2004). However, plaintiffs noncompliance with section prejudice. trial with require does not dismiss action N.E.2d Thompson, Cothren v. 356 Ill. *13 Sale, (2005), Inc. v. grounds by overruled on other Vision Point of Haas, 2d 226 Ill. 352 prejudice to an with without is a matter
Whether dismiss action or review, On we consider the within the trial court’s discretion. whether particular unique court the and circumstances of the case took facts determining into account the case should be dismissed before so, the has not reverse the prejudice. with When court done we will 383-84, Ingold, App. 302 Ill. 3d at 705 N.E.2d court’s determination. at 139-40. case, clearly
In record that Lerner was not licensed this the shows report. 2005 Ac practice when he authored the March medicine knowledgeable may Lerner on the cordingly, although have been matter, 2—622 qualified he not to author a section subject relevant was amending not have cured the report, and the defect could been (conclud Ill. 3d at at 141 report. Ingold, App. See N.E.2d of a medical license was a ing plaintiff’s physician’s the lack 2—622 by amending original be defect that could not cured addition, Lerner’s In sworn affidavit based on report). Geleerd’s was Further, day 90-day report. as of March defective profes health-care expired, neither of other two extension position requirements in a that met the sionals author was Moreover, that he admitting instead of to the court of section 2—622. hand, professional on he tried to qualified did have a health-care not qualifications. identity and lack of hide Lerner’s particular these that the trial court considered The record shows reaching in its of case decision to unique circumstances facts and view, only prejudice. not plaintiffs complaint with our dismiss discretion, may the court an abuse of court’s decision not the trial with prejudice. it not dismissed the case its discretion had have abused matter, asking As we commend the trial court a final Gel- questioning Had it been for the court’s probing questions. have been discovered eerd, unlikely that it would ever very it is report did not meet the the March 2005 section 2—622 affidavit and statutory requirements.
IV CONCLUSION stated, judgment. For the reasons we affirm the trial court’s Affirmed.
KNECHT, J., concurs. MYERSCOUGH, part JUSTICE specially concurring in and dis- senting in part: respectfully part.
I concur in I part dissent concur the af- object firmance of the strenuously trial court but ruminations majority attempting to override Cargill. O’Casek resurrect However, agree I legislature clearly the “identity intended retain professional” language.
In Cargill, App. 353 Ill. at 818 N.E.2d at this court noted that Act Public same language regarding contained the identity voluntary the health-care dismissals that had been contained in Pubic Act 89—7. The concluded that Public Act 90—579 resurrected the amendments section 2—622 of the Code as inserted by Public Act 89—7. Cargill, 353 Ill. 3d at at N.E.2d 905. however, O’Casek,
As noted in the majority, more recently, *14 panel legislative another of this court found that the enactments fol lowing Cargill demonstrated that the legislature never reenacted the civil-reform language regarding voluntary dismissals contained in Public Act pre-1995 89—7 but instead continued in effect the earlier 622(a)(2) O’Casek, version of section the Code. Ill. 2— at expressly ruling 512-13. Because O’Casek did not any regard make ing “identity professional” the of the health-care language 622(a)(1), majority’s disagreement herein O’Casek is with at inappropriate best and mere dicta. history
An examination of section demonstrates that, held, as O’Casek reenact legislature never intended to voluntary-dismissal However, language in Public contained Act 89—7. legislature intend language pertaining did to the reenact professional. distinguishes identification of the health-care This fact the instant case from O’Casek. legislative changes: following chart details
The *15 legislature clearly Because the “identity intended to retain the the health-care professional” language, distinguishable this case is O’Casek, from and the majority cannot overrule O’Casek. For reason, I majority dissent insofar as purports to do so.